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. XIV.

CINCINNATI

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

PUBLISHERS

CONTENTS OF VOLUME XIV.

THE CODE OF JUSTINIAN.

SECOND EDITION. (Continued.)

BOOK VI.

(Continued.)

TITLE XXVII. PAGE

CONCERNING THE APPOINTMENT AND SUBSTITUTION OP SLAVES AS NECESSARY HEIRS ........:...................................... 3

TITLE XXVIII. CONCERNING PASSING OVER AND DISINHERITANCE. ................... 6

TITLE XXIX.

CONCERNING THE APPOINTMENT, DISINHERITANCE, AND OMISSION OF POSTHUMOUS HEIRS IN A WILL. ................................ 9

TITLE XXX.

CONCERNING THE RIGHT OF DELIBERATING, AND OF ENTERING UPON OR ACQUIRING AN ESTATE ........................................ 10

TITLE XXXI. CONCERNING THE REJECTION OR REFUSAL TO ACCEPT AN ESTATE ........ 22

TITLE XXXII.

IN WHAT WAY WILLS ARE OPENED, EXAMINED, AND COPIES OF THEM MADE ...................................'.................... 24

TITLE XXXIII.

CONCERNING THE ANNULMENT OF THE EDICT OF THE DIVINE HADRIAN, AND IN WHAT WAY AN APPOINTED HEIR MAY BE PLACED IN POSSESSION OF AN ESTATE ........................................... 25

TITLE XXXIV.

WHERE ANYONE HAS FORBIDDEN OR COMPELLED ANOTHER TO MAKE A WILL ....................................................... 26

TITLE XXXV.

CONCERNING THOSE WHO ARE DEPRIVED OF ESTATES AS BEING UNWORTHY, AND ON THE SYLLANIAN DECREE OF THE SENATE. ........ 27

TITLE XXXVI. CONCERNING CODICILS ............................................ 30

TITLE XXXVII. CONCERNING LEGACIES ............................................ 32

TITLE XXXVIII. CONCERNING THE MEANING OF WORDS AND THINGS. .................. 38

TITLE XXXIX. WHERE PROPERTY LEFT BY WILL is REJECTED. ....................... 41

TITLE XL.

CONCERNING WHAT is REQUIRED OF WIDOWHOOD, AND THE ABROGATION OF THE LAW OF JULIA MISCELLA ................................ 41

TITLE XLI.

CONCERNING PROPERTY MENTIONED IN OR LEFT .BY A WILL OR A CODICIL, UNDER A PENALTY ........................................... 43

TITLE XLII. CONCERNING TRUSTS ............................................. 44

TITLE XLIII.

REGULATIONS WHICH ARE EQUALLY APPLICABLE TO LEGACIES AND TRUSTS, AND CONCERNING THE ABOLITION OF THE ACT OF PLACING THE PARTY INTERESTED IN POSSESSION OF THE PROPERTY BEQUEATHED ................................................... 51

TITLE XLIV.

CONCERNING FALSE STATEMENTS MADE IN THE CASE OF LEGACIES OR TRUSTS ..................................................... 55

TITLE XLV. CONCERNING LEGACIES OR TRUSTS LEFT FOR A SPECIFIC PURPOSE ........ 57

TITLE XLVI.

CONCERNING CONDITIONS INSERTED IN THE BEQUESTS OF LEGACIES, TRUSTS, AND GRANTS OF FREEDOM .............................. 57

TITLE XLVII. CONCERNING THE INTEREST AND THE PROFITS OF LEGACIES AND TRUSTS .. 59

TITLE XLVIII. CONCERNING UNCERTAIN PERSONS. THIS TITLE is LACKING. ........... 60

TITLE XLIX. CONCERNING THE TREBELLIAN DECREE OF THE SENATE ................ 60

TITLE L. ON THE FALCIDIAN LAW ........................................... 64

TITLE LI.

CONCERNING THE ABOLITION OF THE FORFEITURES OF SUCCESSIONS TO THE STATE ...................................................... 69

TITLE LII.

CONCERNING THOSE WHO CAN TRANSMIT AN ESTATE BEFORE THE WILL HAS BEEN OPENED ........................................... 75

TITLE LIII. AT WHAT TIME A RIGHT TO LEGACIES OR TRUSTS VESTS ................ 76

TITLE LIV.

WHEN SECURITY SHOULD BE FURNISHED TO PROVIDE FOR THE PLACING OF LEGATEES OR BENEFICIARIES OF A TRUST IN POSSESSION OF WHAT HAS BEEN BEQUEATHED TO THEM ................................... 77

TITLE LV.

CONCERNING PROPER HEIRS, AND LEGITIMATE CHILDREN AND GRANDCHILDREN, BORN OF A DAUGHTER, WHO ARE ENTITLED TO AN ESTATE AS HEIRS AT LAW ............................................... 79

TITLE LVI. ON THE TERTULLIAN DECREE OF THE SENATE ......................... 81

TITLE LVII. ON THE ORPHITIAN DECREE OF THE SENATE .......................... 85

TITLE LVIII. CONCERNING HEIRS AT LAW ........................................ 89

TITLE LIX. MATTERS COMMON TO SUCCESSIONS. ................................. 96

TITLE LX.

CONCERNING THE ESTATES OF MOTHERS AND OF THOSE IN THE MATERNAL LINE ........................................................ 99

TITLE LXI.

CONCERNING PROPERTY ACQUIRED BY CHILDREN WHILE UNDER THE CONTROL OF THEIR FATHER, EITHER BY MARRIAGE OR IN ANY OTHER MANNER, AND ITS ADMINISTRATION ............................. 101

THE TEXT OF THE CODE ........................................... 105

TITLE LXII.

CONCERNING THE ESTATES OF DECURIONS, MASTERS OF SHIPS, ATTENDANTS OF MILITARY COHORTS, AND EMPLOYEES IN ARSENALS. ........ Ill

BOOK VII.

TITLE I. PAGE

CONCERNING FREEDOM GRANTED BY THE WAND OF THE PRAETOR, AND MANUMISSION CONFERRED IN THE COUNCIL. ...................... 112

TITLE II. CONCERNING TESTAMENTARY MANUMISSION .......................... 113

TITLE III. CONCERNING THE ABOLITION OF THE LEX FUSIA CANINIA. ............. 118

TITLE IV. CONCERNING GRANTS OF FREEDOM BY MEANS OF TRUSTS .............. 118

TITLE V. CONCERNING THE ANNULMENT OF CONDITIONAL GRANTS OF FREEDOM ... 122

TITLE VI.

CONCERNING THE ABOLITION OF LATIN FREEDOM, AND ITS TRANSFERENCE IN CERTAIN WAYS TO THE ENTIRE BODY OF ROMAN CITIZENS. ....... 123

TITLE VII. CONCERNING THE MANUMISSION OF A SLAVE OWNED IN COMMON 127

TITLE Vill.

CONCERNING THE MANUMISSION OF A SLAVE WHO HAS BEEN GIVEN IN PLEDGE ..................................................... 129

TITLE IX. CONCERNING THE MANUMISSION OF SLAVES BELONGING TO THE STATE .... 130

TITLE X. CONCERNING SLAVES MANUMITTED BY OTHERS THAN THEIR MASTERS. ... 131

TITLE XI.

WHO CANNOT MANUMIT SLAVES, AND CONCERNING THE PREVENTION OF MANUMISSION FOR THE PURPOSE OF DEFRAUDING CREDITORS ........ 132

TITLE XII. WHO CANNOT OBTAIN THEIR FREEDOM .............................. 134

TITLE XIII. FOR WHAT REASONS SLAVES CAN RECEIVE THEIR FREEDOM AS A REWARD 134

TITLE XIV. CONCERNING THE MANUMISSION OF FREEBORN PERSONS ................ 135

TITLE XV. GENERAL PROVISIONS WITH REFERENCE TO MANUMISSIONS. ............ 138

TITLE XVI. CONCERNING CASES INVOLVING FREEDOM ............................. 140

TITLE XVII. CONCERNING THE ABOLITION OF LEGAL ASSERTIONS THAT A MAN is FREE 147

TITLE XVIII.

WHAT SLAVES ARE NOT PERMITTED TO DECLARE THAT THEY ARE FREE, AND CONCERNING THE PROPERTY OF THOSE WHO ARE FORBIDDEN TO DO so ....................................................... 148

TITLE XIX. CONCERNING THE ORDER OF JUDICIAL INQUIRIES ....................... 149

TITLE XX. CONCERNING THE DETECTION OF COLLUSION .......................... 151

TITLE XXI.

THE STATUS OF A DECEASED PERSON CANNOT BE BROUGHT IN QUESTION AFTER THE EXPIRATION OF FIVE YEARS .......................... 152

TITLE XXII.

CONCERNING THE PRESCRIPTION OF LONG TIME WHICH is PLEADED IN BEHALF OF AND NOT AGAINST FREEDOM .......................... 154

TITLE XXIII. CONCERNING THE PECULIUM OF HIM WHO HAS OBTAINED His FREEDOM. . 154

TITLE XXIV. CONCERNING THE ABOLITION OF THE CLAUDIAN DECREE OF THE SENATE ... 155

TITLE XXV. CONCERNING THE ABOLITION OF THE MERE CIVIL RIGHT OF ROMANS. ..... 155

TITLE XXVI.

CONCERNING USUCAPTION EITHER IN FAVOR OF THE PURCHASER OR ACQUIRED BY VIRTUE OF THE TRANSACTION ......................... 156

TITLE XXVII. CONCERNING THE USUCAPTION OF PROPERTY WHICH HAS BEEN DONATED 158

TITLE XXVIII. CONCERNING USUCAPTION IN THE CASE OF A DOWRY. .................. 158

TITLE XXIX. CONCERNING USUCAPTION WITH REFERENCE TO AN HEIR. .............. 158

TITLE XXX. GENERAL RULES WITH REFERENCE TO USUCAPTION .................... 159

TITLE XXXI.

CONCERNING THE TRANSFER OF THE RIGHT OF USUCAPTION AND THE ABOLITION OF THE DISTINCTION OF EES MANCIPI AND RES NEC MANCIPI .................................................... IGO

TITLE XXXII. CONCERNING THE ACQUISITION AND RETENTION OF POSSESSION. ........ 161

TITLE XXXIII.

CONCERNING THE PRESCRIPTION OF LONG TIME BASED UPON OCCUPANCY FOR TEN OR TWENTY YEARS ................................... 153

XXXIV.

To WHAT CASES PRESCRIPTION OF LONG TIME DOES NOT APPLY. ....... 167

TITLE XXXV. IN WHAT CASES PRESCRIPTION OF LONG TIME CANNOT BE PLEADED. .... 168

TITLE XXXVI. WHERE PRESCRIPTION is PLEADED AGAINST A CREDITOR ............... 169

TITLE XXXVII. CONCERNING THE PRESCRIPTION OF FORTY YEARS ...................... 170

TITLE XXXVIII.

THE CLAIM TO PROPERTY BELONGING TO THE CROWN, OR TO THAT BELONGING TO THE TEMPLES, SHALL NOT BE BARRED BY PRESCRIPTION 172

TITLE XXXIX. CONCERNING THE PRESCRIPTION OF THIRTY AND FORTY YEARS. ......... 173

TITLE XL.

CONCERNING THE ABOLITION OF THE PRESCRIPTION OF A YEAR AFFECTING CONTRACTS MADE IN ITALY, AND THE DIFFERENT TERMS, EXCEPTIONS, PRESCRIPTIONS, AND INTERRUPTIONS OF THE SAME. ......... 179

TITLE XLI.

CONCERNING ALLUVION, MARSHES, AND PASTURES BROUGHT INTO ANOTHER CONDITION ............................................ 182

TITLE XLII. CONCERNING THE DECISIONS OF PR^TORIAN PREFECTS. ................ 183

TITLE XLIII.

How AND WHEN A JUDGE SHOULD RENDER A DECISION IN THE PRESENCE OF BOTH PARTIES, OR IN THE ABSENCE OF ONE OF THEM ............ 183

TITLE XLIV.

CONCERNING OPINIONS RENDERED WITH REFERENCE TO STATEMENTS

MADE IN A WRITTEN PETITION .................................. 186

TITLE XLV. CONCERNING THE FINAL AND INTERLOCUTORY DECISIONS OF ALL JUDGES 187

TITLE XLVI.

CONCERNING DECISIONS WHICH ARE RENDERED WITHOUT STATING THE EXACT AMOUNT TO BE PAID .................................... 190

TITLE XLVII.

CONCERNING DECISIONS RENDERED FOR DAMAGES. .................... 190

TITLE XLVIII.

WHERE A DECISION HAS BEEN RENDERED BY A JUDGE WHO is SAID NOT TO BE COMPETENT ............................................ 191

TITLE XLIX.

CONCERNING THE PENALTY TO WHICH A JUDGE is LIABLE WHO HAS RENDERED AN IMPROPER DECISION, AND THE PUNISHMENT WHICH MAY BE INFLICTED UPON ANYONE WHO ATTEMPTS TO CORRUPT A JUDGE, OR His ADVERSARY ............................••••••••••••••• 192

TITLE L. A DECISION WHEN ONCE RENDERED CANNOT BE REVOKED. ............. 193

TITLE LI. CONCERNING THE PROFITS AND THE EXPENSES OF LITIGATION ........... 193

TITLE LII. CONCERNING RES JUDICATA ........................•••••••••••••••• 195

TITLE LIII. CONCERNING THE EXECUTION OF JUDGMENT. ......................... 196

TITLE LIV. CONCERNING INTEREST ON A JUDGMENT ............................... 197

TITLE LV. WHERE JUDGMENT is RENDERED AGAINST SEVERAL PERSONS AT ONCE .... 199

TITLE LVI. WHO ARE NOT INJURED BY A JUDGMENT. ............................ 199

TITLE LVII.

NOTICES, LETTERS, PROCLAMATIONS, AND SIGNATURES DO NOT POSSESS THE AUTHORITY OF JUDGMENTS ..................................... 20°

TITLE LVIII. WHERE A JUDGMENT is BASED ON FORGED DOCUMENTS OR FALSE EVIDENCE 201

TITLE LIX. CONCERNING CONFESSIONS ........................................ 202

TITLE LX.

ACTS PERFORMED OR JUDGMENTS RENDERED BETWEEN SOME PERSONS CANNOT PREJUDICE THE RIGHTS OF OTHERS ..............:....... 202

TITLE LXI. PAGE CONCERNING REFERENCES TO THE EMPEROR. ......................... 202

TITLE LXIL

CONCERNING APPEALS AND IMPERIAL DECISIONS. ..................... 203

THE TEXT OP THE CODE ........................................... 205

TITLE LXIII.

CONCERNING DELAYS, AND THE AMENDMENTS OF APPEALS OR REFERENCES TO THE EMPEROR............................................. 214

TITLE LXIV. WHEN IT is NECESSARY TO APPEAL. ................................. 219

TITLE LXV. WHOSE APPEALS SHOULD NOT BE RECEIVED. .......................... 221

TITLE LXVI. WHERE THE APPELLANT DIES WHILE THE APPEAL is PENDING. ......... 223

TITLE LXVII. CONCERNING THOSE WHO DO NOT APPEAL THROUGH FEAR OF THE JUDGE 224

TITLE LXVIII. WHERE ONE OR MORE OF THE PARTIES APPEAL. ....................... 225

TITLE LXIX. WHERE AN APPEAL is TAKEN AGAINST TEMPORARY POSSESSION. ....... 225

TITLE LXX.

No ONE SHALL BE PERMITTED TO APPEAL FOR THE THIRD TIME IN ONE AND THE SAME CASE, OR TO REFUSE TO OBEY THE JUDGMENT OF A COURT WHICH HAS BEEN RENDERED TWICE AND CONFIRMED BY THE DECISION OF A PREFECT ........................................ 226

TITLE LXXI. WHO CAN MAKE AN ASSIGNMENT OF THEIR PROPERTY. ................ 227

TITLE LXXII.

CONCERNING THE SEIZURE AND SALE OF PROPERTY BY AUTHORITY OF COURT, AND THE SEPARATION OF THE SAME ....................... 230

TITLE LXXIII. CONCERNING THE PRIVILEGE OF THE TREASURY ........................ 233

TITLE LXXIV. CONCERNING THE PRIVILEGE OF DOWRY .............................. 234

TITLE LXXV.

CONCERNING THE REVOCATION OF CONTRACTS BY WHICH PROPERTY HAS BEEN ALIENATED FOR THE PURPOSE OF DEFRAUDING CREDITORS. ..... 235

BOOK Vill.

TITLE I. PAGE CONCERNING INTERDICTS .......................................... 236

TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM ...................... 237

TITLE III. CONCERNING THE INTERDICT QUORUM LEGATORUM ..................... 238

TITLE IV. CONCERNING THE INTERDICT UNDE Vi............................... 238

TITLE V.

WHERE THE POSSESSION OF AN ABSENT PERSON is INTERFERED WITH BY FORCE OR IN ANY OTHER WAY ................................. 241

TITLE VI. CONCERNING THE INTERDICT UTI POSSIDETIS ......................... 242

TITLE VII. CONCERNING THE PRODUCTION OF WILLS. ............................ 242

TITLE Vill.

CONCERNING THE PRODUCTION OR INTRODUCTION OF CHILDREN AND FREEMEN IN COURT ............................................... 243

TITLE IX. CONCERNING THE PRECARIOUS AND SALVIAN INTERDICTS. .............. 243

TITLE X. CONCERNING PRIVATE BUILDINGS ................................... 244

TITLE XI.

CONCERNING THE NOTICE PROHIBITING THE ERECTION OF A NEW STRUCTURE ....................................................... 247

TITLE XII. CONCERNING PUBLIC WORKS. ...................................... 248

TITLE XIII.

CONCERNING THE CONTRACTORS OF PUBLIC WORKS AND THE SENATORS OF CITIES ...................................................... 252

TITLE XIV. CONCERNING PLEDGES AND HYPOTHECATIONS ......................... 253

TITLE XV.

CONCERNING CASES IN WHICH PROPERTY is TACITLY PLEDGED OR HYPOTHECATED ................................................. 251

TITLE XVI. PAGE WHERE PROPERTY BELONGING TO ANOTHER is PLEDGED. ............... 260

TITLE XVII.

WHAT PROPERTY WHEN PLEDGED CAN OR CANNOT BE RENDERED LIABLE FOR A DEBT, AND IN WHAT WAY A PLEDGE is GIVEN ............... 262

CONSTITUTION OF FREDERICK ....................................... 263

TITLE XVIII. WHO ARE PREFERRED CREDITORS WHEN PROPERTY is PLEDGED. ......... 264

TITLE XIX. CONCERNING THOSE WHO SUCCEED TO THE PLACES OF PRIOR CREDITORS .. 269

TITLE XX. WHERE A PRIOR CREDITOR SELLS THE PROPERTY PLEDGED. .............. 270

TITLE XXI. WHERE PROPERTY OWNED IN COMMON is PLEDGED. ................... 270

TITLE XXII.

CONCERNING THE PR^TORIAN PLEDGE AND ITS APPLICATION EVEN TO THE ACTIONS OF DEBTORS .......................................... 271

TITLE XXIII.

WHERE PROPERTY is SEIZED IN PURSUANCE OF A JUDGMENT. ............ 271

TITLE XXIV. WHERE PROPERTY is PLEDGED A SECOND TIME ........................ 272

TITLE XXV.

CONCERNING THE OFFSPRING OF PROPERTY WHICH HAS BEEN PLEDGED AND ALL OTHER INCREASE OF THE SAME. ........................ 273

TITLE XXVI. CONCERNING THE RELEASE OF PLEDGES .............................. 273

TITLE XXVII.

PLEDGES CAN EVEN BE HELD TO SECURE THE PAYMENT OF MONEY EVIDENCED BY A WRITTEN INSTRUMENT ............................. 275

TITLE XXVIII. CONCERNING THE SALE OF PLEDGES ................................. 276

TITLE XXIX. A DEBTOR CANNOT PREVENT THE SALE OF THE PROPERTY PLEDGED ...... 280

TITLE XXX.

WHERE PROCEEDINGS ARE INSTITUTED ON ACCOUNT OF THE SALE OF A PLEDGE ..................................................... 280

TITLE XXXI. PAGE CONCERNING THE RELEASE OF PLEDGES ............................. 281

TITLE XXXII.

WHERE ONE OF SEVERAL HEIRS OF THE DEBTOR OR CREDITOR EITHER PAYS OR RECEIVES His SHARE OF THE DEBT ........................... 282

TITLE XXXIII.

WHERE THE PAYMENT OF MONEY is NOT MADE AFTER A CONTRACT FOR THE PLEDGING OF PROPERTY HAS BEEN ENTERED INTO. ............ 282

TITLE XXXIV.

CONCERNING THE RIGHT TO OBTAIN OWNERSHIP OF THE PROPERTY OF A DEBTOR ..................................................... 283

TITLE XXXV.

CONCERNING CONTRACTS RELATING TO PLEDGES AND THE ABOLITION OF THE LAW OF CONDITIONAL AVOIDANCE WITH REFERENCE TO PLEDGES 285

TITLE XXXVI. CONCERNING EXCEPTIONS OR PRESCRIPTIONS. ......................... 286

TITLE XXXVII. CONCERNING DISPUTED PROPERTY .................................. 288

TITLE XXXVIII. CONCERNING THE CONTRACTION OF A STIPULATION ....... ............. 290

TITLE XXXIX. CONCERNING STIPULATIONS WHICH ARE VOID. ........................ 294

TITLE XL. WHERE Two OR MORE PERSONS STIPULATE AND PROMISE. ............... 296

TITLE XLI. CONCERNING SURETIES AND MANDATORS. ............................. 297

TITLE XLII. CONCERNING NOVATIONS AND ASSIGNMENTS. ......................... 304

TITLE XLIII. CONCERNING PAYMENTS AND RELEASES. ................ ............ 306

TITLE XLIV. CONCERNING VERBAL RELEASES .................................... 310

TITLE XLV. CONCERNING EVICTIONS ........................................... 311

TITLE XLVI.

A CREDITOR is NOT RESPONSIBLE FOR EVICTION. ...................... 317

TITLE XLVII. CONCERNING PATERNAL CONTROL ................................... 318

TITLE XLVIII. PAGE CONCERNING ADOPTIONS ........................................... 320

TITLE XLIX. CONCERNING THE EMANCIPATION OF CHILDREN. ...................... 324

TITLE L. CONCERNING UNGRATEFUL CHILDREN ............................... 326

TITLE LI.

CONCERNING PERSONS WHO RETURN BY THE RIGHT OF POSTLIMINIUM, AND THE RANSOM OF CAPTIVES FROM THE ENEMY. ................ 326

TITLE LII.

CONCERNING THE ABANDONMENT OF CHILDREN BOTH FREE AND SLAVE, AND CONCERNING THOSE WHO RECEIVED NEWBORN CHILDREN FOR THE PURPOSE OF REARING THEM ................................ 332

TITLE LIII. WHAT is MEANT BY LONG-CONTINUED CUSTOM ........................ 333

TITLE LIV. CONCERNING DONATIONS .......................................... 334

THE TEXT OF THE CODE............................................ 342

TITLE LV.

CONCERNING DONATIONS WHICH ARE MADE PROVISIONALLY OR UNDER A CONDITION, OR TO TAKE PLACE AT A CERTAIN TIME. ............... 346

TITLE LVI. CONCERNING THE REVOCATION OF DONATIONS. ........................ 347

TITLE LVII. CONCERNING DONATIONS CAUSA MORTIS ............................... 350

TITLE LVIII.

CONCERNING THE ABOLITION OF THE PENALTIES OF CELIBACY AND WIDOW-ERHOOD AND THE ABROGATION OF TITHES......................... 351

TITLE LIX. CONCERNING THE RIGHT OF CHILDREN. .............................. 352

BOOK IX.

TITLE I. CONCERNING THOSE WHO CANNOT BRING AN ACCUSATION .............. 352

TITLE II. CONCERNING ACCUSATIONS AND DENUNCIATIONS IN WRITING ........... 358

TITLE III. PAGE

CONCERNING THE PRODUCTION AND TRANSFER OF PERSONS ACCUSED OF ^

CRIME .........••••••••••••••••••••••••"'"'""'"'"'

TITLE IV. CONCERNING THE CUSTODY OF ACCUSED PERSONS. ..................... 363

TITLE V.

CONCERNING THE PROHIBITION OF PRIVATE PRISONS. .................. 365

THE CODE OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.

SECOND EDITION. (Continued.)

BOOK VI.

(Continued.)

TITLE XXVII.

CONCERNING THE APPOINTMENT AND SUBSTITUTION OF SLAVES AS NECESSARY HEIRS.

1. The Emperor Antoninus to Aufidius and Others.

If, notwithstanding you were slaves, you were appointed heirs under the designation of freedmen, your appointment as such should be liberally interpreted, just as if you had been liberated and appointed heirs at the same time. This does not apply to a legacy.

Given on the seventh of the Kalends of March, during the Consulate of Priscus and Apollinaris, 170.

2. The Emperor Pertinax to Lucretius.

A person who is not solvent can appoint a necessary heir, even if he defrauds his creditors. If, however, you were given in pledge and still remain in the same condition, you cannot become free and a necessary heir of your master, who was a debtor, and insolvent.

Published on the eleventh of the Kalends of April, during the Consulate of Falco and Clarus, 194.

3. The Emperors Diocletian and Maximian, and the Caesars, to Felix.

As your guardian married your female slave, and afterwards appointed her his heir, he could not, by an act of this kind, deprive you of your title to her, and you will be legally empowered to order her to enter upon the estate for the purpose of acquiring it.

Given on the sixteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors, 193.

4. The Emperor Justinian to Julian, Prsetorian Prefect.

A certain man appointed his son, who had not yet reached the age of puberty, his heir, and in positive terms bequeathed his slave his freedom. He then, by a pupillary substitution, substituted the said slave for his son, in the second degree, without granting him his freedom, and the question arose among persons learned in the law

whether, by a substitution of this kind, the slave would become the necessary heir of the minor. The reason for this dispute arose from the ancient rule, by which it was universally held that such a slave becomes the necessary heir of his master, when the estate and his liberty are left to him at the same time.

In the present instance, however, the grant of freedom and the substitution are not combined in the same act, but take place at different dates. Hence, for the purpose of deciding this controversy, it appeared to Us extraordinary for anyone to think that the intention of the testator should be thwarted by a subtle distinction of this kind, especially where the testator is a master, and to think that the slave does not become his necessary heir, but that he gave him the right to obtain his freedom and reject the estate, and in this way oppose his will. Anyone who attempts to do this should be punished. Therefore the slave should become free during the lifetime of the minor, because this was the intention of the testator, and if the minor should die, the slave will become his necessary heir, because the testator desired that this should be the case.

Given at Constantinople, on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.

5. The Same to John, Prsetorian Prefect.

When anyone makes a will and appoints two heirs, one of them to a certain portion of his estate, and makes a slave (mentioning him by name) heir to the remaining portion without giving him his freedom, and afterwards leaves said slave to another person, or, after the appointment of the slave as his heir, bequeaths him by a legacy, and then appoints him his heir without giving him his freedom, a doubt arose whether a legacy or an appointment of this kind could have any force in law, and as to who would be entitled to the legacy or the appointment. There was some ground for doubt, because he appointed the slave, who still belonged to'him, his heir without his freedom, and such a dispute arose among the ancient authorities that it seemed scarcely possible to settle it. Leaving aside this ancient controversy, We have discovered another way of disposing of the matter, as We always follow the indications of the intention of the testator. Therefore, as We find it has been established by Our law that if anyone should appoint his slave guardian of his children, without bestowing upon him his freedom, by the mere appointment of guardianship he is presumed to have been granted his freedom on account of his wards, for which reason We have considered that it is only for the benefit of the estate, as well as more humane and in favor of liberty, that if anyone should appoint his slave his heir without his freedom, he, through that very fact, becomes a Roman citizen. Relying upon this conclusion, We hold that the slave cannot be acquired, and that the protracted and inexplicable discussions of the ancients are not applicable. For it should not be presumed that persons are so destitute of understanding as to appoint their own slaves as heirs without granting them their freedom, and afterwards by a legacy bequeath the same slaves to others.

(1) But the ancient authorities raised .another doubt, by stating that if anyone should appoint his slave his heir to a part of his estate by his will, without granting him his freedom, and then should grant him his freedom by a codicil, whether such an appointment would be valid, and whether he would become the heir as well as be free, lest it might appear that the estate was granted by the codicil, as an estate could not under the ancient rules be left in this way.

We, however, being inclined to a liberal and beneficent interpretation in a disposition of this kind, even though it may have been inserted in a codicil, order that freedom and the estate shall be granted at the same time to slaves, in order to render them grateful to Us that they do not remain in servitude, but become free, and heirs. Our benevolence is exerted in their behalf to such an extent that, although their freedom may not have been granted to them either by a will or a codicil, nevertheless, when an estate is left to slaves it should be considered that they have obtained their liberty.

(2) It should, however, be observed that when a legacy or a trust is bequeathed to slaves without their freedom, they will remain in servitude; but it is to be hoped that heirs do not exist who are so wicked as to thwart the liberality of the testator, and fraudulently deprive the slaves of the remuneration to which they are entitled, and that they will not be ignored, even though the bequest was made to them while still in servitude.

(3) This legal regulation of Ours is also extended to another ambiguous case; for if anyone should, by the principal part of his will, bequeath a slave to another person, and then by pupillary substitution substitute the said slave for his son without granting him his liberty, the question arose whether a substitution of this kind would be valid, and if it would be acquired by the legatee through the slave who was bequeathed after the death of the minor; or whether such a substitution would be void because it was made with reference to the slave without bestowing his freedom upon him.

The better opinion seems to Us to be to hold that the title to him was not immediately acquired by the legatee, but that the substitution remains in suspense, and if the minor should die, there will be ground for the substitution, and the slave will at once become free and the heir. If, however, there should be no ground for the substitution and the minor should reach the age of puberty, then the title to the slave will pass to the legatee. For, just as the ancient authorities, when substitution was made at the same time with the grant of freedom, came to the conclusion that the grant of freedom should remain in abeyance, and the slave should be considered entitled to it under a condition, so, by Our interpretation, where the grant of freedom does not accompany the substitution, the slave becomes free and the heir of the minor.

Given at Constantinople, on the second of the Kalends of May, after the fifth Consulate of Lampadius and Orestes, 531.

6. The Same to John, Praetorian Prefect.

The decision which We have just rendered, declaring that a slave appointed heir by his master without the grant of freedom must be

considered free, shall remain undisputed; and if anyone should absolutely appoint his slave his heir, but grant him his liberty under a condition, and the condition is such that it can be complied with by the slave, and he should be guilty of negligence and fail to fulfill it, he, through his own fault, shall forfeit both his freedom and the estate.

Where, however, the condition was accidental, and fails on account of the vicissitudes of fortune, then, on the ground of humanity, the slave will undoubtedly be entitled to his freedom, but the estate, if it is solvent, shall go to those legally entitled to it, if no substitute was appointed. But, if it should not be solvent, and the slave should have been appointed a necessary heir, he shall obtain both his liberty and the estate at the same time, for he will then be free and a necessary heir, not only by the ruling of the ancient authorities, but also in accordance with Our decision.

Given at Constantinople, on the second of the Kalends of August, after the fifth Consulate of Lampadius and Orestes, 531.

TITLE XXVIII. CONCERNING PASSING OVER AND DISINHERITANCE.

1. The Emperor Antoninus to Favianus.

As a disinheritance clause should be inserted in the will after all the appointments of heirs, if the testator should add that his son is disinherited in all the degrees of succession, there is no doubt that the requirements of the law will be satisfied. And, indeed, if he did not add this clause, it would still be apparent that this was his intention, if he mentioned the disinheritance in general terms, and the testament will be considered to have been legally executed. Therefore, if the head of a family should disinherit his son after having appointed his sons his heirs, and substituted them for one another, he must be under- • stood to have made the disinheritance with reference to both degrees; for the same heirs having been appointed, no good reason can be advanced why the testator should have intended to apply the disinheritance only to the last case.

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

2. The Emperor Alexander to Heraclida.

If your grandfather appointed your father and your step-mother heirs to equal portions of his estate but did not disinherit you by name, although you were under your father's control at the time, and your father died during the lifetime of your grandfather, you will have a right to succeed to your father, notwithstanding the provisions of the Velleian Law, for you have broken the will of your grandfather and his entire estate will belong to you.

Published on the sixth of the Ides of April, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

3. The Emperor Justinian to John, Prsetorian Prefect.

Where anyone disinherits his own son, as follows, "Let So-and-So, my son, have no share of my estate," a son under the construction of a clause of this kind is understood not to have been passed over, but to have been disinherited. For where the intention of the testator is perfectly clear, the interpretation of the words is never important enough to prevail over it.

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

4. The Same Emperor to John, Prsetorian Prefect.

By the present law, We correct the greatest defect to be found in the legal enactments of the ancients, which held that different rules should be observed in the testamentary disposition of the estates of parents, so far as males and females were concerned, while both sexes enjoyed the same rights under an intestate succession. They decided that a son should be disinherited by a certain form of words, and a daughter by another, and in some instances they introduced the Civil, and in others the praetorian law, in the case of grandchildren.

Where a son was passed over, he either annulled the will under the law, or he obtained praetorian possession of the entire estate contrary to the testamentary provisions. A daughter, however, who was passed over, was entitled to the right of accrual by the ancient law, so that at the same moment that the will of her father was set aside with reference to a certain portion of the estate, the right of accrual vested, and she herself was considered as included among the legatees; and, moreover, under prsetorian law she was entitled to complete possession of the property of the estate contrary to the terms of the will.

A constitution of the Great Antoninus provided that under praetorian law she could only take what she was entitled to by the right of accrual. Jurists who established such distinctions as those above mentioned appear as accusers of Nature for not having solely produced males, so that those from whom they spring should not have been created.

In order to remedy this, We follow in the path of our ancestors, who clearly appear to have entertained the same idea, for We know that in former times it was permitted to include both sons and daughters, and all others, among those disinherited in general terms.

The centumvirs afterwards made another distinction, and from their injustice a second defect arose which has been brought to Our knowledge through the works of Ulpianus, which he composed on the Edict of the Praetor, and those of Tribonian, Our most illustrious Quaestor, and other eminent jurisconsults. The last resort of children who have been passed over is the complaint of inofficiousness in a will, and as a daughter could not have recourse to it, if she were passed over, her position was worse than if she had been disinherited. For since a daughter who was passed over would receive half of the estate either through prsetorian possession contrary to the provisions of the will, or by the right of accrual, and she was compelled to contribute

to the payment of all legacies up to the amount of three-quarters of her share, she would, in fact, only be entitled to a twelfth and a half of the estate. If, however, she were disinherited, a fourth part of the entire estate must, by all means, have been given to her; and hence she whom her father thought worthy of being excluded from participation in his estate would receive more than a daughter whom he silently passed over in the appointment of his heirs.

And if, in accordance with the terms of Our Constitution which We have promulgated with reference to the supplementing of the fourth part, the deficiency should have been made up, in like manner, the deficiency of the disinherited daughter, so far as the fourth part of her share of the estate was concerned, still existed, and thus the defect remained in existence and was not corrected by Our Constitution. Therefore, We order, as in the succession of parents which passes by intestacy, both males and females shall stand upon an equal footing; that females shall be benefited by the terms of wills; that specific disinheritances shall be stated in identical language; and that a daughter shall have praetorian possession of an estate contrary to the provisions of the will in the same manner as a son, who is his own master or emancipated, is entitled to; so that, if passed over, she can cause the will to be set aside by law in the same way as an emancipated son, or one who is independent, whether he causes the will to be annulled by process of law, or obtains praetorian possession of the estate in contravention of its terms. This rule shall apply not only to daughters, but also to grandsons and granddaughters, and We decree that it shall be observed with reference to other descendants, provided they are derived from males.

But, for the reason that still another defect has arisen under the pretext of a difference, and one set of rules is observed with reference to the disinheritance of posthumous children, and another concerning those already born, as it was necessary for a posthumous female child to be disinherited with the others, and to be benefited by a legacy, but a daughter already born was not entitled to the legacy, We have extended this principle to the utmost by means of a very brief additional clause, directing that the same rule shall apply to the disinheritance of posthumous children, either of the male or female sex, which We have already established with reference to other sons and daughters; that is to say, that they must be disinherited by name, so that, in the case of posthumous children, they shall be specifically designated.

Given at Constantinople, during the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531.

Extract from Novel 113, Chapter HI. Latin Text.

A parent is not allowed to disinherit or pass over any of his children, unless the child is proved to have been ungrateful, and the testator specifically mentions the acts of ingratitude in his will. Fourteen kinds of ingratitude are enumerated by a new constitution.

Extract from the Same Novel. Latin Text.

A will is void only with reference to the appointment of heirs, where disinheritance or the passing over of other heirs is involved. The other testamentary provisions remain unaltered.

TITLE XXIX.

CONCERNING THE APPOINTMENT, DISINHERITANCE, AND OMISSION OF POSTHUMOUS HEIRS IN A WILL.

1. The Emperor Antoninus to Brutatius.

If, after having made his will by which the testator omitted all mention of his posthumous children, a son or daughter should be born to him, he is considered to have died intestate, as the will is broken by the birth of a posthumous child of either sex, who was not mentioned therein. It is a well-established legal principle that nothing is due, or can be demanded under the terms of a will which has been broken.

Given on the fourth of the Kalends of July, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

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

The will of a husband is not annulled by a miscarriage of his wife; but it is a perfectly clear rule of law that, when a posthumous child has been passed over, the will is broken and cannot be renewed, even if the child should die immediately after birth.

Given on the twelfth of the Kalends of March, during the Consulate of the Caesars.

3. The Emperor Justinian to John, Prsetorian Prefect.

We now decide a matter which has been the subject of controversy among the ancients. Therefore, while an unborn child, who was passed over in its father's will, became the heir of its father when it came into the world, provided no other child had preceded it, and by its birth broke the will; where a posthumous child, having been born, died without uttering a cry, it was doubted if such a child could break the will by its birth; and the minds of the ancient authorities were at a loss to determine what opinion should be rendered with reference to the will of the father.

The Sabinians held that if the child was born alive, and did not utter a cry it broke the will; but it is evident that if it was born dumb it could not do so. We also adopt this opinion, and order that when a child is born alive, even though it should immediately die, or perish while in the hands of the midwife, the testament will, nevertheless, be broken. It is, however, absolutely necessary for it to come into the world alive, and not have the shape of a monster, or be horribly deformed.

Given at Constantinople, on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.

4. The Same Emperor to John, Prsstorian Prefect.

Where a man, when making his will, used the following language, "If a son or a daughter should be born to me, within the term of ten months after my death, he or she shall be my heir," or if he wrote as follows, "Let my son or my daughter, who may be born within ten months after my death, be my heir," a dispute arose among the ancient interpreters of the law whether the said posthumous heir should be considered as not having been included in the will, and to have broken it. Hence, as We have promulgated many laws for the purpose of aiding the intention of testators, We, for the purpose of deciding this question, now direct that a will shall not be considered as having been broken by the use of either of these forms of expression; but if a son or a daughter should be born within ten continuous months from the death of the testator, or during his lifetime, his will shall remain unaltered, in order that he who did not pass over his children in his will may not suffer the penalty for having done so.

Given at Constantinople, on the twelfth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXX.

CONCERNING THE RIGHT OF DELIBERATING,1 AND OP ENTERING UPON OR ACQUIRING AN ESTATE.

1. The Emperor Antoninus to Titia.

If, having been emancipated by your father, you did not take possession of his estate after his death, you need be under no apprehensions that you will be obliged to do so, because you manumitted some of his

1 From the right of deliberation as to the acceptance or rejection of an estate, accorded to heirs, is probably derived the family council, which, utterly inconsistent with the institution of the patria potestas, and invested with a quasi judicial authority, was called to settle domestic differences; to provide for the appointment and discharge of guardians; to sanction marriages and arrange for dowries and ante-nuptial donations; to authorize the encumbrance of property; and to perform many other acts having reference to the welfare and protection of minors, and especially of orphans. This tribunal is provided for by the codes of most European nations, and as well as by that of Louisiana. It is ordinarily composed of relatives, connections, or friends of the minor and a magistrate of the district, who convokes it, and presides. Application for the organization of a family council may be made by anyone related by either blood, marriage, or attachment to the minor whose interests are involved. Those who are summoned to attend are liable to a fine if they absent themselves; and in case of injury to the minor resulting from the malice or negligence of the members, the latter will be responsible. (Code Civil de France, Arts. 405, 409, Codigo Civil de Espana, Arts. 295-313, Codigo Civil Portuguez, Arts. 220, 226, Codice Civile de Regna d'ltalia, Arts. 47, 235, 237, 255, 260, 327, 334, Burgerlich.es Gesetzbuch, Arts. 1858-1881.)

An assemblage of this kind is called a "family meeting" in Louisiana, and the appointments are made by a judge, who designates a justice of the peace before whom it shall be held. Those who participate, five in number—preferably the eldest of the next of kin—are sworn to give their advice to the best of their

slaves without authority, and sold certain property and other slaves for the purpose of paying the funeral expenses.

Published on the Kalends of July, during the Consulate of Messala and Sabinus, 215.

2. The Emperor Alexander to the Soldier Florentinus.

As you state that you have paid a certain debt of your father's, there is no doubt that you should be considered to have accepted his estate, so far as your share of it is concerned.

Published on the sixth of the Ides of February, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 224.

3. The Emperor Gordian to the Soldier Florentinus.

If your brother, at the time of his death, was under the control of his father, whether he was appointed heir to his entire estate, and would have been the heir even if the will had not been opened, or whether he was the heir only to a portion of the same, he will, none the less, become at once the proper heir of his father; and therefore, for the reason that he died a few days after the latter, you cannot succeed to the estate of your brother. If, however, he was his own master, and died before entering upon the estate, you are the lawful heir of your brother, whether you obtained possession of the estate within the time prescribed by the Edict, or whether the property belonging to it is unjustly retained by someone else, the Governor of the province will cause restitution to be made to you.

Published on the fifteenth of the Kalends of September, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

4. The Emperor Decius to Athenais.

It has frequently been stated in rescripts that where the son of a family has obtained an inheritance, and his father has acted in behalf of the heir with his consent, the legal formalities shall be considered to have been complied with.

Published on the tenth of the Kalends of March, during the Consulate of Decius and Gratus, 251.

5. The Emperors Valerian and Gallienus to Paulus.

A ward can acquire an estate through his guardian acting as heir, but the consent of the latter will be necessary; for if the guardian should do anything without his knowledge, he cannot acquire the estate for him.

Published on the sixteenth of the Kalends of July, during the Consulate of Valerian, Consul for the fourth time, and Gallienus, Consul for the third time, 258.

knowledge. The official before whom the meeting is held is required to draw up a report of the proceedings, sign it, and cause those who attend also to attach their "signatures. A copy is given to the latter, who must have it published. (Civil Code of Louisiana, Arts. 305-311.)—ED.

6. The Emperors Diocletian and Maximian to Philip/pa.

If your grandmother appointed your father her heir to two-twelfths of her estate, your father will become her heir solely by the disclosure of her intention. Therefore, if she stated in her will that you were to receive the said two-twelfths, you can obtain possession of the amount by applying to the Governor of the province.

Published on the sixteenth of the Kalends of August, during the Consulate of the above-mentioned Emperors, 290.

7. The Same Emperors and Csesars to Eusobinus.

As you allege that your sister died before she knew that any of the estate of her brother had been left to her, it is perfectly clear and evident that the estate of the deceased could not be transmitted to her heirs, before she herself performed some act as heir, or obtained prse-torian possession of the property.

Published during the Kalends of May, during the Consulate of the above-mentioned Emperors.

8. The Same Emperors and Csesars to Claudius.

Although the proper heirs did not immediately busy themselves with the property of the estate of their father, still, if they were ignorant that it was left to them, they_cannot be excluded by prescription of long time from claiming it according to law.

Ordered on the seventeenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

9. The Same Emperors and Caesars to Plato.

If, by the properly executed will of your former curator, or on the ground of intestacy, you have obtained legal succession of his estate, in this instance he who did not reject it will be permitted to enter upon the same. Therefore, the Governor of the province, having been applied to, should interrogate those who are the heirs, and have not yet bound themselves, as to whether they will accept the estate, or not; and if they demand time for deliberation, he shall grant it to them as he thinks best.

Ordered on the sixteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

10. The Same Emperors and Csesars to Sabina.

If, having passed the age of twenty-five years, you have interfered with the property of your father's estate, the insolvency of your father will not excuse you, nor will the violence of your brother who has appropriated your share, or suppressed the will, release you from the demands of the creditors, who have a right, under the Civil Law, to sue you for your hereditary share of the estate.

Ordered on the sixteenth of the Kalends of January, during the Consulate of the Csesars.

11. The Same Emperors and Cxsars to Philumena.

Your father, under whose control you were, can not, against your consent, accept an estate which has been legally left to you, nor can he confer freedom upon the slaves belonging to the same by manumitting them.

Ordered on the sixth of the Ides of February, during the Consulate of the Csesars.

12. The Same Emperors and Csesars to Antony.

There is no doubt that a child, who has arrived at the age of puberty, by accepting possession of the property of an estate after it has been left to him, acts in the capacity of heir.

Ordered on the third of the Kalends of December, during the Consulate of the Csesars.

13. The Same Emperors and Csesars to Sclepolis.

It is an established rule of law that a proper heir can obtain the estate of his father by rejecting prsetorian possession of the same.

Ordered at Nicomedia, on the third of the Ides of December, during the Consulate of the Csesars.

14. The Same Emperors and C&sars to Flavia.

If your brother was the legal successor of your sister, under both the Civil and praetorian law, even though it cannot be proved that he was in possession of the property of the estate, he, nevertheless, becomes the heir, and can institute proceedings against those who are in possession.

Ordered at Nicomedia, on the twelfth of the Kalends of January, during the Consulate of the Caesars.

15. The Emperor Constantius to Leontius, Count of the East.

There is no doubt that if a son should become his own master before he accepts an estate by order of his father, he can voluntarily claim the estate for himself.

Given on the seventh of the Kalends of April, during the Consulate of Limeneus and Catulinus, 349.

16. The Emperors Arcadius and Honorius to Annodius.

No one can be compelled, against his will, to purchase anything, to accept a donation, or to enter upon an estate which is onerous.

Given on the sixth of the Kalends of January, during the Consulate of Olybrius and Probinus, 295.

17. The Emperors Arcadius, Honorius, and Theodosius to Anthe-mius, Prsetorian Prefect.

We decree by this law that the vain formality of declaring that an estate is accepted is absolutely abolished.

Given at Constantinople, on the fifth of the Kalends of April, during the Consulate of Honorius, Consul for the seventh time, and Theodosius, 307.

18. The Emperors Theodosius and Valentinian to the Senate.

Where an estate is left to an infant, that is a child under the age of seven years, who is still under the control of its grandfather or great-grandfather, or where it becomes the heir at law of its mother or of anyone in the descending line of the latter, or of any other person whomsoever, the relative having charge of it shall be permitted to accept the estate, or praetorian possession of the same, in the name of the said child.

(1) If the said relative should fail to do this, and the infant should die under the above-mentioned age, the surviving relative can then obtain the entire estate by paternal right, no matter by what succession it descended to the said infant, just as if it had been acquired by the latter.

(2) Where, however, the relative is not living, and some other person has become, or has been appointed guardian of the infant after the death of said relative, the guardian can, while the child is still in the age of infancy, accept the estate in its name, whether it became entitled to it during the lifetime of its parents, or after his death; or he can demand prsetorian possession of the property, and in this manner acquire the estate for the said infant.

(3) But when there is no guardian, or if there is one and he should neglect to do these things, and the child should die in infancy, all the estates to which he had been entitled but had not accepted are understood to be in the same condition as if they had never been transmitted to him, and then they will pass to those persons who would have been called to the succession, if the infant had not been entitled to the same. These rules which we have established with reference to an infant under the control of its parents will also apply if the said infant should, under any circumstances, be ascertained to be his own master.

(4) If, however, the said minor has passed the age of seven years, and on account of the death of his father was under the care of a guardian, and died before reaching the age of puberty, We order that the regulations contained in the ancient laws shall prevail; and there can be no doubt that the minor, after having attained the age of seven years, can himself enter upon the estate and demand prsetorian possession of the same with the consent of his relative if he is still under his control, or by the authority of his guardian if he is independent; or where he has no guardian, he can appear before the Praetor and obtain this right in pursuance of his decree.

Given at Ravenna, on the sixth of the Ides of November, during the Consulate of Theodosius, Consul for the twelfth time, and Valentinian, Consul for the second time, 426.

19. The Emperor Justinian to Demosthenes, Prsetorian Prefect.

As We have found in the ancient laws, and especially in the Questions of Julius Paulus, that sons under paternal control who die while deliberating whether they will accept the estate of their father or not, can transmit the same to their own posterity, together with other privileges to which persons of this kind are entitled, We hereby declare

that this right of deliberation shall be granted to all their successors, whether they are cognates or strangers. Therefore, We order that when anyone is called to a succession either under a will, or as heir at law, he shall be entitled to deliberate, and if he has not done so, and has not rejected the estate, so that he appears to be deliberating on this account, and if he has performed no act which may indicate his acceptance, or his conduct as an heir, he can transmit this right of deliberation to his successors; provided, however, that the said transmission shall be terminated within the period of one year after the estate could have been entered upon. And, indeed, if anyone, knowing that he is entitled to an estate either as heir at law, or under the terms of the will, should, without having requested time for deliberation, die within a year, this right shall descend to his heirs, if it is exercised within the prescribed period. For if, after the will has been recorded, or after the heir kn,ows that he has been called to the succession either on the ground of intestacy or under the terms of the will, or under any other title, he should allow the term of a year to elapse without doing anything to manifest his intention of either accepting or rejecting the estate, he, together with his successors, shall be deprived of this privilege.

If, however, he should die within a year, he undoubtedly will leave to his successors the right to decide as to the acceptance of the estate during the unexpired time. When this has elapsed, however, neither he nor his heirs will have any claim to the possession of the estate.

Read in the New Consistory of the Palace of Justinian.

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

20. The Same Emperor to John, Prsetorian Prefect.

Where a testator, having made a will, appointed an heir to certain shares of his estate, and afterwards by the same will appointed the said person heir to other shares of no matter what amount, and then, a third time, left him a certain number of shares of the same estate; the heir, having accepted his appointment to one or more of the shares, and having decided that one or more of the others should be rejected by him, the question arose among the ancient authorities whether he should be permitted to do this.

In like manner, when a testator appointed his son, who was under the age of puberty, his heir to a portion of his estate, and a certain stranger to the remaining portion, and made a pupillary substitution of the latter, and the testator afterwards died, and the minor became the heir .of his father, and the stranger entered upon the estate, and subsequently the minor died before reaching the age of puberty, it was doubted whether the pupillary substitution would take effect. The substitute being unwilling to accept the said share of the estate, the question also arose whether the testamentary heir could reject the pupillary substitution.

We think that both of these doubts should be removed by Us at the same time; hence, in the case of the appointment of the heir, or in

that of pupillary substitution, in order that everything may be accepted or rejected, We have decided that the necessity is imposed upon the heir who is especially appointed to accept either one or both parts of the estate, and that the pupillary substitution should also either be accepted or rejected.

Given at Constantinople, on the day before the Kalends of May, after the fifth Consulate of Lampadius and Orestes, 531.

21. The Same Emperor to John, Praetorian Prefect. Where a testator appointed as his heir a person who had a contest in court with a third party with reference to his status, and who claimed him as a slave, and he who alleged that he was his master ordered him to accept the estate, in order that the acquisition of the same might be obtained through his agency, and the latter refused to obey him as his master, a doubt arose among the ancient authorities whether any penalty should be inflicted for insolence of this kind. They held diiferent opinions on this point, and We, desiring to dispose of this discord, direct that the question should be decided in such a way that a nice distinction may be established in the case. For if the appointment was made in the following terms, "I appoint So-and-So, the slave of So-and-So, my heir," for the reason that it is perfectly clear that the appointment was made with reference to the master, it will, by all means, be necessary for the slave to be compelled by a competent judge to enter upon the estate, and acquire it for his alleged master; and if he should afterwards be declared to be free, he will not be subjected to any injury on this account, but all loss or gain will be sustained or enjoyed by the person who attempted to reduce him to servitude; and all actions having reference to the estate, both for and against him, will be refused, and his rights will not be prejudiced in any way for this reason.

If, however, he should be appointed heir as one who is free, without any mention of a master or a slave being made in his appointment, then, under no circumstances, can he be compelled to accept the estate, nor shall unrestricted choice be denied him, but the disposition of the estate will depend upon his condition, and will remain in abeyance till a decision is rendered, whether he be plaintiff or defendant in the case; so if he should be decided to be a slave, he will then acquire the estate for his master, but if he is found to be free, he himself will obtain it if he should desire to do so.

Given at Constantinople, on the second of the Kalends of May, after the fifth Consulate of Lampadius and Orestes.

22. The Same Emperor to the Senate.

We know that two constitutions have already been promulgated by Our authority, one having reference to those who thought they should deliberate with reference to the acceptance of estates which had been left to them, and the other concerning the appearance of unexpected debts, and the uncertain result to which heirs are subjected by the discovery of conflicting claims. We are not, however, ignorant of the

existence of certain ancient constitutions which the Divine Gordian addressed to Plato concerning soldiers who, through ignorance, entered upon an estate, and which provides that they can only be sued for the amount of property which belonged to the deceased, and that their own possessions cannot be interfered with by the creditors of the latter. This provision of the above-mentioned constitution has been adopted by Us, for the Imperial legislator was of the opinion that soldiers should rather be versed in arms than learned in the law. Therefore it appeared to Us to be beneficial to consolidate all these provisions in the same enactment, and not only to relieve soldiers by a privilege of this kind, but also to extend it to all other persons, as well where an unforeseen indebtedness appears as where anyone finds an estate which he had accepted to be onerous. Hence the privilege of deliberation would not be sufficient, unless in the case of men who are timorous and apprehensive of things which are unworthy of suspicion.

(1) Therefore, when an estate, either wholly or in part, vests in anyone, either under the terms of a will or on the ground of intestacy, and the heir prefers to accept it directly, and does so with a certain expectation of acquiring it, or meddles with it in such a way that he cannot afterwards reject it, in this instance, no inventory is required, as he is liable to all the creditors just as if he had voluntarily assumed the financial responsibilities of the estate. In like manner, if he thought that the estate should either be rejected or repudiated by him without hesitation, and within the term of three months after he knew that he was appointed heir, or called to the succession on the ground of intestacy, he publicly renounces the estate, he will not be obliged to make an inventory, or comply with any other formalities, and shall be considered as having no interest in the said estate, whether it be an onerous or a profitable one.

(2) Where, however, he is doubtful whether or not the estate of the deceased should be accepted, and does not think it necessary for him to deliberate, but enters upon it, or occupies himself with its management in any way, then an inventory should be drawn up by him without fail, so that, within thirty days after the will has been opened, or after he has been notified that this has taken place, or he has learned that the estate has descended to him as heir at law, he must begin the inventory of the property which the deceased possessed at the time of his death. This inventory must, by all means, .be completed within the other sixty days, in the presence of the notaries and other persons who are necessary for its preparation. The heir will be required to sign it, and state that it mentions the property belonging to the estate, and' that he has not committed, and will not commit any fraudulent act with reference to said property, which shall remain in his possession; or if he is ignorant of letters, or is unable to write, he can summon a special notary for the sole purpose of signing his name, and the venerated sign of the cross shall be prefixed to his signature by the hand of the heir; and this shall be done in the presence of witnesses who are acquainted with the latter, and who are present by his order to witness the signature of the notary in his, behalf.

(3) If, however, the heir should happen to be absent from the place where the property of the estate or the greater part of the same is situated, then We grant the period of one year dating from the death of the testator for the completion of the above-mentioned inventory ; for the time aforesaid will be sufficient, even though the property may be situated at a great distance. We concede to persons the power of drawing up an inventory either themselves or by attorneys instructed by them to do so, and who are sent to the places where the property is situated.

(4) Where the inventory has been drawn up in accordance with what has been previously stated, the heirs shall be entitled to the estate without running any risk, and can avail themselves of the benefit of the Falcidian Law against the legatees, so that they will only be liable to the heirs of the estate to the amount of the value of the property which may come into their hands, and they must satisfy those creditors who first appear; and, if after this is done, nothing remains, any creditors who afterwards appear shall be dismissed, and the heirs shall lose absolutely nothing of their own property, lest when they expect to make a profit they may suffer loss. If, however, in the meantime, the legatees appear, they must satisfy them either out of the actual property of the deceased, or out of its proceeds when sold.

(5) But when creditors, who have not yet been paid, appear after the estate has been exhausted, they shall not be allowed to annoy the heir himself, nor those who have purchased property from him, the proceeds of which have been used for the payment of legacies or trusts, or for the satisfaction of other creditors.

Creditors shall not be refused the right to appear against legatees, either in the hypothecary action, or in that to collect money which was not due, and to recover what they have received, as it would be perfectly absurd for laws enacted to benefit legatees to deny to creditors their right to obtain legal relief, as well as for legatees who are seeking for gain to be given their bequests in full.

(6) When, however, the heirs have surrendered the property of the estate to the creditors of the same, in satisfaction of debts, or have done so by the payment of money, the other creditors who have prior liens secured by hypothecation can appear against them, and recover the property from the subsequent creditors in accordance with the laws, either by an hypothecary action, or by a personal one for recovery, unless they voluntarily offer to discharge the indebtedness.

(7) As has frequently been stated, no action shall be granted against the heir himself, who has exhausted all the property belonging to the estate.

(8) They shall not, however, be permitted to proceed against the purchasers of property belonging to the estate which the heir himself sold for the payment of debts or legacies, as We have sufficiently provided for prior creditors by allowing them to proceed against subsequent ones, or against legatees who have been paid, and in this way to assert their rights.

(9) In estimating the amount of the estate, We grant the heir permission to accept and retain anything disbursed in funeral ex-

penses, or for the registry of the will, or for drawing up the inventory, or for any other necessary matters connected with the estate, which he can prove that he has paid. If, however, he himself had any rights of action against the deceased, these shall not be merged, and he shall share equally with the other creditors in every respect, but the right of priority shall be enjoyed by the latter.

(10) Permission should be given to creditors, legatees, and beneficiaries of trusts, if they think that the amount of the estate left by the deceased was larger than that stated by the heir in the inventory, to prove the excess by any lawful means which they may adopt, either by torturing the slaves of the estate, in accordance with the former law promulgated by Us, which treats of putting slaves to the question or by the oath of the heir, if other evidence should be lacking; and the truth must be ascertained whenever this can be done, in order that the heir may not obtain profit, or suffer loss through acceptance of an estate of this kind.

It must, however, be observed that if the heirs should abstract or conceal property belonging to the estate, or should take measures to remove anything, they shall restore double the amount, after they have been convicted, or shall be compelled to account for the same to the estate.

(11) While the inventory is in course of preparation, and is completed within three months when the assets are at hand, or within three years when they are elsewhere, in accordance with the former provision, neither creditors, legatees nor beneficiaries of a trust shall be permitted to either molest the heirs or bring them into court, or claim property belonging to the estate on the ground of its having been hypothecated, but this term shall be legally granted to the heirs for the purpose of deliberation, and during the interval no prejudice shall be created by the hereditary heirs on the ground of prescription.

(12) Where, however, after the heirs have entered upon the estate, or if, being either present or absent, they have occupied themselves with its management, and have neglected to draw up an inventory, and the time prescribed by Us for doing so has elapsed, then, for the very reason that they did not make an inventory in accordance with the provisions of this constitution, they shall undoubtedly be considered as heirs, and shall be liable for the entire amount of the indebtedness due from the estate, nor shall they enjoy the advantages of Our law, as they saw fit to treat it with contempt.

(13) We have established these regulations with reference to those who did not deem it advisable to ask for time to deliberate, which We hold is entirely superfluous, after the passage of this law, and should be refused. For as they are permitted by the authority of the present law to enter upon the estate and subsequently reject it, what ground remains for deliberation? But for the reason that certain men, either through unfounded fear or sinister design, think it necessary to petition Us to allow them to deliberate for the term of a year for the purpose of examining the affairs of the estate, and perfecting their insidious plots against it, and, by the employment of repeated supplications and weak arguments they often request further delay, in order

that no one may think that We absolutely despise the customs of antiquity, We allow them to ask time for deliberation, either from Us personally, or from Our judges, but no more than a year shall be granted by the Emperor, and no more than nine months by Our judges, so that they can obtain no further time through the indulgence of Imperial generosity. If any longer period should be granted, it shall be considered void; for We only concede one term for deliberation, and no more.

(14) When, however, anyone has fulfilled all these requirements, and drawn up the inventory (for it is necessary for the heir, while he is deliberating, to make it out with the greatest exactness), he shall not be permitted to enjoy the benefit of Our law after the prescribed time (that is, if he does not reject the estate, but decides to accept it), but he shall be liable to all the creditors for the full amount of their claims in accordance with the ancient laws. As, however, two ways are open, one of them derived from former enactments which allowed time for deliberation, the other more direct and recent adopted by Us, by which heirs accepting an estate are protected against loss, We give the heir his choice to make use of Our law and enjoy the benefit of the same, or, if he thinks that the estate ought to be rejected, and that he should have recourse to the aid of deliberation, he can do so; but if he does not reject the estate within the prescribed time he will be liable for the entire indebtedness due to the estate, and not merely to the amount of the property constituting it, but if it is found to be too small to pay all the claims, he shall, as heir, be bound for all the claims, and he can only blame himself for having chosen the ancient burden, instead of the modern benefit.

Hence, We wish that to the grant of time for deliberation and the Imperial Rescript promulgated with reference to the same, the following shall be added, namely: that all persons shall be notified that, if after having requested time for deliberation, they enter upon an estate, or perform any acts in the capacity of heir, or do not reject the estate, they will be liable for the full amount of the debts due to the same. When anyone rashly demands time for deliberation, but neglects to draw up an inventory, and either enters upon the estate or fails to reject it, he shall not only be liable to the creditors for the entire amount of their claims, but shall also be excluded from the benefit of the Falcidian Law. If, however, after having deliberated, he should reject the estate without having made out the inventory, he shall then be compelled by law to surrender the property of the estate to the creditors of the same, or transfer to those entitled to the succession the property which he has received, after having established the amount by his oath, which valuation must also be verified by the judge. Our former constitutions, promulgated with reference to these matters, have been repealed by a recent enactment which provides for all contingencies. In one of these constitutions is contained the confirmation of that of the Emperor Gordian, as this one has been found to be better as well as more comprehensive than the other; and as the three constitutions above mentioned have been consolidated into one, which

seems to apply to soldiers, as well as to all other persons, and because We do not wish the subjects of Our Empire to be annoyed by the enforcement of the former constitutions, We decree that soldiers who, on account of their ignorance, may not have fully complied with the provisions of the present law, shall only be liable for the amount of the assets of the estate.

We order that, in cases of this kind, this rule shall hereafter also apply to senators.1

Given at Constantinople, on the fifth of the Kalends of December, after the fifth Consulate of Lampadius and Orestes, 531.

1 The beneficium inventarii was the privilege accorded to an heir by a law of Justinian, to have a publicly and officially authenticated account of the condition of the estate drawn up, showing a complete list of its assets and liabilities; and by this means prevent him from becoming pecuniarily responsible for the debts of an estate, which was either absolutely insolvent, or encumbered to such an extent as to render its acceptance onerous and inadvisable. In this manner, the limited representation of the deceased by his successor was established, and the fatal effects of entering upon a damnosa hiereditas avoided. Everyone who had any interest whatever in the estate was notified to be present, a rule which applied to all the heirs of the deceased, legatees, creditors, and claimants of every description. It was necessary for the inventory to be drawn up under the direction of a certain member of tabularii, officials who exercised the functions of both accountants and notaries public, and had charge of the public registers. When neither the parties in interest nor the tabularii appeared, the signatures of three competent witnesses were sufficient to render the inventory legal.

This proceeding was of great benefit to the heir, inasmuch as it exempted him from any liability for the indebtedness of the estate over and above the value of the assets. He could pay the legatees and creditors whenever they, presented their claims. No action at law could be brought against him within the term prescribed for the preparation of the inventory. Under these circumstances, the time formerly allowed for deliberation as to whether the estate should be accepted or not could be dispensed with. If, however, the heir failed to make out the inventory, or decided to deliberate, he became personally responsible for the entire indebtedness, even if the estate was not solvent, and even forfeited his right to retain the fourth to which he would otherwise be entitled under the Falcidian Law. The cost of the inventory was payable out of the property of the estate.

Most of the nations of Continental Europe have adopted, with but slight alterations, the beneficium inventarii as authorized by Justinian.

In Spain, every heir has a right to have an inventory drawn up, even against the express prohibition of the testator, and can avail himself of the same to determine his acceptance or rejection of the estate. The proceeding may take place before a notary or a competent judge.

"Todo heredero puede aceptar la herencia a beneficio de inventario, aunque el testador se lo haya prohibido."

"Tambien podrd pedir la formation de inventario antes de aceeptar 6 repudiar la herencia para deliberar sobre este punto." (Codigo Civil de Espana, Art. 1010.)

The heir is entitled to a hundred days for its preparation, thirty of which are allowed from the date of the notification of creditors and legatees for its commencement, and seventy for its completion afterwards. He is required to state in court whether he will accept the estate, or not, thirty days after the inventory has been finished.

"El inventario se principiard dentro de los treinta dias siguientes A la citation de los acreedores y legatarios y concluird dentro de otros sesenta." (Ibid., Arts. 1017, 1019.) Priority is always given to creditors over legatees. (Ibid., Art. 1027.)

TITLE XXXI. CONCERNING THE REJECTION OR REFUSAL TO ACCEPT AN ESTATE.

1. The Emperor Antoninus to Mutatius.

If it is established that you have declined to accept the estate of your father, and it should be clearly proved that you did not reside in his house as an heir, but as a tenant or a custodian, or in any other legal capacity, my attorney will prevent you from being sued as the representative of your father.

Published on the Ides of July, during the Consulate of Messala and Sabinus, 215.

2. The Same Emperor to Severus.

If you declined to accept the estate of your father, you cannot legally be sued by other subsequent creditors who lent money to your

French law provides for the demand for an inventory before the clerk of the Court of the First Instance having jurisdiction, as well as its immediate registry. The heir has three months in which to complete the inventory, and forty days more to decide as to what course he will pursue with regard to the estate. Where conflicting claims exist, their priority must be decided by the court; when this is not the case, legatees as well as creditors are paid in the order in which they present themselves. The heir is only liable for gross negligence in the management of the estate.

"La, declaration d'un heritier qu'il entend ne prendre cette qualite que sous benefice d'inventalre, doit etre faite au greffe du tribunal de premiere instance 'dans I'arrondissement duquel la succession s'est ouverte; elle doit etre inscrite su le registre destine a recevoir les actes de renonciation."

"L'heritier a trois mois pour faire inventaire, a compter du jour de I'ouverture de la succession."

"II a de plus, pour deliberer sur son acceptation ou sur so, renonciation, un delai de quarante jours."

"II n'est tenu que des fautes graves dans I'administration dont il est charge."

"S'il y a des creanciens opposants, I'heritier beneficiaire ne pent payer que dans Vordre et de la maniere regies par le juge."

"S'il n'y a pas de creanciers opposants, il paye les creanciers et les legataires a mesure qu-'ils se presentent." (Code Civil de France, Arts. 793, 795, 804, 808.)

The law of Belgium practically coincides with that of France. (Code Civil, Arts. 793, 795, 797, 802.)

In Italy, when there are several heirs, and one of them desires the benefit of an inventory, but the others do not, the former alone can formulate the demand, and the privilege will be granted. The heir who has charge of the estate is, under all circumstances, obliged to account to the creditors and legatees for his administration of the same.

"Se tra piu eredi taluno vuole accettare I'eredita con benefizio del I'inventario ed altri senza, I'eredita deve essere accettata col detto benefizio."

"In questo caso basta ehe un solo faccia la dichiarazione."

"L'erede con benefizio d'inventario ha I'obbligo di amministrare i beni ereditari e di render conto della sua amministrazione ai creditori ed ai legatari." (Codice Civile del Regna d'ltalia, Arts. 958, 969.)

Both the Austrian and Portuguese Codes recognize the beneficium inventorii in enactments resembling those of other European countries. (Allgemeines Burgerliches Gesetzbuch, Arts. 802, 803, 804, Codigo Civil Portuguez, Arts. 2044-2063.)—ED.

father under the same obligations, on the ground that you purchased property belonging to the estate from certain creditors of the same (provided you acted in good faith).

Ordered on the fifth of the Kalends of July, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.

3. The Emperors Diocletian and Maximum, and the Csesars, to Theodotianus.

Where a proper heir, by means of an exception based on an agreement, alleges that a will is unjust, and afterwards claims nothing from his father's estate, and does not appear in court on account of the donation, but for the purpose of compromise, as he could not reject the estate after having once acquired it, and as a compromise will be void by which nothing has been granted or retained, or any promise given, he cannot be deprived of the inheritance.

Without date, during the Consulate of the Csesars.

4. The Same, and the C&sars, to the Soldier Modestinus.

Just as a person more than twenty-five years of age, having rejected an estate to which he was entitled before having accepted it, cannot afterwards acquire it, so he who rejects an estate which he has once acquired performs an act void in law, but retains the right which he originally possessed; and because it has been decided that a confession in court shall be considered as equivalent to a decision, this does not apply to one who rejects an estate, but only to him who acknowledges that he owes a certain amount of money.

Ordered on the fifth of the Kalends of January, during the Consulate of the Emperors.

5. The Same Emperors and Csesars to Claudiana.

The rejection by wards of an estate to which they were entitled, without the authority of their guardian, does not prejudice their rights in any way.

Ordered on the second of the Kalends of January, during the Consulate of the above-mentioned Emperors.

6. The Emperor Justinian to John, Prsetorian Prefect.

When anyone rejects the estate of his father, and afterwards desires to accept it, he should unquestionably be permitted to do so, as long as the estate remains in the same condition, and he should be allowed to claim it even after a long time has elapsed.

We, desiring to correct this, do hereby order that if any of the property of the estate has been sold, it cannot be entered upon, which was the rule in ancient times. But where none of the property has been alienated, and the heir is of age, and the entire time for demanding restitution has expired, permission shall only be granted to him to do this within three years.

If, however, he is a minor, and has been appointed during the legal time, then, after the period of four years has elapsed (which term was

prescribed instead of the available year conceded to those who enjoyed the right of restitution), another term of three years shall be granted to the heir, within which he can accept the estate, if the property belonging to it remains in the same condition, and he can revoke his former rejection of the same.

After this period has passed, however, no right whatever to enter upon the estate of his father shall be granted him, unless, while he was still a minor, property forming part of it was sold; for then he shall not be denied the right to enter upon the estate, obtain complete restitution, recover the property, and satisfy his father's creditors.

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

TITLE XXXII.

IN WHAT WAY WILLS AKE OPENED, EXAMINED, AND COPIES OP

THEM MADE.

1. The Emperor Alexander to Procula.

A competent judge will order the will which you allege has been executed to be produced and publicly read.

Published on the second of the Kalends of April, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

2. The Emperors Valerian and Gallienus to Alexander.

As you state that the will made by your father was given to you in order that it might be taken to his country, you can take it there and have it recorded in compliance with the laws and customs of the place; but if the witnesses should not be present, you must personally appear before the tribunal of the province, or present a petition to the Governor, and with his consent have honorable men summoned, and the will opened in their presence, and signed by them also.

Published on the fourth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Glabrio, 237.

3. The Emperors Diocletian and Maximian to Aristotele.

With reference to the new will executed by your father, concerning which you took the oath of calumny, the Governor of the province will grant you the privilege of examining and copying said will, with the exception of that part which the deceased forbade to be opened, or which is alleged to disgrace someone, and also omitting the date and the designation of the Consulate.

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

4. The Emperors Gratian, Valentinian, and Theodosius to Hes-perius, Prsetorian Prefect.

Codicils, or any instruments in writing, no matter what may be their tenor, which have reference to the final disposition of property,

must be produced in public with the same formalities with which wills

are published.

Given at Milan, on the third of the Kalends of August, during the

Consulate of Ausonius and Olybrius, 379.

TITLE XXXIII.

CONCERNING THE ANNULMENT OF THE EDICT OP THE DIVINE HADRIAN, AND IN WHAT WAY AN APPOINTED HEIR MAY BE PLACED IN POSSESSION OF AN ESTATE.

1. The Emperors Severus and Antoninus to Lucillus.

When a controversy arises between an appointed heir and his substitute, he who was appointed in the first place shall be placed in possession of the estate.

Published on the twelfth of the Kalends of December, during the Consulate of Dexter and Priscus, 197.

2. The Emperor Alexander to Eutactus.

Although the son of the deceased may allege that he has been passed over, or the will is stated to be forged or inofficious, or have some other defect, or the deceased is said to have been a slave, it is, nevertheless, customary for the heir to be placed in possession.

Published on the sixth of the Kalends of November, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

3. The Emperor Justinian to Julian, Prsetorian Prefect.

As the Edict of the Divine Hadrian, which was promulgated concerning the twentieth part of an estate, gave rise to many ambiguities, difficulties, and complicated statements, because it prevented the twentieth part of the inheritance from being exacted in Our Empire, and abolished all those provisions which had been promulgated with reference to the fulfillment and interpretation of the said edict, We hereby order that if anyone should be appointed heir to the whole or a portion of an estate, and should produce in the presence of a competent judge a will which had not been cancelled or annulled, and was not defective in any respect, but appears in its original form without alteration, and is fortified by the attestation of the legal number of witnesses, he shall be placed in possession of the property which belonged to the testator at the time of his death, and cannot lawfully be held by anyone else, and which he received in the presence of public officials.

If, however, any contestant should appear, then the claim to possession and its subsequent denial must be argued before a competent judge, and possession shall be acquired by him who can show the best legal right to the estate, whether it be the one who was first placed in possession, or he who, on the other hand, has present control of the property. No delay shall ensue in placing the proper person in possession; and, whether anyone obtained it too soon or too late, the

decision of the law must be adhered to, and the reason must be considered why one of them was granted possession, and the other disputed his right.

When anyone has been placed in possession of an estate after the expiration of a year, or even after a longer period (provided this was done in accordance with the terms of a legally executed will), no objection on the ground of prescription can be raised, unless a sufficient time has elapsed to afford complete security of ownership to the possessor, or to exclude every claim of him who was granted possession. For it is perfectly clear that if prescription can be pleaded on either side, not only the act of placing the party in possession, but also the principal cause of action will be disposed of.

Given at Constantinople, on the twelfth of the Kalends of April, after the fifth Consulship of Lampadius and Orestes, 531.

TITLE XXXIV.

WHERE ANYONE HAS FORBIDDEN OR COMPELLED ANOTHER TO MAKE A WILL.

1. The Emperor Alexander to Severa.

Where a testator did not make his will voluntarily, but was compelled to do so by him who was appointed his heir, or was forced by some other person to appoint heirs whom he did not wish to designate, a crime is added to the civil cause of action.

Ordered on the fourteenth of the Kalends of January, during the Consulate of Alexander, 223.

2. The Emperors Diocletian and Maximian to Nicogoras.

It is a well-known rule of law that those who are shown to have prevented the execution of a will by placing obstacles in the way of the testator should be deprived of the right of succession as being persons unworthy of it.

Published on the Kalends of January, under the Consulate of Diocletian, Consul for the second time, and Aristobulus, 285.

3. The Same Emperors and Csssars to Eutyches.

It is not a criminal act for a husband, by his representations, to induce his wife to make her will in his favor.

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

TITLE XXXV.

CONCERNING THOSE WHO ARE DEPRIVED OF ESTATES AS

BEING UNWORTHY, AND ON THE SYLLANIAN DECREE OF

THE SENATE.

1. The Emperors Severus and Antoninus to Celer.

It is established that heirs who have neglected to avenge the death of a testator can be compelled to surrender all the property of the estate, for they who knowingly have failed to perform the duty demanded by affection cannot be considered to have been possessors in good faith before the controversy arose; and they shall be required to pay interest on the price paid for property belonging to the estate, which has been sold, or on money collected from debtors after the contest for the estate has been begun in court.

There is no doubt that this will also apply to the crops acquired •with the land belonging to the estate, or which they have sold after they have been gathered. The payment of six per cent interest will be

sufficient.

Given on the fifteenth of the Kalends of April, during the Consulate

of Chilo and Libo, 205.

2. The Saane Emperors to Verus.

It is not necessary that any business which Polla, who had the free administration of her father's estate, has finished, should be made the subject of dispute for the reason that a minor has become her heir. But if you, in behalf of the minor, intend to allege that the will under which Polla has transacted the affairs of the estate is forged, you can bring suit, provided you bear in mind that if you should not gain the case, you must make good the share to which the minor is entitled under the will, and of which it will be necessary to deprive the said minor in conformity to the requirements of the law; and the Governor of the province will take cognizance of the false accusation of which you have been guilty, even though you are considered to have acted in the name of the minor when you attempted to have the acts performed by a co-heir set aside.

Published on the seventh of the Kalends of May, during the Consulate of Antoninus, Consul for the third time, and Geta, 209.

3. The Emperor Alexander to Antiochianus,

If the following point can be raised against the children of her whom you allege to be your cousin, namely, that the will of their father, who is said to have been killed by his slaves, has been opened and read before the slaves were put to the torture, according to the provisions of the Decree of the Senate, the estate will be confiscated to the Treasury. Therefore the case should be brought before My representative, because at that time the children were not minors.

Published on the second of the Nones of April, during the Consulate of Alexander, 223.

4. The Same to Philomusus.

The testamentary disposition of an estate cannot be revoked, even in direct terms, by a letter or a codicil. But even if the testatrix stated in her will that one of her heirs was not worthy of her bounty, it is not reasonable that his share should be transferred to another, but it ought to be confiscated to the Treasury. The grants of freedom bestowed by the said letter can, however, be demanded.

Published on the second of the Kalends of December, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

5. The Same to Tyrannus.

It is not necessary that unworthy heirs should be deprived of an estate under the pretext that they did not comply with the provisions of the last will of the deceased with reference to his burial.

Published on the seventh of the Ides of March, during the Consulate of Julianus, Consul for the second time, and Crispinus, 225.

6. The Same to Venustus and Clementimis.

It has been decided that heirs under the age of twenty-five years shall not be charged with the offence of having left unavenged the death of a testator. As, however, you allege that you have brought an accusation, and that some of the guilty parties have been punished, you should be under no apprehension of suffering the loss of your father's estate by confiscation to the Imperial Treasury, even though he who is said to have ordered the murder to be committed has appealed, for it is your filial duty to contest the appeal. If, however, you should be of age at the time, you will not necessarily be required to contest the appeal, as you can enter upon the estate.

Published on the fifteenth of the Kalends of July, during the Consulate of Alexander, Consul for the third time, and Dio.

7. The Same to Vitalia.

If, therefore, revenge for the death of the testator has not been demanded, for the reason that those who committed the murder could not be found, no objection can be urged against the heirs on this account, as they are not to blame.

Published on the Ides of March, during the Consulate of Lupus and Maximus, 233.

8. The Emperor Gordian to Tatia.

The position of a person who has attacked a will as being forged, conducted the case to a conclusion, and lost it, is different from that of one who, having begun an accusation of this kind, has abandoned it; for the Treasury will obtain the share of the former, but the latter, against whom a judgment was not rendered, does not forfeit the right to claim his share of the estate.

Published on the thirteenth of the Kalends of February, during the Consulate of Gordian and Aviola, 240.

9. The Emperors Diocletian and Maximian, and the Cxsars, to Mlianus. •

As you allege that your brother was killed by poison, it is necessary for you to avenge his death to prevent your being deprived of your right to his estate; for although those who are heirs at law are not forbidden to enter on the estates of persons who have lost their lives through treachery, still, if they should not avenge their death, they cannot obtain their estates.

Published during the Consulate of Tyberianus and Dio, 291.

10. The Same Emperors and Cassars to Sylvana. It is not proper for a sister, after having avenged the death of her brother as required by law, to deprive his wife of an estate to which she has been legally appointed heir. In accordance with this, if you are confident of your innocence, and are certain that you can prove that your husband did not lose his life through any malicious act of yours, and that you were not, for some other reason, unworthy of the estate, you can rest secure against any false accusation.

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

11. The Emperor Justinian to John, Prsetorian Prefect. The Syllanian Decree of the Senate is considered by Us not only to be meritorious, but also worthy of confirmation, together with the Rescript of the Divine Marcus published with reference to it, but since We find in it no mention of grants of freedom, and a question arose among the ancient authorities concerning grants of freedom left by the will of a murdered testator, it seems to us to be necessary to dispose of this question. For those who have been given their liberty by a will of this kind, and accept it, can acquire for themselves any advantage which they may receive in the meantime, that is to say, during the delay resulting from taking vengeance for the death of the deceased ; but if they fail to avenge it, they risk the loss of this privilege, even though they may afterwards obtain their freedom. But in order that, in the interval, the slaves may sustain no loss, and especially if, being female slaves, they have brought forth children, and where the estate was afterwards accepted, it seems to Us to be perfectly proper to adopt the Rescript of the most wise Emperor Marcus relating to grants of freedom, in order that this prince, who was well versed in philosophy, may not appear to have sanctioned anything which was imperfect. As his Rescript also extended to inheritances, legacies, and trusts, and especially to grants of freedom with which philosophy is always concerned, to the end that any profits which may accrue to the slaves in the interim may be restored to them after they have been liberated, and any children born may be considered to be free as well as freeborn, and that through no machinations whatever an impediment of this kind may cause them any loss, so that their offspring may also be free if in the meantime they should die, and have the right to succeed to them as heirs.

We have deemed it reasonable to confirm in every respect the Constitution of the Emperor Marcus, for We consider that no act has been performed when something remains to be added, in order to render it complete.

Given at Constantinople, on the second of the Kalends of May, after the fifth Consulate of Lampadius and Orestes, 531.

12. The Same to John, Prietorian Prefect.

A doubt which arose among the jurists of antiquity with reference to the Syllanian Decree of the Senate has been submitted to Us; that is to say, that slaves shall be subjected to the punishment of death when they lived under the same roof as their master, and did not afford him aid when he was assassinated. The ancients did not agree upon what was meant by the words "under the same roof," whether this should be understood to signify in the same bedchamber, in the same dining room, in the same gallery, or in the hall; adding that if the master was killed on the highway, or in a field, those slaves should be punished who were present and did not extend their aid to avert the danger, but they made no distinction in the interpretation of the term "present."

Therefore We, desiring to deprive them of every opportunity to escape punishment on account of their neglect of the safety of their master, do hereby decree that all slaves, no matter where they may be, whether in the house, on the highway, or wherever their cries can be heard, or an attack can be perceived, who do not bring assistance, shall be subjected to the punishment provided by the Decree of the Senate. They are required to go to the aid of their master for the purpose of preventing him from being the victim' of treachery whenever they see that he is in danger.

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

TITLE XXXVI. CONCERNING CODICILS.

1. The Emperor Alexander to Mocimus and Others.

It is certain that when a will is broken by the birth of a posthumous child, any codicils having reference to said will will not be valid. If, however, as you allege, after the will was broken, the father of the minors published a certain instrument by which he confirmed the preceding will, the Prsetor did nothing contrary to law, when, following the provisions of this last expression of the wishes of the deceased, he decided that a testamentary trust bequeathed to the State should be carried out, just as if it had been left by a codicil.

Published on the third of the Kalends of July, during the Consulate of Maximus, Consul for the third time, and Paternus, 234.

2. The Emperor Philip and the Csesar Philip to Asclepiodota. It is clear that an estate cannot either be given or taken away by a codicil. In the execution of a new disposition of property of this kind.

however, the laws do not render void wishes which are expressed as requests. Therefore you entertain an erroneous opinion when you think that you have, to no purpose, been asked by a codicil to be content with certain property, and to give to others what has been bequeathed to you by will.

Published during the Ides of October, during the Consulate of Peregrinus and J3milianus, 245.

3. The Emperors Diocletian and Maximian to Hyacinihus and Others.

As you state that the mother of your wards executed two codicils at different times, which are distinct from one another so far as their provisions are concerned, there is no doubt that what she inserted in the first codicil is revoked by that in which she afterwards secretly manifested her intentions, provided it differs from the first in its tenor and shows a contrary purpose.

Published on the 'sixth of the Ides of September, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

4. The Same Emperors and Csesars to Stratonicus.

Those persons to whom property was left under a request shall none the less be entitled to the same, although your mother executed a codicil during your absence, and died intestate.

Without date or designation of Consulate.

5. The Same Emperors and Csesars to Flavia.

It is a positive rule of law that an insane person cannot execute a codicil. Therefore if a document is produced which purports to be a codicil made by your father, in order to claim anything under it you must prove your allegation, namely, your denial that your father was not of sound mind at the time that it was executed.

Given on the sixth of the Kalends of December, during the Consulate of the Caesars, 293.

6. The Same Emperors and Csesars to Demosthenes.

Whether the testator in general terms directed that his dispositions contained in a recently executed codicil or those which he had made in a former one should be observed, you will have no just cause for anxiety, as you can rely upon the confirmation made by the last codicil.

Given at Nicomedia, on the third of the Ides of December, during the Consulate of the Csesars, 294.

7. The Emperor Constantine to Maximus, Praetorian Prefect.

If codicils and wills have the same effect, why are different names given to instruments which have equal force and power ?

The answer is, that authority is not given by law to appoint or substitute an heir by means of a codicil.

Given on the third of the .... of June, during the Consulate of Pacatianus and Hilarianus, 332.

8. The Emperor Theodosius to Asclepiodotus, Praetorian Prefect.

When anyone, for the purpose of obtaining an estate, institutes proceedings on any ground whatsoever, under either a written or verbal will, and then claims the estate under the terms of a trust, he should not be permitted to do so. For We by no means grant permission to anyone to enter upon an estate merely because he has changed his mind; and We order that if a testator, having made a will, has stated that it shall also be valid as a codicil, anyone who claims the estate can, in the beginning, have the power to choose which of these he will consider it to be, knowing that, after having made his choice, he will be excluded from adopting the other view; so that if he claims possession of the real estate in accordance with the terms of the will, or only according to what is stated in the codicil, as well as other things of this kind; or if he should absolutely demand to be placed in possession of the estate as is customary, he shall be deemed to have explicitly stated his intention under the provisions of this law.

(1) In like manner, the following rule shall be observed, namely, that when a testator began to make a will but was unable to finish it, he must be considered to have died intestate, and the document shall not be interpreted as a trust, or as his last wishes expressed by a codicil, unless he expressly stated therein that it should have the same force as a codicil, and if he did so, the heir shall have the right to decide whether or not to act under the will; and if this be the case, he cannot change his mind and consider the document a codicil.

(2) Where anyone who is descended from parents of both sexes, and from children as far as the fourth degree of agnation, or belongs to the third degree of cognation, becomes an heir under the provisions of either a written or a nuncupative will, which the testator intended should be regarded either as a testament or as a codicil, and, having brought suit for the estate under the will of the deceased has lost his case; he shall be permitted to have recourse to a trust in order to acquire it, if he does so voluntarily; for reason does not permit him to lose that to which he is entitled under the will, and not obtain the benefits under the same instrument when regarded as a codicil.

(3) In every expression of the last will of a deceased person, with the exception of a testament, five witnesses who have been summoned, or are there accidentally, should be present, whether the will of the deceased is expressed in writing or not, and when it has been committed to writing they must affix their signature to the instrument.

Given at Constantinople, on the tenth of the Kalends of March, during the fifth Consulate of Victor, 424.

TITLE XXXVII. CONCERNING LEGACIES.

1. The Emperor Antoninus Pius to the Freedmen of Sextilia. Although food and clothing were bequeathed to you as long as you may reside with Claudius Justus, I, nevertheless, interpret the inten-

tion of the testator to have been that these things should be furnished you even after the death of Claudius Justus. Without date or designation of Consulate.

2. The Emperors Severus and Antoninus to Sabinianus.

Even though the testamentary heir may have sold the estate, still, the legacies and trusts can be collected from him, and the vendor can recover from the purchaser, or his sureties, whatever he has obtained

in this way.

Published on the tenth of the Kalends of September, during the

Consulate of Lateranus and Rufinus, 198.

3. The Same Emperors to Victorinus.

Anyone who, after having made a will, pledges or hypothecates the lands which he devised, is not considered to have changed his mind with reference to the legatees. Therefore it has been decided that if a personal action is brought, the lien on the land must be released by the

heir.

Published on the sixth of the Kalends of May, during the Consulate

of Gentianus and Bassus, 212.

4. The Emperor Antoninus to Sulpitius.

A legacy or a trust left to slaves by the will of their master without the bequest of their freedom is not valid, nor can it be made so, even if, after the death of the testator, they have obtained their freedom in

some other way.

Published on the fifth of the Kalends of July, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 213.

5. The Same Emperor to Donatus.

There is no doubt that an action for the share to which he is entitled out of property, which it appears he has abstracted from the assets of the estate, should be refused a legatee.

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

6. The Same Emperor to Julianus.

If the first legatee has received his bequest, the substitution for the same in favor of Pontiana no longer exists.

Published at Rome, on the eighth of the Kalends of May, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

7. The Same Emperor to Faustus.

If your father bequeathed in the first place the Fortidian Estate as a preferred legacy to your brothers, and subsequently bequeathed it to you, the title to said estate is acquired by you in common with

them.

(1) The mistake of a name made in writing does not affect the right of a legacy bequeathed, provided there is no doubt with reference to the slaves or land which constitute the legacy.

Published on the fifth of the Ides of July, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

8. The Same Emperor to Demetrius.

The military oath by which Marcellus was, as you allege, bound, deprived him of the administration of the guardianship of yourself, to which he was appointed by the will of your father; but this circumstance does not prevent him from obtaining the legacy bequeathed to him. For his claim could not legally be rejected, since, even if he wished to administer the guardianship, he is prohibited from doing so.

Published at Rome, on the eighth of the Ides of March, under the Consulate of Sabinus, Consul for the second time, and Anulinua, 217.

9. The Emperor Alexander to Antiochus.

If an accuser who, in order to defraud persons to whom property has been left by a will, states that the said will is forged, is allowed to be heard, the Governor of the province must order the legacies to be paid in accordance with the rules of his court, provided a bond is furnished that if the estate is evicted, it shall be restored to those entitled to it, although there is reason that a bond should be furnished, even when the legacies are paid without any controversy.

Published on the seventh of the Ides of February, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 234.

10. The Same Emperor to Ingenua.

When anyone knowingly bequeaths property which belongs to another, whether it be a legacy or has been left under a trust, it can be claimed by him who has a right to it under either of these titles. If, however, when the testator bequeathed it, he believed it to be his own, the bequest will not be valid unless it was left to a near relative, to his wife, or to some other such person; and this will be the case even if he was aware that the property did not belong to him.

Published on the fifth of the Kalends of February, during the Consulate of Albinus and Maximus, 228.

11. The Same Emperor to Albinianus.

The daughter of a legatee has no right of action, if her father, during his lifetime, afterwards gave to her by way of dowry the same property which he left to her by his will.

Published on the fifth of the Nones of March, during the Consulate of Pompeianus and Pelignus, 232.

12. The Emperor Gordian to Mutiamis.

As, by the opinion of that most learned legal authority, Papinianus, which you inserted in your petition, it is stated that a preferred legacy can be claimed without the acceptance of the remainder of the estate, you understand that your interests have been protected in conformity with law. This is the text of his opinion: "A mother devised land to

her daughter in the following terms," "Take it as a preferred legacy, in addition to your share of the estate."

Even if the daughter should reject the estate of her mother, still, it is held that she can legally claim the legacy.

Published on the fifth of the Ides of July, during the Consulate of Sabinus, Consul for the second time, and Venustus, 241.

13. The Emperors Diocletian and Maximian to Severa.

It is evident that your own property cannot be bequeathed to you as a legacy or a trust.

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

14. The Same Emperors to Tatianus.

It is clear that tombs cannot be left by will, but no one is forbidden to bequeath the right to inter the dead therein.

Published on the second of the Kalends of September, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

15. The Same Emperors to Terentius and Others.

If the entire assets of the estate which your father left are exhausted by debts due to the Treasury or to private individuals, no testamentary disposition of said property made by him is valid. If, however, anything remains after the debts have been satisfied, the law does not permit grants of freedom to be interfered with, and legacies as well as trusts must be paid after the Falcidian portion has been deducted.

Published on the third of the Kalends of October, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

16. The Same Emperors and Caesars to Sylla.

If a creditor contends that certain property which has been given to him in pledge by his debtor has been bequeathed to him by the latter, he cannot be compelled to surrender it, even after the amount of the debt has been tendered by the heirs.

Ordered on the eighteenth of the Kalends of February, during the Consulate of the Csesars.

17. The Same, and the Cassars, to Eutychianus.

It has been decided that where a legacy has been bequeathed either absolutely or conditionally, it can be revoked where either freedmen or freeborn persons are the beneficiaries of the same.

Given on the third of the Nones of March, during the Consulate of the Ca3sars, 293.

18. The Same Emperors and Ciesars to Justinus.

A legatee is not entitled to direct actions to collect his legacy, when he has not been authorized to do so by the heirs, but he can bring praetorian action in his own name.

Given on the sixth of the Ides of December, during the Consulate of the Caesars, 293.

19. The Same Emperors and Csesars to Nico.

A husband who has been appointed heir by the will of his wife cannot only succeed to her estate where the marriage has lasted only two months, but even where the time has been less, and the shortness of the time does not prevent him from acquiring legacies, trusts, or donations under such a will.

Given at Nicomedia, on the fifth of the Ides of September, during the Consulate of the Caesars, 293.

20. The Same Emperors to Eutychianus.

If the testatrix, who is the wife of your uncle, should die, she can not bequeath your property of which she only enjoys the usufruct.

Given on the seventh of the Kalends of January, during the Consulate of the Caesars, 293.

21. The Emperors Constantine, Constantly^, and Constans to the People.

No special form of words is required for the bequest of legacies, or the creation of trusts, and it makes very little difference, at the present time, what expressions one makes use of, or what terms of speech he employs to indicate his will.

Given on the Kalends of February, during the Consulate of Con-stantius, Consul for the second time, and Constans, 339.

22. The Emperor Jmtinian to Menna, Prsetorian Prefect.

We direct that legacies or trusts which are to be paid annually, and which the testator intended not only to be given to a certain designated person, but to his heirs, can be collected by all his heirs, as well as by the representatives of the latter, in accordance with the will of the testator.

Given at Constantinople, on the third of the Ides of December, during the Consulate of Our Lord the Emperor Justinian, Consul for the second time, 528.

23. The Same Emperor to Julian, Prsstorian Prefect.

A question arose among the ancient authorities as to the signification of words: for instance, if anyone should devise the Cornelian Estate, or any other in its entirety, and afterwards should leave half of the same land to someone else, how much the first legatee would be entitled to, and what share the second could obtain; and, as a similar doubt arose with reference to estates and trusts, and as many computations were introduced which entailed innumerable discussions, We decree that all such computations shall be rejected as being superfluous, and contrary to the intentions of the testator. For it is clear that as he who, in the first place, left an entire piece of property to anyone, and afterwards bequeathed half of it to another, changed his mind, and intended that the prior bequest could be diminished by one-half, since

he offered that amount to another, the present question is susceptible of a very easy solution. Therefore, if anyone should, in the first place, leave a tract of land or an estate in its entirety to one devisee, and afterwards half of it to another, each of them will be entitled to half of what was bequeathed, or of the whole estate; but where all of it was left in the first place, and the third part of the same was bequeathed in the second, in accordance with the aforesaid rule, eight-twelfths of the land or estate would belong to the first legatee, and the remaining third, or four-twelfths of it, would be acquired by the second.

This same rule shall apply to all kinds of property, whether it consists of estates, legacies, or trusts, for the indications of the intention of the testator cannot be ascertained otherwise than by this method.

(1) It appears to Us to be humane to settle another similar controversy which arose in the interpretation of the ancient laws. This originated in the case where a testator bequeathed the Cornelian Estate, or any other, or certain property, to anyone, and afterwards bequeathed the same property once or more frequently, as a legacy, or under a trust to the same person, and then left it in similar terms by will to Sempronius; so that Titius was mentioned frequently, but Sempronius only once, what conclusion should be arrived at? And what would be the law if the property was left to them jointly or severally, and if it consisted of a legacy or an estate?

We, therefore, for the purpose of deciding this ancient dispute, do hereby order that if the estate or the tract of land, in the instances above cited, was left either jointly, or to one person, or several times to the same individual, the said estate, land, or other property shall be equally divided among the legatees, and each one of them shall be entitled to half of the same; unless the testator expressly stated and specified how many shares he wished one of the parties to have, and how many the other was to receive, for We think that the will of the testator, if it is legal, should prevail in every instance.

Given on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530. 24. The Same to John, Prsetorian Prefect.

A certain man disinherited his son, who was under his control and had not yet reached the age of puberty, and having appointed other heirs by his will, he appointed a substitute for the said minor, and manifesting the greatest affection for his said son (to whom, however, he left none of his estate) but, after unjustly disinheriting him, appointed a substitute for him, and charged the latter with a legacy for his benefit, the question arose whether a legacy or a trust left or created under such circumstances would be valid. If the father left a legacy to the said disinherited son, and substituted a stranger for him, after having disinherited him, a dispute again arose whether he could even leave a trust in the same manner. Hence, as the ancient authorities chose to discuss this question in different ways, and as controversies of this description seem to be superfluous, We order that no substitute appointed for a disinherited minor shall, under such cir-

cumstances, be liable in any fiduciary capacity, not even if, by the terms of a legacy or a trust, the testator intended to charge him with the delivery of the same property which he had already left to the minor.

Given at Constantinople, on the second of the Kalends of May, after the fifth Consulate of Lampadius and Orestes.

25. The Same to John, Prsetorian Prefect.

When a legatee or the beneficiary of a trust conceals a will, and it afterwards comes to light, it was doubted whether he who concealed it could claim the legacy left to him by said will. We think that he should, by all means, be prevented from doing so, so that he who wished to defraud the heir of his inheritance will not obtain any benefit from his deceit, but may be deprived of his legacy, and be considered as not mentioned in the will. The legacy will belong to the heir, and he who thought that he was injuring another shall himself suffer a loss, just as where a legatee, to whom something was bequeathed in consideration of his administering a guardianship does not do so, is deprived of his legacy, which is assigned to the ward whom he refused to assist.

Given at Constantinople, during the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 531.

26. The Same to John, Prsetorian Prefect.

We purpose to amend the rule laid down by legislators declaring legacies or temporary trusts void, by ordering that this description of legacies and trusts shall be considered valid, and shall stand. For as it has already been decided that temporary donations and contracts can be made, it follows that legacies and trusts also, which are left for a stated period, can, in the same way, become effective; and that after the expiration of the time, the right to said legacies or trusts gihall be vested in the heir. The legatee or beneficiary of the trust is required to furnish a bond to the heir, to deliver the property to him not deteriorated through his fault, after the specified term has elapsed.

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

TITLE XXXVIII. CONCERNING THE MEANING OF WORDS AND THINGS.

1. The Emperor Antoninus to Antipatra.

It was decided by the ancient legislators that where land with its appurtenances was devised, and there was merchantable wine or oil forming a part of the crops of said land, as well as any other articles which happened to be temporarily placed on said land for the purpose of preventing the depredations of robbers, they did not constitute any portion of the bequest.

You should not, however, be ignorant that wine in storehouses, when left on the land for the use of the mother of the family, is included in the devise.

Published on the sixth of the Ides 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 Rufinus.

Where land with all its appurtenances is bequeathed as a legacy, or left under the terms of a trust, the overseer, the slaves, and everything which the head of the household made use of, or with which the land was provided, and was not left there temporarily, is held by law to have been bequeathed. Moreover, it is a positive rule of law that everything employed for the gathering of the crops, as well as for preserving them, and for collecting manure, or feeding cattle in order to obtain the increase of the latter, or which can be used for cultivation, is included in the legacy or trust.

Given on the Nones of October, during the Consulate of the abovementioned Emperors.

3. The Emperor Justinian to Julian, Prsetorian Prefect.

We order that what is known by the name of a bond, or asphaleia, shall not be considered as a gift of the surety, unless this has been expressly stated in either the Greek or the Latin language; for if it has not been generally referred to as a security, or specifically mentioned as a bond, the asphaleia shall not be understood to mean a security, but a mere promise.

Given at Constantinople, on the Kalends of March, during the fifth Consulate of Lampadius and Ojestes, 530.

4. The Same to John, Prsetorian Prefect.

When anyone appoints an heir, leaves a bequest, creates a trust, makes a grant of freedom, or establishes a guardianship, in the following words: "Let either So-and-So, or So-and-So be my heir," or "I give and bequeath to So-and-So," or "I wish property to be given to So-and-So," or "I desire that So-and-So, or So-and-So, shall become free, and act as guardian," or "I order this to be done," a doubt arose whether the appointment, the bequest, the trust, the grant of freedom, or the appointment of a guardian made in this way was not void; and whether the position of the party in possession was the better; or whether both parties were called to enjoy or assume benefits or burdens of this kind, and whether they should be admitted to any order, or whether both should be admitted without distinction.

In the case of the appointment of heirs, some authorities thought that the first one named should be considered as the designated heir, and the second as the substitute; and others held that in the case of trusts, only the last one mentioned would have the right to accept it, as availing himself of the final intention of the testator.

Anyone who desires to succinctly dispose of the disputes of these jurisconsults will have no insignificant number of volumes to examine, as there is a great variety of opinions to be reconciled, for not only the legal authorities, but also the Imperial Constitutions which the said authorities have cited, are known to differ.

Therefore having rejected all this verbosity, it has seemed to Us preferable that the conjunction "or" should be taken to mean "and," so that it may be understood in a certain sense to be copulative, and hence admit the first person mentioned without excluding the second ; just as, for the sake of example, in the interdict Quod vi aut clam, the conjunction aut is clearly used in the sense of et; and, in all cases of this kind having reference to either the appointment of heirs or of the beneficiaries of a trust, or to grants of freedom, or to guardianships, it may be understood that both parties are entitled to equal shares of the estate, and can, in like manner, receive legacies, and that both will be entitled to their freedom, and that both can discharge the duties of guardianship, so that no one will be prevented from enjoying the liberality of the testator, and greater protection will be afforded to wards, and when a doubt exists as to who are entitled to the guardianship, the property of the wards may not, in the meantime, be lost.

We order that these rules shall be observed when the instrument in question has reference to persons. Where, however, only one person is mentioned, but property is left as follows, "I do give and bequeath such-or-such property to So-and-So," or "I leave it to So-and-So in trust," then, in accordance with the ancient regulations, and the provisions of antiquity, the laws remain unimpaired, no change having been introduced in them by this Constitution.

We order that this rule shall also apply to contracts.

Given at Constantinople, on the day before the Kalends of May, after the fifth Consulate of Lampadius and Orestes. 531.

5. The Same Emperor to John, Prsetorian Prefect. By way of answer to questions submitted by the Bar of Illyria, We decree that the term "family" shall include parents and children, as well as all relatives and property, and even freedmen and patrons as well as slaves. When a testator leaves a trust to his "family," without specifying by any addition those who are entitled to it, this shall be considered to mean not only his near relatives, but even in case there should be none of these, his son-in-law and daughter-in-law; for it seems to Us to be only equitable that they should be called to the trust, even where the marriage has been dissolved by the death of either the son or the daughter. But, under no circumstances, can a son-in-law or a daughter-in-law obtain the benefit of such a trust while any children are living, as the latter undoubtedly will be preferred to the former; and this of course takes place according to degree, so that the freedmen may come last.

This rule shall be observed where anyone has left immovable property, or made it the subject of a trust and forbidden its alienation, adding that if the beneficiary should decline to accept it, the property shall belong to his family. Again, in other cases, the term "family" must be understood to mean property; for the reason that slaves and other effects forming part of an estate are considered as classed under the same head.

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

TITLE XXXIX. WHERE PROPERTY LEFT BY WILL Is REJECTED.

1. The Emperor Severus and Antoninus to Januaria.

If you can prove that the estate has been transmitted to the substitute in fraud of the legatees, an equitable action will lie in your favor against the person who was an accomplice in the fraud. It is evident that if he, having received a sum of money, failed to enter upon the estate, he can be compelled to surrender the legacies and

the trusts.

Adopted on the Kalends of October, during the Consulate of Fuscus

and Dexter, 226.

2. The Emperor Philip and the Ciesar Philip to Victoria.

It has already been decided that when he who was appointed a testamentary heir prefers to obtain the succession on the ground of intestacy, he can not refuse to carry into effect the grants of freedom bestowed by the will. If, however, he could not enter upon the estate by virtue of the will, or demand praetorian possession of the same, the will of the deceased shall not be executed but shall be revoked as void in law, and claims for the bequests cannot legally be prosecuted. But where the will was legally drawn up, and the appointed heir having declined to accept the estate, another obtains it as heir at law, it is clear that neither the grants of freedom can be perfected, nor the legacies paid under the testamentary provisions.

Published during the Kalends of January, during the Consulate of Philip and Titian, 246.

3. The Emperors Diocletian and Maximian, and the Csesars, to Aper and Pia.

If Proculina by her will left property to your father whose heirs you are, and the appointed heirs have acquired the estate either in accordance with the testamentary provisions, or on the ground of intestacy, because of the non-acceptance of the will, a competent judge, having been applied to, must order what was bequeathed to your father to be given to you, to the extent authorized by the Falcidian Law.

Given on the fifteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

TITLE XL.

CONCERNING WHAT Is REQUIRED OF WIDOWHOOD, AND THE ABROGATION OF THE LAW OF JULIA MISCELLA.

1. The Emperor Gordian to Bonus.

When a legacy has been left to a woman under the condition that she shall not marry again after the death of her husband, and, by doing

so, she fails to comply with the condition, the legacy can, for this reason, under no circumstances, be claimed.

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

2. The Emperor Justinian to John, Prsetorian Prefect.

For the purpose of disposing of the ambiguities arising from the general interpretation of the Lex Julia Miscella, We do not permit the oath to be taken hereafter in accordance with the aforesaid law, and We direct that the said law, together with the Mucian Bond, shall be rescinded, and that women shall be permitted to disregard the restriction imposed upon them by their husbands, which enjoins widowhood, and that, not having taken the oath, they can marry again for the purpose of having children, and that the penalty shall have no effect whether they already have children or not, and that they shall be entitled to what their husbands have left.

From all this it is perfectly clear that where they already have children, the estate shall not belong to them, but they shall only be entitled to the usufruct of the same; and that the title to the property shall vest in the child of the first marriage, in accordance with what has been decided with reference to second nuptials and the benefits accruing to women therefrom, in order that perjury may not be committed through the requirements of the law. For Nature has created women for the purpose of having children, and their greatest desire is directed to this end, so why should We knowingly and deliberately allow perjury to be committed?

Therefore, let this oath be disregarded, and the Lex Julia Miscella, together with the Mucian Bond introduced for this purpose, be abolished, as We desire Our Empire to be enlarged, and to be inhabited by a numerous population legitimately begotten, rather than to be weakened by wicked perjury; for it appears to Us to be extremely inhuman to open the way for the commission of perjury by the enactment of laws which punish the offence.

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

Extract from Novel 22, Chapter XLIII. Latin Text.

Where anything has been left by one married person to another, or by anyone else, on the condition that he or she will not contract a second marriage, it cannot be claimed within a year, unless the person referred to is absolutely incapable of marriage; but he or she will be entitled to it after the expiration of a year, provided a bond is furnished to return the property with its profits, in case the condition should be violated. A bond, executed under oath with hypothecation, must be furnished where the property is immovable, and in case of that which is movable (if the person is solvent) a bond alone shall be required; otherwise, a surety must be furnished, if one can be

obtained. When a second marriage takes place, the property given can be recovered, just as if it had never been left or donated.

3. The Same Emperor to John, Prsetorian Prefect.

The Lex Julia Miscella, which We have rescinded so far as women are concerned, should unquestionably also be abolished with reference to men, in accordance with the terms of the law which We have promulgated on this subject. But that no doubts may arise in the minda of ignorant persons, We hereby expressly order that the Lex Julia Miscella, and the Decree of the Senate enacted with reference thereto, as well as the Mucian Bond which was introduced to regulate marriages of this kind, shall cease to apply to males as well as females. But, for the reason that we have found certain expressions in Ulpian's treatise on the Sabinian Books that there are cases to which the Lex Miscella is not applicable, in order that no one may think that where anything is left to women by a clause like the following, namely, "If she should remain a widow," or "If at any time she should become a widow," or "When she becomes a widow," or on the other hand, with reference to husbands, "If he should lose his wife," or "When he becomes a widower," We direct that they shall not be prevented from claiming or taking possession of what was left to them in a legal manner. For the property is considered to have been bequeathed in ^order that women may not remain in widowhood, or men in celibacy, and that the Lex Julia Miscella, which has already been rescinded, should be applicable before Ours. But if this should take place first, those persons to whom the property was left will immediately have the right to demand the same, because it is considered to have been bequeathed subject to a condition; and this liberality should be enjoyed either once, or every year, as a consolation for the sorrow of the bereaved person.

Given at Constantinople, on the Kalends of November, after the fifth Consulship of Lampadius and Orestes, 531.

TITLE XLI.

CONCERNING PROPERTY MENTIONED IN OR LEFT BY A WILL OR A CODICIL, UNDER A PENALTY.

1. The Emperor Justinian to Menna, Praetorian Prefect.

We hereby abolish the superfluous observance of the ancient Iaw3 by which the wills of testators are weakened and prevented from being carried into effect, ordering that where anything has been given or taken away by the last will of the testator, through the provision of a penalty, it shall be void; but a testator shall be permitted to order money to be paid, or impose any other pecuniary penalty upon whatever he wishes, in order to secure the execution of his will, not only by depriving him of estates, legacies, trusts, or freedom, but also by

directing that these shall be transferred to others by the person to whom they were originally left; or that something shall be given by him to them, if the heir, legatee, or former slave should fail to comply with the terms of the will.

Where, however, any of them is ordered to do something prohibited by law or reprehensible in other respects, or impossible, the will shall then stand without anyone suffering loss, even if the order of the testator has not been obeyed.

Given at Constantinople, on the Kalends of January, during the Consulate of Our Lord Justinian, Consul for the second time, 528.

TITLE XLII. CONCERNING TRUSTS.

1. The Emperor Antoninus.

If you can prove that Demetrius required his mother, who was his heir, to furnish you with provisions every month, and clothing every year, and she obeyed the wishes of her son and furnished the articles mentioned for a long time, that is to say, in a case of this kind for not less than three years, you will be entitled to have them furnished in the future, even if this has not been done without interruption in the past.

Published on the seventeenth of the Kalends of September, during the Consulate of the two Aspers, 213.

2. The Same Emperor to Eupatrius.

Where a trust has been left which is void, and the heirs, notwithstanding, in compliance with the will of the deceased, transferred to your grandfather certain lands under the terms of the trust, you will, to no purpose, raise any question with his heirs with reference to the said property, as the wishes of the testator appear to have been complied with, not only as set forth by the terms of his will, but also in accordance with the consciences of those who carried out the provisions of the trust.

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

3. The Same to Rufinus.

If, as you allege, the little girl, Chrysis, was manumitted by the heirs in compliance with the will of the deceased, and died intestate before the estate was transferred to her, the succession will belong to those who manumitted her, if they accept it; and the rights of action having been merged, they will be released from the obligation of the trust.

Published on the fifth of the Ides of December, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.

4. The Emperor Alexander to Victorinus.

The will of a father which forbids his children to sell lands outside of the family, or to encumber them, is not considered to prevent a brother from conveying them to his sister.

Published on the fifth of the Kalends of July, during the Consulate of Maximus, Consul for the second time, and .^Elianus, 224.

5. The Same Emperor to Regina.

If your brother, who afterwards became the heir of your father, having reached the age of puberty died without leaving any children, his estate does not pass to you as the result of pupillary substitution; but if it has been confirmed in any part of the will under the form of a trust, you will not be prevented from demanding the execution of the trust by the heirs.

Published on the fifteenth of the Kalends of February, during the Consulate of Julianus, Consul for the second time, and Crispinus, 225.

6. The Same to Nilius.

The heir should see that the liens on lands which are encumbered and have been devised or left under a trust are released, and, by all means, when the testator was aware of their condition, or, knowing it, intended that a legacy which was of no less value than the aforesaid lands should be left to you. If, however, they have been sold by a creditor, the heir will be obliged to pay you the price received, unless it can be shown by him that the intention of the testator was otherwise.

Published on the sixteenth of the Kalends of March, during the Consulate of Julianus, Consul for the second time, and Crispinus, 225.

7. The Same to Septimus.

The question of the intention of the deceased must be decided by the judge.

Published on the fifteenth of the Kalends of March, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

8. The Same to the Emperor Masculus.

Anyone who has obtained his freedom by virtue of a trust can legally demand any legacies, or property left to him in trust by the deceased.

Published on the fifteenth of the Kalends of June, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

9. The Emperor Gordian to Paulina.

No one can be charged with a trust who has not received either a legacy, a fiduciary bequest, an estate, or a donation mortis causa.

Published on the seventeenth of the Kalends of October, during the Consulate of Pius and Pontianus, 239.

10. The Same Emperor to Firmus.

The expression, "I wish," even though it may be lacking, is, nevertheless, understood to be added, when, by doing so, the meaning of the sentence will become perfect.

Published on the third of the Ides of December, during the Consulate of Gordian and Aviola, 240.

11. The Same Emperor to Papyrianus.

Whenever property left under a trust is sold by all the heirs who have the right to demand the execution of the same, the property is alienated, or where some of them have given their consent for others to sell it, the validity of the contract can, under no circumstances, be attacked.

Published on the second of the Kalends of January, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

12. The Emperor Philip, and the Caesar Philip, to Rufinus.

It is a well-established rule of law that, where a woman has been appointed heir and requested by the will of the deceased to transfer his estate after his death, she can, before he dies, comply with this request, that is to say, transfer .the estate, if she wishes to do so, whether the lawful fourth of the same is retained or not.

Published during the Ides of October, during the Consulate of Peregrinus and ^milianus, 245.

13. The Same Emperor and Csesar to Sempronius.

Whenever the heir appointed in the first place succeeds the testator, any legacies or trusts with which the substitute was charged cannot legally be claimed.

Published on the eighth of the Kalends of March, during the Consulate of Prsesens and Albinus, 247.

14. The Emperors Valerian and Gallienus to Falco.

If she whom your brother appointed his heir should die without having obtained the estate, and her death occurred before she reached her twelfth year, and in making his will, the testator requested substitutes to be appointed; nothing will prevent the execution of the trust from being demanded by her heirs, or by those who have possession of her estate on the ground of intestacy. For, in this instance, the rule by which any testamentary dispositions are not valid if the estate is not entered upon as provided, will apply, for while one which has been left in direct terms can be entered upon, one of this kind is bequeathed in such a way that it can be claimed by the heirs at law ab intestato. We have stated this in a Rescript, relying upon your statement that the appointed heir was not legally adopted.

The case would be otherwise if the heir, having actually become one of the family, should die, and consequently her heirs would be compelled to execute the trust.

Published on the fourteenth of the Kalends of September, during the Consulate of Valerian, Consul for the third time, and Gallienus, Consul for the second time, 256.

15. The Same Emperors to Philocrates.

Although a certain man who simply appointed you and your brothers his heirs, desired that you should enjoy the benefit of the estate by being emancipated from your father's control, still, as by the last words of his will the testator tried to render you independent, it is understood that your father will be required to surrender the estate to you subject to a trust.

Published at Rome, on the sixth of the Ides of October, during the Consulate of Maximus, Consul for the second time, and Glabrio, 257.

16. The Emperors Cams, Carinus, and Numerianus to Isidora.

We are aware that the learned legal authority, Papinianus, rendered an opinion that legacies are embraced in a trust like the following: that is to say, where an heir is requested, after his death, to transfer any of the estate which may have come into his hands, for We note that a preferred legacy is also included in the words of the testator. But as, in the case of trusts, the intention of the deceased is much more worthy of consideration than the language which he employs, if you have, in addition, any evidence which you can bring forward to establish the truth, and show that the intention of your father was what you allege it was, you will not be prevented from instituting proceedings before the Governor of the province.

Published on the day before the Ides of September, during the Consulate of Carus and Carinus, 283.

17. The Emperors Diocletian and Maximian to Fortunatus.

If it can be shown that it was the intention of the testator (who was also your creditor) to release you, in conformity to the law, from the debt which you owed him, it is clear that, even before your release has been solemnly acknowledged by his heir, an exception based on the will of the deceased will lie in your favor against his successor.

Published on the twelfth of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

18. The Same Emperors to Apolaustus.

As the deceased requested that you should be excused from rendering an account, it is a positive rule of law that what he desired should remain unaltered.

Published during the Ides of March, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

19. The Same to Ampleatus.

It is a clear and manifest rule of law that, in the case of trusts, the last will executed should prevail.

Published on the eighth of the Ides of September, during the same Consulate of the above-mentioned Emperors, 290.

20. The Same Emperors to Julianus.

Trusts with which the guardians of minors are charged should be executed, just as if the minors themselves have been required to do so.

Published on the third of the Nones of December, during the same Consulate, 290.

21. The Same Emperors and Cassars to Tiberius.

If the time for the execution of a trust of which your father was the beneficiary, and whom you say you have succeeded, has arrived, although it is established that when it was created you were not yet born, you can, under the said trust, as the heir of your father, sue the wife of your paternal uncle, whom you allege was requested by your father, in case he should die without children and you should become his heir, to surrender the property left by your grandfather. But if your uncle's estate should be directly acquired by you, there will be no necessity to make a claim under the trust, but the property itself can be recovered from her.

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

22. The Same Emperors and C&sars to Plautianus.

There is no doubt that a trust can be left in the presence of witnesses, by means of an ordinary letter or written request, and even without writing, but merely by a sign.

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

23. The Same Emperors and Csesars to Stratonicus.

When the truth has not been ascertained, or any of the legal formalities have not been complied with, and you have not carried out the alleged will of your father by paying the bequests mentioned therein, or, for the purpose of making a compromise, you have bound yourself by a stipulation, and the matter still remains unaltered, you cannot be compelled to make payment.

Given on the fifth of the Kalends of February, during the Consulate of the above-mentioned Emperors, 293.

24. The Same Emperors and Csssars to Menostratus.

Heirs are not required to surrender any instruments having reference to land left under the terms of a trust, which serve to establish the title to the same. They should, however, furnish security to deliver them to the legatee or the beneficiary of the trust, if this should be necessary, and they are in their possession.

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

25. The Same Emperors and Csesars to Juliana.

There is no doubt that the private property of heirs can be left by the terms of a trust.

Given on the second of the Kalends of March, during the Consulate of the Csesars, 293.

26. The Same Emperors and Csesars to Fortunatus.

Where proper cause is shown, the exception on the ground of fraud can be pleaded when a trust is rejected, and he to whom it was left attempts to avail himself of his rejection; this, however, cannot be pleaded against you, as you allege that not you, but your father, who was not able to injure you, committed this act.

Given on the second of the Ides of April, during the Consulate of the Caesars, 293.

27. The Same Emperors and Csesars to Olympias.

Where anyone who left a trust is proved to have changed his mind, his heirs cannot be compelled to execute it.

Given on the fifth of the Kalends of October, during the Consulate of the Caesars, 294.

28. The Same Emperors and Csesars to Tiberius.

Freedom cannot be demanded by slaves under the terms of a trust which was illegally created subject to a condition, and without granting freedom to the slaves.

Given on the Kalends of November, under the Consulate of the

Csesars, 294.

29. The Same Emperors and Csesars to Achilles.

A trust which is not legally valid cannot be claimed under the terms of a will, if the heirs charged with it are not proved to have succeeded on the ground of intestacy.

Given on the eighth of the Kalends of December, during the Consulate of the Csesars, 294.

30. The Emperor Justinian to Demosthenes, Prsstorian Prefect.

As that wise and shrewd man, Papinianus, who deservedly excels all others, has stated in his Opinions that where anyone appointed his son his heir, and subjected him to the burden of giving up his estate after his death, he will not be considered to have made such a testamentary disposition, unless his son should die without issue, We, having adopted this opinion as reasonable, do give it full effect, so that, if anyone should make such a disposition of his estate, and should not only appoint his son his heir, but also his daughter, or, in the first place, should appoint his grandson or granddaughter, or his great-grandson or his great-granddaughter, or any of his other descendants, and subject them to the burden of giving up his estate after his death, he shall be considered not to have had any other intention, if those who were charged with the transfer of the

estate should die without leaving either sons or daughters, grandsons or granddaughters, or great-grandsons or great-granddaughters; in order that the testator may not appear to have preferred foreign heirs to his own descendants.

Read for the seventh time in the New Consistory of the Palace of Justinian.

Given on the third of the Kalends of November, during the fifth Consulate of Decius, 529.

31. The Same Emperor to John, Prsetorian Prefect.

A certain man liberated his son from paternal control, and afterwards, having made his will and appointed other heirs, passed him over, leaving him absolutely nothing. He, however, charged him with the execution of a trust, although he had neither appointed him his heir, nor disinherited him.

The question arose whether a trust of this kind was valid; therefore, for the purpose of removing all doubts formerly entertained on this point, We have decided in this case that an emancipated son (as he has been injured by his father), shall not be compelled to execute a trust with which he has been charged; and We order that this rule shall apply to other persons whom it is necessary to disinherit.

Given at Constantinople, on the day before the Kalends of March, after the fifth Consulate of Lampadius and Orestes, 531.

32. The Same to John, Praetorian Prefect.

For the purpose of deciding any question of fact which may hereafter arise, and with a view to consulting the wishes of deceased persons, We order that where a trust has been left without having been reduced to writing, and without the presence of witnesses, and the beneficiary of the same chooses to tender the oath to the heir, or to the legatee, or the trustee, whenever any of them has been charged with a trust, either generally or in specified terms, the heir, the legatee, or the trustee must be sworn before the oath of calumny is taken, and will divest himself of all anxiety.

When, however, he thinks that he ought to refuse to take the oath, or is unwilling to produce the certain share or amount left to the beneficiary of the trust, and the latter has reason to expect a larger sum, he shall, by all means, be compelled to do what is required by the beneficiary, and satisfy him, as he himself acts as both judge and witness whose honor and good faith has been conceded by the beneficiary of the trust, and no witnesses, or other evidence shall be necessary.

But whether five witnesses or a smaller number, or, indeed, none at all, were present, for the reason that the oath was neither taken nor refused, the case shall be proved as required, whether a father or a stranger was the person who created the trust, so that justice may equally be done to all parties. For when the facts are established by the solemn oaths of witnesses, then the number of the latter

51

prescribed by law must be obtained, and all the formalities complied with. The law requires several witnesses, in order to prevent a forged will from being established by the evidence of only two, so that the truth may be ascertained more perfectly by the testimony of a larger number.

But when anyone who profits by the will of the deceased (and above all, the heir himself, to whom is committed the entire authority in a case of this kind) is compelled to speak the truth by the administration of the oath, what ground will there be for the introduction of witnesses; or why should recourse be had to the evidence of strangers, when a certain and undoubted truth is established by a refusal to be sworn?

In framing this legislation, We have taken into consideration the fact that heirs,are, by all means, obliged to carry out the just dispositions of deceased persons; and these laws are so strict that they even provide that the benefit of an estate shall be lost by those who fail to obey the orders of the testator.

Extract from Novel 1, Chapter I. Latin Text.

Moreover, if anyone, having been warned by the judge, does not, within a year, carry out the wishes expressed in the will of the deceased, he shall be excluded from the benefit of what he would obtain under the said will, with the exception of what he is naturally entitled to, and this should only be granted under the condition of his giving a bond to comply with the testamentary provisions; in the first place so far as the substitutes are concerned, and afterwards with reference to the co-heirs in their regular order, or to the general beneficiary of a trust, or a sole legatee; or, when there are several legatees, to the one having the preference; or to the special beneficiary of a trust; or to a legatee entitled to the largest amount; or to all of the legatees; to those who consent; or to slaves who have received their freedom by the will; according to the order in which each of the preceding persons is mentioned. In this instance, however, disinherited children shall not be considered, and finally, in default of other heirs the estate shall go to the heirs at law, or be forfeited to the Treasury.

TITLE XLIII.

REGULATIONS WHICH ARE EQUALLY APPLICABLE TO LEGACIES AND TRUSTS, AND CONCERNING THE ABOLITION OF THE ACT OF PLACING THE PARTY INTERESTED IN POSSESSION OF THE PROPERTY BEQUEATHED.

1. The Emperor Justinian to Demosthenes, Prsetorian Prefect.

While those who are favored in the bequests of legacies and trusts are known to be fully entitled to every personal right of action, who approves of bringing a suit for recovery of property, either on the ground of permission, or of any other subtle distinction applicable to

other kinds of legacies, when such measures are not now adopted, or readily undertaken, and those involved methods are no longer sanctioned? Who at present makes use of the minute technicalities relative to the placing of a legatee in possession?

Hence We think that it is better to absolutely abolish the latter proceeding, and to render all legatees as well as beneficiaries of trusts subject to a single rule, and We grant them not only the personal but also the real action, so that they may be permitted to recover by means of a real action whatever has been left them by a bequest of any kind, or under the terms of a trust, and, in addition to this, We grant them the equitable Servian or hypothecary action, for any property left them, out of other assets forming part of the estate of the deceased.

By this law of Ours, the testator is permitted to hypothecate any of the property disposed of by his will, to whomever he chooses; and the New Constitutions, in many cases, introduced tacit hypothecations, so that it is not unreasonable for Us to grant the hypothecary action in the present instance, which could not be inferred, through any previous expressions, to be found in the law itself. For when a testator left legacies or trusts in such a way that those benefited by them could obtain them, it is apparent from his will that the abovementioned actions ought to be brought against the property of the testator, and his will be complied with in every respect, and especially when the legacies or trusts are of such a nature as to be attributable to motives of affection.

We make these provisions, not only where a legacy or a trust has been created to be executed by the heir, but where a trust was left to anyone to be executed by a legatee or a trustee, or any other person whom we can charge with a trust. For as a trust is not valid unless it confers some advantage upon the party charged with its execution, there is nothing oppressive in granting not only the personal, but also the real and the hypothecary actions against him, with reference to the property which he obtained from the testator.

In all cases of this kind, however, We desire every one to be sued by the hypothecary action only to the extent of his liability in the personal one, and the hypothecary action does not affect the property of the heir himself, or that of any other person charged with the administration of the trust, but solely that which came to him from the testator.

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

2. The Same Emperor to Julian, Praetorian Prefect.

Every word which clearly indicates the intention of a testator who desires to bequeath property as a legacy, or under a trust, shall be lawful and valid; whether this is done by direct statements, such as "I order," or whether the testator makes use of those denoting a request, for instance, "I beg," "I desire," "I direct," "I leave in trust;" or whether he requires an oath, which has been done in Our presence,

the testator making use of the expression, "I call God to witness," the other parties in turn repeating this after him.

Therefore as We have already stated, a will shall not be considered without force so far as its general construction is concerned, no matter what the words bestowing the legacies or trusts may be; and everything which is naturally inserted in legacies is understood to belong there; and when something is inserted in a trust which should not have been, it is understood to be bequeathed; and if anything appears which does not partake of the nature of a legacy, this shall be held to have been left under the terms of a trust; so that every disposition of this kind may be carried out, and actions in rem, as well as hypothecary and personal actions, may be founded" upon any

of them.

Where, however, something contrary to law appears in the bequests of legacies and trusts, this will either be added to the trust or the legacy, as the case may be; which is more consonant with justice, and will, in this way, be disposed of in accordance with its character. Let no one, at the time of his death, think that his lawful will shall be rejected, but he can always rely upon Our assistance, and as We provide for those who are living, so also care is taken of the interests of the dead. Where the testator only makes special mention of a legacy, this may be considered both a legacy and a trust; and if anything is committed to the care of the heir or legatee, it shall be considered as a legacy; for We do not impose laws upon words but upon the property itself.

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

3. The Same Emperor to John, Praetorian Prefect.

When the selection of a slave or other property is left to two or three men, or more, or if the choice of a slave or some other property is bequeathed to one legatee and the latter, at his death, left several heirs, it was doubted by the ancient authorities what decision should be made, if a dispute should arise among the legatees or the heirs of the aforesaid legatee, and one of them wished to choose one slave, or some article, and another another.

Hence We order that, in all cases of this kind, the casting of lots shall be resorted to, and fortune decide the question, and whoever succeeds shall have the right to make the choice; and with reference to the others, the amount of their shares shall be placed with the appraised value of the other assets; that is to say, in the case of a male or a female slave, if he or she is over ten years of age, and has no trade, the valuation shall be twenty solidi; but those who are under ten years of age shall not be considered as worth more than ten solidi. Where, however, they are skilled artisans, whether they are males or females, their value shall be appraised up to thirty solidi, except in the cases of notaries and physicians of both sexes, as We desire notaries to be valued at fifty solidi, and physicians and midwives at sixty. Eunuchs under the age of ten years shall be valued as high as

thirty solidi, and those who are older up to fifty, but if they are skilled in some trade, they shall be valued up to seventy solidi.

(1) Where anyone leaves the choice of a slave or other property, not to the legatee himself, but to someone else, for instance, to Titius; and Titius refuses to make the choice, or is unable to do so, or is prevented by death; in this instance, a doubt arose among the ancients as to what conclusion should be arrived at; whether the legacy should be held to have been annulled, or whether relief could be granted so that the selection might be made in accordance with the judgment of a good citizen.

Therefore, We decree that if the person who was directed to make the choice, should fail to make it within the term of a year, or should be unable, or should die at any time before doing so; the right shall be considered to have been granted to the legatee himself, provided, however, that he does not select the best one of the slaves or other property, but only such as is of average value, in order that, while We think that the legatee should be favored, the heir may not be deprived of the advantages to which he is entitled.

(2) But, for the reason that We have, in many instances, provided for the interests of the beneficiaries of legacies and trusts, and have granted them not only personal actions but real and hypothecary ones, and have abolished the perplexing formality required in granting possession of property; We now promulgate the following law.

No heir shall hereafter be permitted under the authority of the ancient laws to alienate, or encumber by pledge or hypothecation, or by the manumission of slaves, any property which has been bequeathed either absolutely as a legacy, or left dependent upon a condition of time, or to be transferred to others, or delivered under a substitution; but he is hereby notified that he cannot subject to the control of another what does not belong to him also, just as if it was a part of his patrimonial estate; because it would be both absurd and unreasonable for him to be able to transfer to others property which he does not possess as his own, or to encumber the same either by hypothecation or pledge, or to manumit slaves which are not his, and thwart the expectations entertained by others.

(3) Where, however, a legacy or a trust has been left either generally or specially under a condition, or to take effect at some uncertain time, or subject to substitution or restitution; the party interested will do well in cases of this kind to avoid making any sale or hypothecation, in order not to expose himself to the serious difficulties resulting from eviction. But if, induced by avarice, and with the hope that the condition will not be complied with, he should venture to sell or hypothecate the property, he is hereby notified that, in case the condition should be fulfilled, the transaction will be considered void from the beginning, and be understood as not having been written, or to have taken place; so that neither usucaption nor prescription of long time will run against the legatee or the beneficiary of the trust.

We decree that the same rule shall also apply to legacies of this description whether they have been left absolutely, or to vest at a certain date, or conditionally, or at some uncertain time. In all these instances, the legatee or the beneficiary shall have full authority to bring suit to recover the property in question, and to obtain possession of the same, without the person who holds it being able to interpose any obstacle to prevent him from doing so.

Extract from Novel 39, Chapter I. Latin Text.

Property which is subject to restitution is forbidden to be alienated or encumbered. If, however, the lawful share of the children does not prove sufficient to satisfy the obligations of the dowry, or donation on account of marriage, it is permitted to alienate or encumber the above mentioned property for this purpose, in a manner suitable to the positions of the persons interested; for We desire to make provision for those matters which are of advantage to all parties, rather than for those which only affect the interests of a few.

END OF THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

(4) A purchaser who knows that the property is encumbered will only be entitled to an action against the vendor for the recovery of the price, and not for double damages under a stipulation; nor will he be allowed anything for improvements, as it will be sufficient for him to recover the price which he knowingly paid for what belonged to another.

Where the property has been pledged, the counter action of pledge will lie in favor of the creditor against the debtor; and We make this provision so that, under all circumstances, the effect of which We always desire to accomplish may be produced, and the last wills of deceased persons may be observed. There is no doubt that the rights of purchasers in good faith will remain unimpaired, and in no respect affected by the terms of this Constitution, as they will continue to enjoy them against vendors.

Given at Constantinople, on the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531.

TITLE XLIV.

CONCERNING FALSE STATEMENTS MADE IN THE CASE OF LEGACIES OR TRUSTS.

1. The Emperor Antoninus to Septimus.

The words of the will which you have inserted in your petition, either state that the money due the testator has been paid, or they plainly show that his intention was to discharge the debtor. Therefore, either what has been paid cannot be collected, or proceedings must be instituted as under a trust, in order that the debtor may be released from liability; unless it can clearly be established that the

testator did not intend to release him, but, erroneously thought that the money had been paid to himself.

Published on the seventh of the Kalends of March, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Faustina.

Even if the truth with reference to a debt does not appear, the false statement does not render the bequest void, and an action based on the will will lie in the name of the testator.

Published on the seventh of the Ides of November, during the Consulate of Alexander, 223.

3. The Same Emperor to Verina.

If your husband left you property by way of dowry without designating the amount of the same, but stated that whatever had come or might come into his hands, should be considered as your dowry, and you bring suit for it under the will; proof of the amount of money which he received will be necessary. If, however, he mentioned the sum, it will be due; and if it is not paid as dowry but as something else that is bequeathed, it will not be subject to the same rules of law as a dowry.

Published on the Nones of May, during the Consulate of Maximus, Consul for the second time, and .^Elianus, 224.

4. The Emperor Gordian to Alexander.

If, as you allege, your wife having died during marriage you returned her dowry to her father; or, even if you did not return it, if you can prove by the words of the will (as you assert you can) that your father-in-law received all of said dowry, an action will not lie against you on this ground, and you should be under no apprehension, for the dowry has either been paid, and you can not be sued; or, if it has not been paid, you will be entitled to an exception against the person claiming under the will of the deceased.

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

5. The Emperors Diocletian and Maximian and the Caesars to Severn.

It makes a great difference whether your husband bequeathed your dowry to you as a legacy, or whether he left you, in general terms, whatever was inserted in the dotal instrument; for, in the first instance, you can only claim what you prove was given; and in the second, whatever is mentioned in the dotal instrument can be demanded under it, without a false allegation having any effect.

Given on the fourteenth of the Kalends of December, during the Consulate of the Caesars, 293.

TITLE XLV.

CONCERNING LEGACIES OR TRUSTS LEFT FOR A SPECIFIC PURPOSE.

1. The Emperor Antoninus to Saturnina.

The purpose for which legacies and trusts were bequeathed must be observed, just as in the case of a condition. But you are not obliged to obey the will of the testator, as this duty devolves upon him whom you were ordered to marry, and if his wishes are not complied with, you will still obtain what was left to you.

Published on the fifth of the Kalends of January, during the Consulate of Gentianus and Bassus, 212.

2. The Emperor Gordian to Ammonius, Prsetorian Prefect.

Although no ground for the demand of a legacy or a trust arises from the following words: "I leave to Titius ten thousand solidi, or an island, in order that he may pay five thousand solidi out of the above mentioned sum to Msevius, or transfer to him the said island"; still it is admitted as valid by the Divine Severus; provided a bequest of freedom is'involved. But in pecuniary matters, for the purpose of protecting the wills of testators, it is not unreasonable that such a bequest should be allowed; so that, by expressions of this kind, whether they have reference to a condition or to a purpose, or to the gift of any property, or the performance of any act, an action based on the trust will always lie, as in the case of conditions after they have

been fulfilled.

If, however, while leaving a legacy or a trust, the testator should forbid the legatee or the beneficiary or his heir, or anyone else, to collect a certain debt, the debtor will be entitled to an exception against the legatee or the beneficiary of the trust, if he brings suit for a sum equal to that left as a legacy or a trust.

Published on the sixth of the Ides of August, during the Consulate of Sabinus, Consul for the second time, and Venustus, 261.

TITLE XLVI.

CONCERNING CONDITIONS INSERTED IN THE BEQUESTS OF LEGACIES, TRUSTS, AND GRANTS OF FREEDOM.

1. The Emperors Severus and Antoninus to Claudia.

As you allege that the testator left a trust to Trallianus to be carried out by him whom he appointed heir to a portion of his estate, provided the person appointed should die without children, and he should appoint his grandson, born of his daughter, his heir; it is evident that the condition attached to the trust has failed to be fulfilled, unless the intention of the testator is clearly proved to have been

otherwise.

Published on the Nones of December, during the Consulate of

Lateranus and Rufinus.

2. The Same Emperors to Gallianus.

As you assert that a father left a bequest to his daughter in trust, to be paid at a certain time, and ordered that security should be given that this would be done, if she did not separate from her husband; it is proper that the ordinary rules of law should be observed in this case, and that no rescript should be issued with reference thereto. The example of a legacy or an estate to which the condition of a divorce is sometimes attached, should not be adduced in this instance; as it would be absurd for the rule of the perpetual Edict to be disregarded for the reason that the daughter did not obey the wishes of her father.

Published at Antioch, on the eleventh of the Kalends of August, under the second Consulate of the Emperors Antoninus and Geta, 206.

3. The Emperor Antoninus to the Soldier Aurelius.

If Aulazanus bequeathed the legacy by his will, under the condition that the legatee should reside with his concubine and her mother, and that he was to blame for not obeying the wishes of the testator, as he, of his own accord, failed to comply with the terms of the will, he should not be permitted to claim the legacy.

Published on the sixth of the Ides of July, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.

4. The Emperor Alexander to Licinia.

You have no reason to believe that you are entitled to a legacy or a trust left to you by your uncle under the condition that you would marry his son, on the ground that the condition was not complied with, because the son died before you could marry him.

Published during the Kalends of December, during the Consulate of Alexander, Consul for the second time, and Marcellus, 227.

5. The Emperors Diocletian and Maximian, and the Csssars, to Faustinus.

If it is shown that your wife, when you married her, was under the control of her father, the property left to her under a trust at that time will undoubtedly be acquired by her father, where nothing else exists to prevent it from vesting in him. If, however, she was emancipated before her marriage, and afterwards died leaving her father, her husband, and her children, she will transmit to her heirs the right of action which she was entitled to bring for the execution of the trust.

Ordered on the sixth of the Kalends of February, during the Consulate of the Caesars, 293.

6. The Emperor Justinian to John, Prastorian Prefect.

When several persons are directed to comply with a certain condition, it was doubted by Ulpian whether all of them should comply with it at once, or whether each of them should be required to do so singly.

It appears to Us, however, that each of them should be required to comply with the condition, in order to receive the share of the estate to which he was entitled, so that those who obeyed the commands of the testator might enjoy the benefit, and those who failed to do so could only blame themselves if they were excluded from the advantages attaching to the observance of the condition.

Given at Constantinople, on the third of the Kalends of August, after the fifth Consulate of Lampadius and Orestes, 531.

7. The Same to John, Prsetorian Prefect.

A certain man, when making his will, granted freedom to his slave under the condition that he should pay a certain number of solidi to his heir, or should give him some other property or another slave in his stead. As soon as the slave (who did not reside in the same place as the heir) learned of the will of his master, he hastened to the heir with what he had been ordered to give him, but while on the way, he was deprived of the property which he was taking by an attack of enemies, or some other accident, and the question arose among the ancient authorities whether he should be prevented from obtaining his freedom, because he could not, on account of the above-mentioned accidental occurrence, give what was required by the condition. Hence, for the purpose of removing the doubts of the ancients, We have decided that the slave is unquestionably entitled to his freedom, and that the heir, or the stranger, shall not be deprived of the benefit of what was left to him. Therefore, no matter from what source the obstacle was derived, whether from the heir, or from him who was ordered to give something to the latter, or whether it was the result of accident, the slave shall, by all means, obtain his freedom, unless he himself should refuse to comply with the condition; and even after he has obtained his freedom he will be liable to the heir, or to the person to whom he was ordered to give something (unless the latter refused to accept the money, and if this was once rejected by him We do not permit him to change his mind), and he will certainly be compelled to give what he was ordered, or to furnish the slave designated by the testator, if he is still living; and if he is not, his value shall be computed at not more than fifteen solidi; or if he was ordered to give some other property, he must do so, provided it is still in existence, and if it is not, he must pay the true value of the same.

Given at Constantinople, on the day before the Kalends of May, after the fifth Consulate of Lampadius and Orestes, 532.

TITLE XLVII.

CONCERNING THE INTEREST AND THE PROFITS OF LEGACIES AND TRUSTS.

1. The Emperors Severus and Antoninus to Maximus.

It is clear that interest on legacies and trusts can be collected from the time when issue was joined. The income of property and the wages of slaves, due under a will, must likewise be paid.

Published on the day before the Kalends of August, during the Consulate of ^milianus and Frontonus, 200.

2. The Emperor Antoninus to the Freedman of Cassianus.

It is well known that relief is afforded under the law against those who, under* the pretext of witholding the Falcidian portion, are in default in the payment of legacies. Therefore, if after a stipulation has been entered into, you furnish security that you will return anything which you may receive over and above what is allowed by this law, the judge having jurisdiction over trusts will order the entire amount of the legacies to be paid to you.

If, however, you cannot furnish security, an arbiter having been appointed, he shall designate a certain time for you, and if the other party fails to appear within that time, he must perform his duty, and if he should find that there is no ground for the operation of the Falcidian Law, you will receive the interest and profits due from the time when issue was joined in the case.

Published on the sixteenth of the Kalends of June, during the Consulate of the two Aspers, 213.

3. The Emperor Alexander to Paternus.

If certain slaves have been left to you under the terms of a trust, they will be at the risk of the debtor of the trust from the time when he begins to be in default.

Published on the twelfth of the Kalends of April, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

4. The Emperor Gordian to Dionysius.

In the case of legacies and trusts, the profits of the same shall be acquired from the day when issue was joined in the case, and not from the time of the death of the testator, whether a real or a personal action is brought.

Published on the Nones of September, during the Consulate of Gordian and Aviola, 240.

TITLE XLVIII.

CONCERNING UNCERTAIN PERSONS. THIS TITLE Is LACKING.

TITLE XLIX.

CONCERNING THE TREBELLIAN DECREE OF THE SENATE.

1. The Emperors Severus and Antoninus to Probus. If, in accordance with the Decree of the Senate, you retained the fourth part of the estate, and delivered the remaining three-fourths

to the beneficiary of the trust, you can recover from the latter the amount which you paid to the creditors of the estate, instead of nine-twelfths of the same.1

Published on the fifteenth of the Kalends of April, during the Consulate of Lateranus and Rufinus, 198.

2. The Emperor Philip and the Csesar Philip to Julianus.

It is an undoubted rule of law that he to whom a share of an estate is left in accordance with the Trebellian Decree of the Senate must assume the burdens of the estate, or the payment of the legacies, in proportion to the share to which he is entitled.

Published on the eighteenth of the Kalends of November, during the Consulate of Peregrinus and ^milianus, 245.

3. The Emperors Cams, Carinus, and Numerianus to Zoticus and Others.

If the inheritance has been transferred to the State by means of a trust, you will be entitled to restitution of the fourth part of the same, and its profits, in accordance with the terms of the Trebellian Decree of the Senate, and this also applies in case of intestacy.

Without date or designation of Consulate.

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

We do not see that you have any just reason for anxiety on account of the trust which disposes of the remainder of the estate, apprehending that you will lose the profits of the trust which has been bequeathed, because the grandmother of the testator, having been appointed heir to a portion of his estate, and requested by him to deliver it to you, deceitfully and fraudulently rejected the same, in order that a share of the said estate might go to another grandson, who was your co-heir, and through whom the trust was not expressly left to you; and, having been compelled to enter upon the estate which was suspected of being insolvent, she died before she performed any act as heir.

1 The heir was considered by the Romans to occupy the place of the testator, and though he resembled the executor of modern times, he became liable for all the debts of the estate if he accepted it. By the Trebellian Decree of the Senate, enacted during the reign of Nero, it was provided that when the inheritance was transferred to the fidei-commissarius, or beneficiary of the trust, all rights ol action, for or against the heir, were likewise transferred to the former, and, the hseres fiduciarius, or trustee, was released from all liability for any claims which might be presented, whether the estate was solvent or not.

This, however, was only the case where the entire estate was turned over to the beneficiary of the trust, for if the fiduciary heir retained a fourth which, as by virtue of the Falcidian Law, he was authorized to do under the Pegasian Decree of the Senate, and an agreement was made to share pro rata with the beneficiary the advantages as well as the burdens, the Trebellian Decree was not applicable.

Praetorian actions were granted for and against the beneficiary of the trust, just as in the case of an heir at law.—ED.

It was long since decided by the Divine Antoninus, Our relative, that a trust was due even from substitutes, in consideration of the wishes of the testator, just as if this had tacitly been required of them. You should have no fears, as she who rejected the estate, and was compelled to enter upon it, could not retain the fourth part in question.

Ordered at Philippopolis, on the sixth of the Ides of July, during the Consulate of the above-mentioned Emperors.

5. The Same Emperors and Ciesars to Verissimus.

An estate can legally be left under a trust without writing. Therefore, if your wife, being at the point of death, designated you and her step-son her heirs to the amount of three-fourths of her estate, it is settled that her will must be observed, she having provided that her heirs at law, who had agreed to the execution of the trust, should, after the deduction of the indebtedness, only obtain the amount which the Decree of the Senate authorized to be left them in addition to the Falcidian fourth.

Ordered on the fifth of the Kalends of May, during the Consulate of the Caesars.

6. The Emperor Zeno to Dioscorius, Praetorian Prefect.

We direct that whenever a father or mother, after having appointed their son or daughter, or sons or daughters, heirs to equal or unequal shares of their estates, substituted them simply for one another, or charged any one of them who might die without issue to transfer his or her share of the estate to either his or her surviving heir or co-heir; so that, in accordance with the provisions of the Trebellian Decree of the Senate, the fourth part of the estate might, under all circumstances, be reserved, and not be restored to the bulk of the estate by implication (even though the testator requested or ordered this to be done); but the other three-fourths of the property belonging to the estate shall be transferred.

We order that the same rule shall apply to the reservation of the portion provided for by the Falcidian Law, even though the father or mother, after having appointed their son or daughter their heir (as above stated) should charge him or her to deliver the estate to their grandsons or granddaughters, their great-grandsons or great-granddaughters, or the descendants of the latter.

(1) We order that in the above-mentioned cases no bond shall be required to insure the execution of the trust, unless the testator expressly stated that such a bond should be furnished, or when the father or mother thought that the person charged with the execution of the trust ought not to contract a second marriage. For in these two instances, that is to say, first, when the testator expressly directed that security should be given, or second, where the father or mother might marry again, it is necessary for the same security to be furnished in accordance with the provisions of the law.

(2) If, however, he who has been charged with the execution of the trust should die, leaving one son or a grandson by his son, or a

daughter by his son, or a great-grandson, or a posthumous child, the condition will not be considered to have been complied with, and therefore the request for the execution of the trust cannot be granted.

(3) We also give notice that what We have stated with reference to the Falcidian portion being retained, not out of the income but out of the property of the estate itself, and also concerning security being furnished by the beneficiaries of a trust (as above mentioned) shall only apply to the persons and cases above enumerated.

Published at Constantinople, on the Kalends of September, during the Consulate of Probinus and Eusebius, 489.

Extract from Novel 123, Chapter XXXVII. Latin Text. If those who have been charged to transfer property given by way of dowry, or as a donation on account of marriage, or under the condition that they shall marry and have children, should enter a monastery, or any other religious house, or a transfer or substitution should be made under the aforesaid conditions, or if this has been done for the ransom of captives, or for the support of persons who are in want, the execution of the trust cannot be demanded.

Extract from Novel 108, Chapter I. Latin Text. On the other hand, when anyone is charged to transfer what remains of the estate at that time in case he should die without issue, or where he is burdened with other provisions contained in a trust of this kind, he will be compelled to deliver to the beneficiary of the trust, the fourth part of what he has received as heir, and he must furnish security to do so, unless he has been excused by the deceased. If, however, the fourth should happen to be diminished, or should be obtained from the property of the estate, or if this should be lacking, permission shall be given to the beneficiary of the trust to proceed by a real and an hypothecary action against those who have received the property. The diminution of the said fourth is allowed in the case of a dowry, or a donation in consideration of marriage, or where captives are to be ransomed, or sufficient assets are not available to pay expenses. 7. The Emperor Justinian to Julian, Prsetorian Prefect. We order that permission shall be given to make restitution to a sole guardian of the entire trust left to his ward, without his being required to furnish security, whenever the ward cannot speak for himself, or is known to be absent, in order that We may not prescribe to too many restrictions with reference to the affairs of wards, and these restrictions redound to their injury.

The same rule shall apply where an estate is due to an insane person under a trust, so that restitution shall be made to his curator alone, in the name of the insane person. For what understanding and what reason can be attributed to one who is not of sound mind, when, in both instances, those who make the restitution enjoy the greatest security under Our law?

This rule shall also be observed if the ward himself, or the insane person, is required to make restitution.

(1) When anyone is directed to transfer an estate to others, and fraudulently or obstinately conceals himself either before or after issue has been joined in the case; or where he is charged with the execution of a trust, and, before he transfers the estate dies, leaving no heir or successor; or where the beneficiary of a trust to whom an estate has been transferred under the Trebellian Decree of the Senate is ordered under the terms of the same to transfer the property belonging to the estate to a third party; a doubt arose among the ancient authorities as to how the assignments of the rights of action in these three cases should be made. Domitius Ulpianus was of the opinion that a constitution should be promulgated with reference to these cases, and therefore We order that where he who was required to transfer the property absented himself through perverseness, or, having died, left no successor, or was the first beneficiary of the trust and was charged to transfer the property to a second, the praetorian rights of action pass by operation of law.

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

8. The Same Emperor to John, Praetorian Prefect.

A certain man, having made his will, directed his heir to transfer to another the entire estate which he left to him, and then charged him with a special trust. The question arose from whom the special beneficiary could obtain what was bequeathed to him, whether from the heir, so that, after the transfer, the first beneficiary might receive something else, or whether this, together with the other property, should all be included in the trust, so that the general might transfer it to the special beneficiary, when what was embraced in the trust consisted of money or other property. Therefore, We order that all the estate shall be delivered to the general beneficiary in accordance with the Trebellian Decree of the Senate, and that he shall be required to deliver to the special beneficiary what was bequeathed to him.

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

TITLE L. ON THE FALCIDIAN LAW.

1. The Emperors Severus and Antoninus to Priscus.

You ought to know that if you have rejected the Falcidian portion, in order that you may be the better able to transfer your share, you will not be considered to have paid more than you owed.

Published on the third of the Ides of May, during the Consulate of Lateranus and Rufinus, 198.

2. The Same Emperors to Sactianus.

It is a certain and established principle of law that the rule of the Falcidian portion applies to all persons in proportion to the amount of the legacies and trusts.

Published on the Kalends of July, during the Consulate of Lateranus and Rufinus, 198.

3. The Emperor Alexander to Hermagoras.

Even if it should appear that the heir administered an implied trust, there is no doubt that, notwithstanding this, the legacies and trusts left by the will must be paid in the same proportion permitted by the Falcidian Law, as it has been decided that the legatee cannot profit by the fourth of which the heir was deprived, because he endeavored to dispose of the estate contrary to law.

Published on the Ides of October, during the Consulate of the Emperor Alexander, 223.

4. The Same Emperor to Philetianus.

It was very properly decided by the Divine Hadrian that the Falcidian Law applies to legacies left to the Emperor.

Published on the fifth of the Kalends of January, during the Consulate of the Emperor Alexander, 223.

5. The Same Emperor to Damosata.

If you can prove that your mother made excessive donations mortis causa to your sister, you can legally avail yourself of the Falcidian Law in accordance with the Constitutions of My grandfather, the Divine

Severus.

Published on the fifteenth of the Kalends of November, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

6. The Same Emperor to Secondina.

All debts are deducted in the enforcement of the Falcidian Law, even those due to the heir himself at the time of the death of the testator, although the actions are merged by acceptance of the estate.

(1) Moreover, all legacies, even though intended to be expended in public works, or for the erection of statues, are required to contribute pro rata, according to their amounts, in order to make up the Falcidian

portion.

(2) The computation of the lawful amount shall not be affected if the heir should pay more than what is due, or perform more than is required.

Ordered on the fifth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

7. The Same to Primus and Pomponius.

The Falcidian Law does not apply to military wills, but if the deceased had possession of property belonging to you, it can, by no means, be considered part of his estate, and therefore you can legally require an account to be rendered of it in the case of a debt.

Published on the Kalends of May, during the Consulate of Alexander, Consul for the second time, and Marcellus, 227.

Extract from, Novel 1, Chapters II and III. Latin Text.

If the testator expressly forbade any restrictions to be placed upon the distribution of his estate, the Falcidian Law will not apply, and if the heir does not obey the deceased in this respect, the estate shall pass to the persons enumerated under the Title having reference to legacies and trusts.

Again, if the heir, being aware of the amount of the assets of the estate, pays some of the legacies in full, and others only in part, he cannot recover or retain anything from either, unless some unexpected occurrence should take place. Where nothing of this kind occurs, there will be ground for the Falcidian Law, provided, at the time of the acceptance of the estate, an inventory is drawn up in accordance with the method and term prescribed by law.

The inventory shall be made in the presence of all the legatees of the city, or in that of their agents, if this can be done; and when any one of them is absent, or refuses to be present, his place shall be supplied by three witnesses of the same town, who are men of wealth and good reputation, without prejudice to ascertaining the truth by the torture of slaves, and the heir and the witnesses shall be sworn.

If these formalities are not observed, the heir must pay the legacies in full, even though their value may exceed that of the estate. No controversy or legal proceeding of this kind shall be prolonged for more than a year, for after the lapse of that time, through the fault of the heir, the estate shall pass to the others.

Extract from Novel 131, Chapter XII. Latin Text.

The Falcidian Law does not apply where property is bequeathed under the condition that it shall not be alienated, but shall remain in the hands of the successors of him to whom it was left.

Extract from Novel 119, Chapter XI. Latin Text.

In like manner, the Falcidian Law does not apply to property left for pious uses.

8. The Same Emperor to Aurelius.

The will of your brother cannot be considered void for the mere fact that he was bound, under the terms of the trust, to transfer your father's estate to you if he should die first without issue. But although, as you assert, he appointed you his heir, and burdened you with the payment of legacies, what was due under the trust should be deducted as indebtedness, and, in addition to this, you can claim the benefit of the Falcidian Law with reference to the remainder of the estate.

Published on the Ides of September, during the Consulate of Maximus, Consul for the second time, and Paternus, 234.

9. The Emperor Gordian to Mestrianus.

An heir is not prevented from claiming the lawful fourth when, through an error of fact, he failed to retain it in the execution of a trust; but if he, being aware that he could retain it, transferred the entire estate, he will not be entitled to a personal action for recovery,

for the reason that if he had been ignorant of the law, he would have had no right to make the demand.

Published on the thirteenth of the Kalends of November, during the Consulate of Pius and Pontianus.

10. The Same Emperor to Diogenes.

Although your father charged your brother to transfer a share of his estate to you, in case he died without issue, still, if he died intestate, what he was entitled to under the Falcidian Law will belong to his legal successor; and therefore, not without reason, your sister, who as heir at law, succeeded to him along with you, can clearly claim her share of what he could have retained.

Published on the fifth of the Ides of November, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

11. The Same Emperor to Maximus.

If (as you allege) your father ordered you to transfer to your brothers the share of his estate to which he made you the heir, and directed you to be content with certain specified articles in lieu of the Falcidian portion, you will not be prevented from demanding the aid of the Falcidian Law for which you petition.

Published on the seventh of the Kalends of November, during the Consulate of Arianus and Pappus, 244.

12. The Emperors Diocletian and Maximian to Justin.

It is stated in many legal opinions that the Falcidian Law applies to donations between husband and wife, when they carry out the provisions enjoined by a trust.

Published on the Kalends of July, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

13. The Same Emperors and Ciesars to Zethus.

If she, who you say holds your son as her slave, obtained anything by the will of the deceased, who bequeathed freedom to the said slave under the terms of a trust, it is not unjust for her to be compelled to grant the slave his liberty, in accordance with the provisions of the will; for the execution of the trust with which she was charged can be demanded, even where the value of the slave whom she was requested to manumit exceeds that of the legacy.

Ordered at Heraclea, on the fifth of the Kalends of May, during the Consulate of the above-mentioned Emperors, 293.

14. The Same Emperors and Csesars to Faustina.

Although you have entered upon the estate of your father, and the right of action, to which you assert you were entitled, has been extinguished by merger with the share to which you succeeded through him, for which reason you allege that you became liable for a considerable sum on account of your administration of the guardianship, you

will not be prevented from suing your co-heirs in proportion to the remaining shares, and you will be required to transfer the land left to you in trust, after having deducted the fourth part to which you are entitled.

Given on the sixth of the Kalends of October, during the Consulate of the above-mentioned Emperors, 293.

15. The Same Emperors and Cassars to Pomponius.

If your wife, either by her will or by a codicil, ordered that the instruments evidencing the title to lands forming part of her dowry, and to which you were legally entitled, should be given to you under a trust, her successors can be compelled to carry out the provisions of her will; for the instruments evidencing the title to the lands having been bequeathed to their owner, there can be no question whatever as to the application of the Falcidian Law.

Published on the sixteenth of the Kalends of February, during the Consulate of the Caesars, 294.

16. The Same Emperors and Csesars to Diomedes.

If the debts due from the estate of the deceased have exhausted its assets, neither the Falcidian Law nor the Trebellian Decree of the Senate will permit the successors to be liable to any legacies or trusts.

Ordered on the sixteenth of the Kalends of February, during the Consulate of the above-mentioned Emperors, 299.

17. The Same Emperors and Csesars to Gaius.

It is a positive rule of law that where legacies have been bequeathed, they can be collected from the heirs after deducting the amount prescribed by the Falcidian Law.

Published on the fifth of the Kalends of November, during the Consulate of the Csesars, 294.

18. The Emperor Justinian to John, Prtetorian Prefect.

Where anyone, having an estate, for instance of the value of four hundred solidi, directs his heir not to enter upon it, unless he first pays to a certain person three hundred and eighty solidi, or any sum which will diminish the Falcidian fourth, We order that if the heir should enter upon the estate, he shall still have the benefit of the Falcidian portion, and can reserve whatever is lacking to make it up, and before either giving or retaining it (whether there is but one transfer provided by the will, or whether the estate is to be divided among several persons) he shall be entitled to the benefit of the above-mentioned law without any alteration.

Where, however, a donation mortis causa was made, and it exceeds the amount fixed by the Falcidian Law, the heir, after entering upon the estate, can recover the excess which was actually given over and above the sum allowed by the said law, but which remains as part of the estate of the testator; for why, in the present instance, should We not provide for the interests of both the living and the dead, by seeing

that the last wills of the latter are executed, and that the advantages derived from the estate to which the former are entitled are not diminished?

Given at Constantinople, on the Kalends of November, after the

fifth Consulate of Lampadius and Orestes, 531.

19. The Same Emperor to John, Praetorian Prefect.

As it is certain that the heir who has fully carried out the wishes of the testator by paying all the legacies in full cannot afterwards, by claiming the benefit of the Falcidian Law, recover anything from the legatees on the ground that he has complied with the will of the testator, therefore, We order that this principle shall also obtain where the heir has furnished security for the payment of the legacies in full, which is a question with reference to which a doubt arose among the ancient jurists. For to both cases, that is to say, whether he paid the legacies or furnished security that he would do so, the rule of equity would seem to be equally applicable.

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

TITLE LI.

CONCERNING THE ABOLITION OF THE FORFEITURES OF SUCCESSIONS TO THE STATE.

1. The Emperor Justinian to the Senate of the City of Constantinople.

We have considered it necessary, 0 Conscript Fathers, in the peaceful days of Our Empire, to banish from the Roman world both the name and substance of forfeiture of property, which originated in and was augmented by the civil wars in which the Roman people were formerly engaged, and that what the calamity of war introduced the beneficence of peace should abolish. And as the Lex Papia has, in many respects, been amended by former emperors, and has finally fallen into desuetude, We desire that the practice of forfeitures may, by Our agency, lose its invidious force, which was displeasing to the most eminent jurists, who invented many ways to prevent it from

taking effect.

Its observation appeared so grievous to testators themselves that they introduced substitutions to avoid complying with it, and, by means of them, caused their estates to pass to certain persons, thus evading the regulations which the Lex Papia imposed upon estates left without heirs, which We also permit to be done. And as the Lex Papia, by its contrivances and technicalities, practically annulled the ancient law which, before its passage, was strictly enforced against everyone, and did not hesitate to impose its yoke upon the ascendants and descendants of the testator, as far as the third degree, only preserving for them the benefits of the ancient law, if they had been appointed heirs, We, on the other hand, concede this advantage to all Our subjects without distinction of person.

(1) Therefore, as the Lex Papia derived its object and origin of forfeitures from the acceptance of the possession of estates of deceased persons, and for that reason the Decrees of the Senate enacted with reference to the Papian Law ordered the forfeiture of legacies riot to date from the death of the testator, but from the time when the will was opened, it was held that if, in the meantime, they failed to vest, this would cause a forfeiture. We, in the first place, correcting this rule, and renewing the ancient law, do hereby order that all persons shall have the right to enter upon an estate from the day of the death of the testator; and that, in like manner, legacies and trusts, whether they are left absolutely, or to vest at a certain time, shall be payable from the date of the testator's death.

(2) And as testamentary bequests were annulled in three ways, it is proper to plainly designate the times and the names of the same, so that whatever is repealed or amended may not remain unknown. One of these is where property is left to persons who were not living at the time when the will of the testator was executed, he perhaps being ignorant of the fact, and the laws considered such bequests as not having been written; or, in another instance, when the person entitled to something under the will died after it was executed, but during the lifetime of the testator; or when a legacy left under a condition failed to vest because the condition was not complied with, a case to which the ancients applied the term "in causa caduci."

Another instance was where, after the death of the testator, what was left did not vest in the legatee, because it was plainly stated to be forfeited.

(3) Therefore, in the first instance, where the testator left property to persons who had died before his will was executed, which were dispositions considered as not having been made, it was decided that legacies of this kind should remain in the hands of those to whom they had been left, unless they were already deceased, or a substitute had been appointed, or a co-legatee had been added, for then they did not fail to vest, but came into their hands without any burden, unless (which very rarely occurred) when they were considered as not having been bequeathed at all. We, approving of the benevolence of the ancients, and induced by natural reason, have decreed that this provision shall remain unaltered, and shall be observed hereafter for all time.

(4) With reference to the second case, which occurred when the property came under the head of in causa caduci, We, for the purpose cf amending the ancient law, do hereby order that when this takes place the property shall, in like manner, remain in the hands of those who were charged with its distribution, as for instance, the heirs, the legatees, or other persons who can be compelled to execute a trust; unless in the case where a substitute, a co-heir, or a co-legatee has previously been appointed. All persons, however, who will profit by such a disposition, must also sustain the burdens which were imposed by it in the beginning, whether this consists of giving something, performing some act, complying with a condition, or carrying out what

has been planned in any other way whatsoever; for it should not be tolerated that he who enjoys the benefit of a bequest should be able to reject the inconveniences attaching to the same.

(5) In the last instance, where the property, properly speaking, becomes forfeited, as We have previously stated, We decree that as long as the will remains unopened, the persons mentioned therein can not only appear as heirs, but can also enter upon the estate, whether they have been appointed heirs to a portion, or to the whole of the same; and the time for the vesting of legacies and trusts shall, as We have already mentioned, date from the death of the deceased. For the ancient authorities did not permit the estate to pass, unless it was entered upon, nor do We suffer it, except in the case of children, concerning whom the law of the Emperor Theodosius, which was introduced with reference to cases of this kind, makes provision; still, with reference to those who die while still deliberating, it has been decided by us that the law shall remain in full force.

(6) There is no doubt whatever that execution of grants of freedom, which, on account of their nature, are dependent upon the acceptance of the estate by the heir, can be demanded, according to the present law, from the time the estate is entered upon, as well as other provisions by which slaves were manumitted by the will, or bequests were left to other legatees. The usufruct of property, however, as it cannot, on account of its nature, be transmitted to the heirs of the legatee, because so far as its transfer is concerned, the time when it vests does not date from the death of the testator, nor from the day of the acceptance of the estate.

We order that all these provisions shall be observed in accordance with the aforesaid regulations relating to property which has been left unconditionally, or the right to which is to vest at a specified time.

(7) When, however, anything has been left under a condition, whether accidental, potential, or mixed, the fulfillment of which is dependent upon chance or the will of the person to be benefited, or upon both; or upon an indefinite time; the fulfillment of the condition under which the bequest was made, or the date must be waited for; as the condition should be complied with, or the indefinite time arrive. But if, meanwhile, he who is to be benefited by the provisions of the will should die, and the condition was not complied with during his lifetime, and the property, on this account, did not go to the person to. whom it was intended, We decree that it shall, in like manner, remain in the hands of those charged with its delivery; unless, in this instance also, a substitute may obtain the bequest, or a co-heir or a co-legatee may acquire it for himself, as it is a positive rule of law that a substitution can be made in the case of the appointment of heirs, in the bequest of legacies, in the creation of trusts, and in donations mortis causa.

(8) But in order that it may clearly appear what shares can be obtained by those charged with the delivery of legacies, through the failure of conditions, or otherwise, We order that if any profit accrues to the heirs, the distribution of the same shall be made in proportion

to their shares of the estate, as they would have been compelled to transfer it in the same manner if the bequest had been valid, unless one or several of the said heirs had been expressly charged with its delivery; for then, just as he or they alone must have paid the legacy, so they will be entitled to enjoy the benefit of the same. When, however, the legatees or beneficiaries of the trust, or persons favored with a donation mortis caMsa, or indeed any others who can be designated for this purpose, were charged with the delivery of the property, the right to the same disappears, and We direct it to be divided into equal shares among the persons above mentioned, that is to say, according to their number.

(9) In order that what that most accomplished man, Ulpianus, so properly and so clearly stated may not be passed by without notice, We publicly give it Our sanction. For as We have already decided that property which is bequeathed shall pass with all its charges to the person who is benefited by it, We order that, if when granting it, any condition or other burden should be prescribed, those who are benefited shall, by all means, accept it along with the advantages. If, however, some act is required to be performed, and this can be done by another, it must, in like manner, be accepted by the beneficiary; for instance, if he who was charged is directed to purchase, at his own expense, an island, a monument, or something of this kind, either for the heir or the legatee, or anyone else who may have been designated by the testator; or some property is to be bought or leased by the heir of the testator; or a trust is to be executed; or some other duty is to be performed; for it makes no difference whether the act is to be done by the person mentioned by the testator, or by someone else who profits by the bequest.

But if the meaning of the word, or the nature of the act, is such that what is required by the bequest cannot be performed by another, then, although one person may have the benefit, still he will not be compelled to sustain the burden, because nature does not permit this, nor was it the intention of the testator.

What course should be pursued where the testator ordered him to go to a certain place, or take up liberal studies, or build a house with his own hands, or paint a picture, or marry a wife? The intention of the testator is understood to be that the person alone to whom he evinced his generosity should perform all these acts.

This rule shall apply to all the above cases, so that the parties interested may enjoy the benefit, and suffer the inconvenience, when this can be done. It shall also apply to every instance to which the ancients gave the name of in causa caduci or caduca (as has been previously stated). It will, however, only be applicable under certain circumstances, where the bequests are considered as not having been written; for the reason that some of them are of such a nature that they still pass with the charges imposed. We have directed that these shall be especially enumerated in Our collection of new laws, in order that no one may think that the prolixity of the ancient enactments should be, as it were, necessary for the transaction of business, or to the science of jurisprudence.

(10) These matters having been disposed of in this way, as in several places in the first part of this law We made mention of the term "conjointly," We deem it necessary that this part of Our Constitution shall be more carefully examined, and more thoroughly discussed, so that, like the others, it may appear perfectly clear to everyone. A bequest can not only be made conjointly, but also separately. Therefore, if all the heirs are co-heirs, and appointed conjointly, or all are appointed separately, or when they are substituted in these ways, We decree that if the property which was left in any way was a portion of the estate, but consisted of different shares, it shall be acquired by the other co-heirs, together with its charges, in proportion to their respective shares of the estate; and this shall accrue to them by operation of law, even though they be unwilling to accept it, if they have already agreed to take their shares of the estate, as it is absurd to accept one portion of an estate and reject another, which point has already been settled by Our Imperial decisions. Where, however, a distinction exists among the appointed heirs or their substitutes, and some of them are named conjointly, and others separately, then, if one of those mentioned conjointly should fail to accept his share, it shall, by all means, go with its charges to those alone who have been appointed conjointly, that is to say, in proportion to the shares of the estate to which they are respectively entitled. But if any one of those who have been appointed separately should fail to receive his share, it shall not go to those alone who have been mentioned separately, but to all of the heirs who have been mentioned conjointly, as well as separately, together with its charges, in proportion to their shares of the estate.

This distinction has been introduced because those mentioned conjointly by the same words of the testator are thereby constituted, as it were, a single person, and acquire the share of their co-heir, just as if it was their own. The separate heirs are, however, plainly distinguished by the words of the testator, so that they can obtain what they are entitled to, but they cannot individually acquire the share of another, but must obtain it conjointly with all their co-heirs. These rules have been adopted only with reference to heirs. (11) Moreover, where there are two or more legatees, or beneficiaries of a trust, and something is left to them by will, if the bequest is made conjointly, all will be entitled to the legacy, each one in proportion to his share. If, however, one share, for some reason or other, cannot be given, We decree that it shall accrue to all, in equal proportions if they wish to have it, together with any charge with which it may be burdened; or if all are unwilling to accept it, it shall then remain in the hands of those to whom it was left as trustees. When, however, some of them are willing to accept it, and others are not, it shall all go entirely to those who desire to have it. But whenever the bequest was made separately, and all of them can and wish to receive it, each one shall do so in proportion to his share. Let them, however, not flatter themselves that one of them can obtain the entire estate and pay to the others the value of their shares; for the ancients entertained different opinions with reference to this avaricious dis-

position of legatees, as they adopted it with reference to one kind of a legacy, and held that it should be rejected where others were concerned. We now absolutely abolish this distinction, and give the same character to all kinds of legacies and trusts, establishing, under such circumstances, an agreement instead of the ancient dissension. Hence We order that unless the testator has clearly and expressly provided that the entire estate shall go to one of the legatees, the appraised value of the same shall- be paid to the others.

When, however, all the legatees to whom the property was left separately do not agree as to its acquisition, but only one, for instance, is willing to accept it, it shall all belong to him, because the intention of the testator seems, at first sight, to have been to give the entire property to all the legatees; but in case they are all willing to accept, their shares shall be taken from that of the other legatee who obtained the entire estate, so that by the cooperation of the others, the legacy of the former will be exhausted.

But where no one else appears, or can appear, then the share which was not accepted shall not be considered to be without an owner, nor shall it accrue to another, in order that the legacy of him who first accepted it may appear to be increased, but it shall remain in the hands of him who has possession of the same, without any diminution whatever.

Therefore, if the charge was imposed upon him, to whom in the first place the legacy was left, he must, by all means, carry it out, in order to obey the will of the testator. If, however, the one on whom it was imposed should fail to execute it, he only who received the legacy directly, as his own, and not he who succeeded him, will have his legacy diminished. But in order that the reason for this distinction may not be obscure, We declare that the rule was established so that the testator might seem to have left the property separately, to enable each one to recognize that he was charged with a trust as his own, and not as the representative of another, for if the deceased had intended otherwise, there would have been no difficulty in disposing of the property conjointly.

(12) We also retain unimpaired those provisions of the ancient laws which state that persons who are unworthy shall be deprived of bequests, whether the said bequests have been left to Our Treasury, or to someone else.

(13) We laid down in a preceding section of this law that an estate which has not been accepted is not always transmitted to the heirs of the deceased, but sometimes to other persons, and if the heir should not enter upon the estate as a whole, it must go to his substitute, if he has one, and the latter can and will accept it. When, however, this is not the case, the successors shall be entitled to the estate on the ground of intestacy, or if there are none, or they are unwilling to enter upon it, or for some reason are not entitled to take it, it shall then go to Our Treasury.

(14) We decree that all these rules shall apply to both written and nuncupative wills, as well as to codicils, and to every final dis-

position of property, as well as to anything left by an intestate, and to all donations mortis causa. For We have bestowed Our clemency to such an extent that, although We are aware that Our Treasury is entitled to all estates which have no owners, still, We have abstained from claiming them, nor have We demanded the privilege of the Emperor Augustus, but have decided that the common welfare of all should be preferred to Our own advantage, considering that the interest of Our subjects is identical with Our own.

(15) We have promulgated this law with reference to the last wills of deceased persons, in order that it may be applicable to such cases as may occur hereafter, for We permit former ones to be determined by the rules in force at the time.

(16) We have decreed that all these regulations shall be brought before you, 0 Conscript Fathers, for your approval, in order that the efforts of Our benevolence may not remain unknown to anyone, but that the Edicts, having been solemnly published .by Our magistrates, may become familiar to all.

Given at Constantinople, on the Kalends of June, during the Consulate of Our Lord Justinian, Consul for the fourth time, and Paulinus, Consul for the fifth time, 534.

TITLE LII.

CONCERNING THOSE WHO CAN TRANSMIT AN ESTATE BEFORE THE WILL HAS BEEN OPENED.

1. The Emperors Theodosiiis and Valentinian to Hormisdas, Prse-torian Prefect.

We order by this law that hereafter sons, daughters, grandsons, granddaughters, great-grandsons or great-granddaughters, who have been appointed heirs by the written wills of their fathers or mothers, grandfathers or grandmothers, and great-grandfathers or great-grandmothers, even though they may not have been substituted for one another, whether they have been appointed with strangers, or alone, can, before the will is opened (whether they know that they have been appointed heirs or not), transmit such shares of the estate as have been left to them to their descendants, without distinction of sex or degree. And the aforesaid persons, provided they do not reject the estate, can claim it as due to them, without any prescription being allowed against them. This rule is applicable to legacies or trusts which have been left by a father, a mother, a grandfather, a grandmother, a great-grandfather, or a great-grandmother. It certainly would be very oppressive if, on account of some accidental circumstance, or any of the events of life, that either grandsons or granddaughters, great-grandsons or great-granddaughters should be deprived of the estate of their grandparents or great-grandparents, and that others should enjoy the unexpected benefit of a legacy contrary to the wishes of grandparents or great-grandparents, as disclosed by the provisions of their wills. And, indeed, as they are entitled

to consolation for their affliction, it is only reasonable that it should be granted them.

Given on the third of the Nones of April, after the Consulate of Protogenes and Asterius, 450.

TITLE LIII. AT WHAT TIME A RIGHT TO LEGACIES OR TRUSTS VESTS.

1. The Emperors Severus and Antoninus to Agrippa.

If you can prove before a competent judge that legacies of trusts, payable annually, have been left to you, you will have the right to collect them at the beginning of every year.

Published on the third of the Kalends of June, during the Consulate of Saturninus and Gallus, 199.

2. The Same Emperor to Priscus.

We have ascertained that a tract of land was left to several persons by name, and that provision was made that it should belong to the survivor; therefore, whoever he may be, he can transmit the ownership to his heir, and he will not be bound by the terms of any trust of this kind.

Published on the fifteenth of the Kalends of August, during the Consulate of Chilo and Libo, 205.

3. The Same Emperors to &lia.

If Pontionilla has arrived at the age when she is entitled to receive the legacy or trust bequeathed to her, she can transmit to her heirs the right to demand the same even before she has actually acquired the said legacy or trust.

Published on the fifth of the Kalends of August, during the Consulate of Chilo and Libo, 205.

4. The Same Emperors to Ammia.

When the usufruct of land is bequeathed to a wife, and the ownership of the same when she shall have children, she will be entitled to the ownership of the property as soon as a child is born, and it makes no difference if the latter should immediately die.

Published during the Kalends of August, during the third Consulate of Antoninus and Geta, 209.

5. The Emperor Alexander to Maximus.

An uncertain condition is not imposed upon either a trust or a legacy by the following words, "I do give and bequeath to my daughter, JElia Severina, and to Secunda, ten aurei, which she should accept as a legacy when she attains her majority," but only the right to demand the legacy or trust is granted when the girl becomes of age. Therefore, if ^Elia Severina, the daughter of the testator, to whom the legacy was left, died upon the day when it became due, she transmit-

ted the right to recover it to her heir, provided that payment is made at the time when Severina would have reached the twenty-fifth year of her age, if she had not died; for it has been decided by persons learned in the law that not the beginning of the year, but the end of the same, must be taken into consideration, where the benefit arising from a trust, which has been bequeathed, is concerned.

Published on the thirteenth of the Kalends of January, during the Consulate of Alexander, Consul for the second time, and Marcellus, 311.

6. The Emperors Diocletian and Maximian and the Csesars to Eusebius.

If a trust should be left by an intestate to your sister under the terms of a codicil, and, after the day for the vesting of the trust arrived, she should die in ignorance that such a trust had been bequeathed, you cannot pretend not to be aware that she was entitled to an action of this kind, of course, after the deduction by the heirs of the fourth portion of the estate of the deceased.

Published on the Kalends of May, during the Consulate of the above-named Emperors.

TITLE LIV.

WHEN SECURITY SHOULD BE FURNISHED TO PROVIDE FOR THE PLACING OF LEGATEES OR BENEFICIARIES OF A TRUST IN POSSESSION OF WHAT HAS BEEN BEQUEATHED TO THEM.

1. The Divine Antoninus Pius to Salvius.

If the claimant demands nothing more than that security should be given him that the trust will be executed, the judge who has jurisdiction ought not to decide whether or not the trust is due, but only compel security to be furnished.

Without date or designation of Consulate.

2. The Divine Marcus to Stratonica.

We have learned, by experience, that it is conducive to the public welfare for security which has been furnished for the purpose of protecting the last wills of deceased persons with reference to legacies and trusts to be dispensed with in compliance with the wishes of the testator. Hence, hereafter, in accordance with the will of the deceased, the bond usually required in the case of a legacy or a trust need not be exacted.

3. The Emperors Severus and Antoninus to Symphorus.

If, after you are placed in possession of a legacy or a trust for the purpose of preserving it, the property has been either encumbered by pledge, or sold by the heir, it is clear that your case will be entitled

to the preference, for the property is, as it were, pledged to you under praetorian law.

4. The Emperor Antoninus to Protagoras.

If, as you allege, Arthemidora has become the heir of the father of your wards, the latter will have no right of action against the debtors of the estate, although a demand may be made that the estate held in trust be restored to them after the death of the heir. It is clear that they can apply to the judge to compel Arthemidora to furnish sufficient security for the execution of the trust, provided the testator did not forbid this to be done.

Published on the third of the Kalends of July, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.

5. The Emperor Alexander to Paulina.

Those who are placed in possession of a legacy or a trust do not acquire the ownership of the property, but only the right of pledge. A competent judge, however, will, upon your application, and after you have received the pledge, see that the wishes of the deceased are carried out.

Published on the third of the Ides of August, during the Consulate of Julianus, Consul for the second time, and Crispinus, 225.

6. The Same to Donatus.

That rule of law is well established by which he to whom security has not been given for the preservation of a legacy or a trust, even to the extent of encumbering the private property of the heir, can be placed in possession of the property of the estate, even if it has been fraudulently removed, when the heir does not furnish security within six months from the time when the demand can be made in accordance with the Constitution of My Father, the Divine Antoninus.

Published on the sixth of the Ides of January, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

7. The Same to Proculianus.

You should know that the Divine Marcus and Commodus decided that security for a trust or a legacy can be dispensed with, but security can not be dispensed with, even by a will, which guarantees that the person to whom the usufruct of property had been left will use and enjoy it as a good citizen should do.

Published on the tenth of the Kalends of March, during the Consulate of Fuscus and Dexter, 226.

8. The Emperors Diocletian and Maximian, and the Cassars, to Zenodorus.

It is certain that an action for damages can be brought against those persons, or their successors, who should have taken security in the capacity of magistrates administering the affairs of a municipality, but failed to do so, as required by their duty, in order to provide

for the delivery of property left conditionally to the said municipality under the terms of the trust, to the extent that the public was interested in having such security furnished.

Published on the seventh of the Kalends of March, during the Consulate of the Caesars.

TITLE LV.

CONCERNING PROPER HEIRS, AND LEGITIMATE CHILDREN

AND GRANDCHILDREN, BORN OF A DAUGHTER, WHO ARE

ENTITLED TO AN ESTATE AS HEIRS AT LAW.

1. The Emperors Severus and Antoninus to Crispina.

If you can become the legal heir of your brother, you will not be excluded from obtaining his estate, on account of the provision that demand for the same shall be made within a hundred days.

Published on the third of the Nones of November, during the second Consulate of Antoninus and Geta, 206.

2. The Emperors Diocletian and Maximian to Avia.

Grandchildren, who are the issue of different brothers, do not succeed to the estate of their grandfather, who died intestate, equally, but per stirpes.

Ordered at Adrianople, on the third of the Kalends of March, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 209.

3. The Same Emperors and Csesars to Frontonus.

It is clearly provided by the Law of the Twelve Tables that the son, and the grandson of another son, who died intestate, succeed equally, if they are under paternal control.

This rule also applies to the praetorian law.

Ordered on the fifth of the Kalends of July, during the Consulate of the above-mentioned Emperors.

4. The Same Emperors and Csesars to Marcella.

It is perfectly evident that, in accordance with the order of succession prescribed by the Law of the Twelve Tables, where a man dies intestate, his posthumous child should be preferred to his own sister.

Ordered on the sixth of the Ides of December, during the Consulate of the above-mentioned Emperors.

5. The Same Emperors and Csesars to Appianus.

If your father, under whose control you were, formally gave you in adoption, you can succeed to the estate of your adoptive father, who died intestate, along with his own children born before or after your adoption.

Given on the sixth of the Kalends of March, during the Consulate of the Caesars.

6. The Same Emperors and Csesars to Posidonius.

A child born of a freeborn woman and a slave is considered illegitimate, and cannot claim to be the son of a decurion, even though his natural father may have been manumitted, and have obtained the restitution of his birth.

Published on the sixth of the Ides of February, during the Consulate of the Csesars.

7. The Same Emperors and Csesars to ^miliana.

A freedman, just as one who is freeborn, is not forbidden to have his son under his control, since he is not, on account of his former condition, prohibited from contracting marriage and having children.

Ordered on the sixteenth of the Kalends of March, during the Consulate of the Caesars.

8. The Same Emperors and Csesars to Catonia.

Your daughter became the heir of her father, who died in the hands of the enemy, in which instance proof of his death is not required, and she can transmit the estate to you.

Ordered at Nicomedia, on the twelfth of the Kalends of December, during the Consulate of the Csesars.

9. The Emperors Valentinian, Theodosius, and Arcadius to Constantine, Prastorian Prefect.

If a deceased person should leave children of either sex, or of any number, and one of his daughters should die leaving children of either sex or any number, the said grandchildren by the said daughter shall be entitled to two-thirds of the share which the deceased daughter would have obtained with her brothers, if she had survived her father; and the remaining third part shall go to the brothers and sisters of the deceased; that is, to the sons and daughters of him whose estate is in question, who are the maternal uncles and aunts of those whose interests We are providing for by this law.

We decree, under the same equitable rule, that what We have decided with reference to the estate of a maternal grandfather shall also apply to that of a maternal or a paternal grandmother, unless the grandmother shall have, in just and severe terms, excluded her grandchildren from her will, under circumstances approved by the laws. If the grandmother or grandfather should die intestate, We not only maintain unimpaired the rights which We have established as belonging to the grandchildren, but if either of them, having grandchildren of this kind, should die testate, and pass over their grandchildren, or disinherit them, the same rule shall also apply, and the wills of their grandparents can be attacked as unjust.

Where any of the daughters are entitled to actions to recover property, and have the right to appear in court, We, in accordance with the equitable provisions of Our law, concede to the grandchildren the same rights to complain of the wills of their parents, on the ground of inofficiousness, as children are entitled to.

Given on the fifth of the Kalends of March, at Milan, during the Consulate of Timasins a.nH Prnmntiio a«a

10. The Emperors Theodosius and Valentinian to Maximus, Prastorian Prefect.

When the succession to grandmothers is discussed after their death, it is not necessary to inquire whether the father of the grandchildren has changed his condition; for when inheritances of this kind are involved, the personal status of the children is only considered with reference to the property of him who has the right of paternal control.

Given at Ravenna, on the fifteenth of the Kalends of October, during the Consulate of Theodosius, Consul for the thirteenth time, and Valentinian, Consul for the third time, 420.

11. The Emperors Theodosius and Valentinian to the Senate of the City of Rome.

If a son or a daughter should die during the lifetime of their mother and leave children, the latter will, by operation of law, succeed to their father or mother without restriction. We decree that this rule shall unquestionably be observed in the case of grandchildren.

Given on the Ides of November, during the Consulate of Theodosius, Consul for the fifteenth time, and Valentinian, Consul for the third time, 420.

12. The Emperor Justinian to Menna, Prsetorian Prefect.

Whenever a man or a woman dies intestate, leaving grandchildren or great-children of either sex, or other descendants, not entitled to the possession of the estate as children, and in addition to them, collateral agnates, the said agnates shall not be allowed to claim for themselves the fourth part of the estate of the deceased, but the descendants alone shall be called to his or her succession.

We decree that this law shall be observed with reference to future questions, but shall not apply to such matters as have already occurred.

Given at Constantinople, on the Kalends of July, during the Consulate of Our Lord Justinian, Consul for the second time, 528.

Extract from Novel 118, Chapter I. Latin Text.

With reference to the succession of the deceased head of a family, or that of a son under paternal control, his children, if there are any, shall be preferred to all others. Those of the first degree shall succeed equally per capita; grandchildren, and others more removed, per stirpes, without distinction of sex, or consideration of the right of paternal control, but only their natural condition shall be taken into account.

TITLE LVI. ON THE TERTULLIAN DECREE OP THE SENATE.

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

Although children do not succeed as heirs to their mothers, who die intestate, unless they are able to speak, still, there is no doubt that

mothers can succeed to their children, even if the latter should perish in infancy.

Published on the tenth of the Kalends of April, during the Consulate of Tyberianus and Dio, 291.

2. The Same Emperors and Csesars to Resa.

In determining the succession of a common son or daughter who died without leaving children, brothers, or sisters, the father, who manumitted him or her, shall be preferred to the mother, because he is still in the enjoyment of his ancient right.

Ordered on the sixth of the Ides of December, during the Consulate of the Csesars, 293.

3. The Emperor Constantius to Catulinus, Proconsul of Africa.

It is certain that mothers who have lost their children after the latter arrived at puberty should not be excluded from the succession to their estates by an exception on the ground that they did not demand guardians for them before they reached that age.

Given on the sixth of the Kalends of August, during the Consulate of Constantius, Consul for the seventh time, and Constans, 354.

4. The Emperors Gratian, Valentinian, and Theodosius to Eutro-pius, Prastorian Prefect.

If a woman, without manifesting due respect for her deceased husband, by whom she had no children, should marry too soon, she will be branded with infamy under the well-known law enacted for this purpose, unless this stigma is removed from her by the clemency of the Emperor. When, however, she has either sons or daughters, and has obtained permission to marry, We consent that she shall not be rendered infamous, nor shall she be liable to the other penalties prescribed, provided that she transfers to her son or daughter, or sons and daughters, half of the entire property that she had at the time of her second marriage, the said transfer having been made with all the legal formalities, and not even the usufruct of said property retained.

And if one of the said children, where there were two or more sons and daughters, to whom the property was given, should die intestate, We decree that his or her half shall belong to his or her surviving brothers or sisters. But if all the said children should die intestate, all the property shall revert to their mother as a consolation for her misfortune, so that she herself shall again be entitled to half of what she gave to her sons or daughters, who died intestate, from the estate of the last son or daughter who died.

Published on the fifteenth of the Kalends of January, during the Consulate of Gratian, Consul for the fifth time, and Theodosius, 380.

5. The Emperors Theodosius and Valentinian to the Senate.

A mother who, either under the will or as heir at law, succeeds her son or daughter dying without issue, and does not contract a second marriage after the death of her child, will acquire absolutely every-

thing left by the said son or daughter either by will or ab intestato. If, however, she should choose to marry again, she shall be entitled to any property obtained by her son or her daughter from other sources, but she shall only have a right to the usufruct of the property of the estate of the deceased father on the ground of humanity, and the ownership of the same shall pass to the sisters and brothers of the

latter.

Given at Ravenna, on the fifth of the Ides of November, during the Consulate of Theodosius, Consul for the twelfth time, and Valentinian, Consul for the seventh time, 246.

6. The Same Emperors to Florentius, Prastorian Prefect.

If a mother, having undertaken the legal guardianship of her children, should contract a second marriage in violation of the oath which she took, before having another guardian appointed for her son, and rendering an account to the said guardian of the amount due for the time that she administered the guardianship, We decree that she shall be excluded from all the estate of her husband, whether he died intestate or whether she was appointed a substitute for her son in case he should die under the age of puberty.

Given on the seventh of the Ides of July, during the Consulate of Theodosius, Consul for the sixteenth time, and Festus, 439.

7. The Emperor Justinian to Menna, Prastorian Prefect.

If a man or a woman should die intestate, leaving a mother and a brother whether by the same father or not, the mother shall not be excluded from the succession of the son, but will be entitled to the estate along with the brother of the defunct man or woman, if he is living, or his son or step-son if he is dead, just as in the case of sisters of the deceased.

When, however, only sisters, who are agnates or cognates, and the mother of the deceased man or woman survive, the mother, in accordance with the tenor of the ancient laws, shall be entitled to one-half of the estate, and all the sisters to the other half. But when the mother and the brother, or several brothers alone, or sisters with them survive, and the man or woman dies intestate, his or her estate shall be distributed per capita, and the mother shall not be permitted to claim for herself a larger amount than the pro rata share of the per capita demands, under the pretext that the sisters of the deceased are living; and, on the other hand, where an uncle of the deceased person, together with his son or grandson are living, they shall have no right to the estate of the deceased, if the mother, who is the heir, is still alive, for her share cannot be diminished either by the ancient laws, or the more recently enacted Imperial Constitutions.

(1) Where, however, the deceased person left not only a mother and brothers and sisters who survived him, but a father as well, and died while his own master, for the reason that the intervention of the father is understood to dispose of the rights of the mother, We, actuated by humane intentions, and desiring to provide for all, so hereby

order that the brothers and sisters of the deceased person shall be called together to the succession of his or her estate, that the father and mother shall conjointly be entitled to the usufruct of half of the entire property, which shall be equally divided between them; and that the brothers and sisters shall have the remaining half of the usufruct of the same.

But where the deceased died while under paternal control, the father shall retain the usufruct, which he enjoyed during the lifetime of his son, unimpaired as long as he lives; and the mother with the brothers of the deceased shall be called to the ownership of his estate, because she could not hold the said usufruct during the lifetime of the father, he having a right to all of it; so that, if only sisters were living, she could take half the estate, and in case there were only brothers, or both brothers and sisters, she would, in accordance with the above-mentioned distribution, be entitled to a proportionate share with them; it being understood that everything which has been promulgated with reference to women contracting second marriages shall remain unaltered.

Given at Constantinople, on the Kalends of June, during the Consulate of Our Lord Justinian, Consul for the second time, 528.

Extract from Novel 22, Chapter XLVII. Latin Text.

Mothers are called to the succession of individual shares, where there are brothers, or sisters, or where both brothers and sisters survive.

Extract from Novel 115, Chapter IV. Latin Text.

Children are not allowed to exclude their parents by their wills, unless one of the just causes of disinheritance enumerated in the New Constitution under No. 7 is stated therein. Otherwise, the testament will be void, so far as the appointment of heirs is concerned, but it will remain valid in.other respects.

Extract from Novel 118, Chapter II. Latin Text.

Where a son dies without issue, but leaving ascendants alone as his heirs, they succeed in the prescribed order of degrees. If they are equal in degree, they succeed to equal shares of the estate, those on the father's side being entitled to half, and those on the mother's side being entitled to the other half of the property, even though their number may be unequal.

When, however, brothers and sisters are left, with ascendants, as heirs by the deceased, they shall be called to the succession with the ascendants in the next degree, so that the shares may be equal, all distinction of sex and parental control being disregarded, where no mention is made of a second marriage.

TITLE LVII. ON THE ORPHITIAN DECREE OF THE SENATE,

1. The Emperor Alexander to Evangelus.

When a woman dies intestate, leaving brothers or sisters, as well as a mother and daughter, her estate shall, by virtue of the Orphitian Decree of the Senate, belong to her daughter alone.

Published on the fifteenth of the Kalends of February, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

2. The Emperors Diocletian and Maximian, and the Caesars, to Metrodora.

The estate of a deceased mother is not divided in proportion to the number of heirs surviving at the time of her death, but according to the number of those entitled to the succession, and therefore, if your mother died leaving you and your brother, who have been emancipated, and two other children, who were still under paternal control, and the latter died before claiming their share of your mother's estate, there is no doubt that you and your brother will each be entitled to half of

the same.

Ordered on the seventh of the Kalends of April, during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and Csesars to Juliana.

A daughter who acts in the capacity of heir can, in accordance with the Orphitian Decree of the Senate, succeed to her mother, who died intestate, without demanding praetorian possession of the estate.

Ordered on the twelfth of the Kalends of November, during the Consulate of the above-mentioned Emperors.

4. The Emperors Gratian, Valentinian and Theodosius to Httari-anus, Prefect of the City.

Whenever a discussion with reference to the succession of an emancipated son or daughter arises, the inheritance shall pass intact and entirely to the children left by him or her, nor shall either the father or mother, under such circumstances, be granted any right to the succession of their child who died intestate.

Given at Milan, on the thirteenth of the Kalends of March, during the Consulate of Merobaudus, Consul for the second time, and Sa-turninus.

5. The Emperor Justinian to Demosthenes, Pr&torian Prefect.

Where a woman of illustrious birth has a son born in lawful wedlock, and another one who is illegitimate, and whose father is uncertain, a doubt arose to what extent they would be entitled to their mother's estate, and whether it would only descend to legitimate chiU dren, or whether it would also go to those who are bastards.1 Therefore, We order that, while any legitimate children are living, no

1 The Eoman, as well as the Canon Law, both of which authorized concubinage, did not affix to illegitimacy, which was one of its necessary incidents, the'

portion whatever of their estates shall pass from mothers of illustrious birth to their bastard offspring, either by will, on the ground of intestacy, or by donations inter vivos; for the preservation of chastity

stigma attaching to it in subsequent times. The marriage of the parents, no matter how long after the birth of the child it occurred, had the effect of rendering the latter legitimate, in which respect it is materially different from the rule of the Common Law, by which birth during lawful wedlock was indispensable. At Rome a "natural" son did not originally signify a bastard, but actual issue, in contradistinction to an adopted child. The acceptance of Christianity had much to do with the popular odium visited upon innocent beings for the sins of their parents, a prejudice unknown to, and, of course, unrecognized by the legislators of antiquity, some of whom no doubt were themselves vulgo qusesiti, or "naturales."

Children were called spurii, or "spurious," whose parents, being within the prohibited degrees, were not permitted to marry, or who were the offspring of harlots.

The Canon Law prescribes the legitimation of children by the subsequent marriage of their parents, as follows: "Tanta est vis matrimonii vt qui antes sunt geniti, post contractual matrinnonium, legitimi, habeantur." (Corpus Juris Ca-nonici, Decret. Greg. IV, XVII, VI.) The indulgence extended by the Church to its adherents, by rendering the effect of marriage retroactive in the case of children already born, is largely traceable to the desire to protect its own ministers, most of whom lived in open concubinage without reproach. This regulation was established by Constantine, and especially applied to the issue of concubines.

The legal incapacity of bastards to inherit was very early recognized in England. "Orta est quasstio, si quis, antequam pater matrem suam desponsaverit fuerit genitus vel natus utrum talis filius sit legitimus hseres cum postea matrem suam desponsaverit. Et quidem licet secundum canones & Leges Romanus talis filius sit legitimus hxres, tamen secundum jus & oonsuetudinem Regni nulla modo tanquam hseres in hsereditate sustinetur vel hsereditatem de jure Regni petere potest." (Glanvil, De Legibus & Consuetudinis Regni Anglise, VII, 15.)

Bracton says on this subject with reference to the legitimation of bastards: "Sequitur videre qualiter illegittimi legittimantur; et seiendum, quod si quis naturales habiierit filios de aliqua & postea cum eadem contraxerit, filij iam nati, per matrimonium subsequens, legittimantur, et ad omnes actus legitimos idonei reputantur, sed tamen non nisi ad ea que pertinet ad facere dotium; ad ea verb quse pertinent ad regnum, non sunt legittimi, nee hseredes iudicantur, quod parentibus succedere possunt, propter eonsuetudinem regni, que se habet in contrariwm." (De Legibus & Consuetudinis Anglise, II, 63.)

At Common Law, an illegitimate child was filius nullius, and had practically no civil rights. He could neither inherit nor transmit property. He could not be christened, and hence received no legal name; if he died intestate, his property might be appropriated by the Church. The performance of no filial duties could be exacted of him, nor did any parental obligations in his behalf exist. He was committed to the care of his mother, in accordance with the maxim Partus sequitur ventrem.

The present laws which require support of a bastard child by its putative father have been the source of manifold extortion and injustice wherever Anglo-Saxon jurisprudence prevails.

Anyone born out of wedlock in England always remains illegitimate, unless his status is changed by an Act of Parliament, which resembles restitutio natalium, or the restoration of original rights of the Civil Law.

The laws of Wales compelled the father to support his illegitimate offspring, even if the mother was a prostitute. "If an abandoned female become pregnant, he who is the cause of it must provide for the child; for the law enacts that she must not suffer loss on account of the connexion, though it has produced such results." (Ancient Laws of Cambria, Laws of Howel the Good, II, Page 134.)

is the first duty of freeborn and illustrious women, and We hold that it would be unjust, and very oppressive and unworthy of the spirit of our age, for bastards to be acknowledged.

The parentage of a bastard could be repudiated by the observation of certain formalities, in case the alleged father was accused. "There are three denials of illegitimate children: the personal oath of the father, if he be living; if the father be dead, the oath of the chief of the tribe, and of seven men of the tribe with him, are necessary to receive or disown such a child; and if there be no chief of the tribe, the oath of fifty men of the tribe are requisite to disown such a child; and the illegitimate child who is disowned is considered as a bondman and a slave unto the fourth of his descendants, or until he obtain liberty by the ninth in descent." (Ibid., Triads of Dyvnwal Moelmud, No. 118.)

The Code of Louisiana divides illegitimate children into several classes: those whose parents might legally have married at the time of their conception; those who were barred from doing so; adulterous bastards, one or both of whose parents were married; and incestuous bastards, the result of intercourse between relatives within the forbidden degrees of relationship.

Parents of illegitimate children are obliged to contribute to their support where the latter have been legally acknowledged by either of them.

The only method of legitimation authorized by law is by subsequent marriage, accompanying or following public acknowledgment of paternity. Even deceased children, who have left issue, may thus be placed in the enjoyment of all civil rights. (Civil Code of Louisiana, Arts. 200, 201, 202, 217, 218, 258.)

In the United States, as well as in England, when a wife is cohabiting with her husband the presumption of legitimacy can only be overthrown by the most conclusive and overwhelming evidence; and the law discourages all investigations of this kind, except where the facts are notorious and can be established beyond all reasonable doubt.

In many States of the Union, legitimation through marriage is provided for by statute; and in some, failure to support the child is a felony, a condition which affords unlimited and profitable opportunities for the sinister operations of the blackmailer.

Scottish law which, like the Roman, legitimates a child born out of wedlock by the subsequent marriage of its parents, formerly, by a legal fiction, considered that the retroactive effect of the ceremony extended back to the time when the child was begotten, thereby seriously affecting the rights of legitimate children born in the meantime. This rule is no longer in force, but leaves the rights of such children to be determined by the courts. (Erskine, Principles of the Law of Scotland, I, VII, 37.)

The ancient custom of Normandy permitted the legitimation of bastards by marriage. "Ceulx qui furent engendrez devant le manage, se le pere espouse depuis la mene, Us sont tenus legitimes."

An illegitimate child enjoyed no right of inheritance, and could have no heirs, except those by his wife. He might, however, purchase property, and hold it by that title. "Bastard ne peut etre heritier d'aulcun heritage, mais par achapt ou par autre condition le peut il bien avoir. Aulcun ne peut estre hoir a bastard, que les enfantz qu'il a de sa femme esponsee." (Nouveau Coutunier de France [Normandiel Chap. XXVII.)

The rule that the subsequent marriage of the parents, either accompanied or preceded by the formal recognition of the child, establishes its legitimacy, has been adopted by the nations whose jurisprudence is directly derived from Roman sources. (Code Civil de France, Arts. 331, 332, 333, Code Civil de Belgique, Arts. 331, 332, 333, 334, Codigo Civil de Espana, Arts. 120, 121, 122, Codigo Civil Portu-guez, Arts. 119, 120, 121, Codice Civile del Regna d'ltalia, Arts. 194, 195, 196, Allgemeines Burgerlich.es Gesetzbuch [Austria] 161, 162, Burgerlijk Wetboek, [Holland! 327, 328, 329.)

The Swiss Code declares that legitimation takes place at once, by operation of law, as soon as the parents of the child are married. They are bound to acknowl-

We have, in accordance with reason, devoted this law to the encouragement of modesty, which We think should always be observed. If, however, the woman was a concubine of free condition, and had a son or a daughter by a freeman under a connection recognized by law, he or she will also, along with the legitimate children, be entitled to a share of their mother's estate, which she had possession of as her law-

edge it before a civil magistrate either before or immediately after the betrothal; but neglect to do so does not, in the slightest degree, affect the validity of the act by which legitimacy is acquired. (Schweizerische Zivilgesetzbuch, Arts. 258, 259.)

The law of Japan recognizes two kinds of illegitimate children, those who have been acknowledged by the father, and those who have not.

The term indicating the former, like the filii naturales of the Romans, was originally employed to designate the offspring of concubines. In the matter of inheritance, an acknowledged illegitimate child is only entitled to half as much of the estate of its deceased parent as one born in lawful wedlock. Recognition is accomplished by giving notice before the proper public official, or by will. An unborn child may be thus recognized, but, when this is done, the acquiescence of the mother must be obtained. If the child has attained its majority, his or her consent must be given to render the proceeding legal. While recognition is retroactive from the time of birth, this is not allowed to prejudice the rights of others in any way. An illegitimate child may, either in person, or by its lineal descendants or legal representatives, demand recognition from either of its parents; and when this is once given it cannot, under any circumstances, ever be revoked. In case of the marriage of the parents, the child obtains all the rights of legitimacy from the date of its acknowledgment. (Civil Code of Japan, Arts. 827-836.)

The term "bastard," among the Hebrews, was not generally applicable to the offspring of illicit intercourse, but indicated a child born to persons within the prohibited degrees of kindred, and especially the issue of a Jew and a pagan, who was forbidden by the Scriptures from being present at, or participating in, the religious ceremonies of the people. "A bastard shall not enter into the congregation of the Lord; even to his tenth generation shall he not enter into the congregation of the Lord." (Deuteronomy XXIII, 2.)

A law introduced by Solon provided that children not born in legal marriage— which could only take place between citizens who were free—were incapacitated from inheriting any of their father's estate. This law was repealed, and subsequently re-enacted; all whose mothers were not citizens were pronounced illegitimate; and a Vo0os, or bastard, was defined to be "One born of a stranger or a harlot." The original prohibition of inheritance does not seem to have been renewed. "Let one of spurious birth, whether male or female, inherit either in sacred or civil things." (Potter, Antiquities of Greece, Vol. I, Pages 55, 179.)

Under Moslem Law, as under that of England, a child born out of wedlock cannot be subsequently legitimated by the marriage of its parents. In order to be legitimate it must be conceived after marriage. A bastard has no claim upon his father, nor can the latter, even if he recognizes him, interfere with him even for his advantage, or direct his education. (Hughes, Dictionary of Islam, Title "Bas-.tard," "Legitimacy," Pages 39, 293.)

The ancient Anglo-Saxons classed all persons as illegitimate who had no claim to be included in the "maegth," or clan whose members were united by the tie of consanguinity arising from legal marriage. Bastards were not susceptible of legitimation, and the issue of an illegal matrimonial union belonged to the same category, and enjoyed no family privileges. (Barrell, An Outline of Anglo-Saxon Law, Page 61.)

As an almost universal rule, the jurisprudence of European nations forbids a mother from stating in court who is the father of her illegitimate child. This provision, while in some instances it may be productive of injustice, is undoubtedly a potent safeguard against the fraud and rapacity of unprincipled persons.—ED.

ful patrimony, and no bad feeling should be engendered in conse-

qU6Given at Chalcedon on the fifteenth of the Kalends of October, during the fifth Consulate of Decius.

6. The Same to Julian, Prsetorian Prefect.

A certain woman bequeathed freedom to a female slave in trust, and while the trustee charged with granting her her liberty was in default in doing so, the said female slave had a child. All the ancient legal authorities held that the boy or girl born after the default had taken place was free, but a doubt arose among them whether, if the mother should die, the child could succeed to her estate. Therefore We, intending to remove this doubt,, do not permit it to continue any longer, and order that, by virtue of the Orphitian Decree of the Senate having reference to the preservation of offspring, the said child can become the heir at law of its mother, if she should die intestate; and that the mother, as well as her child, shall, under the provisions of both the Tertullian and Orphitian Decrees of the Senate, be entitled reciprocally to the inheritance of one another's estates.

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

TITLE LVIII. CONCERNING HEIRS AT LAW.

1. The Emperor Alexander to Cassius and Hermiona.

It is a positive rule of law, both with reference to intestate successions, as well as praetorian possessions of estates, that brothers and sisters enjoy equal rights, through the bond of consanguinity, to which rights they were entitled on the ground of being the next of km (even though they were not born of the same mother); and this rule does not cease to be applicable because you assert that your paternal aunts have been endowed by your grandfather.

Published on the Nones of May, during the Consulate of Maximus, Consul for the second time, and JElianus, 224.

2. The Emperor Gordian to Tatiana and Others.

If you did not acquire for your father the estate of him who appointed you his heirs, and your father having subsequently died, you accepted the succession of the deceased, after having rejected your father's estate; the Governor of the province will not fail to see that the property of the deceased is separated from that which belonged to your father.

Published on the sixth of the Ides of April, during the Consulate of Gordian and A viola, 240.

3. The Emperor Decius to Asclepiodota.

It is a well-established principle of law that females can be admitted to intestate estates by the right of consanguinity. Hence, as

the estate of your brother, who died intestate, belongs to you by the right of consanguinity, the sons of another of your brothers have no ground for claiming said estate; for, without taking into consideration the right of agnation, with reference to all who are interested, the estate will go to you by the terms of the praetorian law, because you are in the second degree, rather than to the sons of your brother, who are only in the third degree.

Published on the second of the Nones of December, during the Consulate of Decius and Gratus, 251.

Extract from Novel 127, Chapter I. Latin Text.

Where there are no heirs in the descending line, the brothers and only sister of the ancestor shall first be called to the succession, along with the sons of a brother previously dead, per stirpes. I refer to a brother, and the children of a brother descended from the same parents, whose estate is now in question, which persons are entitled to the succession, even if there are no ascendants of the deceased, and together with those nearest in degree, if there are any. And even if the son of the aforesaid brother is in the third degree, he shall be preferred to the brothers of the deceased, who are only related through one parent.

In a succession of this kind all distinctions of sex and emancipation shall be disregarded.

Extract from Novel 118, Chapter III. Latin Text.

After brothers born of the same parents, and their children, brothers and sisters on one side are admitted along with the children of those who may have already died. The children of these brothers, however, as they inherit (along with the brothers of the deceased), are undoubtedly to be preferred to the paternal uncles, and other similar relatives of the defunct.

In a succession of this kind, all distinctions of sex and agnation shall be disregarded.

Extract from Novel 118, Chapter HI. Latin Text.

After sons or brothers, those next in degree are called to the succession, so that when there are several in the same degree they will be admitted together, all distinction of males and females being abolished; for in cases of this description relationship alone is taken into account, and a division of the estate shall be made per capita, and not per stirpes.

4. The Emperors Diocletian and Maximum and the Csesars to Csecilius.

If the grandson of your paternal uncle failed to make a will, or did so before he reached the age of fourteen years, his estate will pass to you by the right of agnation, and you can obtain it as heir at law, without having recourse to the demand for praetorian possession.

Published on the Ides of July, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

5. The Same Emperors and Csesars to Cupilla.

It is certain that persons entitled to an intestate succession by the right of agnation are to be preferred to those who claim it under the right of proximity of degree.

Published on the sixteenth of the Kalends of July, during the Consulate of the above-mentioned Emperors.

6. The Same Emperors and Csesars to Claudiana.

When anyone dies without leaving proper heirs, or where they refrain from accepting the estate, or reject it, a brother can succeed to the same by the right of consanguinity.

Published on the Kalends of January, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Amianus.

An intestate succession is not equally transmitted to a paternal uncle and a paternal aunt, although they both belong to the third degree, but the brother of the father is, by the right of agnation, preferred to the sister of the mother.

Ordered on the seventeenth of the Kalends of March, during the Consulate of the Caesars.

8. The Same Emperors and Csesars to Syllanus.

If the estate has been entered upon by those whose succession is in question, and who died while in the hands of the enemy, and this has been done by the right of agnation, in accordance with the privilege of the Cornelian Law, or you have succeeded after praetorian possession has been demanded, you will not be prevented from claiming the estate.

Ordered on the Nones of July, during the Consulate of the abovementioned Emperors.

9. The Same Emperors and Cassars to Demagora.

There is no doubt whatever that, in the case of an intestate succession, a sister is entitled to the preference over a grandmother or a maternal grandfather.

Ordered at Nicomedia on the sixth of the Kalends of July, during the Consulate of the Csesars.

10. The Emperors Theodosius and Valentinian to Florentius, Prss-torian Prefect.

Those who are called to the succession of a deceased minor are hereby notified that if his father is no longer living, they cannot, for a year, legally demand that a guardian be appointed for him; and if the minor should die before reaching puberty, they will have no right to his estate either on the ground of intestacy, or under the rule of

substitution.

Given at Constantinople, on the fifth of the Ides of July, during the Consulate of Theodosius, Consul for the seventeenth time, and Festus, 439.

11. The Emperor Anastasius to Constantine, Praetorian Prefect.

If he who, in accordance with Our Constitution, has applied for a rescript to enable him to emancipate his children, in order that the son or daughter who is to be emancipated may not, on that account, have his or her legal rights extinguished, these same rights shall be preserved for the emancipated son or daughter as against all other persons connected with them in this way, as well as against others, so far as inheritances, successions, guardianships, or any other matters whatsoever are concerned.

Contribution, however, shall be made them in accordance with the laws passed in connection with emancipated persons, whenever a case of this kind arises, inasmuch as emancipation has taken place.

Given on the fifteenth of the Kalends of August, during the Consulate of Probus and Avienus Junior, 503.

12. The Emperor Justinian to John, Praetorian Prefect.

We have been asked by the Bar of Csesarea, if a woman over fifty years of age should have a child, whether it could succeed to its father, and We decree that, although a birth of this kind is extraordinary and rarely occurs, still, nothing which is known to be produced by Nature should be rejected, but every right granted to children by any law whatsoever must be observed unimpaired and unchanged for the benefit of such sons and daughters, with reference to all successions, whether they are granted by will, or proceed from intestacy. And, upon the whole, they are not dissimilar from others whom Nature causes to resemble one another, and, especially, as by a former law of Ours We permitted marriage to take place between persons of this description, not admitting that they should be considered improper.

Given at Constantinople, on the ninth of the Kalends of November, under the fifth Consulate of Lampadius and Orestes, 532.

13. The Same Emperors to John, Praetorian Prefect.

A doubt has arisen with reference to emancipated children who have obtained this advantage from their parents under an Imperial Rescript.

(1) As the Anastasian Law is known to protect brothers in their legal rights, when any one of them died intestate and without issue, the question arose whether his succession would pass to his brother or sister, or to his father who survived him. We think that this doubt should be disposed of by a comprehensive opinion, and therefore We order that, as in the case of the property of mothers and of other persons, concerning whom the law has already been laid down by Us, an estate of this kind can entirely pass to brothers or sisters by the right of ownership, but that the entire usufruct of the same shall be acquired by the father, whether he had had but one wife, or had contracted a second marriage, and whether the emancipation was effected by means of an Imperial Rescript, or the brothers were released from paternal control by any other legal method.

(2) For as the father enjoys the usufruct, and his desire is that his estate shall go to his children, the interests of the brothers are consulted in this respect by the Anastasian Law, under another head; and now, in the present instance, We grant them further relief, so that the father may have the usufruct, and the brothers and sisters the ownership of the property which was bequeathed, with the exception of the maternal estate to which, if they are all brothers and sisters by the same mother, they alone shall be entitled. If, however, this should not be the fact, then, as in the case of other property, the ownership of the estate shall be shared by all of them equally, in order that the procedure may, under all circumstances be perfectly clear, and that there may be no doubt growing out of any distinction of persons or property.

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

14. The Same to John, Prsetorian Prefect.

The interests of the human race were well provided for by the Law of the Twelve Tables, which declared that no distinction should exist between legitimate male and female children, and that this rule should be observed as well with reference to their inheritance, as in the case of the children themselves, no difference being allowed in their succession, as Nature gave them the same body in order that it might remain immortal through the changes it underwent, and that one of them might require the aid of the other, so that, if one was removed, the other would cease to exist.

Posterity, however, established too subtle a distinction, and made an unjust discrimination between the sexes, as Julius Paulus plainly stated in the beginning of his book, which he wrote on the Tertullian Decree of the Senate. For it is proper that daughters should succeed to the intestate succession of their parents in the same way as their brothers; and, again, sisters can claim for themselves the same privilege by the right of consanguinity; but should their legitimate descendants, if they do not enjoy the privileges of consanguinity, be excluded from legitimate succession when they have the same right to it as males? Why is the sister of the father not called to the succession of the son of her brother along with the male heirs, but one rule is observed with reference to aunts, and another where uncles are concerned? Or with what reason is the son of a brother called to the succession of his uncle, and his sister excluded from it? Therefore We think that, in this respect, the ancient law should be preferred to the recent one, and We decree that all legitimate relatives, that is to say, those who are descended through the masculine sex, whether they are males or females, shall be legally called to the rights of intestate succession in accordance with the privilege of their degree, and that sisters shall not be excluded, because they are not subject to the rule of consanguinity; for why should the claims of consanguinity remain unquestioned in the male sex, and wherefore should We commit an offence against Nature, and derogate from legitimate right? This

discrimination entails the greatest injury, and inflicts, as it were, a deep wound upon many persons. For, as males are called to the succession of females by the right of agnation, why should the estates of the latter be permitted to go to them by law, and females not succeed to one another, or to males under the same rule, but be punished for the sole reason that they were born women, and their innocent offspring be afflicted with the defect caused by their fathers, if it can be called a defect?

(1) In these instances, however, We, following the Law of the Twelve Tables, and amending the new enactment by one still more recent, and induced by motives of humanity, desire that there shall be but one degree, and that the succession shall be transferred to the legal heirs by the right of cognation, without any distinction of sex; so that not only the son and daughter of a brother (in accordance with what We have already stated), shall be called to the succession of their paternal uncle, but also sisters of the same blood, or the sons and daughters alone of the sister by the same mother, but no other descendant shall, together with the males, be entitled to the estate of their maternal uncle; and, in case the latter should die, the paternal uncle shall become the heir of children of his brother, and the maternal uncle of those of his sister, thus succeeding in the same manner on both sides, just as if they did so by legal right, that is to say, where the brother and sister are no longer living. For when persons of this kind take precedence, and are entitled to the estate, those of other degrees are entirely excluded.

It should undoubtedly be noted that the inheritance is not divided per stirpes, but per capita, and that the rule of descent above mentioned applies to intestate successions, the rules governing all others, and which have been legally observed up to the present time, remaining unaltered. If, however, any cases should occur to which the former laws are applicable, distribution must be made in accordance with them.

Given on the fifteenth of the Kalends of December, after the fifth Consulate of Lampadius and Orestes, 532.

15. The Same to John, Prsetorian Prefect.

We remember the Constitution formerly promulgated by Us, by which, in accordance with the Law of the Twelve Tables, We ordered that all lawful descendants, whether males or females, should acquire an estate by the right of descent, and that as the succession came to the former as heirs at law, the latter also obtained it in the same manner.

By the above-mentioned Constitution, We established but one degree of lawful succession, with reference to cognates, namely, that of the sons and daughters of a full sister and of the sons and daughters of a half sister.

We decree that this Constitution shall remain in full force, as its tenor has been set forth by Us in Our Institutes. But, for the purpose of rendering legislation more perfect, We have deemed it necessary, in case anything advantageous should be found in the prastorian law, to include it among Our enactments.

(1) It is clear, therefore, that the Prsetor calls the emancipated son, without any reservation, to the succession of his father, even though, strictly speaking, he has undergone a change of status; but he was not, under the same law, called by him to the succession of his brothers, nor did his sons, as heirs at law, succeed to their paternal uncles. We have considered it necessary to amend this, and to render the Anastasian Law perfect by making additions thereto, so that an emancipated son and daughter shall not only succeed to the estate of their father, as where they are proper heirs; but that they shall also succeed to the estates of their brothers or sisters (whether they are all proper heirs, or all emancipated, or include both these classes) equally and reciprocally, and not with any difference of shares as provided by the Anastasian Law.

It seems to Us perfectly proper to establish these regulations with reference to emancipated children.

(2) We are not willing for an uterine brother or sister to be left among cognates, for they are in such a near degree that it is only reasonable that they should be called without any distinction, just as if they were of full blood, along with their other brothers and sisters; so that they, being in the second degree, and found worthy of legal succession, shall be preferred to all others of a more remote degree, even though the latter may be heirs at law.

These rules with reference to the succession of persons of the second degree have been established by Us as productive of the greatest convenience.

(3) When the third degree in the collateral line, in which the ancient laws placed uncles and nephews is considered, We order that the sons and daughters of an emancipated brother or sister alone, whether they themselves were emancipated, or remained under the control of their parents, and no one else in a more remote degree, as Well as the sons and daughters of a uterine brother and of a full or uterine sister, shall only be called reciprocally, as being in the legitimate line of descent; just as We have already decreed that all those who, either by the ancient law, or by Our indulgence, have obtained the privileges of heirs at law and who are likewise in the third degree shall be called in the same way; and that the right of succession shall also be preserved in this instance; so that if any one of those in the second degree should reject the estate to which they were called, and fail to enter upon it, and there is no one else in the second degree who can succeed, or is willing to do so, then those who are in the third degree, and whom We have enumerated in the present law, will succeed instead of the heirs who refuse to accept the estate.

It should also be noted that the estate must be divided, not per stirpes but per capita, and that, in all other successions, the law which has been observed up to the present time shall prevail, and no cognate of the degrees above mentioned shall be classed as an agnate, but shall, in accordance with his proximity of degree, retain his right of succession unimpaired.

(4) On the other hand, We impose the charge of guardianship upon those persons whom We have transferred from the rank of cognates to that of agnates; that is to say, if they are males and of full age, as provided by the terms of Our Constitution, so that they may not only enjoy the benefits of their position, but also be subjected to its responsibilities.

(5) If, however, any cases should arise which have already been settled by judicial decisions, or amicable compromise, they shall not be liable to reconsideration under this law.

Given at Constantinople, on the Ides of October, during the Consulate of Our Lord the Emperor Justinian, Consul for the fourth time, and Paulinus, Consul for the fifth time, 534.

TITLE LIX. MATTERS COMMON TO SUCCESSIONS.

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

You should have known that, although your brother was emancipated, you who remained in the family would not be entitled to the preference, so far as the estate of your emancipated brother was concerned, but that both of you would succeed if you had demanded Praetorian possession of the estate in accordance with the forms of law.

Ordered on the fifteenth of the Kalends of June, during the Consulate of the Caesars.

2. The Same Emperors and Caesars to Apollinarus.

If your own father, having become the heir of your cousin, who was your agnate and died intestate, entered upon his estate by virtue of the Civil Law, or if he did not intervene in the beginning, or was deprived of his right by a change of status, but succeeded to him after having regularly obtained praetorian possession, and you have acquired the estate of your father, you should appear before the Governor of the province and bring suit against his guardian with reference to the administration of the guardianship.

Given at Verona, on the fourteenth of the Kalends of June, during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and Csesars to Ulpiana.

It is absolutely certain that a step-father is not, either by the Civil or the praetorian law, entitled to the estate of his step-son, who died intestate.

Ordered on the fifteenth of the Kalends of March, during the Consulate of the Csesars.

4. The Same Emperors and Cassars to Asterius.

A slave cannot have any successors.

Given on the Nones of April, under the Consulate of the Caesars.

5. The Same Emperors and Csesars to Justina.

You do not lawfully demand, in your own name, the estate of your aunt whose children have, as you allege, succeeded her; but, since you assert that the said children died intestate, if those whom you say are the step-children of your aunt should prove to be their blood-relatives, there is no doubt that the brothers who, by the right of both cognation and agnation, are in the second degree, should be preferred to you. If, however, the step-children of your aunt were by another father, they are not the step-children of their mother, and, in this case, you can claim their estates, if you can show that you have been admitted to praetorian possession of the property.

Ordered on the twelfth of the Kalends of March, during the Consulate of the Csesars.

6. The Same Emperors and Csssars to Publicianus.

It is a positive rule of law that an intestate succession should go to a paternal uncle, who is in the third degree, rather than to a cousin who is in the next degree following.

Published on the Kalends of October, during the Consulate of the

Caesars.

7. The Same Emperors and Csssars to Nicholas. No succession is permitted on the ground of relationship by marriage.

Ordered on the Ides of October, during the Consulate of the Csesars.

8. The Same Emperors and Cseso.rs to Justa.

No one can, on the ground of intestacy, succeed to a person who has left a will, before the appointed heir, who is legally capable and entitled to a share of the estate, rejects it. Therefore, you will perceive that the estate of the deceased cannot be legally claimed as long as there is any prospect of testamentary succession.

Ordered on the sixth of the Ides of March, during the Consulate of the Caesars.

9. The Same Emperors and Csesars to Sopatrus.

The master of a female slave who has cohabited with a freeman cannot claim the succession on the ground of this connection.

Ordered at Nicomedia, on the fifteenth of the Kalends of January, during the Consulate of the Csesars.

10. The Same Emperors and Csesars to Danubius.

An estate cannot, either by the Civil or the Praetorian Law, pass to anyone on the ground that he has supported the deceased.

Ordered on the sixth of the Kalends of January, during the Consulate of the Caesars.

Extract from the Novel which Treats of Laws and Customs; Section Beginning, "All Strangers," etc. Latin Text,

All foreigners and strangers shall be freely entertained wherever they desire; and if, while this is being done, they should wish to make

their wills, they shall have free power to dispose of their estates, and the disposition of the same shall remain undisputed. When they die intestate, their host will not be entitled to anything, but their property shall be transmitted to their heirs by the hands of the bishop of the diocese, if this can be done; or it shall be devoted to pious uses. If a host should, in violation of this Our Law, acquire anything from an estate of this kind, he must restore threefold the amount to the bishop, by whom it shall be given to those whom he considers worthy; notwithstanding any statute, custom, or privilege, which may previously have provided for any other disposition of such estates up to this time.

If any persons should presume to violate this Our Constitution, We hereby deprive them of the power of disposing of their estates by will; otherwise, they may be punished for the offence which they have committed, to the extent that the nature of the offence demands punishment.

11. The Emperor Justinian to Demosthenes, Prietorian Prefect.

As in the case of property which is acquired by children through the marriage of their fathers, the rule in cases of this kind being as follows, namely: if one of the children should die, the share which he would have obtained shall go to his children or grandchildren, and if there are none living, to his brothers born of the same marriage, and when none of them survive, to the brothers born of other marriages, and where none of them remain, it shall then go to the father; so, We decree that the same order shall be preserved with reference to property, which, for any reason, has come down through the maternal line, and has either been disposed of by donations inter vivos, by last wills, or ab intestato.

In the first place, the issue of a son or daughter shall be called to the succession, and if none of these can be found, the brothers or sisters, born of the same or another marriage, shall be called in the order previously mentioned; and finally the father shall be called by the law, and the unacceptable estate which was left by his son shall be acquired by him as a melancholy source of profit.

In all the instances above referred to, where any issue of children survives, and brothers have a right to claim the estate of the deceased in preference to their father are still living, the usufruct of the property to the ownership of which the sons are entitled shall belong to the parents of the latter.

Given at Chalcedon, on the thirteenth of the Kalends of October, under the fifth Consulate of Decius, 529.

Extract from Novel 84, Chapter I. Latin Text.

Hence, the father being dead, if the son should die intestate without issue, but should leave brothers and sisters, some of full blood and others of half blood, and others again born of both parents, he will transmit the estate to those alone who are related on both sides.

TITLE LX.

CONCERNING THE ESTATES OF MOTHERS AND OF THOSE IN THE MATERNAL LINE.

1. The Emperor Constantine to the Consuls, Prsetors, Tribunes of Ihe People, and the Senate, Greeting.

Property derived from the estate of a mother, either under the terms of a will, or on the ground of intestacy, and which has gone to the children, will remain under the control of the father, who shall have the right to the use and enjoyment of the same during his lifetime, but the ownership shall belong to the children. Fathers, however, to whom only the right of use and enjoyment of the mother's estate is granted, must use all diligence for the preservation of the same, and they must, either in their own proper persons or by an attorney, demand what the children are legally entitled to and promptly pay all expenses out of the crops, as well as defend any suits which may be brought, and act in all respects so that the ownership may be acquired by the children perfectly and indisputably, just as if they •were transacting their own business; and if they should attempt to dispose of any of their children's property, the purchaser, or he to whom it is given, may take care not to either knowingly or ignorantly accept any portion of the same which it is forbidden to alienate; for the father should prove that what he either gives or sells is his own, and the purchaser will be permitted to take a surety (if he desires to do so) because he cannot plead any prescription against the children, whenever they claim the property as their own.

Given at Aquileia, on the fifteenth of the Kalends of August, during the Consulate of Sabinus and Rufinus, 316.

Extract from Novel 22, Chapter XXIII. Latin Text. The possessor becomes the owner after the term of thirty years has elapsed, and the retention of property for that period makes or constitutes the person who has received it the proprietor of the same. This time begins to run against the children from the day on which they become their own masters, unless some of them have not yet attained the age of puberty.

2. The Emperors Arcadius and Honorius to Florentius, Praetorian

Prefect.

Anything which a grandfather or a grandmother, a great-grandfather or a great-grandmother, in the maternal line, have left to a grandson or granddaughter, a great-grandson or a great-granddaughter by will, under a trust, as a legacy or donation, or by any other title, or which may be acquired by intestate succession, the father shall take charge of unchanged and unimpaired for the benefit of his son or his daughter, as he cannot sell, donate, bequeath, or encumber it to another, just as he cannot do with property of the mother's estate, and he shall only be entitled to the usufruct of the same; so that he loses all control over such property in case of his death, for his son or his

daughter will be entitled to it as a preferred legacy; nor can it be claimed by those who are co-heirs only on one side.

Given on the Ides of October, during the Consulate of Olybrius and Probinus, 395.

3. The Emperors Theodosius and Valentinian to the Senate of the City of Rome.

If the mother is living when her children are emancipated, and afterwards dies, as the father is deprived of all benefit from the property, and does not even retain the usufruct, We grant him shares of the usufruct, according to the number of children, whether there is one, or more of them. Where, however, the mother, when dying, left some of her children emancipated by their father, and others still under his control, the husband will enjoy the unequal benefit of a portion of the usufruct of the estate of the deceased. In this instance, We make provision for both, that is to say, the father shall, by th,e authority of the law, retain the usufruct of the shares of those who are still under his control, and shall receive the price of the emancipation which was granted, if he desires to do so. But of the shares of those who it is established were released from paternal control during the lifetime of their mother, he will only be entitled to the usufruct of a single share, in accordance with what has already been provided.

With reference to grandsons and granddaughters, We decree that the following rule shall be observed, namely: a husband, when his wife dies without leaving any children, is called under this law to enjoy the benefit of the estate with his grandsons and granddaughters alone; and if one or several grandchildren are born to one or several sons who died while under paternal control, he or they can enjoy the same right which has been provided in the case of children. For, although the present law establishes this innovation, so far as grandchildren are concerned, still, it is not reasonable that, under such circumstances, the children should be in a worse condition than the grandchildren.

Therefore, let the grandfather, along with the grandchildren remaining under his control, enjoy the usufruct of all the property constituting the estate of the deceased grandmother. And when he bestows freedom upon them also by emancipation, let him receive the price of manumission from them, just as has been provided in the case of children; or, if he manumits some of them and retains others under his control, let him enjoy the usufruct of the share of those still subject to his authority, and withhold the lawful price from the share of those who have been manumitted.

Where grandsons or granddaughters have been born to an emancipated son or daughter, or liberated from paternal control by the former during the lifetime of their grandmother, the said grandfather shall be entitled to the usufruct of an equal share with them.

If, however, at the time when the grandsons or granddaughters are called to the succession of their grandmother, some of them are under the control of their grandfather, that is to say, of the husband

of the deceased, and some are independent, the above-mentioned rule shall be observed with reference to such as are still subject to paternal authority, both so far as the acquisition of the usufruct and the payment of the price of emancipation are concerned, but those who are their own masters shall have the power to enjoy the usufruct of a single share among them.

We order that these regulations shall apply to great-grandchildren of either sex, the same rule which was promulgated with reference to them separately remaining in force where there are both children and grandchildren.

Given on the sixth of the Ides of November, during the Consulate of Theodosius, Consul for the thirteenth time, and Valentinian, Consul for the third time, 430.

4. The Emperor Leo to Cattistratus, Praetorian Prefect of Illyria.

For the purpose of disposing of all doubt and confusion, We order by this clear and comprehensive law that there shall be no distinction with reference to the usufruct of the estate of a mother, whether the father chooses to remain in the former matrimonial condition under which he had children, or to give the latter a step-mother, but the laws which have been enacted concerning the estates of mothers shall remain firm and unshaken. Therefore, a father should undoubtedly enjoy the usufruct of the mother's estate, even when he marries a second time; nor will the children, or anyone else acting in their behalf, be permitted to file improper accusations and complaints against their father.

Given on the Kalends of September, during the Consulate of An-themius, Consul for the second time, 468.

TITLE LXI.

CONCERNING PROPERTY ACQUIRED BY CHILDREN WHILE UNDER THE CONTROL OF THEIR FATHER, EITHER BY MARRIAGE OR IN ANY OTHER MANNER, AND ITS ADMINISTRATION.

1. The Emperors Theodosius and Valentinian to the Senate of the City of Rome.

As Our sacred laws forbid fathers to acquire, under any title whatsoever, by the right of paternal control, anything which a grandfather or a grandmother, a great-grandfather or a great-grandmother in the maternal line, have left to their children, it is proper to state that whatever a wife has given to her husband, who is not emancipated, or a husband to his wife who is under paternal control, by any title or right, or transmitted to him or her in any way, shall, under no circumstances, be acquired by his or her father. Therefore, the property will only legally belong to him to whom it has been conveyed.

Given at Ravenna, on the third of the Ides of November, during the Consulate of Theodosius, Consul for the twelfth time, and Valen-tinian, Consul for the second time, 426.

2. The Same Emperors to Hierius, Prsetorian Prefect.

For the purpose of rendering a clearer interpretation of a point in Our New Constitution, We decree that whatever has been given by a husband or a wife, no matter under what title, or transmitted by a last will through sons, grandsons and great-grandsons, as well as daughters, granddaughters, and great-granddaughters, cannot be acquired for their father, even though they are under paternal control; but let no one think that this rule applies to what has been bestowed by the parent himself, either by way of dowry, or as an antenuptial donation, which was given in behalf of the persons above mentioned, so that it may not, under any circumstances, return to him if opportunity should occur; for care must be taken to prevent the generosity of parents towards their children from being influenced by apprehension of this.

But, in order that the property of this kind may return to the father by law, as well as the ownership of any other which may pass to the survivor from the estate of a husband or wife, even though he or she may be under paternal control, We decree that where the parent had only the right to the usufruct, the ownership shall be reserved for him who is entitled to the same, from an estate of either a wife or a husband; and that the father shall be entitled to the price of emancipation on account of the benefit resulting from the latter, if he should so desire, just as in the case of the estate of a mother, or where property is obtained through the paternal line.

Given on the tenth of the Kalends of March, during the Consulate of Felix and Taurus, 428.

3. The Same Emperors to Florentinus, Prsetorian Prefect.

What is contained in former laws, namely, that an ante-nuptial donation shall not be acquired by a daughter for the benefit of her father, if she is under paternal control, nor a dowry be acquired by a son under the same conditions, We confirm the above rule, and add thereto that where the said children, while still subject to the authority of their father, die leaving issue, the said property shall be transmitted to the children by virtue of the law of inheritance, and not to their father by the right of peculium. Nor can property be acquired in this way by a grandfather through his grandson.

If, however, a grandson, while both his father and his paternal grandfather are both living, should die childless, the ownership of the property which came to him from his mother, or through her line, shall belong, not to his grandfather, but to his father, the usufruct of it, in cases of this kind, being reserved for the grandfather as long as he lives.

Given at Constantinople, on the seventh of the Ides of September, during the Consulate of Theodosius, Consul for the seventeenth time, and Festus, 439.

4. The Emperors Leo and Anthemius to Erythrius, Prsstorian Prefect.

The father, grandfather, or great-grandfather shall have, during life, the usufruct of whatever property comes into the hands of a son, a daughter, or grandchildren and great-grandchildren of both sexes, under paternal control, who are the issue by the first, second, third, or any other marriage, which property is derived from a dowry, a donation of any description, an estate, a legacy, or a trust, and they are hereby absolutely prohibited from alienating it in any way whatsoever, or encumbering it by either pledge or hypothecation; and the ownership of the same shall belong to the children, grandchildren, or great-grandchildren of both sexes, even when they are not the issue of the same marriage from which the said property came into the hands of the parents of those subject to paternal authority.

It should also be observed that the shares of brothers and sisters, the issue of the same marriage, who have died, shall, in the first place, go to their children, as has been already stated, when there are any, and if there should be none, to the surviving brothers and sisters, or to the sole survivor, if only one of said brothers and sisters remains alive.

Where, however, all who are the issue of the same marriage are dead, We then decree that the said property shall go, share and share alike, to those born of another marriage, and that where none of the above-mentioned persons have survived, their parents shall be entitled to the property. The parents, under whose control the children were, shall, however, only be entitled to the usufruct, and We refuse them permission to alienate or encumber the said property by the right of paternal control; but the said children, when they become their own masters, are not forbidden to claim it in every legal manner ; nor can any prescription of time be pleaded against them, unless it should happen that, when they were liberated from their fathers' control, so long a time had elapsed that their claim was barred by the continuous and undisputed possession of the person holding the same. Given on the fifth of the Kalends of March, during the Consulate of Martian and Zeno, 469.

5. The Same Emperors to Nepotianus, Military Governor of Dal-matia.

The dispute which has arisen with reference to the affairs of the woman to whom you refer, and her brother, is not unreasonable, and Your Excellency, having cited different authorities on both sides, thinks that We should be consulted, as the woman, relying upon different laws, is attempting to prove that the words husband and betrothed mean the same thing, while her brother contends that the name of husband is not applicable to one who has contracted a marriage; he, basing his opinion upon the Constitution of the Divine Princes Theodosius and Valentinian, Our predecessors, by which it is provided that whatever a husband or a wife, while under paternal

control, may leave to one another, cannot be acquired by the father, but legally belongs to him or her.

Therefore, although the term husband and wife are, according to their ordinary signification, understood to apply only after the marriage has been celebrated, on which point the doubt arose; still, because it is proper that ambiguous questions which arise from different interpretations of legal enactments should be decided liberally, and in accordance with natural law, We do not hesitate, in the present instance, brought before us by Your Highness, to adopt the opinion of the distinguished authority Julianus, renowned for his knowledge of jurisprudence, and which is in conformity with justice; who, in a case involving a dotal estate, decided that the same rule should be observed in the case of a wife which applied to a woman who was betrothed (although the Lex Julia only referred to a wife), for which reason We think that it would be a more liberal construction to hold that the betrothal donation, as well as the estate which the aforesaid betrothed man desired to bestow upon his intended wife, shall not be acquired by her father, but shall belong to her individually.

Given during the Kalends of June, during the Consulate of Leo, 471.

6. The Emperor Justinian to Demosthenes, Praetorian Prefect.

As it is necessary to provide for parents as well as children, in the examination of the ancient law We have found that many things which are derived from external sources by sons under paternal control should not be acquired by their ascendants, just as is the case with anything derived from the estate of a mother, or which they obtained as the result of marriage, so, We have introduced certain regulations with reference to property which children under paternal control obtain. Therefore, if a son, who is under the control of his father, his grandfather, or his great-grandfather, should acquire property, not from the estate of him under whose power he is, but which came into his hands from any other source whatsoever, either through the generosity of fortune, or as the result of his own labors, he shall not absolutely acquire it for the benefit of his parents, as has hitherto been the law, but they shall be entitled solely to the usufruct of said property; and the said usufruct shall belong to the father, the grandfather, or the great-grandfather, under whose control the dependent son may be; the ownership of the same, however, shall remain in the son, just as in the case of property forming part of the estate of the mother, and acquired by the son through the marriage.

Thus.no loss results to the father, as he enjoys the usufruct of the property, and sons have no reason to complain that what they have obtained by their labor has been transferred to others, either strangers or their brothers, which appears to many to be even more deplorable.

Castrense peculium is excepted from the operation of this rule, as the enjoyment of its usufruct is forbidden by the ancient laws to the father, the grandfather, or the great-grandfather.

We have introduced no innovation in these matters, but have preserved the ancient regulations intact; and We have established the same rule with reference to that species of peculium which is acquired in the same way, and is designated quasi castrense.

Extract from Novel 117, Chapter I. Latin Text.

Anything which is either given or left to children by any of their ascendants, under the condition that their father shall not enjoy the usufruct of the same, is hereby excepted from the above-mentioned rule.

Extract from Novel 118, Chapter II. Latin Text.

The same rule shall apply to the estate of a brother or sister to which the survivor, along with his or her father, is admitted.

Extract from Novel 134, Chapter VII. Latin Text.

The same rule also applies to property to which children are entitled by law, where their parents have ventured to dissolve their marriage without valid reasons.

END OF THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

(1) Under this head We place the following provision of the law, namely, that with reference to the succession to property which is acquired from external sources by sons under paternal control, the same rule shall be observed which has been established concerning maternal estates and property obtained through marriage.

(2) The sons of a family must not believe that the property of their father is hypothecated by reason of the usufruct he enjoys, whether he be living or dead, nor that they have any right to administer the same. The alienation or hypothecation of such property is only refused to a father in his own name, but he shall be entitled to complete control of it, and to use and enjoy whatever has been acquired by his son in the manner aforesaid, and he shall have absolute power over said property without liability to be called to account for the same; and no son or daughter, or any of their descendants shall, under any circumstances, dare to forbid him, to whose authority they are subject, to retain possession of said property, or to administer it in any way which he may desire, and if they should do so, the power of their father must be exerted over them; but he, as well as the other persons above enumerated, shall have full right to use, enjoy, and administer what has been acquired as aforesaid.

And if the father, grandfather, or great-grandfather should obtain anything by the use of said property, he shall have permission to dispose of it in any way that he may wish, and to transmit it to

his heirs; or if he should purchase, with the proceeds of the same, any property which is movable or immovable, or which is capable of moving itself, he shall be able to hold and transmit it in any way that he may decide, and transfer the same to others, whether they be strangers, his own children, or anyone else whosoever.

But when the father, having acquired property in the manner aforesaid, is unwilling to retain the same, but bequeaths it to his son or daughter, or to any of their descendants, the other heirs of the father, grandfather, or great-grandfather shall not, after his death, be permitted to claim for themselves, the said usufruct, or any of the proceeds thereof which may have come into the hands of his son, as a debt due to his father.

He who enjoyed the usufruct to which his father was entitled shall be considered to have received it as a daily donation from him, and hence he shall be understood to have enjoyed the said usufruct after the death of his father, and that the latter has transmitted the right to collect what was, as it were, due to himself from his son who held the usufruct by his consent; and that he did not transmit it to his posterity or his heirs, so that the latter may remain in peace with one another, and no occasion for any dispute arise, especially among brothers.

(3) As, however, it was provided by a law of the Emperor Constantine that, if a son under paternal control had been released by emancipation, his father could receive or reserve the third part of the property, the ownership of which he was not permitted to acquire, by way of remuneration for emancipation, and, as under this pretext, children were deprived of no small part of their inheritance, We order that, when a case of,this kind occurs, and they obtain their emancipation, their father shall not acquire the third part of the ownership of the property, but only half of the usufruct shall remain with the parent who grants the emancipation, except in the case of peculium castrense and quasi castrense, from which nothing shall be deducted on this account, in order that children of either sex may not be deprived of the ownership of property, and the usufruct of the greater portion of their estates be transferred to their fathers.

This rule shall also apply even if, when the emancipation was made, the father reserved nothing for himself, unless he expressly, either at that time, renounced all claim to this compensation, or, when he made a donation, deprived himself of this advantage, and transferred it to his children. The right and benefit of retaining the usufruct shall remain in possession of those who enjoy it, even if they are silent as to its disposition, and, after their death, the usufruct in all the above-mentioned cases shall vest in those to whom the ownership of the property belongs; although (as We have already stated) the rules of succession, which have been established by Our laws published on this subject, must be observed with reference to property derived from maternal estates, and marriages.

(4) As, however, the ancient laws introduced tacit hypotheca-

tions in certain cases, and We found it necessary to introduce them also in maternal and other donations, a doubt arose from what time the hypothecation should be reckoned, whether from its origin or from the date when affairs were badly administered, We, giving the law a liberal interpretation, do hereby decree that to ascertain the date of abandonment the commencement of the hypothecation should be considered, and not the time when the business began to

be badly conducted.

Read in the New Consistory of the Palace of Our Lord Justinian.

Given on the third of the Kalends of November, during the Consulate of Decius, 529.

1. The Same Emperors to Julianus, Prsetorian Prefect.

As many privileges relating to Imperial donations have already been granted, We think that it is worthy of Our dignity to add still another to them. Hence, if anyone, without distinction of sex, has received either from the Emperor or the Empress a donation of movable or immovable property, or of such as is capable of moving itself, We direct that, even where a son or a daughter under parental control has acquired the absolute ownership of property of this kind, and has not obtained the same for the benefit of anyone, then, neither his father, grandfather, nor great-grandfather shall have the right to claim the usufruct of it, but the sons or daughters under paternal control shall, as in the case of castrense peculium, have complete ownership of said property. For, as property derived from the Imperial Family is pre-eminent above other kinds, so the generosity of princes must take precedence of that of

all others.

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

8. The Same Emperor to John, Prsetorian Prefect.

As, not only in the case of property obtained by a son from his mother's estate, but also in all other cases in which the father is not entitled to acquire it (and above all after the publication of Our new law relating to all property acquired by sons under parental control from external sources, and not from the estates of their fathers, the said law having provided that such property shall not be acquired by the father but only the usufruct of the same) ; different controversies have arisen, and unforeseen events and discussions have taken place, and as these matters are constantly being brought before the courts, it becomes necessary to dispose of them all advantageously and clearly. Therefore, with reference to all property of which the ownership cannot be acquired by the father, but where he is entitled to only the usufruct of the same, or where the ownership cannot be acquired by other ascendants from children of either sex under parental control, or where a father compels his son, subject to his authority, and who has attained his majority, to enter upon an estate, and the latter thinks that he should reject it, or where the son desires to accept it, and his father is of the contrary

opinion, he shall have full power to do so; and his father can accept the estate for himself, if the son refuses, and he shall be responsible for all loss and enjoy all the benefit, and the son shall not be, in any way, prejudiced by his act.

If, on the other hand, the son should desire to enter upon an estate, and his father should refuse to permit him to do so, the latter shall not be entitled to the acquisition or usufruct of the same, but the son shall only have himself to blame if any loss results from his act, and no suit shall be brought against his father when his son, contrary to his wishes, desired to acquire an estate, legacy, trust, or other property, under any title whatsoever, whether it be by gift, or through the contract of another.

Nor, in like manner, shall any right of action be granted against the son when, after his refusal, his father claims the property for himself by his own authority; for, under the present law, by an acceptance of this kind, all responsibility attaches to the father. The latter, however, shall have full permission to bring all suits, and be defended by others, where he is entitled to the sole benefit; and the son also shall have both the disadvantage and the benefit in the institution and defence of actions, the father being required by the judge to appear and consent, whether the son is acting as plaintiff or defendant, in order that legal proceedings may not appear to have been conducted without the acquiescence of the father.

This rule is also applicable where the son has attained his majority, and is no longer obliged to comply with the wishes of his father.

(1) But if the son is still a minor, and his father refuses to permit him to accept an estate left to him, or he himself claims it with the consent of his father, just as in the case where the son refused to accept it, We, in like manner, grant his father permission to enter upon the estate and to acquire full right to the same, subject to all the regulations which We have mentioned above.

If, however, the father should refuse to accept the estate, and the son desires to accept it, We give him permission to do so. When the father is unwilling to manage the property of his son on account of the exigencies of the case, the son shall have power to appear before a competent judge, and ask him to appoint a curator for the estate, to whom the administration may be committed; and, in both instances, the son under paternal control shall, by no means, be refused complete restitution.

(2) In like manner, where a son under paternal control belongs to the army, and refuses to accept an estate acquired through his castrense peculium,, permission is hereby granted his father to accept it in such a way that he will have full right to the same, and shall possess it, not only so far as its usufruct is concerned, but with reference to its ownership as well, just as if he himself had been appointed heir in the beginning; he being, of course, liable for all the charges of the estate, and entitled to all the benefits accruing therefrom, without any responsibility whatever attaching to his son.

These rules shall also be observed in cases in which a difference of opinion arises between the father and the son.

(3) Where, however, both agree, the father will receive the usufruct, and the son the ownership of the property, no matter what the age of the son may be, and the father must bring and defend all suits and thus take charge of all litigation. The consent of the son ought always to be obtained, unless he is an infant, or in a distant country, and the expenses must be paid by the father, for the reason that he is entitled to the income of the property. For how would it be possible for the son to meet the expenses of litigation growing out of the property, when he is only entitled to the mere ownership of the same?

(4) But if the estate is encumbered by debts incurred by the deceased, as, among the ancient authorities, the amount of an estate was understood to be what was left after the indebtedness had been deducted, the father shall have permission to sell a sufficient part of the property, in the name of his son, in order that the debts may immediately be settled, and the estate not be burdened with the payment of interest, the personal effects being first disposed of, and if they should not be sufficient, the remainder of the indebtedness to be discharged out of the real property.

If, however, the father should fail to do this, he himself will, by all means, be compelled to pay the interest, either out of the income of the property, or out of his own pocket. Where either legacies, trusts, annuities, or only one sum is left as a charge upon persons of this kind, the father will be obliged to pay the claims out of the income of the estate, if it is sufficient; but if the estate does not yield sufficient revenue for the discharge of the legacies or trusts, or does not yield any at all, or includes either real or personal property which, although unproductive, is, nevertheless, valuable, as for instance, houses situated in the provinces, or elsewhere, or suburban villas, the proceeds of which would be sufficient for the payment of legacies of this kind, the father shall be given permission to sell enough of them in the name of his son to discharge the indebtedness.

It should undoubtedly be noted that the father himself, as usufructuary, is obliged to support the slaves belonging to the estate, and to do everything with reference to the usufruct which will, in no way, cause deterioration of the property; but, on account of the respect to which he is entitled from his children he will be excused from rendering accounts and furnishing security, as well as from all the other requirements ordinarily imposed by the laws upon usufructuaries, in accordance with the terms of Our Constitution which We have promulgated concerning cases of this description.

(5) The father is also compelled to provide support for his sons or daughters, and their descendants, not because he is in the enjoyment of the estate, but on account of the demands of Nature and the laws which have ordered that children must be maintained by their parents, as well as parents by their children, if either of them should be reduced to poverty.

The father, however, shall, only in the cases previously mentioned, be legally permitted to sell the property of his son, in the name of the latter, or, if he should be unable to find a purchaser, to encumber it, and, under no circumstances, shall children be allowed to repudiate such sales or hypothecations. Permission should not be granted to fathers to alienate, or subject to pledge or hypothecation any property, the ownership of which belongs to their children, except in the instances above referred to. If, notwithstanding this warning, they should do this, they are hereby notified that they will be liable to punishment under the laws by which sales or hypothecations are prohibited; except, of course, where personal or real property is burdensome to the estate or in some way injurious to it, and this the father is authorized to sell with a view to the interests of his children, and without himself incurring any liability, provided the price received is placed with the other property of the estate, or employed for its benefit, or preserved for the children.

Again, We do not allow sons under paternal control to dispose of property of this kind by will, in cases in which the usufruct of the same is vested in their ascendants during the lifetime of the latter; nor shall permission be granted them to alienate the ownership of any property belonging to them, or to hypothecate or pledge the same, against the consent of those to whose control they were subject. For it is better to restrain the ardor of young persons, in order to prevent them from suffering the unpleasant consequences, which, through having yielded to their desires, await them after the dissipation of their patrimony. For, as has already been stated, their parents being obliged to support them in accordance with the laws and the dictates of Nature, why then should they wish to hasten the sale of their property?

(6) Moreover, when the extreme youth of a child permits his father to accept the estate in his name, even without his consent, and he does so, We grant complete restitution to the child after he has been released from the control of his father, or has grown up; and We, under all circumstances, impose all the charges of the estate upon the father (even though he entered upon it in the name of his son). Why should he have accepted such an estate, when neither he himself, nor his son, who is now grown up, thinks this to be advantageous to the latter? We do not, however, grant the son permission —in case he demands complete restitution if he, while still a minor, thought that the estate should be rejected—to accept the estate aforesaid a second time after restitution, lest the laws may become a mockery if he should frequently be allowed to accept and reject the same inheritance.

But when he did not ratify the act of his father, and obtained restitution on this ground, why should he be allowed to adopt a course which, contrary to the decision of his father, he thought should have been rejected? If, however, the father refused the estate while his son was in infancy, and the latter subsequently being still under his father's control, or after he had been released from

it, should think that the said estate ought to be accepted, We grant him permission, if he is his own master, to enter upon it by his guardians or curators, without any liability attaching to his father on account of the refusal of the latter. In like manner, on the other hand, permission shall not be granted either him or his guardians or curators, to demand complete restitution in opposition to his former

decision.

These regulations are applicable to legacies and trusts which have been left in specific as well as in general terms, and they shall also apply to the other cases, which We have previously enumerated, in the same manner as to these. Moreover, with reference to slaves who have been donated to children of either sex (whether they were under paternal control or not) either during marriage, by strangers, or under the condition that they would immediately grant them their freedom, no impediment shall be interposed by paternal authority; for what usufruct can be acquired by the father which can only exist for a moment? If it is necessary for him to possess the slave and grant him his liberty at the same instant, how can he acquire the usufruct of him under such circumstances?

TITLE LXII.

CONCERNING THE ESTATES OF DECURIONS, MASTERS OF SHIPS, ATTENDANTS OF MILITARY COHORTS, AND EMPLOYEES IN ARSENALS.

1. The Emperor Constantius to Mastichianus, Prefect of Subsistence.

We decree that if the master of a ship dies intestate, and without leaving children or other heirs, his estate shall not go to the Treasury, but to the association of shipmasters from which he was taken by death.

Published on the fifth of the Kalends of . . . , during the Consulate of Constantius, Consul for the seventh time, and the Caesar Constantius, 354.

2. The Same Emperor to Bonosus, General of Cavalry.

It is your duty to notify the legions, as well as all other bodies of troops, that, if any individual member of them should die intestate, without leaving lawful heirs, his estate shall absolutely belong to the corps in which he served.

Given at Hieropolis, on the fifth of the Ides of May, during the Consulate of Rufinus and Eusebius, 347.

3. The Same Emperor to Rufimis, Praetorian Prefect.

When anyone attached to a cohort dies intestate and without leaving heirs, We order that his estate shall belong, not to the Treasury, but to other members of the corps in the same province.

Given on the fifth of the Kalends of January, during the Consulate of Limenius and Catulinus, 349.

4. The Emperors Theodosius and Valentinian to Florentine, Praetorian Prefect.

We direct that the property of decurions who die intestate and without heirs shall be acquired by the other decurions of the same province.

Given on the fifth of the Ides of March, during the Consulate of Florentius and Dionysius, 429.

5. The Same Emperors and Csesars to Aurelian, Count of Private Affairs.

When any workman employed in the arsenals dies intestate, without leaving any children, or legal heirs, We order that his estate, no matter what the amount of it may be, shall belong to those who are, as it were, the creditors of deceased persons, and are required to be responsible to the Treasury for their dead comrades. The result of this is that no loss will be sustained by the State, and the workmen, who are held liable for all losses and injuries, will enjoy the property of their defunct colleagues.

THE CODE OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.

SECOND EDITION.

(Continued.)

BOOK VII.

TITLE I.

CONCERNING FREEDOM GRANTED BY THE WAND

OP THE PRAETOR, AND MANUMISSION CONFERRED

IN THE COUNCIL.

1. The Emperor Antoninus to Tertius.

The condition of those who are manumitted in the Council, after the ground for it has been approved by the court, and the manumission has taken place, is not usually called in question, even when it is alleged that enfranchisement was obtained by false representations.

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

It is perfectly certain that where Roman citizenship has once been granted, a second manumission can neither add anything to, nor take anything from it.

Given on the day before the Kalends of May, during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and Csesars to Attonita. There is no doubt that a woman cannot legally manumit anyone either through her husband, or an agent, by means of a wand.1

4. The Emperors Constantius to Maximus, Prsetorian Prefect.

A slave can obtain his freedom through the efforts of his patron in the presence of Our Council, or before consuls, praters, presidents, governors, or municipal magistrates, to whom this right has been conceded.

TITLE II. CONCERNING TESTAMENTARY MANUMISSION.

1. The Emperors Severus and Antoninus to Primus.

It is certain that if anyone over twenty years of age should make a codicil, leaving a slave his freedom, the date of confirmation will not prejudice the manumission; for, in this instance, the intention of the deceased, and not his legal capacity, must be considered.

2. The Same Emperors to Philetus.

Freedom cannot be granted by the will of a deceased person when the estate has not been entered upon, or if the disposition of the property was set aside, because of some crime which was not punished on account of death.

3. The Same Emperors to Euphrosinus.

Where freedom has been granted by the will of the deceased and the estate has been entered upon, even though the appointed heir may have rejected it for the purpose of obtaining complete restitution, this will, nevertheless, in no respect interfere with the grant of freedom.

Ordered on the seventeenth of the Kalends of May, during the Consulate of Aper and Maximus, 208.

1 Manumission by vindicia, or festuca, a wand, or staff, ordinarily took place before the Praetor, but could be effected by any other magistrate legally authorized to grant it. The master brought the slave, whom he wished to liberate, before the proper official—an act which might be performed anywhere, and did not, by any means, imply appearance before a judicial tribunal—and after having stated the reason for his emancipation, gave utterance to the formula: "Hunc hominem liberum esse volo more quiritium," whereupon the magistrate placed the wand upon his head; he was then turned around either by the lictor or his master, and the latter, after having given him a box on the ear, sent him away.

Classic writers are greatly at variance in their accounts of this species of manumission, which, of high antiquity, was probably changed in its order and details from time to time. The use of the staff, and the box on the ear, symbolical of the final castigation which could be inflicted upon the slave, corresponds with the accolade of knighthood, indicative of the last blow which the candidate could, consistently with his honor, tolerate.—ED.

4. The Same Emperors to Archelaus.

Although your father obtained his freedom directly by will, and you were his heir, still, you cannot be compelled to render accounts of any business which he transacted while he remained in slavery, as he did not receive his freedom upon that condition. Again, he to whom freedom has been bequeathed either directly or under the terms of a trust, on condition that he would render his accounts, cannot obtain his freedom before having submitted them and returned any property which he may have abstracted with evil intent. If, however, having rendered his accounts, he should not be found to be indebted to the estate, he will obtain his freedom absolutely after the estate has been entered on.

Published on the Kalends of December, during the second Consulate of Lsetus, and Cerealis, 216.

5. The Emperor Alexander to Quintilicm.

A testamentary grant of freedom made for the purpose of defrauding creditors, even though the heir of the debtor may be solvent, is not valid under the Lex JElia Sentia.

6. The Emperor Gordian to Pisistratus.

If the estate of him, by whose will you say you were manumitted, has been rejected by the heirs on account of its indebtedness, you do not unjustly demand that the will of the testator shall be observed with reference to you, for the purpose of protecting the interests of freedom, if you offer to satisfy the creditors of the estate; especially as this has already been decreed by that most learned Emperor, the Divine Marcus.

This rule shall also be observed in the case of strangers.

7. The Same Emperor to Justa.

You should not, against the wishes of your mother, bestow freedom upon a slave whom she forbade to be liberated, lest you may appear to have violated the rights of filial affection.

8. The Emperor Philip and the C&sar Philip to Tremellius.

When a testator has ordered that freedom shall be granted to a certain slave, at the time of the marriage of his son or daughter, he did not definitely fix the date of his liberation from servitude, but he merely made it conditional, so that if the marriage did not take place, freedom could not legally be demanded by the slave.

9. The Emperors Cams, Carinus, and Numeriamis to Maurus.

The deceased could not directly bestow freedom upon your slave, although it is stated that he appointed you his heir; for no one can, in accordance with law, grant freedom directly to the slaves of others.

10. The Emperors Diocletian and Maximian and the Caesars to Germans.

When freedom is legally granted in direct terms to slaves, not only by the imposition of the cap of liberty,1 but also by acceptance of the estate, such slaves become freedmen under the wills of their masters if no legal impediment exists.

11. The Same Emperors and Csssars to Laurina.

If a will is void in law, any grants of freedom bestowed under it will not be considered properly made, even if, as you allege, it was not added that the instrument should be valid as a codicil.

12. The Same Emperors and Csssars to Rhysus.

If the heirs appointed under a will, which was legally executed, enter upon the estate with the usual formalities, you cannot be deprived of the freedom to which you were entitled under said will, if the appointed heirs, acting in collusion with those who claim the estate on the ground of intestacy, should refuse to accept it. Where, however, they voluntarily reject the estate left to them, everything included in the will is considered to be of no effect.

If, however, the Governor of the province should ascertain that the heirs are in collusion for the purpose of defrauding you of your freedom, he will provide for your obtaining it, in accordance with the Constitution promulgated by the Divine Pius Antoninus.

13. The Same Emperors and Csssars to Martial.

It is certain that where freedom has been left to a slave conditionally, he cannot be deprived of it by the heir, nor can either alienation or usucaption injure a slave who is to be conditionally free, as long as he will be entitled to his liberty if the condition is complied with.

14. The Emperors Theodosius and Valentinian to Florentine, Prse-torian Prefect.

Direct grants of freedom can be made by wills drawn up in the Greek language, so that such grants, when made directly, shall be considered of the same force as if the testator had ordered them to be stated in the terms prescribed by law.

1 The pileus, or Phrygian cap, made of felt, with the top fashioned to represent the circumcised phallus, and adopted by the Romans as the symbol of liberty, has survived to the present day—a singular and instructive memento of the association, in ancient times, of the worship of the generative principles with the exercise of the priceless right of freedom. It was worn by the Carthaginians as well as the Romans, and is now a conspicuous portion of the attire of the Tunisian Jewess. The peasantry of many nations of Europe have retained it through all the vicissitudes and revolutions of centuries; and its phellic appendage, conspicuously displayed on the coinage of the United States, is delineated with a remarkable accuracy, which, although presumably unconscious, leaves no doubt whatever as to its original significance.—ED.

15. The Emperor Justinian to John, Praetorian Prefect.

As a Constitution of the Divine Marcus declares that where anyone either makes a will or dies without doing so, thus furnishing ground for an intestate succession, and bequeathes grants of freedom, and no one desires to accept the estate of the deceased because there is reason to suspect it of being insolvent, and the grants of freedom have been left under a trust, without having been reduced to writing, any stranger whosoever, or any one of the slaves to whom freedom has been left and whose status is in danger, can enter upon the estate, on condition of giving security that he will satisfy all the creditors, and confer freedom upon those whom the testator intended should receive it.

Various doubts have arisen with reference to the interpretation of this constitution, for if the property of the estate should be sold because no heir could be found, it was asked whether, after the sale of the said property, it would be possible for either a slave, or anyone else to accept the estate, recover from the purchasers what had been sold, execute the grants of freedom, and satisfy the creditors? Although the Divine Severus did not permit this to be done after the property had once been disposed of, still We have adopted the opinion of Ulpianus (especially with reference to the grants of freedom, in order that they may not be lost) who held that, after the sale of the property, a remedy would be afforded by the Constitution of the Divine Marcus within a year; provided all the creditors were paid during that time, and the purchasers suffered no other inconvenience by submitting to the rescission of the sale before the aforesaid period had elapsed. Hence the slave who was entitled to his liberty, or any stranger, will be permitted to enter upon the estate, either before the sale or afterwards, within the term of a year, and recover the property, having first furnished security that the grants of freedom will be carried out, and the creditors satisfied.

(1) Moreover, if anyone, having entered upon an estate, should promise to carry out all grants of freedom, and to pay the creditors not in full, but only in part, and the latter accept this proposal, We decree that, in a case of this kind, the Constitution of the Most Wise Emperor aforesaid shall be applicable, and We hold that it should by all means be adopted, especially when the creditors consent, but when they are unwilling, We do not permit any such agreement to take effect.

(2) Where, however, some of the slaves are willing to accept freedom and others think that it should be rejected, in this instance, the Rescript of the Divine Marcus will apply, and there is no doubt that in this case the petitioner for freedom should be heard, and the slaves have perfect liberty to decide whether they prefer to be free or to remain in servitude. For while no slave is allowed to refuse Roman citizenship, still, in this instance, lest through the ingratitude of some the others may remain in bondage, all slaves who desire to obtain their freedom shall be permitted to do so; and if any of them are unwilling, or reject it, they shall be immediately reduced to servitude,

and those who would not accept a patron will obtain a master, and perhaps a severe one.

(3) When, however, the person who accepts the estate does not promise to carry out all the grants of freedom, but only to liberate a certain number of slaves whose manumission was provided for, if the property of the estate is sufficient for the payment of the creditors in full, the better course will be for all the slaves to receive their freedom, even though this may not have been promised. But when there are not enough assets to settle the claims of the creditors, it is more advantageous for only a few of the slaves to be emancipated.

(4) In this way We have found a remedy for the doubts of the ancients, by adding an excellent provision to the constitution aforesaid; and hence We order that if no single claimant of the estate appears, but several do, and two or more appear at the same time, all of them shall be given permission to enter on the estate, all having previously furnished security that they will satisfy the creditors, and carry out the grants of freedom.

But if they should appear at different times, the one who comes first shall take precedence, if he can give security; but if he is unable to do so, the others shall be entitled to the privilege in their order, according to the time when they make the demand; and this must be done within a year.

(5) Where one of the applicants promises to free certain slaves, but not all, and another is prepared to furnish security that all the creditors will be satisfied, and all grants of freedom be carried into effect, it will be perfectly just for the latter to be accepted, so that all the grants of freedom without distinction may be executed. We grant this favor not only to a slave to whom freedom was bequeathed, but also to him to whom it was not left by will; so that the result may be commendable, and others receive their freedom by means of one to whom it was not left by will.

(6) If, however, anyone should first receive the property of the estate and his liberty, We decree that the preceding provision shall apply to the second or the third claimant, or to any others who promise more generous donations of freedom. But when the slave who was the first to demand the inheritance has already received it, and freedom has been conferred by him upon certain other slaves belonging to the estate, and some slave forming part of the same, or a stranger who is free, appears and offers better terms, he shall be permitted to take the estate, if he promises to do more, and gives proper security. The first applicant shall, however, retain his freedom, even though the property may have been sold by him, and all these things must take place within a year from the time when the first claimant presented himself, in accordance with what has already been stated.

TITLE III. CONCERNING THE ABOLITION OF THE LEX FUSIA CANINIA.

1. The Emperor Justinian to Henna, Praetorian Prefect.

We decree that where grants of freedom are left to slaves by will, whether this is done directly, or under the terms of a trust, they shall be valid without distinction, just as where freedom is bestowed by the acts of persons who are living.

The Lex Fusia Caninia shall not apply to other cases, and no impediment shall be placed in the way of testators who desire to exercise their beneficence by the emancipation of their slaves.

TITLE IV. CONCERNING GRANTS OF FREEDOM BY MEANS OF TRUSTS.

1. The Emperors Severus and Antoninus to Primus.

As you allege that the estate of the testator, by whom freedom was bequeathed to you by the terms of a trust, was not entered upon, and another heir than the one appointed obtained possession of the estate on the ground of intestacy, if you do not demand the freedom which was granted you under the trust, with the execution of which the heir 'at law was charged, you can not legally demand it from him who was not requested by the testator to bestow it. It is clear that if you can prove that the appointed heir neglected to give you your freedom, after having received money for doing so, the heir at law can be compelled to grant it to you.

Published on the thirteenth of the Kalends of March, during the Consulate of Lateranus and Rufinus, 198.

2. The Emperor Antoninus to Valerius.

Although the codicil by which it appears that you were bequeathed to the uncle of the deceased has been declared forged, still, if you obtained your freedom from the legatee in a proper manner, before any question arose with reference to the crime, what happened afterwards will not invalidate the grant of freedom made in this way. According to the Constitution of the Divine Hadrian, it is evident that the heir will have the right to demand the twenty aurei.

3. The Emperor Alexander to Lucius.

As you allege that freedom was conditionally granted to the female slaves, why should there be any doubt that children who came into the world before this was done were born slaves, and became the property of the heirs by the right of ownership? For relief should only be granted to those who were born after he who was charged with the grant of freedom was in default, in order that they may appear to have been born free.

4. The Same Emperor to Julianus.

Where a female slave, to whom freedom was left under a trust by the will of her master, has received her liberty, she, having become

a Roman citizen in accordance with the Decree of the Senate, and the constitutions promulgated with reference thereto, her children will be freeborn. If, however, she has never claimed her freedom, she should only blame herself if the children born to her in the meantime are slaves.

5. The Same Emperors to Dionysius.

A minor of twenty years of age cannot, by his last will, bequeath freedom under a trust to his slave, unless he is able to prove that he was legally authorized to do so.

6. The Same Emperor to Maximus.

It has been decided that freedom granted under the terms of a trust should be given to a female slave, nor will she be the less entitled to it, if, in the meantime, her mistress was unwilling to sell her, provided she received nothing from the will of the person who bequeathed the freedom, for the reason that she might be liberated in the course of time, whenever an opportunity to purchase the slave might arise.

7. The Same Emperor to Nicomedes.

Slaves, to whom freedom has been granted under a trust by the last will of the testator, become the freedmen of those who have been charged with their manumission.

Published on the Kalends of April, during the Consulate of Fus-cus and Dexter, 226.

8. The Same Emperor to Eutyches.

As you state that freedom was granted you by a trust, on condition that the widow of the testator agreed to it, even though she did not enter upon the estate, and all of it, in consequence, passed to his son, if he manifests no opposition, you can demand your freedom.

9. The Emperors Valerian and Gallienus to Daphnis.

Even if a testator, when he appointed his slave the guardian of his children, did not, at the same time, grant him his freedom, it will be considered that he manumitted him under the terms of a trust, and that this was done for the sake of liberty and in behalf of the wards. If he had appointed not his own slaves but those belonging to another, being at the same time aware of his condition, it was held by jurists that he likewise would be entitled to his freedom as under a trust, unless it clearly appeared that the intention of the deceased was otherwise.

10. The Same Emperors to Mercurialis.

You will still be entitled to the grant of freedom left you by the terms of the trust, subject to the condition that you shall receive it when the testator's son attained his twenty-fifth year, even though, as you allege, the heir should have died before reaching the designated

age. For it was held by the ancients that the hope of freedom should not be destroyed after the time had elapsed when, if the son of the testator had lived, he would have attained the prescribed age.

11. The Emperors Diocletian and Maximian, and the Csesars, to Flavianus.

If you were a slave, and freedom was bequeathed you under the terms of a trust, you are hereby notified that you cannot obtain your liberty without manumission. Hence if, while a slave, you obtained a fiduciary grant of freedom, you must appear before the Governor of the province, so that, after having investigated your case, he may decide whether or not you have the right to be set free, and may compel him to manumit you, whose duty it is to do so; or, if the latter conceals himself he can, by means of a decree, protect your interests against the person who cannot be found.

12. The Same Emperors and Cassava to Hyrenius.

It is stated by legal authority that freedom under a trust shall not be considered as bequeathed, on account of the insertion of the phrase, "I recommend," into a will or codicil.

13. The Same Emperors and Consuls to Pythagorida.

If the testator, having before his marriage given you to his future wife, afterwards left her a legacy, and by his will or codicil charged his heirs to manumit you, there is no doubt that they, as well as she, by accepting the legacy bequeathed to her, approved the will of the deceased, and will be liable, and that you will be entitled to your freedom under the terms of the trust.

14. The Emperor Justinian to Julianus, Prsetorian Prefect.

As a doubt arose among the ancients whether it was possible for freedom to be left under the terms of a trust to a slave who was, as yet, unborn, and was expected to be a boy, We, for the purpose of settling this dispute, order that, in favor of freedom, both the grant of it under a trust, as well as one made directly, shall be valid, whether the unborn child is male or female, as only the question of freedom is considered, even if the mother who brought him forth still remained in slavery.

If, however, several children of different sexes were born at the same time, and only one or more were mentioned, all of them will be entitled to their freedom as soon as they are born; as it is better, in case of doubt, to adopt the more humane opinion, and especially where liberty is concerned.

Given on the Kalends of October, during the fifth Consulate of Lampadius and Orestes, 530.

15. The Same Emperor to Julianus, Prsetorian Prefect.

We decree that when freedom has been bequeathed to a male or female slave under a trust, and the debtor is in default in granting it,

the slave shall be liberated from servitude by a decision of the Governor, without any act of the heir, or without waiting for his consent. Such a slave shall be entitled to his or her freedom, just as if he or she had obtained it directly from the testator himself, as it is wicked as well as absurd for heirs to delay to carry out the wishes of the testator, especially where liberty is involved.

16. The Same Emperor to Julianus, Prsetorian Prefect.

If a testator, in his will, should charge his heir to grant freedom to any one of the children of his female slave, whom he designated by name, and the said slave brought forth one or more children, and the heir did not, during his lifetime, grant freedom to any of them, or, while deliberating which one he would set free, died; a doubt arose among the ancient authorities whether all, one, or none of the said children would be entitled to be free.

We, desiring to punish the evil intention of the heir for not complying with the wishes of the testator, and for not selecting one of the children of the female slave and giving it its freedom when he was able to do so, do hereby decree that not only he, but also his heirs and successors, shall be compelled to liberate all the children of the said female slave; for this is not contrary to the intention of the testator, since, when he provided that any of said children whom the heir might select would be free, he did not have in mind any certain one, but all of them; and if the heir did not comply with his wishes, there is no doubt that, according to the intention of the testator, all of them would be entitled to their freedom.

We order that the same rule shall apply when the testator charged not the heir, but a legatee or beneficiary of a trust, with the grant of freedom, so that, for this reason, heirs, legatees, or beneficiaries of trusts, being actuated by a just fear, may carry out the will of the testator, and may not themselves suffer loss by being compelled to liberate all the slaves.

Any complaints they make shall be to no purpose, for they can only blame themselves for the loss which is not due to Our legislation, but is the result of their own contumacy.

Given at Constantinople, on the fifteenth of the Kalends of December, during the Consulate of Lampadius and Orestes, 530.

17. The Same Emperor to Julianus, Prsetorian Prefect.

Where anyone has bequeathed his slave under the condition that the legatee should grant him his freedom, and the heir, acting dishonorably with reference to the legacy, refused to surrender the slave to the legatee, and suit having been brought against him, and the judge having ordered him not only to give up the slave, but also to pay his appraised value, the ancient interpreters of the law were in doubt whether an obstacle was not placed in the way of freedom by a decision of this kind; and when it was decided that freedom must be granted, whether this should be done by the heir or the legatee, and if the heir granted it, whether the legatee would be entitled to retain

the amount which he had received as a pecuniary fine, either entirely, partially, or not at all.

We, in disposing of this controversy, are surprised to learn that the judge, who had jurisdiction of the case aforesaid, did not require the heir not to surrender the slave but only to pay his value, as such a fault offers an occasion for a dispute. Wherefore, if such a question should arise, We think that no judge would be so foolish as to render a decision of this description.

If, however, the legatee should demand that the slave be delivered to him, and the term of two months should elapse after issue had been joined in the case, We decree that the slave shall immediately obtain his liberty and become free, and that the heir, on account of his evil behaviour, shall be condemned to pay four times the amount of court costs incurred by the legatee, and that the right of patronage shall be preserved unimpaired for the benefit of the latter.

TITLE V.

CONCERNING THE ANNULMENT OF CONDITIONAL GRANTS OF FREEDOM.

1. The Same Emperor to Julianus, Prsetorian Prefect.

Those known as dediticii shall not hereafter, under any circumstances, be permitted to interfere with the administration of Our government, for the reason that We find this term has fallen into disuse, and that the freedom obtained by the aforesaid class exists only in name; for We, who endeavor to cultivate the truth, only desire those things to appear in Our laws which can actually become operative.1

Given during the Consulate of Lampadius and Orestes.

1 There were three kinds of manumissions originally recognized by the Roman polity: the testamentary, or that conferred by will; that by enrollment in the census; and that obtained by means of the vindicia, in the exercise of magisterial authority. All of these were accompanied with certain essential formalities which, if omitted, prevented the peregrinus, or "foreigner," from acquiring the full rights of citizenship, and rendered him liable to be assigned to one of the two inferior classes of freedmen.

When the requirements of the law had been strictly complied with, the emancipated slave was entitled to all the privileges of a Roman citizen, subject, however, to the obligations of patronage due to his former master, or the heir of the latter, in case he chose to enforce them.

The Latini Juniani, whose status was comparable to that of the allies of the Romans, composed the second grade of liberti. Certain disabilities attached to their civil condition, which might be removed, either by a repetition of the act of manumission, with its prescribed requisites, by a former master, or by the indulgence of the sovereign.

The lowest in rank of all freedmen were the dedititii, whose position was that of prisoners of war (from whom their name was derived), who had surrendered unconditionally, and therefore were considered to be at the absolute disposal of their captors. Where a slave had been subjected to torture, branded, imprisoned, chained, assigned to a school of gladiators, condemned to fight with wild beasts

TITLE VI.

CONCERNING THE ABOLITION OF LATIN FREEDOM, AND

ITS TRANSFERENCE IN CERTAIN WAYS TO THE ENTIRE

BODY OF ROMAN CITIZENS.

1. The Emperor Justinian to John, Prtetorian Prefect. As the class of dedititian freedmen, having already been abolished, the freedom of the Latins, for this reason, becomes in some respects unstable, and though to a certain extent identified with the former, whatever remained that was available We have confirmed as law. For as Latin freedom, like that originally introduced into the ancient Latin colonies, resulted only in civil war, it would be absurd for its appearance to remain when the thing itself was abolished.

Therefore, as the condition of freedom was obtained by the Latins in almost innumerable ways, and different laws and decrees of the Senate were enacted with reference to the same, and in the application of these the greatest difficulties arose from the Lex Junia, the Largian Decree of the Senate, and the Edict of the Divine Trajan, of which Our laws are full, for they were introduced before any experience had been acquired in matters of this kind. Hence it appears to Us perfectly proper to remove all these difficulties, abolish Latin freedom, and having selected other methods different from those by which Latin freedom was formerly acquired, give authority, at the present time, to such persons to obtain the status of Roman citizens, so that all the rules enumerated in the present law, which have originated in Roman States, and all the other ways by which the name of Latins was acquired shall be absolutely abolished, and shall not create Latin citizens, but shall be considered void. For who will tolerate a condition by which, at the time of his death, freedom and slavery can exist at once in the same person, and that he who lived as free may die in

servitude ?

(1) Therefore, We order that if anyone should desire to grant his slave freedom by means of a letter he can do so, provided he signs it himself, in the presence of five witnesses called together for that

in the arena, or been guilty of conduct which rendered him infamous, he was debarred from Roman citizenship, even though properly manumitted, and became a dedititius. This disqualification was permanent and irrevocable, but did not affect his children, whose status was that of their father before his behavior had rendered him the object of public censure. A servile violator of the law, when emancipated, did not obtain his freedom, but, from being a private, became at once

a public slave.

The dedititius was prohibited from making a testamentary disposition of his estate, which by operation of law, at his death, vested in his patron. He could not live within a hundred miles of Rome, a violation of this rule entailing his re-enslavement, and the confiscation of his property.

Modification of the restrictions imposed upon liberti were introduced by different emperors, but it was reserved for Justinian to entirely abolish the distinctions which characterized the various orders of persons liberated from bondage, and to divide the Romans into only two classes, freemen and slaves.—ED.

purpose; or when the letter, written in his own hand, discloses the permanency of his intention. If he, having either drawn up the instrument himself, or having had it done by a notary, should state therein that his slave was entitled to his freedom, as in the case of a codicil, he may, even during the lifetime of his patron, enjoy liberty and the rights of Roman citizenship.

(2) When anyone desires to liberate his slave in the presence of friends, he shall be permitted to do so in the same way that he could perform such an act after having called together five witnesses, provided he announces that he wishes his slave to be free, where this is done in writing, and attested by the signatures of the witnesses, and the person granting the manumission; and if it is made before a public official, it must also bear his signature as well as that of the witnesses.

Slaves who obtain their freedom in this manner become Roman citizens, just as if they had obtained it by virtue of a codicil.

(3) We know that, in ancient times, under an Edict of the Divine Claudius, if anyone ejected his slave publicly from his house when he was suffering from a dangerous illness, and did not aid him in any way, or commit him to the charge of others when he himself was unable to take care of him, or place him in a hospital, or provide for him in some other manner, the said slave would formerly enjoy Latin freedom, and if his master should die before he did, he would, with his property, belong to his successor.

A slave of this kind shall hereafter become absolutely free, even against the consent of his master, and, having been given his property, he shall immediately become a Roman citizen, nor shall any of the rights of patronage be enjoyed by his former owner, for he who publicly drove him away from his house and family, without either assisting him, recommending him to the mercy of others, placing him in a hospital, or even paying him ordinary wages, shall be deprived of the ownership of the said slave, not only during the entire lifetime of the said freedman, but also at the time of his death, as well as afterwards.

(4) In like manner, if anyone should alienate his female slave on condition that she would not prostitute herself, and her new master, through the infamous desire of gain, should attempt to compel her to do so, or if her former master should, by the imposition of his hands, make a reservation for himself when alienating her, and she having been returned to him, cause her to prostitute herself, she will immediately obtain the privileges of a Roman citizen, and he who prostituted her will be excluded from all the rights of patronage, for is anyone so degenerate and wicked as to pursue such a calling worthy to have either a female slave or a freedwoman?

(5) Slaves who have received the cap of liberty by virtue of the last will of the testator, and the consent of the heir, immediately become Roman citizens, and have the right to march first in the funeral procession, and to stand by the bed on which the body of their master has been laid.

No one shall be permitted to make a display of vain liberality, so that the people may praise the deceased for his humanity, when they see a great number of such slaves in the funeral procession wearing the liberty cap, for they will all be deceived, as the slaves remain in their former servile condition, and the evidence given in public shall go for naught. When any such slaves become Roman citizens, the right to patronage is reserved unimpaired for the benefit of their

patrons.

(6) It should undoubtedly be observed that, when anyone manumits a slave either by his will or under the wand of the Praetor, although he may say or write that he wishes the slave to enjoy Latin freedom, the superfluous addition of "Latin" shall be abolished, and he shall become a Roman citizen, lest the methods by which men were formerly invested with citizenship may seem to have been annulled by the wills of private persons.

(7) But if anyone should bequeath freedom to his slave conditionally, and while the condition was still pending, a foreign heir should grant him his freedom, he will become a Roman citizen, and not a Latin one as in former times. When the condition is not complied with, the slave shall remain the freedman of the heir who liberated him.

If, however, the condition should be fulfilled, anyone manumitted by will shall be considered a freedman of the deceased, in order that children and cognates may not be deprived of the rights of patronage, and that he who was entitled to those rights by law may enjoy

them.

(8) The opinion held by the ancients seems to Us to be very harsh, that is to say, where a slave has been defeated by his master in a suit brought to declare him free, and his value was afterwards paid by someone to his master, but he still remained subject to Latin law; for how can it be reasonable for his master to receive the price of the slave, and at the time of the death of the latter, again reduce him to slavery, since these two things are not consistent? In the present instance, the slave will be entitled to Roman freedom, but the rights of patronage will continue to be enjoyed by his master, for the reason that the slave himself is, to a certain extent, his freedman.

(9) Where, however, anyone gives his female slave in marriage to' a freeman, and provides her with a dowry, which is only customary in the case of those who are free, the said female slave becomes a Roman citizen, and not a Latin one. But if this is done, which very frequently takes place among Roman citizens, and especially where they are noble, that is to say, where a dotal instrument is drawn up and delivered to a person of this kind, such an instrument will necessarily take effect, and the slave will become a Roman citizen.

(10) In like manner, if a master in a public instrument refers to a certain slave as his son, his statement must be believed so far as the free condition of the former is concerned; for if he was inspired with such an affection for his slave that he did not consider him unworthy to be mentioned as his son, and he did not do this

secretly, or only among friends, but in a public document, just as he would have done so in court, how can the slave again be reduced to servitude at the time of his death? He must, however, become a Roman citizen, receive absolute freedom, and not depend upon a false statement of his master.

(11) Again, the most recent manner of changing Latin into Roman citizenship should be adopted, namely, the instrument by which the condition of the slave was established shall either be given to him or destroyed. But in order that no opportunity may be afforded to slaves to steal it, and obtain their freedom by their own wicked act, this manner of enfranchisement must be proved by certain and undoubted evidence, and the owner of the slave must either give the instrument to his slave in the presence of not less than five witnesses, or tear or destroy it in some other way. Hence, to enable the slave to acquire Roman citizenship, We decree that one who obtains his freedom in this way shall, in this instance, as well as in others, be subject to the rights of patronage, except where We have expressly denied these rights to patrons.

(12) With the exception of these cases alone, which have been selected from the entire body of ancient jurisprudence relating to Latin citizenship, all the other methods enumerated either in the books of jurists, or in the Imperial Constitutions, are absolutely abolished ; and slaves shall not become Latin citizens by their means, but, as has already been stated, shall remain in their former condition, and shall not be permitted to profit by this remedy.

And, in order that hereafter no enactment with reference to Latin freedom may conflict with Our Laws, the Lex Junia is hereby repealed, the Largian Decree of the Senate shall no longer be operative, and the Edict of the Divine Trajan, which follows, shall be of no force or effect, and if any other law, or Decree of the Senate, or even an Imperial Constitution should treat of Latin manumission, it shall be void, so far as this subject is concerned, and notice is hereby given that, instead of the three kinds of freedom which formerly existed, and which were the cause of much ambiguity, but one direct method shall prevail.

If any law or constitution should hereafter make mention of freedom, it shall be understood to be that conferred by Roman citizenship, and not Latin freedom.

(13) Where, however, Latin freedmen are dead, and their property, as such, has passed to those.entitled to the same, or if they are still living, no innovations shall be made by the provisions of this law, but the title to the property shall vest to the persons aforesaid, and shall remain firm and indisputable.

The present constitution shall only be applicable to freedmen in the future.

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

TITLE VII.

CONCERNING THE MANUMISSION OF A SLAVE OWNED IN COMMON.

1. The Emperor Justinian to Julianus, Prxtorian Prefect.

With reference to slaves owned in common and their freedom, and whether the share of the person who gave them liberty accrued to the other master, or not, and especially among soldiers, when they grant freedom in this way, much doubt arose among the ancient legal authorities ; and a constitution is cited in the Commentary of Martian on the Constitutions of the Divine Severus, by whose terms this Emperor imposed the necessity upon the heirs of a soldier to purchase the share of the other joint-owner, and give the slave his freedom.

Another constitution, however, promulgated by the Emperors Severus and Antoninus, has been found, by which one partner is generally required to sell his share to the other.

When freedom is granted to a slave, even though no benefit may accrue from the estate of the dead partner to the other, and the price is required to be fixed by the decision of the Praetor in accordance with what Ulpian, in the Sixth Book on Trusts, and Paulus in the Third Book on the same subject, say, where it is stated that Sextus ^lius, one of the ancient jurists, also held that the other partner could be compelled by the Praetor to sell his share, in order that the slave might become free, this Marcellus also notes in his work on the Digest of Julianus, and it is clear that he in his commentary on Julianus only adopted the opinion of the latter.

(1) Hence, these matters having been found in the works of the ancient legal authorities, We, desiring to dispose of all such disputes, do order that, generally speaking, no distinction shall be made between slaves owned in common by soldiers or private persons, but in the case of all slaves who are common property, where anyone desires to give them lawful freedom, either while alive or by his last will, he can do so, and the other joint-owner shall be required to sell his share of the slave, whether this be half, a third, or any other portion whatsoever.

When there are several joint-owners, and one of them desires to liberate the slave, all the others shall be compelled to sell the shares which they have in said slave to the one who wishes to manumit him, or to his heir, even though the common slave himself may have been appointed the heir of his master, and he only made the appointment immediately before his death, in order that he who purchased the shares of the other joint-owners, or his heirs, might liberate the slave.

(2) If, however, the joint-owner or joint-owners refuse to accept the price, We give him permission to tender it through a public official, and having sealed it, to deposit it in a temple, and thus be authorized to give the slave his freedom, which he shall enjoy to the fullest extent, as well as the privilege of Roman citizenship; and he shall have nothing to fear from the other joint-owners, for they will

have no one to blame but themselves, if, when they were able to benefit by the price of the slave, they refused to accept it.

(3) But in order that no doubt may arise with reference to the peculium of the slave, We decree that his peculium shall be divided among all the joint-owners in proportion to the ownership of each one in the slave; permission being granted to him who, at the time of his death, liberated the slave, to transfer to his freedman his share of the peculium of the former. Moreover, there is no doubt that the rights of patronage will pass to him who gave the slave his freedom.

(4) Where, however, the slave is obliged to render accounts in order that no loss may occur, or any impediment be placed in the way of emancipation, the Governor of the province, or some competent magistrate, must fix the time within which his accounts shall be rendered, and any debts which may appear by them to be due shall be discharged, and he shall then obtain his liberty.

(5) Again, in order that there may be no doubt as to the amount of the price to be paid for the slave, but that this may be perfectly clear, We order that the valuation of a slave, whether male or female, provided he or she is not skilled in any trade, shall be twenty solidi, and that those slaves who have reached their tenth year shall be valued at only ten solidi. When, however, they are skilled in any trade, with the exception of writers and physicians, their price shall be established up to thirty solidi, whether they are men or women. A writer or a physician, either male or female, shall be valued as follows: a writer up to fifty solidi, and a physician up to sixty. When eunuchs, who are common slaves and are over ten years of age, are not familiar with any trade, they shall be valued at fifty solidi, but if they are skilled artisans they shall be valued up to seventy. We do not wish eunuchs under ten years of age to be valued at more than thirty solidi.

Joint-owners shall accept the amounts due to them according to the above-mentioned standard, and shall be compelled by competent judges to grant the slave his freedom.

(6) If one or more of the joint-owners of a slave desire to liberate him, or release him at his own solicitation, the latter paying the price, or one or more of them say that they desire to free him and pay his value, he shall be preferred who first manifested this generous intention. But when all of them come forward with the object of manumitting the slave, then a competent judge shall compel them all to grant him his freedom without compensation, and his peculium, shall be distributed among all the joint-owners in proportion to their shares in the slave. All those who granted freedom to the slave shall be equally entitled to the rights of patronage.

(7) The right of accrual, introduced by the ancient laws with reference to the manumission of slaves owned in common, is hereby annulled, and We shall not hereafter, under any circumstances, permit it to be considered.

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

2. The Same to Julianus, Prastorian Prefect.

It was held by all the ancient jurisconsults that a slave owned in common belonged partly to one master and partly to another, so that he could be bequeathed to himself, or to others, hence the following question arose. Two or more persons owned a slave in common, and one of them bequeathed his own share to the slave, and this having caused perplexity, a serious controversy arose among the ancients. Therefore We, having examined this bequest with great care, think that it is capable of two interpretations, for the testator either thought that the slave would become free, so far as his share, which he bequeathed to him in this way, was concerned, or if this was not the case, he was actuated by affection for his other joint-owner, in order that the slave might be acquired by him, intending that his heirs should not gain possession of the slave, so that it would be clear that he should not, by any means, be included in the property of his

estate.

We, however, who are partisans of freedom, after investigation have come to the conclusion that, with reference to the doubtful intention of the testator, since he desired to liberate the slave, so far as his own share was concerned, and as slaves owned in common are manumitted, We have already decided what was necessary to be done under such circumstances, and the present case shall be determined by the provisions of the aforesaid law. The slave shall therefore become free, so far as the share of the testator is concerned, in compliance with the will of the latter; and with reference to the other share, in accordance with Our ruling, the price must be paid by the heir to the other joint-owner, or owners, in obedience to the above-mentioned constitution, and if they refuse to accept it, he shall tender it, seal it up, and deposit it at their risk, as it is an attribute of Imperial Majesty to adopt the more humane course instead of the harsher one.

TITLE Vill.

CONCERNING THE MANUMISSION OF A SLAVE WHO HAS BEEN GIVEN IN PLEDGE.

1. The Emperors Severus and Antoninus to Proculus.

Although a husband, who is solvent, can manumit a dotal slave, still there is no doubt that if it should appear that you have been given in pledge to his wife, you cannot obtain your freedom without her consent.

2. The Same Emperors to Abascantus.

Where freedom is granted to a slave by a debtor of the Treasury, and the slave has not been pledged by the terms of a special agreement but only under the general privilege of the Treasury, the manumission cannot be annulled, unless it is established that it was made with fraudulent intent.

3. The Same Emperors to Antony.

It is certain that he who has pledged the property which he now has, or may hereafter acquire, can grant freedom to his slaves. This rule of law does not apply to slaves who have been expressly encumbered by way of pledge, or delivered for that purpose.

4. The Emperor Alexander to Sabiniamis.

If (as you allege) you, together with other slaves, after having been pledged, were manumitted by the debtor, with the consent of his creditor, you are entitled to your freedom.

Published on the sixth of the Ides of May, during the Consulate of Alexander, 223.

5. The Same Emperor to Extritatianus.

If the creditors have been paid, the female slaves who were pledged and manumitted by the debtor will be free. If the person who manumitted them, or his heirs, should, for the purpose of revoking their freedom, venture to say that he had granted the manumission for the purpose of defrauding his creditors, neither he nor his heirs shall be heard.

6. The Same Emperor to Auctionus.

If your guardian manumitted slaves purchased with your money, and said slaves, together with other property belonging to or purchased with the property of the wards, have been pledged in accordance with the constitution of the Emperors, My Parents, the said slaves shall not, on account of the indulgence shown to wards, become free.

7. The Emperor Gordian to Juliana.

If, at the time of your marriage, whether you gave slaves by way of dowry, or whether, after the dowry was given, your husband purchased them with money forming part of your dowry, the ownership of said slaves will justly belong to you, and therefore you are vainly attempting to raise a question with reference to their status after manumission, as they can legally be manumitted by him who purchased them, or received them as dowry.

TITLE IX.

CONCERNING THE MANUMISSION OP SLAVES BELONGING TO THE STATE.

1. The Emperor Gordian to Epigonus.

If, as is provided by the municipal law and the Imperial Constitutions, you have been regularly manumitted, when you were a public slave (with the consent of the Governor of the province), you should not again be reduced to slavery on the ground that you were not en-

titled to manumission because the slave whom you gave instead of yourself took to flight.

2. The Same Emperor to Hadriana.

If the Governor of the province approved the decree by which he with whom you afterwards (as you allege) were united in marriage received his freedom, there is no doubt that the child born of a marriage of this kind is a Roman citizen and under the control of his father.

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

The freedman of a municipality does not become a slave where the title by which the ownership of slaves is usually established cannot be produced. If, therefore, you have been manumitted according to the law of Vectibulicius (whose authority it was held extended to the provinces under the Decree of the Senate issued during the Consulate of Jubentius Celsus, Consul for the second time, and Neratius Marcellus), you will be entitled to the rights of Roman citizenship, nor did you afterwards, while a freedman, by discharging the duties of a notary, lose the liberty which you obtained, and your act does not offer any impediment to the acceptance of your son as decurion, as he was born of parents who were free.

TITLE X.

CONCERNING SLAVES MANUMITTED BY OTHERS THAN THEIR MASTERS.

1. The Emperor Antoninus to Cornelius.

It has frequently been stated in rescripts that anyone who manumits slaves belonging to another, as if they were his own, will be required to pay to the owners of the same their value, or the amount of damages which the latter may have sustained.

Published during the Kalends of March, during the Consulate of Antoninus and Balbinus, 214.

2. The Emperor Alexander to Mercurialis.

If Felicissima, who you say purchased a slave by your order, manumitted him without transferring his ownership to you, you, in vain, demand that he whom you allege was manumitted should be refused his freedom, and that possession of him should be delivered to you.

3. The Same Emperor to Pompeius.

He who sold you the estate will continue to be the owner of the property until he delivers it to you, and, therefore, by manumitting a slave belonging to the estate, he grants him his freedom.

Published on the sixth of the Kalends of August, during the Consulate of Agricola and Clement, 231.

4. The Emperors Valerian and Gallienus to ZoUus.

If you did not give the ownership, but merely the services of the female slave referred to, when granting her her freedom, the person to whom she was given shall only have the use of her dependent upon your will, and your right of ownership will not, in the slightest degree, be prejudiced, for no one can bestow freedom upon a slave belonging to another by manumitting him as if he was his own.

5. The Emperors Diocletian and Maximian, and the Csesars, to Marcellina.

Where slaves have been given by way of donation, the donor has no right to manumit them.

6. The Same Emperors and Csesars to Milius and Others.

If your father manumitted your slave, even with your consent, and you were under the age of twenty years, he could not grant him his freedom.

7. The Emperor Constantine to Bassus.

Where freedom is granted to the slave of another than his master, and the consent of judges who have a right to give it is obtained, there need be no apprehension of the imposition of a penalty. If, however, it is established that the act was legally performed by Our order, and it is proved that the owner did not petition for authority to manumit the slave of another, then he who is shown to have obtained his freedom by Our generosity to a person who was not his master shall be immediately restored to him to whom his ownership belongs, and he who manumitted the slave of another by deceiving the Emperor shall be compelled to give two slaves of the s'ame sex, age, and occupation to the master of the one whom he manumitted, and he shall also be compelled to give three of the same kind to the Treasury.

This penalty should not always be imposed, but should preferably not be inflicted if the manumitted slave is able to plead lawful prescription when a question is raised as to his status, as the owner can only blame himself for his loss, if he, by his silence, confirmed the act to his own disadvantage.

Published during the Ides of July, during the Consulate of Constantine, Consul for the fifth time, and Licinius, 319.

TITLE XI.

WHO CANNOT MANUMIT SLAVES, AND CONCERNING THE PREVENTION OF MANUMISSION FOR THE PURPOSE OF

DEFRAUDING CREDITORS. 1. The Emperor Alexander to Antiochus.

It is a certain rule of law established by the Lex &lia Sentia, that grants of freedom for the purpose of defrauding creditors, when made directly, can only be revoked where an intention to commit fraud ex^

ists; that is to say, when this is the design of the person who granted the manumission, and a loss ensues as a result of the intent.

It was formerly decided that the beneficiaries of a trust should be classed as creditors.

Published on the third of the Ides of November, during the Consulate of Maximian, Consul for the fifth time, and ^lianus, 224.

2. The Same Emperor to Natalianus.

It is set forth in the Imperial Mandates that my slaves cannot, by means of the interposition of other persons, confer freedom on slaves who constitute part of their peculium.

3. The Same Emperor to Justina.

The Senate, at the suggestion of the Divine Marcus, provided that no one could manumit his own slave, or the slave of another who was a performer in an exhibition which was being given, and that, if this took place, the manumission should be considered void.

4. The Same Emperor to Felicissimus.

If, while under twenty years of age, you delivered slaves for the purpose of rendering them free, it has been decided by a Decree of the Senate that your act is void.

Extract from Novel 119, Chapter II. Latin Text.

At the present time, however, those who have testamentary capacity can bequeath freedom to slaves, the ancient law having been repealed.

5. The Same Emperor to Priscus.

When it can be proved that freedom was fraudulently granted by persons indebted to the Treasury, the act will not be valid. If, however, he who you state is your father paid the purchaser the money, and the slave, having been redeemed by him, obtained his freedom, it cannot be said that the property of a debtor to the Treasury has been, in any respect, diminished.

6. The Emperor Diocletian and Maximian, and the Gsesars, to Olympia.

It is a positive rule of law that a guardian cannot grant freedom to slaves under a trust with which his female ward has been charged. Hence, if you were charged with their manumission, and did not liberate them when you arrived at the age fixed by the testator, but your guardian did so, they will still remain in servitude.

7. The Same Emperors and Csesars to Zoticus.

If your master, who was indebted on account of his administration of a curatorship, having been proved to be insolvent, should bequeath you your freedom under a trust, this will be of no advantage to you, as in all fiduciary grants of freedom the condition of the estate must only be considered.

TITLE XII. WHO CANNOT OBTAIN THEIR FREEDOM.

1. The Emperors Severus and Antoninus to Torquatus.

As my Father, the Divine Claudius, decided that persons condemned to perpetual imprisonment could not be liberated by the Governors of provinces, or by other officials who have authority to punish crime; and that those sentenced for a term of years, who have been appointed heirs, or have received legacies or bequests under a trust cannot, during their imprisonment, obtain their freedom; nor can any one of those to whom such bequests have been made acquire them; but if they have served out the time for which they were condemned, and have been released from all restraint, and, as it were, restored to their former simple condition of slavery, they will be entitled to their freedom, if it was left to them by the will of a deceased person during the period of their sentence, without any question being raised as to the punishment which they have undergone.

2. The Emperors Valerian and Galliemis to Theodore.

He who has been forbidden by will to be manumitted cannot obtain his freedom. But in the case proposed, it makes a difference whether or not those whom the testator forbade to be sold or manumitted, stating that they had been brought up with his children, did so because he considered their services necessary to his household, and for the benefit of his children, or whether he imposed this restriction as a penalty for bad behavior: for, in the first instance, the slaves can obtain their liberty after the death of those whose interests were consulted, but in the second, what has been decided with reference to the punishment of slaves will remain in full force.

It was decided by My Divine Parents that the provisions of wills imposing perpetual servitude upon undeserving slaves should be observed, in order that they might not obtain their freedom through a fraudulent purchaser.

TITLE XIII.

FOR WHAT REASONS SLAVES CAN RECEIVE THEIR FREEDOM AS A REWARD.

1. The Emperors Diocletian and Maximian to Firmanus.

Since scrupulous care as well as the authority of the law should be exercised for the purpose of increasing and encouraging the practice of fidelity by slaves, if you can establish by undoubted proof that you have strenuously exerted yourself to avenge the death of your master, the freedom which was long since ordered by Decrees of the Senate and Laws of the Emperors to be granted to slaves who avenge the death of their masters cannot be conferred upon you, even after having rendered so great a service, merely through the performance

of your act, but you must obtain it by appearing before the tribunal of the Governor, and in consequence of his decree.

Published on the seventh of the Ides of December, during the Consulate of Maximus.

2. The Emperor Constantine to Januarius.

Slaves who publicly denounce those who engage in the nefarious occupation of counterfeiting money shall be given Roman citizenship, and their master shall be paid their value by the Treasury.

Given at Rome, on the fifteenth of the Kalends of December, during the Consulate of Crispus.

3. The Same Emperor to the People.

If a slave should publicly denounce someone guilty of ravishing a virgin, who has escaped arrest through the connivance of the injured person, or because a compromise has been effected, he shall be given his freedom.

Given on the day before the Kalends of April.

4. The Emperors Gratian, Valentinian, and Theodosius to Syag-rius.

When a slave betrays a deserter from the army, he shall be presented with his freedom.

Given on the Ides of July at Rome, ....

TITLE XIV. CONCERNING THE MANUMISSION OF FREEBORN PERSONS.

1. The Emperor Alexander to Philetus.

If, although you have been manumitted by will, you state that you are freeborn, you should bring your case before the proper court, and if you have a lawful opponent, that is to say, one who alleges that he is your patron, you must remember that the Senate decreed that those who, after their manumission, claimed to be freeborn, must leave in the house of the person who manumitted them any property which they may have acquired while there. It has been decided by authorities learned in the law that whatever was bequeathed or given to a freedman is included under this head.

2. The Emperor Gordian to Pompeia.

Neither provision for support, nor the services exacted of servitude, will render a freeborn woman a slave, nor will manumission render her a freedwoman.

Published on the fifth of the Ides of May, during the Consulate of Sabinus, Consul for the second time, and Venustus, 241.

3. The Emperor Philip to Felicissimus.

If it is proved that your grandmother, although manumitted as a slave, was afterwards solemnly declared to be freeborn, and her con-

dition was established by the authority of a judicial decision, and you brought this matter to the attention of persons learned in the law, you must have readily ascertained that her children, even though they were born before the decision was rendered, have good reason to demand their liberty, as being freeborn.

4. The Emperors Diocletian and Maximian, and the Csssars, to Agrippa.

As you state that one of your freeborn relatives, who was made prisoner under the rule of the faction of Palmyra, and sold as a captive, the Governor of the province will see that he recovers his status as a freeborn citizen.

5. The Same Emperors and Csesars to Crescens.

It is extremely unjust for the condition of freeborn persons to be disputed through the mistake or malice of others, especially as you allege that one Governor after another has been applied to by you to summon the adverse party, in order that he might oppose your claim, if he thought that he had a valid defence. As the result of this, it appears that the Governor of the province, being influenced by your statements, rendered a decision that you should not hereafter be subjected to annoyance. Therefore, if the other party should still remain obstinate, the Governor, having been applied to, shall take measures to have you protected from wrong.

Given on the day before the Nones of ....

6. The Same Emperors and Csesars to Dionysius.

It is a perfectly clear rule of law that a person who is free cannot become the slave of one who is aware of his condition. Therefore, as you allege that the father of the ward of whom you have made mention in your petition kept you in his service as a freeman for a long time, he could not have changed your condition without having a legal title by which the ownership of property is ordinarily acquired.

Ordered on the seventh of the Kalends of May, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Matrona.

If it is established that you and your children are freeborn, the fact of your birth will be a sufficient defence, for he who raises the question of slavery by renouncing any claims which he may have, can, in no way, weaken the evidence of freebirth, or gain any advantage by doing so.

8. The Same Emperors and Csesars to Callimorphus.

Freeborn persons come into the world as such. Freedmen can only be created by manumission. Moreover, an agreement cannot confer the privilege of free birth upon either slaves or freedmen, nor can the rights of those who have not given their consent to a transaction of this kind be prejudiced in any way.

9. The Same Emperors and Csesars to Patamon.

It is a clear and manifest rule of law that a woman born of a mother who has been manumitted is born free, and therefore, as you allege that since your mother was a freedwoman, and was afterwards captured by the enemy, and returned home under the rule of postliminium, and that now the question is raised whether or not you are a slave, you must appear before the Governor of the province, who has jurisdiction of cases in which freedom is involved, and he will render a decision according to law, knowing that neither the status of your mother under such circumstances nor the captivity which she endured will change her former condition in any respect.

10. The Same Emperors and Csssars to Athenodora.

Names are given by public consent for the purpose of recognizing individuals, and no damage results if they are changed for the purpose of concealing the origin of persons who are freeborn; and the possession of anyone as a slave (even though he may perform the services of one) does not render him such if he was born free.

11. The Same Emperors and Csesars to Maxima.

If no title establishes the right to possess you as a slave, but, on the other hand, you can prove that you were born free, and performed services for wages, which were agreed upon, your condition is in no respect injuriously affected, nor will you be forbidden to institute legal proceedings to compel the fulfillment of the contract.

Ordered on the Nones of March, during the Consulate of the Csesars.

12. The Same Emperors and Csesars to Quieta.

The commission of the crime of kidnapping has no effect in changing the status of a freeborn woman; but it is established that one who has been abducted can, even afterwards, remain in the condition in which she was born.

Ordered on the third of ....

13. The Same Emperors and Csesars to Melander. Anyone who contends that he is freeborn, but is unable to prove it, does not necessarily lose his status as a freedman. Ordered on the seventh of the Ides of December.

14. The Same fflmperors and Csesars to Aristotle. The condition of a freeborn woman can, in no way, be prejudiced, merely from the fact that she has been given in betrothal as a female

slave.

Ordered on the seventh of the Kalends of January, ....

TITLE XV.

GENERAL PROVISIONS WITH REFERENCE TO MANUMISSIONS. 1. The Emperor Justinian to Julianus, Prsetorian Prefect.

We order that if the owner of a slave, whose usufruct belongs to another, should grant him his freedom, he shall not, according to the ancient rule, be deprived of it, but shall be considered as having no master, so that no one can be found to whom any property which may be acquired by him will belong.

If, however, both the owner and the usufructuary should agree to liberate him, he will become free without any restriction; and if he should afterwards acquire any property, it shall be his. But when the owner alone sets him free, without the consent of the usufructuary, he who, in this way, obtains his liberty from his owner, shall be included among the freedmen of the latter; and if he should afterwards obtain any property, he shall acquire it in his own name and be permitted to leave it to his descendants, the right of patronage being always reserved, unless his emancipator was deprived of it by the laws.

The freedman himself, however, shall remain with the usufructuary as a slave, as long as the former lives, unless he is deprived of the usufruct in a lawful manner. Where the usufruct is terminated in any way, then the slave shall be permitted to reside wherever he pleases. If, however, the freedman should die during the lifetime of the usufructuary, his estate shall descend according to law. Where the usufructuary alone grants freedom to the slave, the usufruct reverts to the owner, and he will enjoy complete authority over the slave, and the latter will acquire all property for him, in accordance with what has been generally provided with reference to slaves and masters. If the usufructuary should release the slave from the usufruct, for the purpose of doing him a favor, and then present him with his freedom, the slave will remain under the control of the owner, but the necessity is not imposed upon slaves during the life of the usufructuary, or for the time that the usufruct may exist, to obey the owner, and perform the services required of a slave, but Our judge shall see that he remains unmolested.

After the death of the usufructuary, or where the usufruct has been extinguished in any way, he shall serve the master as a slave, and all property which may, in the meantime, come into his hands, he will acquire for his master.

This separation shall exist between masters and slaves as provided by the terms of Our Constitution, and not in accordance with the ancient law by which the said slaves remained without a master.

(1) We make the following addition to this law, namely, that the ancient distinction of persons having been abolished, parents of either sex shall be permitted, in the case of sons and daughters who are under their control or emancipated and their descendants of every degree, to impose their commands upon them by will, so far as granting freedom to slaves is concerned; whether the testator desired that

this should be done in a church, or in any other lawful manner which he might select. For, since in successions, as well as in almost all other things, no distinction is made between children, this rule must be observed (and above all in the present instance) in favor of freedom which is especially and peculiarly Our care to cherish and protect by the Roman laws.

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

2. The Same Emperor to Julianus, Prsetorian Prefect.

Where anyone bestows freedom upon a slave, either in a church or any other sacred edifice, or in any tribunal, or before any judge who has authority under the law to grant freedom, whether this be done by will, or by any final disposition of property, either directly or under the terms of a trust, the age of those who obtain their freedom shall, under no circumstances, offer any impediment. For We do not wish that those only who have passed the age of thirty shall acquire Roman citizenship, as was formerly done, but, as in the case of ecclesiastical enfranchisement, no distinction of age exists, so whenever freedom is granted by masters to slaves either under last wills, before magistrates, or in any other legal manner, We order that they shall all become Roman citizens; for We think that the number of those should rather be increased than diminished.

3. The Same Emperor to John, Praetorian Prefect.

Where a man who has no wife keeps his female slave as a concubine, and persists in this practice until his death, whether he had children by her or not, We order that the said female slave shall, under no circumstances, belong to his heirs, and that her children, if she has any, shall not be reduced to slavery; but that, after the death of her master, she, together with her offspring, if she has had any by the deceased, shall obtain their freedom in the manner to be explained hereafter.

We grant permission to the master, during his lifetime, to make use of his female slaves, as well as of their offspring, in any way that he may desire, and to dispose of them by his last will in accordance with his wishes; that is to say, bequeath them as slaves to others, or leave them by name to his heirs to remain in servitude.

But if he should pass them over in silence, then, after his death, they shall obtain their freedom, which will date from the death of their master. Neither the ancient laws nor Our own, however, permit men who have wives to keep either freedwomen, or slaves as concubines.

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

TITLE XVI. CONCERNING CASES INVOLVING FREEDOM.

1. The Emperor Antoninus to Saturninus.

You confess that you have committed an unlawful and dishonorable act, as you state that your own children, who were born free, have been sold by you; but, for the reason that what you have done cannot injure your children, go before a competent judge (if you desire to do so) in order that the case may be decided in conformity with the law.

Published on the fifth of the Ides of February, ....

2. The Same Emperor to Veronianus.

If those who you allege are your slaves are declared by others to be free, their status must be determined in the ordinary way, for even where a decision has been rendered with reference to their ownership, this cannot be advanced in opposition to a matter involving freedom.

Given at Rome on the Nones of February, during the Consulate of Messala and Sabinus, 215.

3. The Emperor Alexander to Quirinus.

If a freeman cohabits with the female slave of another, he does not become the slave of her master, even if he has been notified to abandon her.

Published on the Nones of February, during the Consulate of Fuscus and Dexter, 226.

4. The Same Emperor to Jocundus.

If he whom you claim as a slave has, after proper investigation, been decided to be free (although this may have been done in your absence), another opportunity to claim him as a slave shall not be afforded you. If, however, after you ascertained the fact, you appealed from the decision of the judge, it shall be determined by the appellate court whether judgment was rendered in accordance with law.

5. The Same Emperor to Sabinus.

The woman whom you declared to be your slave is none the less entitled to demand her freedom, because you purchased her from the Treasury. Nor can recourse to prescription be had at the present time, because, when the sale took place, the woman was more than twenty years old, as age cannot be pleaded by way of prescription against Roman citizenship, unless the slave is shown to have consented to become such in consideration of sharing the price.

The burden of proof is placed upon one who, being a slave, asserts that he is free, and if he cannot establish his assertion, you will obtain the undisputed right of possession.

6. The Emperors Valerian and Gallienus, and the Csesar Valerian, to Versimenus.

Even if you voluntarily stated in writing that you were a slave, and not free, you would not, by doing so, prejudice your rights in

any respect, and this is all the more true as you allege that you are compelled to do this.

7. The Emperor Aurelian to Secundus.

If you have been manumitted by the person whose slave you were, there is no reason for you to maintain the controversy with reference to your freedom, and above all, with the heir who manumitted you; for even if your freedom was not legally obtained, the heir, on account of his acceptance of the estate, has confirmed the will of the deceased by his consent.

8. The Emperors Diocletian and Maximian, and the Caesars, to Verina.

As you allege that it was agreed between your former owner and yourself that he should, upon the payment of a certain sum of money, manumit you as well as your daughter, and he only liberated you, you should appear before the Governor of the province and he will urge your former master to abide by his agreement, all respect which freedmen are accustomed to display toward their patrons being shown him.

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

9. The Same Emperors and Ciesars to Proculus.

As the terms of your petition set forth, he against whom you filed it is the son of your female slave, still as you refer to him by a name which can only be borne by persons who are free, and state that he is not a slave, but only bears the stigma of servitude, you are notified that your petition is directed against one who is not a slave.

10. The Same Emperors and Csesars to Stratonicus.

It is a positive rule of law that freemen cannot become slaves, and their condition be changed either by a private agreement, or by any act of administration whatsoever.

11. The Same Emperors and Csesars to Faustinus.

Slaves will not change their status if they unlawfully and dishonorably obtain public office. Wherefore, if a question arises with reference to yours, you are advised that it is of no advantage to you that your father enjoyed civil distinction. Hence, after all the legal formalities have been complied with, your condition must be determined by the Governor of the province.

12. The Same Emperors and Csesars to Proculus.

If you were born of a female slave, and someone purchased you, you will remain in the condition in which you formerly were; but if, being the child of a female slave, your natural father, who was also your master, sold you, and afterwards you paid the price to the purchaser, you will not, for that reason, obtain your freedom.

Published on the eighteenth of the Kalends of May, ....

13. The Same Emperors and Caesars to Paulus.

A judicial tribunal cannot concern itself principally with the status of a deceased person. If, then, property is claimed, as part of the peculium belonging to the estate of him whom you mention as having bequeathed it, or if any question arises as to the status of his children, all these points must be formally decided by the Governor of the province.

Given on the fifth of the Kalends of May, ....

14. The Same Emperors and Csesars to Quintianus.

When proceedings have been instituted with reference to one whose liberty is in dispute, and he is in possession of it, he will, in the meantime, be considered free.

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

15. The Same Emperors and Csesars to Palladius.

The loss of a document establishing anyone's birth does not exclude other evidence to prove the same, nor can a forged document of this kind affect the truth. Therefore, in order to ascertain the truth every proof allowed by law should be admitted, and the Governor of the province having been applied to, and all requisite formalities having been observed, he will decide the case between you in accordance with the legal requirements.

16. The Same Emperors and Csesars to Diogenia.

If you, being a free woman, have served as such, and, without your knowledge, an instrument was drawn up under whose terms you were given by way of dowry as a female slave, these things can, in no way, prejudice your freedom; and, above all, as you state that you were a minor at the time, and it has been decided that minors less than twenty years old can, under no circumstances, change their status and become slaves instead of freemen, in order that no one may unintentionally lose his liberty before reaching the age at which others cannot confer it without authority.

Published on the sixth of the Ides of May, during the Consulate of Hadrian.

17. The Same Emperors and Caesars to Resinus.

In numerous instances, the status of brothers who are freeborn varies, on account of the commission of crime, or other events which have taken place. Therefore, there is nothing to prevent the question of status being raised with reference to those whom you assert are your brothers, and whether they shall be claimed as slaves, or maintained in servitude. Hence, other evidence is necessary to establish their freedom, for it is clear that the fact that your liberty has not been questioned is not sufficient proof.

18. The Same Emperors and Csesars to Zoticus.

The lease made to you by the person against whose heirs you have brought suit is not sufficient evidence of your free origin, nor does this alone show conclusively that you are a slave.

Given on the Ides of July, at Philippi, under the Consulate of the above-mentioned Emperors.

19. The Same Emperors and Csesars to Paulus.

In Our opinion, he against whom you have filed your petition, rather than you yourself, has the principal interest in the case, for as you state that you have given him his freedom, it is more to his interest to formally defend his status, and consequently your case also is included in his; for if he is declared to be a slave by the party against whom you have filed your petition, he can claim his freedom on the ground of your manumission, and, by proving his original servitude, and showing that he obtained his freedom through your having manumitted him, your right of patronage will be preserved.

When, however, he prefers to remain a slave, then, after having appeared before the Governor of the province, you will be permitted by law to defend him even against his own consent.

20. The Same Emperors and Caesars to Mternalis.

Just as when freedom has once been conferred it cannot be revoked, so, where masters take any steps whatever against their own slaves, without the intention of manumitting them, they will sustain no loss.

Ordered on the sixth of the Kalends of September, during the Consulate of the above-mentioned Emperors.

21. The Same Emperors and C&sars to Thrasylla.

It is provided by the Perpetual Edict that a woman who is found in the possession of freedom fraudulently obtained occupies the same position as one who is still in servitude. If, however, any controversy should arise, whether she who is in slavery petitions for freedom, or whether it is clearly proved that, while free, an attempt has been made to enslave her, no fraud committed by a female slave should deprive her master of his rights.

Ordered on the Nones of October, during the Consulate of the above-mentioned Emperors.

22. The Same Emperors and Csesars to Pardala.

It is a man's parents, and not his own statements, that establish the fact of his birth. Wherefore, if, having been born of a female slave, and afterwards manumitted, you obtained your freedom, you can, by no means, lose it, either through fraudulently or erroneously contending that you are the child of another female slave, for slaves are known to be born in that condition, and are not rendered such merely by their own assertions.

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

23. The Same Emperors and Csesars to Muscia.

If freedom was directly bequeathed to you by your master in his will, and his daughters succeeded him as his appointed heirs, it does not follow that, either according to his will, or in opposition to it, if you serve one of his daughters, the others can revoke your freedom.

24. The Same Emperors and Csesars to Sebastian.

A woman is not excluded from demanding her freedom, if she has been interrogated and has publicly acknowledged that she is a slave.

25. The Same Emperors and Csesars to Licentianus.

When the instruments evidencing manumission, which was legally effected, have not been drawn up, this, in no way, prejudices the grant of freedom, so that, if you have liberated a slave, the failure to execute such instruments cannot possibly injure him.

Ordered on the fifth of the Ides of February, during the Consulate of the Caesars.

26. The Same Emperors and Csesars to Modestus.

A patron cannot revoke freedom when it has once been bestowed upon a manumitted slave; and he can be compelled to produce the instrument evidencing the manumission.

27. The Same Emperors and Csesars to Austerius.

If Arianus was declared to be free, after the question as to his status had been raised by Leonis, he cannot again be claimed as a slave by the former, after he has lost his case. A co-heir having been given to you by Arianus, who was in collusion with the person who raised the controversy with reference to the status of the deceased, or his heirs, cannot injure you in any respect, nor can admissions made by them affect the truth, or change the condition of the estate of the deceased.

28. The Same Emperors and Csesars to Eurymedontus.

The fact that a paternal grandfather was invested with the dignity of a magistrate can be of no advantage to his grandson, in proving that he is free, as in a case involving freedom the status of the mother and not that of the father must be considered. The civil condition of the maternal grandmother is not of itself sufficient, for although she was proved to be free, still, a person's status may be lost in many ways.

Given on the fourth of the Ides of April, during the Consulate of the above-mentioned Emperors.

29. The Same Emperors and Csesars to Troila.

There is no doubt that a daughter born of a female slave, and who was purchased by the man with whom she afterwards lived in concubinage, will remain in servitude if she is not manumitted.

30. The Same Emperors and Caesars to Eutychia. Freedom, when once bestowed, cannot be revoked under the sole pretext that proper respect has not been shown to the patron.

31. The Same Emperors and Csesars to Cassiana.

If an inquiry has been wrongfully instituted for the purpose of proving you to be a slave, and you have brought suit for malicious prosecution, or for injury committed (whichever one you may select), and it has been decided that you were a slave, you can afterwards ask that judgment be rendered against the adverse party, and that restitution be made of the property of which you can prove that you are deprived, after a decision has been given declaring you to be free.

32. The Same Emperors and Csesars to Athenais.

The signature of the son of the master who manumitted you does not add anything to, or if it is omitted, does not detract in any way from a grant of freedom.

33. The Same Emperors and Csesars to Melitiana.

Although your master manumitted you after you had paid him a sum of money, still the freedom which you have received cannot be revoked.

Ordered on the third of the Ides of November, during the Consulate of the Csesars.

34. The Same Emperors and Csesars to Eremonia. A free woman does not become a slave on account of living in concubinage.

Given on the Ides of November, during the Consulate of the

Caesars.

35. The Same Emperors and Csssars to Attatus.

The fact that a person is said to have administered the affairs of a minor in the capacity of his guardian does not release him from defending himself, when the question as to whether or not he is a slave is raised.

Given on the Nones of November, during the Consulate of the Caesars.

36. The Same Emperors and Csesars to Theodore.

When a mistress agrees with her female slave that, after having served her for a certain time, she shall become free, she will, by no means, be required to observe her contract. On the other hand, it is also true that a free woman can not be compelled to comply with her agreement, if she is proved to have promised to give you her own children as slaves.

37. The Same Emperors and Csesars to Olympius.

If you sold your son, who is free, to your son-in-law, who, being so closely connected with you, could not pretend ignorance of his condition, you cannot accuse one another of crime.

38. The Same Emperors and Caesars to Philesarphus.

An action to determine your status can be brought against you, in the name of the State, notwithstanding the fact that no one denies that you have been created limenarch.1

Given at Nicomedia, on the sixteenth of the Kalends of January, during the Consulate of the Caesars.

39. The Same Emperors and Caesars to Potesenticus.

It is settled that freemen who allege that they are slaves cannot change their condition.

Ordered on the seventh of the Kalends of January, during the Consulate of the Caesars.

40. A Copy of the Imperial Letters of the Above-Mentioned Emperors and Ctesars to Verutus.

According to the provisions of Our Edict, nothing will prevent a case involving freedom from being heard and a decision rendered in accordance with justice, notwithstanding the absence of one of the parties, whether the controversy arose with reference to manumission or free birth.

41. The Emperors Constantine and Licinius to Eutychius, Governor of Cappadocia.

We order that all the letters that the mistress of the slave ^lius wrote to him as Chief Decurion shall be null and void and revoked as of no effect, and that the investigation to determine the free birth of the said ^lius shall proceed, nor shall the rights of the woman be prejudiced for the reason that she addressed him as Chief Decurion, or that he himself pretended to be a decurion or the head of that body, when his servile condition has been ascertained not only by the testimony of witnesses, and that of his relatives, but also by the admissions made by himself in the presence of another magistrate.

42. The Emperor Constantius to Maximus, Prsetorian Prefect.

It has been decided that children born of a mother whose condition is contested shall follow her after judgment has been rendered in the case. Any, however, whose birth occurred before the suit was instituted, shall have their status determined separately, since those alone who were born during the proceedings are to be included in the decision given with reference to their mother, and shall either be delivered to their lawful owners, or enjoy their freedom with their parents.

Given on the day before the Ides of July, ....

1 The limenarch was the harbormaster, or inspector of vessels, corresponding to the captain of the port of modern European nations.—ED.

TITLE XVII.

CONCERNING THE ABOLITION OF LEGAL, ASSERTIONS THAT A MAN Is FREE.

1. The Emperor Justinian to Menna, Prsetorian Prefect.

We order that actions involving the servile condition which have been begun shall be regarded with favor, as well as shortened; and direct that if anyone who, up to the time, has served as a slave, should declare himself to be free, or while enjoying freedom should be claimed as a slave, he shall, in neither instance, be required to provide a defender,1 but shall himself answer in his own proper person the claim of him who alleges that he is his master; and if, after having been in the possession of freedom, he should be reduced to slavery, he shall be forbidden to employ an attorney, We absolutely forbid those who have passed from slavery to freedom to defend themselves in this way, all the laws which provide that cases requiring defenders shall be heard a second and a third time being, for the future, repealed; for it is just that the first decision should remain in full force, where no appeal is taken. If one is taken, the judge shall examine the case just as he would any other which has been appealed, without a second examination being required by the laws enacted with reference to cases in which defenders appear, and which We have rescinded.

(1) We also abolish the ancient rule requiring defence in actions involving the peculium or other personal effects of slaves, directing that not ,only the peculium of those who, while in servitude, have tak.en legal steps to become free, but also any other property which is claimed shall be placed in safe-keeping, by order of court.

(2) Moreover, all those whose freedom is in danger through their being claimed as slaves shall be compelled to furnish a surety, if they wish to do so; but when it is impossible for them to provide one, and this is clearly proved to the judge, they shall be bound by being sworn.

If, after proceedings of this kind have been instituted, they purposely absent themselves, and, having been summoned to appear, remain absent for more than a year; they shall, by all means, be reduced to slavery, and decided beyond question to be the property of him who brought suit against them.

1 The duty of the adsertor libertatis of Roman jurisprudence corresponds to that of the prochein ami of the Common Law who was authorized to bring suit in behalf of an infant who could not act himself; his guardian, if he had one, being, under all circumstances, obliged to defend him. "An infant, or a minor, shall sue by prochein ami and defend by guardian." (Coke, Institutes II, 2, 35a.)

In both instances, anyone, even a child, whether a relative or not, who was willing to undertake the task, could represent the slave as adsertor, or the minor as proximus amicus, or next friend; neither of whom, if appearing in his own person, would have any standing in court. The adsertor placed his hand upon the alleged slave before a magistrate, and "asserted" that he was free. Under the Law of the Twelve Tables he was not obliged to furnish security in a sum exceeding fifty asses, or about twenty-five cents of our money.

The prejudicial action, de causa Hberali, was the one employed in cases involving the freedom of a person declared to be a slave.—ED.

(3) Again, We wish those who claim anyone as a slave to know that, if after the first demand has been presented in any court, or made by virtue of an Imperial Rescript, and he who is alleged to be a slave has been notified, and, having been released, the parties bring another claim against him in a different court, even if the reputed slave should have given occasion for this to be done, the plaintiffs, although they may be his legal masters, shall be deprived of their right.

Given on the third of the Ides of December, ....

2. The Same Emperor to John, Prsetorian Prefect.

We think that the difficulty which may arise under Our present law, authorizing adsertores, should be disposed of by a comprehensive remedy. As the action with reference to freedom was usually conducted by them, if, while this was taking place, the principal party in interest should die, the necessity was, nevertheless, imposed upon the adsertor to conduct the case to a conclusion, so that if the purchaser should be defeated, and a decision be rendered in favor of freedom, he can have recourse against the vendor, and the latter return to him what was contained in the bill of sale, or what the nature of the contract required, on account of having sold him a person who was free.

Moreover, as the empty name of adsertor is abolished by the present law, if any person whose status is the subject of litigation should die, how can the judgment be executed where only one party is left to appear in court? Therefore We decree that, in the present instance, the purchaser shall be permitted to proceed against the vendor to the extent of proving that the latter sold him a freeman as a slave, or if he cannot do this, that he should be subjected to the risk of eviction for having sold a person who was free.

TITLE XVIII.

WHAT SLAVES ARE NOT PERMITTED TO DECLARE THAT

THEY ARE FREE, AND CONCERNING THE PROPERTY OF

THOSE WHO ARE FORBIDDEN TO Do So.

1. The Emperor Gordian to Proculus.

The case of him who, concealing his condition, permitted himself to be sold as a slave, differs from that of him who shared in the price paid for himself; for the former is not denied the right to demand his freedom, but if the latter was a Roman citizen, and shared in the price, he cannot claim this right. The most eminent legal authorities have decided that the same rule is applicable to one who is entitled to his freedom under the terms of a trust.

Published on the Kalends of May, during the Consulate of Gordian and Aviola, 240.

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

Our predecessors, the Emperors, decreed that freedom should be denied to the descendants of the families of robbers who had been made slaves by Imperial donation, or by the authority of the Treasury.

3. The Emperor Constantine to Maximus, Prsetorian Prefect.

When anyone demands his freedom, he will be entitled to any of his property which he states is in the hands of his alleged master, since, if there is no question as to his status, the judge must at once order it to be restored, and delivered to him. When, however, there is any doubt as to the ownership of property which he claims, because the master refuses to surrender it, a bond shall be executed to preserve it, and the hearing of the case shall be postponed. If the freedom of the reputed slave should be established (as those must be protected who have entrusted him with their property) an account of his administration must be rendered, and everything which is due shall be paid, so that if he is proved to be free, he who formerly acted as his master may acquire what was given to the slave by the right of ownership, as well as whatever was derived from the possession and profits of the said property, and anything obtained surreptitiously from it by the alleged slave; as that could not be free which the master placed in the hands of his slave as peculium.

Property, however, obtained either by will or donation, or which was purchased or acquired with the profits of the same, shall belong to the said alleged slave as being freeborn. After judgment has been rendered declaring him to be free, all this property should be sequestered, after having been separated from that above mentioned; so that, both having been set aside and placed in full view, each of the parties may claim that to which he is entitled.

Given at Thessalonica, on the fifteenth of the Kalends of March, under the Consulate of Severus and Rufinus, 343.

TITLE XIX. CONCERNING THE ORDER OF JUDICIAL INQUIRIES.

1. The Emperor Alexander to Vitalius.

As you, yourself, have acknowledged that a controversy has arisen concerning your status, with what reason do you demand that, before it has been established, you should be granted authority to accuse him who contends that you are his slave ?

Therefore, as you allege that you are confident of success, appear before the Governor of the province, who, in accordance with the general rule, will not hesitate to render a proper decision with reference to the crime said to have been committed, dependent, of course, upon the result of the case involving your freedom, which must first be determined.

Published during the Ides of . . . , during the Consulate of Maximus, Consul for the eleventh time, and Julianus, 224.

2. The Same Emperor to Gallits.

Where a controversy has arisen both with reference to the title to an estate and the right of someone to freedom, the latter must first be heard. Where only the ownership of the estate is directly concerned, any question involving freedom must first be decided; but it will be sufficient for him who enjoys his liberty to have succeeded, where judgment was rendered in his favor in an action brought to recover the estate.

Published on the fifth of the Ides of August, during the Consulate of Maximus, Consul for the second time, 224.

3. The Same Emperor to Valerius.

If an accusation of crime is brought against a woman whom you say is freeborn, the Governor must not take cognizance of this case before deciding the one in which her liberty is involved, as, if the crime should be proved, it will be necessary in the first place to ascertain whether she must be punished as a woman who was free and freeborn, or as a female slave.

4. The Emperor Gordian to Menedemits.

If a controversy has arisen with reference to your status, and a decision should be rendered in your favor at the termination of the case, you will not be prevented from proceeding against him who asserted that he was your master. If, however, he did not claim you as his own slave, but accused you of being the slave of another, no judgment should be rendered on the question of freedom, and the examination of the case before the judge will show whether the accusation should be heard in order to determine your condition, or whether it should be rejected.

Given on the tenth of the Kalends of December, during the Consulate of Gordian and Aviola, 240.

5. The Emperors Diocletian and Maximian, and the Csesars, to Al-phenus.

As you allege that a controversy has arisen with reference to your status, and that you desire to bring suit to collect certain debts, the ordinary practice, under such circumstances, is for the case involving your freedom to be decided by the Governor of the province, after the usual formalities have been complied with (if the law permits this to be done) ; and if you should become free, or the decision should be that you are not a slave, then the magistrate will order your debts to be paid to you, provided they are lawfully due; as, if the decree should set forth that you are a slave, it is uncertain whether they are due to you as a freeman, or to your master, and their payment cannot be exacted from your debtor.

Ordered on the day before the Kalends of May, during the Consulate of the above-mentioned Emperors.

6. The Same Emperors and Csesars to Alexandria.

If you allege that your property has been stolen or carried away by those whom you claim as your slaves, and they should apply to a court to grant them freedom, and the case should be decided against them, actions for damages and for property clandestinely removed must then be brought before the Governor of the province, and if the persons in question are decided to be free, or not slaves, the actions for damages and to recover whatever has been removed can be tried; and, after proper evidence has been offered, they shall be sentenced.

If, however, the result should be otherwise, and they should be found to be slaves, the suits having reference to the clandestine removal of the property shall be dismissed.

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

7. The Emperor Constantine to Bassus, Prsetorian Prefect.

If, when a question as to status arises, the person alleged to be a slave is accused of having stolen something from his master, it must first be considered whether the reputed slave, being in servitude, believes that he has a right to his freedom; or whether, while in the enjoyment of his freedom, an attempt is being made to reduce him to slavery. When he who is in slavery demands his freedom, it is proper that his condition should first be decided, and afterwards the case of the theft should be investigated, if circumstances demand it.

But where he who is alleged to be a slave is said to have stolen something, whatever is proved to have been taken must be returned to him, provided he furnishes proper sureties for its preservation. If, however, he should be unable to furnish them, then it is proper that all the property in dispute should be sequestrated, until the controversy is settled, but this should be done in such a way that, if the party interested has no other resources, whatever is necessary for the expenses of litigation and for the support of the said alleged slave must be reserved from the said property to the amount that the judge may decide to be reasonable.

But if the question with reference to status has not been raised, but someone has stolen certain articles, and has been ordered to restore possession of them to the owner for the purpose of avoiding the execution of the sentence, he will be required to return the said property without asking for security, and then the case involving his freedom shall proceed according to law.

TITLE XX. CONCERNING THE DETECTION OP COLLUSION.

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

As you state that your mother's slave has not only been guilty of committing sexual intercourse with her, but, in addition to this dis-

graceful conduct, has, in collusion with her and under the pretext of false captivity, planned to have himself declared freeborn by a competent judge, and your mother did not grant him his freedom, but, as you assert, attempted to establish his free birth by fraudulent representations, it is clear that he still remains her slave; for as you say that she did not manumit him, the slave does not appear to have become free, and cannot have recourse to the Rescript of the Divine Pius, published with reference to captivity, nor could the mere statement that you had consented confer upon him the right of freedom.

Published on the fourteenth of the Kalends of July, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

2. The Same Emperors and Csesars to Milesius.

It is clearly stated by the Noninian Decree of the Senate that a freedman is not permitted to change his status by means of a private contract, and a penalty for collusion is fixed by it, and as well as a reward promised to the informer.

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

TITLE XXI.

THE STATUS OF A DECEASED PERSON CANNOT BE BROUGHT IN QUESTION AFTER THE EXPIRATION OF FIVE YEARS.

1. The Emperors Severus and Antoninus to Nico.

A competent judge, after having been applied to, will examine the question of prescription, and whether the patron of Domitia, who lived as a Roman citizen until his death, can be proved to have died five years before the controversy with reference to the property of the said woman arose; for her condition as a freedwoman cannot be revoked on account of the alleged incapacity of the person who manumitted her.

2. The Same Emperors and Csesars to Maximus.

If he who appointed you his heir is said to have been a slave on account of the condition of his mother, and she died five years before any controversy on this point aroise, there will be ground for prescription, as no inquiry can be instituted with reference to his status without also investigating that of his mother.

This rule only applies to cases where the persons concerned lived as Roman citizens, without dispute, until the time of their death.

Published during the second Consulate of Antoninus and Geta, 206.

3. The Emperor Alexander to Olympias.

Although your husband, concerning whose condition a controversy has arisen, is dead, the case shall be continued notwithstanding his death, on account of his estate, and it must be decided by the court having jurisdiction over estates, or property forming part of the same.

4. The Same Emperor to Martianus.

If he whom you allege to have been your slave, and who was manumitted by your brother, and appointed his heir, lived as a Roman citizen after his manumission, and you did not begin proceedings for the purpose of determining his status within five years after his death, you understand that you cannot, in violation of the provisions of the Decree of the Senate, raise any controversy, either with reference to the heirs appointed by your brother, or concerning the condition of those whom he intended to be free.

If, however, you instituted proceedings before that period of time has elapsed, and claimed his peculium in accordance with the legal formalities required, and also brought suit to recover the slaves who were manumitted, you will not be prevented from proceeding in accordance with the terms of the Edict.

Published on the fifth of the ... of June, during the Consulate of Modestus and Probus, 229.

5. The Emperor Gordian to Severus.

The rule which has been established, namely, that no question can be raised with reference to the condition of deceased persons after the lapse of five years, does not, in any way, apply to an apparent emancipation which has not been perfected by law.

6. The Emperors Valerius and Gallienus to Polla.

If your mother, while living, was generally believed to be freeborn, and five years have elapsed since her death, you can plead the well-known prescription on this point against the State and the minor heirs, if they should attempt to raise a question as to your condition.

Moreover, a judicial inquiry must be instituted to determine whether or not she passed as a freeborn woman when she died, and if it was found that she was not always considered such, the general opinion at the time of her decease must be taken into account.

Published on the sixth of the Ides of June, during the Consulate of Secularis and Donatus, 261.

7. The Emperors Diocletian and Maximian, and the Csesars, to Heliodorus.

If your father lived as a freeborn man until his death, and no controversy as to whether he was a slave of the Treasury or not arose before the Governor of the province, who is accustomed to decide questions of this kind, but the matter was brought before the Imperial Procurator, who is not a competent judge of such cases, and five years elapsed after your father's death, your condition is protected by the prescription derived from the Decree of the Senate.

8. The Same Emperors to Theodora.

The right to claim the property composing the peculium of your slave is not barred by prescription, if the said property is in possession of another under an unlawful title. For the Decree of the Senate which

was enacted to prevent the revoking of the condition of deceased persons does not apply, if the decedent, having taken to flight, died a fugitive.

Given at Milan, on the tenth of the Kalends of December, during the Consulate of Diocletian and Maximian.

TITLE XXII.

CONCERNING THE PRESCRIPTION OF LONG TIME WHICH is PLEADED IN BEHALF OF AND NOT AGAINST FREEDOM.

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

The benefit of prescription based on long time cannot be claimed by anyone who, for an extended period, has enjoyed freedom fraudulently obtained. Therefore, as you acknowledge that you fled from the person whom you mentioned, you understood that you are not in possession of liberty without being guilty of fraud.

2. The Same Emperors and Csesars to Carcinus.

The possession of freedom lawfully acquired can be resolutely maintained by prescription, since the favor with which it is regarded— and good reason as well—argue that prescription should benefit those who have been in possession of liberty for the term of twenty years, without their right being challenged by anyone seeking to disturb them, so that they may become both free, and Roman citizens.

Given at Antioch, on the Kalends of July, during the Consulate of Constantius, Consul for the fourth time, and Maximus, Consul for the second time, 302.

3. Copy of the Imperial Letter of Constantine and Licinius addressed to Dionysius, Temporarily in Charge of a Prefecture.

It is consistent with equity that the rights of freedom should, in no way, be interfered with, solely on account of lapse of time, even if the term of sixty years has passed.

Given on the fourth of the Kalends of May, during the Consulate of Volusianus and Annianus, 314.

TITLE XXIII.

CONCERNING THE PECULIUM OF HIM WHO HAS OBTAINED His FREEDOM.

1. The Emperors Diocletian and Maximian to Rufinus.

You should not forget that a great difference exists between the cases of those who have been manumitted by persons who were living at the time, and those to whom freedom has been bequeathed by will, as, in the first instance, they are tacitly entitled to their peculium

if they were not specifically deprived of it, and in the second, the heirs will have the right to it, unless it was expressly left to the manumitted slave. This rule of law is perfectly clear.

TITLE XXIV.

CONCERNING THE ABOLITION OF THE CLAUDIAN DECREE OF THE SENATE.

1. The Emperor Justinian to Hermogenus, Master of the Offices.

As We think that during oar reign (when We have exerted ourselves so greatly in favor of the liberty of Our subjects) it would be extremely wicked for certain women to be deprived of their freedom, and that from the lust of unprincipled men there should result a state of affairs which could only be caused by the ferocity of enemies in violation of natural law, We desire that the Claudian Decree of the Senate, as well as all denunciations and legal decisions having reference to the same, shall hereafter be abolished, so that any woman who is free and has been deceived, or rendered the victim of unfortunate affection, shall not, for this or any other reason, be reduced to slavery, and the liberty to which she was entitled by birth lost; and the worst dishonor tarnish the glory of her kindred, as she may, perhaps, have relatives of distinguished rank, and the master under whose control she comes may be inferior to her relatives. This rule shall also apply to freedmen, for the principles by which My reign is governed do not suffer that a person who once has obtained freedom shall, under any circumstances, be reduced to slavery for such a cause.

But to prevent slaves and serfs from thinking that they can go unpunished for the commission of such acts (and this is especially provided in the case of serfs in order that their condition may not be gradually changed through their marriage with free women), We order that if anything of this kind should be perpetrated by either a slave or a serf, his master shall have full authority, either in his own person or by the Governor of the province, to administer proper punishment to the said slave or serf, and separate him from the said woman. If he should fail to do this, he is hereby notified that his own loss will be the result of his neglect.

TITLE XXV.

CONCERNING THE ABOLITION OF THE MERE CIVIL RIGHT OF ROMANS.

1. The Emperor Justinian to Julianus, Prsetorian Prefect.

With the intention of abolishing by this law a ridiculous example of the subtlety of the ancient jurists, We shall not hereafter permit any distinction to be made between owners who hold property merely

by the civil right of Romans, and those who hold it as part of their own possessions, for the reason that We do not wish this distinction to exist any longer, as the term "Ex jure Quiritium"1 is enigmatical, is nowhere seriously considered, and does not strictly apply to property, but is a phase void of meaning, and superfluous, and by it the minds of youths who are beginning the study of the law are bewildered, and they are compelled to learn the useless provisions of ancient enactments. Therefore, anyone who is the owner of a slave, or of any other property which belongs to him, shall become its full and lawful proprietor.

TITLE XXVI.

CONCERNING USUCAPTION EITHER IN FAVOR OP THE PURCHASER OR ACQUIRED BY VIRTUE OF THE TRANSACTION.

1. The Emperor Antoninus to Flavianus.

If your slaves have been stolen by persons who did not have the right to sell them, you can bring suit to recover them, for they are not susceptible of usucaption by the purchasers, as theft may be committed by an illegal sale.

Given on the day before the Ides of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Marcellinus.

If the guardians, contrary to the intention of the deceased, sold the slaves which he directed by his will to go to his heirs on account of their skill as artisans, they cannot be acquired by usucaption.

Given on the fifth of the Nones of March, during the Consulate of Julianus, Consul for the second time, and Crispinus, 225.

3. The Same Emperor to Nepotilla.

If you purchased and now hold possession in good faith of the mother of him with reference to whose condition you have instituted

1 The Jus Quiritium was an indispensable requisite upon which the title to property depended, and, in fact, the only one recognized in early times. Its importance remained unimpaired after the exigencies of Roman life and civilization had divided and subdivided the status of citizens and ownership into various classes, and the application of its intricate and perplexing rules seems to have puzzled some of the most learned jurists of both the Republic and the Empire.

One man might sell an article to another, and if the usual formalities were not observed, even if the price was paid and the property delivered, the complete title did not pass ex jure Quiritium,, and what was sold was considered to be merely in bonis, or "among the effects" of the purchaser. This, of course, was frequently productive of great hardship and injustice, so, by way of remedy, it was provided by law that undisturbed possession for the term of a year in the case of personal, and for two years in that of real property, perfected the title of usucaption.

The civis optima jure was the Roman citizen par excellence, entitled to the Jus Quiritium, as well as all other privileges implied by that distinguished appellation, and to this invaluable right all other qualifications were rigidly subordinated. Inheritance, the power of testamentary disposition, the exercise of paternal authority, or patria potestas, marriage, capacity to hold public office, usucaption, and, especially exemption from servitude, with the unmolested enjoyment of the blessings of freedom, were all embraced in the Jus Quiritium.—ED.

legal proceedings, you can obtain by usucaption the child which she brought forth afterwards while under your control, even if she herself formed part of the stolen property.

4. The Same Emperor to Achilles.

If you establish that the other party gave his consent to the sale of the female slave, and then rescinded the contract which he himself had ratified, he shall not be heard. If, however, he cannot produce this proof, but can show that the slave was purchased in good faith from a bona fide vendor, you can acquire her by usucaption on the ground of lapse of time, and the attempt of the claimant to hold the property will be of no avail.

5. The Emperor Gordian to Marinus.

When a possessor in bad faith sold a part of the property, the remainder which he still retains can certainly, with all its profits, be recovered from him. The portion which was sold, however, can only lawfully be demanded from the possessor, where he knowingly bought what belonged to another, or when, as a purchaser in good faith, he has not held it long enough to acquire usucaption.

Possession which has been lost by violence cannot be acquired by a purchaser through usucaption, even though he bought it in good faith before it had again come under the control of the owner.

6. The Emperor Philip to C&lius.

If it is proved that the property was pledged and afterwards sold by the debtor, it is clear that, being, as it were, stolen, it cannot be acquired by usucaption.

Without date or designation of Consulate.

7. The Same Emperor and Csesar to Compedius.

He who knowingly sells the slave of another without the consent of the owner commits a theft, and this defect of title does not permit usucaption to take place before the property is returned to the possession of the owner, even though possession was obtained in good faith.

Given on the fifth of the Ides of February, during the Consulate of the Caesars, 248.

8. The Same Emperor and Csesar to Sevens.

Those who have a legal right to possession growing out of a compromise can acquire property by usucaption.

9. The Same Emperor and Csesar to Gaius.

No kind of prescription will protect one who has purchased property sold by a ward without the authority of his guardian, but if the ward is found to have been benefited by the money of the purchaser, he will be barred by an exception on the ground of bad faith if, after having arrived at puberty, he attempts to rescind the contract by law on the ground that it is unjust.

Given during the Consulate of the Csesars.

TITLE XXVII.

CONCERNING THE USUCAPTION OF PROPERTY WHICH HAS BEEN DONATED.

1. The Emperor Alexander to Macedonius.

Whether the owner himself gave you the lands with reference to which you have filed your petition, or whether you received them as a donation in good faith from a person who was not their owner, you have acquired the right to them by usucaption, and you cannot be deprived of what you have legally obtained.

Published on the fifth of the Ides of March, ....

2. The Emperors Diocletian and Maximian to Capitonius.

There is no doubt that, in law, the rights of the master are not affected by the donation of a female slave belonging to another, for a theft is committed by the disposal of property without the consent of the owner, and usucaption of such property cannot be acquired.

Ordered on the fifth of the Ides of April, during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and the Csesars to Rhodamts.

No one is permitted to revoke a donation which has been lawfully made, but it is also true that a mistake cannot be defended on the ground of good faith. This rule applies where ownership is claimed on the ground of usucaption.

TITLE XXVIII.

CONCERNING USUCAPTION IN THE CASE OF A DOWRY. 1. The Emperor Alexander to Taurinus.

When movable property is given by way of dowry, even though none of it belongs to another, if there is no defect in the title, and it is accepted in good faith, it can be acquired by usucaption as part of the dowry.

TITLE XXIX.

CONCERNING USUCAPTION WITH REFERENCE To AN HEIR.

1. The Emperor Antoninus to Theophilus.

As usucaption, in this instance, does not apply to the heir, you are advised that neither your mother, whose heir you are, nor you, yourself, can acquire the slaves referred to, by usucaption.

Published at Rome, on the seventh of the Kalends of July, during the Consulate of Lsetus and Cerealis.

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

It has been established that nothing can be acquired through usucaption by some one acting as heir, when there are any proper heirs.

3. The Same Emperors and Csesars to Diodorus.

The possession of the property of an absent person by anyone acting in the capacity of heir will not authorize usucaption, if the report of the death of the said person is false.

4. The Same Emperors and Csesars to Serapion.

Usucaption cannot be claimed except under a lawful title, nor can it be taken advantage of, nor can it avail the possessor or the heir, nor will the right of the owner be affected by lapse of time, even if property belonging to another is claimed under the pretext of its having formed part of an estate.

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

TITLE XXX. GENERAL RULES WITH REFERENCE TO USUCAPTION.

1. The Emperor Alexander to Savinus.

Anyone who holds property under a lease, although he holds it corporeally, is not considered to possess it in person, but for the owner, as prescription based on long possession cannot be acquired by either a tenant or a lessee.

Published on the seventh of the Kalends of April, during the Consulate of Alexander, Consul for the fifth time, and Marcellus, 227.

2. The Same Emperor to Onesima.

You say that sometime ago you purchased the slave with reference to whom you petition, but, if you reflect, you will remember that property belonging to My Treasury cannot be acquired by usucaption, and you are hereby notified that you will be compelled to answer in any actions brought by My Treasury, nor can the owership of the slave in question be acquired by you through usucaption, unless he was not born of a female slave belonging to the Treasury.

Published during the Nones of March, during the Consulate of Pompeianus and Pelignus.

3. The Emperor Philip and the Csesar to Pantinus.

If Antiochus knowingly held your slave in bad faith, he cannot be acquired by usucaption by his successor, even though he may possess him in good faith, because of the original defect in the title.

TITLE XXXI.

CONCERNING THE TRANSFER OP THE RIGHT OP USUCAPTION AND THE ABOLITION OP THE DISTINCTION OP RES MANCIPI AND RES NEC MANCIPI.

1. The Emperor Justinian to John, Praetorian Prefect.

As We, by Our care, have disposed of the name and substance of acquisitions ex jure Quiritium, and have provided that ordinary prescription shall be valid everywhere, whether it arises from possession for ten, twenty, or thirty years, or even for a much longer time, it would be useless to admit the right of usucaption only with reference to property situated in Italy, and to exclude it from application to that situated in the provinces. Where, however, anyone has had in his possession in good faith, for the term of two years, property belonging to another, which is situated in Italy, the unfortunate owner of the same shall lose his right to it, and shall be entitled to no recourse with reference to said property, which was lost without the knowledge of the said owner, for which reason there is nothing more unjust than for him, who is ignorant of the fact, to be deprived of his possession in so short a time.

Therefore, We order by the present law, that where property situated in Italy is either immovable, or is understood to be such, the term of usucaption shall be extended (like that for a year), so that it will now run with those of ten, twenty, or thirty years, and others of still longer duration, and that the present limited period shall be abolished.

Moreover, as the ancients fixed the time for the acquisition of movable property, or that which was capable of moving itself, or which was, in any way retained (of course when held in good faith), whether situated in Italy or anywhere else in the world, and allowed ownership to vest after possession for a year, We consider that this should be amended, so that where anyone has had possession in good faith of any movable property, or of any which was capable of moving itself, either in Italy, or in any of the provinces, for the continuous term of three years, he can acquire a legal title to the same, just as if it had been acquired by usucaption, it being only observed that in all such cases he must, in the first place, obtain it in good faith, just as is required by a prescription of long time, and that the possession acquired by any preceding lawful possessor shall be included in the term of ten, twenty, or thirty years.

We decree that, in the case of movable property, the legal retention of the preceding holder under a just right of possession, which he exercised over the said property, shall not be interrupted by the fact that the subsequent holder may have been aware that the property belonged to another, even though it was obtained under a lucrative title. The time has been extended by this law with reference to the usucaption of property which is the subject of the same, and We have limited that of usucaption, productive of such loss and injury to owners, and abolished the ancient practice of dividing property into mancipi, and

nee mancipi, which is only in conformity with reason, so that a similar rule may apply to all property and all localities, and useless ambiguities and differences be finally disposed of.

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

TITLE XXXII.

CONCERNING THE ACQUISITION AND RETENTION OF POSSESSION.

1. The Emperors Severus and Antoninus, and the Csesars, to Atticus.

It is established by the principles of public convenience, as well as by those of law, that possession can be acquired by anyone without his knowledge, through another who is free; and that usucaption will begin to run as soon as he becomes aware of the fact.

Published on the sixth of the Kalends of December, during the Consulate of Fuscus and Dexter, 226.

2. The Emperor Alexander to Maurus.

He who has caused you anxiety is not well informed when he asserts that you did not obtain possession of the property which you purchased through an agent, as you yourself allege that you have been in possession of the same for a long time, and have, as the owner, transacted all the business relating to it; for although transfer of the property whose possession has been delivered to you was not mentioned in the instrument, you, nevertheless, in fact acquired it if the vendor knew that you were in possession.

3. The Emperor Decius to Rufinus.

The possession of property donated by anyone to an infant is actually acquired, for although the opinions of legal authorities differ on this point, still it is more proper to hold that, in the meantime, possession is acquired by delivery, although the infant is not capable of giving his full consent to the transaction. For otherwise, in accordance with the opinion of the most learned jurist Papinian, possession could not be acquired by the infant through his guardian.

Published on the fifth of the Kalends of April, during the Consulate of Decius, Consul for the fifth time, and Gratus, 251.

4. The Emperors Diocletian and Maximian to Nepotianus.

Although possession cannot be acquired by mere intention, still it can be retained in this way. Therefore, if you have failed to cultivate your land for a certain time, not with the intention of relinquishing possession, but only because of fear, your rights cannot be prejudiced on account of the time which has elapsed.

Published during the Kalends of August, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

5. The Same Emperors and Csesars to Menno.

As no one can change his own title to possession, and you allege that the tenant, without any external cause arising, allowed the farm which he unjustly occupied to be sold, the Governor of the province, after having ascertained the truth, will not permit you to be deprived of your right of ownership.

6. The Same Emperors and Csesars to Valerius.

If the Governor of the province should ascertain that your field or your vineyard has been seized without good reason by the person whom you mentioned, and that your claim is not barred by any prescription, he will not hesitate to restore to you possession of the land with all its appurtenances.

Ordered during the Ides of April, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Asyncritus.

Unjust possession does not confer a valid title upon the possessor. Wherefore it is certain that anyone who takes possession of the land of another, without the consent of the owner, or of his agent who has authority to transfer it, cannot obtain legal ground for possession of the same.

Published on the fifth of the Ides of December, during the Consulate of the above-mentioned Emperors.

8. The Same Emperors and Csesars to Cyrillus.

It has been decided on the ground of the public welfare that the ownership, as well as the possession of property, can be acquired through an agent, as the two cannot be separated.

Published on the eighteenth of the Kalends of March, during the Consulate of the Csesars.

9. The Same Emperors and Csesars to Sergius.

A purchaser cannot legally hold possession of property which he occupied on his own responsibility by virtue of a genuine sale, and much less does he who, falsely representing himself as the purchaser, for the reason that he lent money without the obligation of a pledge and seized the land of another, have just cause to retain it.

Published on the third of the Nones of April, ....

10. The Emperor Constantine to Maternus.

No one can entertain any doubt that there are two grounds of possession, one based on the law, and the other on the fact; and both of them are legal when they are confirmed by the silence and want of opposition of all adversaries. Where, however, a controversy arises, he cannot be considered the possessor who, although he may have actual possession of the property, still his right to occupy it having been questioned, a contest has been begun, and the case brought into court.

Published on the eleventh of the Kalends of February, under the Consulate of Volusianus and Annianus, 314.

11. The Emperors Arcadius and Honorius to Petroneus, Lieutenant of the Spains.

Previous defects of possession are transferred by former owners, and the imperfection of the original proprietor passes to his successor.

Given on the fifth of the Kalends of January, during the Consulate of Csesarius and Atticus, 397.

12. The Emperor Justinian to John, Praetorian Prefect.

We, intending to dispose of the question which has been brought to Our attention by the works of the Sabinians, hereby order that, if either a slave, an agent, a tenant, a lessee, or anyone else through whom we are permitted to hold possession has, either through negligence or fraud, abandoned or delivered to another the actual occupation of any property which he held, so that the said third party may have ground for obtaining possession of the same, no prejudice whatever can result to the owner, nor can any injury be inflicted upon him by the malignity of his representative, but the latter, if he is free, will be liable to suitable actions at law, and all loss must be made good by him to the owner of said property, or to him with reference to whom he has acted negligently or fraudulently.

But where possession has not yet been acquired by the said agent, tenant, lessee, or slave, but the latter, through negligence or fraud, has failed to secure it, then the person himself who appointed him shall suffer the damage resulting from his bad selection of the individual directed to take possession of the property, and attributable either to the evil design or negligence of the latter.

We also order that the owner shall only be entitled to redress when he has sustained any injury through the agency of him whom he appointed, but not when he has failed to reap any benefit through his acts, as the ancient rule of law which states that the condition of a master can, under no circumstances, be made worse through the conduct of his slave, only applies when he suffers actual loss, and not when he unsuccessfully attempts to obtain some advantage for himself by means of his slave. In this instance, all legal rights of action are reserved for the owner of the property, or for him who appointed any of the above-mentioned persons to hold possession, as against the latter, if he is entitled to the same under the law.

TITLE XXXIII.

CONCERNING THE PRESCRIPTION OP LONG TIME BASED UPON OCCUPANCY FOR TEN OR TWENTY YEARS.

1. The Emperors Severus and Antoninus to Julian, Prsstorian Prefect.

If, after the question of possession has been disposed of, the ownership of the property passes in good faith to another, and remains

in his possession without any interruption for the term of twenty years, the party then in possession should not be disturbed, but if the latter does not take advantage of the occupancy of the former owner, there is nothing to prevent him from being disturbed by a dispute as to the title. If, however, the right of the former possessor was disputed, even though he remained in possession for a long time without interruption, he will, nevertheless, not be able to avail himself of prescription based on long time.

This rule also must be observed with reference to property belonging to the State.

Extract from Novel 119, Chapter VII. Latin Text.

Where a possessor in bad faith alienates property, prescription based upon long time will not apply if the true owner is ignorant of his rights, and the alienation has been made, but his defence will be valid in case he acted in good faith, and the period of thirty years has elapsed. But where he who knew that the property belonged to him did not prosecute his claim in court within ten years, if the parties were present, and within twenty if they wer.e absent, the possessor being protected by prescription, will be entitled to hold the property.

Extract from the Same Novel, Chapter Vill. Latin Text.

Where, however, one of the parties was present during certain years, and absent during others, there must be added to the ten years out of the other ten as many as he was absent.

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

The prescription of long time can usually only benefit those who, after having obtained possession of property in good faith, have enjoyed it continuously, without its being interrupted by legal proceedings.

Published on the fifth of the Kalends of December, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

3. The Same Emperors and Csesars to Antoninus.

If the vineyard which your mother gave to your step-father by way of dowry belonged to you, and no prescription has arisen oh account of lapse of time, the Governor of the province must cause it to be restored to you.

4. The Same Emperors and Csssars to Hermogenes.

Long-continued possession which has been acquired only by the right of succession, and without any legal title can, for this reason alone, be of no advantage in claiming prescription.

Given on the fourth of the Ides of April, during the Consulate of the Emperors.

5. The Same Emperors and Csesars to Sotericus. It is a perfectly clear rule of law that anyone who claims ownership from one who is indebted to some mistake alone for his possession of

certain property to which he holds a legal title cannot be excluded by prescription of long time.

Ordered on the eleventh of the Kalends of May, during the Consulate of the Emperors.

6. Extract from a Letter of the Same Emperors and Csesars to Primosus, Governor of Syria.

If the sale was fraudulently and deceitfully made, even though the parties were over twenty-five years of age, the time which has elapsed cannot confirm it, as the prescription of long time does not apply to contracts entered into in bad faith.

7. The Same Emperors and Csesars to Anthea.

The loss of documents does not legally prejudice the right of persons whose title is protected by long possession, nor can the evil designs of another disturb security acquired by long-continued possession.

Given on the day before the Kalends of January, during the Consulate of the above-mentioned Emperors.

8. The Same Emperors and Csesars to Celsus.

If he against whom you petitioned alleges that the slaves of your late mother belonged to him as her adopted son, the fact of an illegal adoption is not alone sufficient to enable him to acquire the ownership of the property, for which reason you will not be prevented from claiming the slaves, without being under any apprehension that prescription can be successfully pleaded against you, if he, against whom you have filed your petition, only obtained possession of the said slaves under the title above mentioned.

9. The Same Emperors and Csesars to Demosthenes.

A purchaser in good faith, who pleaded an exception against the prescription of ten years advanced by the other party who was present during that time, from the beginning of the controversy, and who proved this after the plaintiff had disclosed his claim, has shown that he has a right to legal possession, and very properly asks to be released from liability.

10. The Same Emperors and Csesars to Rheginus.

The prescription of long time cannot benefit those who have obtained possession in good faith, after being in default in joining issue, because the time should be reckoned after legal proceedings have been instituted.

11. The Emperor Justinian to Menna, Prsetorian Prefect.

We directly order that, with reference to prescription of long time, and which is based upon occupancy for either ten or twenty years, that where anyone is proved to have held possession of property for either ten or twenty years, which property has been acquired by

donation, or by any other lucrative title, and the time it was occupied by the former possessor is added to that during which he held it, he will undoubtedly be entitled to the above-mentioned prescription of long time, nor can he be excluded on the ground that he acquired the property by a lucrative title.

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

12. The Same Emperor to John, Praetorian Prefect.

Three difficulties arose among the ancient authorities concerning prescription based upon long time: the first, with reference to where the property was situated; the second, relating to the persons, whether the presence of one or of both should be required; and the third, whether the claimant as well as the possessor should be in the same province, or even in the same city where the property was in dispute; and We shall include all these matters in the present law, so that no doubt may remain on the subject. Therefore We decree that, in cases of this kind, the domicile of the claimant as well as that of the possessor shall be taken into account, so that he who raised the question of the ownership or of the hypothecation of the property, as well as he who is in possession, must reside in the same place, that is to say, in the same province. For We think that We should decide in favor of considering the province rather than the city as the domicile of the parties, and if both of them have their domicile in the same province, the case will be considered as having arisen between them while present, and any longer prescription than that of ten years will be excluded.

Moreover, with reference to the doubt arising concerning the property, there shall be no distinction whether it is situated in the same province, or in a neighboring one, or whether it is situated beyond seas or even in a far distant country.

If, however, both parties should not reside in the same province, but one should have his domicile in one province, and the other in another, then the case will be one as between absent parties, and the prescription of twenty years shall apply, for there is nothing to prevent the action with reference to the property, whether it is situated in one province or in another, from being brought in a provincial court, and still less to prevent this being done in this Most Flourishing City. For what advantage would it be for possession to be held in one province or another, as the right to claim property is incorporeal, and wherever it is situated, the ownership of the same can revert to the owner or the creditor? Hence our ancestors, with great shrewdness, and with a species of divine inspiration, established the rule that rights of action existed wherever the claims or^ the property itself could be situated.

Therefore, after the promulgation of this law, let no one doubt what should be decided, whether the parties are present or absent; for if the occupant acquired possession in good faith in the beginning, and the domicile of both parties is ascertained, then let the question

be determined, no matter where the property may be situated, without taking into consideration either knowledge or ignorance, in order that no other embarrassing occasion for doubt may arise.

The same rule must be observed if the property is not attached to the soil, but is incorporeal and consists merely of rights, as, for instance, usufructs and other servitudes.

TITLE XXXIV.

To WHAT CASES PRESCRIPTION OF LONG TIME DOES NOT

APPLY.

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

If he to whom you have given your land for the purpose of cultivation afterwards, through the agency of your step-mother, secretly removed the documents by which it could be proved that the ownership of the land belonged to you, he cannot defend himself on the ground of long possession alone.

2. The Same Emperors and Csesars to Dionysius. It is superfluous to have recourse to the prescription of long time in matters relating to the ownership of slaves.

3. The Same Emperors and Csesars to Apollinarus.

One of two joint-owners, who has possession of all the common undivided property, cannot plead prescription of long time to prevent the other joint-owner from claiming his share of the property, or for bringing suit in partition; as neither the action in partition, nor that brought for the division of property owned in common, is barred by the prescription of long time.

Given on the third of the Kalends of April, during the Consulate of the Csesars.

4. The Same Emperors and Csesars to Libroa.

The prescription of long time does not injure those who are claiming an estate. None of the provisions of this law, however, shall prejudice the rights of those who do not hold possession of property which belongs, or has belonged to an estate, either as heirs or possessors, but have obtained it by purchase, gift, or some other title, as the succession cannot be demanded by them.

Given on the third of the Ides of September ....

5. The Same Emperors and Caesars to Hosimus.

If you have cared for a boy slave who had not been abandoned, but had been wounded by the enemy, and you did this at your own expense (as you assert) believing him to be free, you cannot legally plead the prescription of long time to prevent his master from recovering him, provided he tenders you the amount which you have legitimately expended in his behalf.

TITLE XXXV.

IN WHAT CASES PRESCRIPTION OF LONG TIME CANNOT BE PLEADED.

1. The Emperor Alexander to Venuleius.

The time passed in an expedition cannot be included in pleading prescription against a claim for land, if it can be legally established.

Given on the sixth of the Nones of July, under the Consulate of Julian and Crispus, 225.

2. The Emperors Diocletian and Maximian and the Caesars to Aurelius, Chief Physician.

As you assert that, during your absence, those of whom you complain seized your property, and it is clear that you could not leave Our retinue on account of your profession as a physician, Our Praetorian Prefect, after summoning all the parties interested, will decide between you. It is not necessary for you to request that prescription based on lapse of time shall not be pleaded against you, since the fact that you were lawfully absent, and engaged in the public service, will protect you from damage in this respect.

Published at Nicea, on the fifteenth of the Kalends of March, during the Consulate of Maximus, Consul for the fifth time, and Aquilinus, 286.

3. The Same Emperors and Csesars to Numidius, Governor of Italy.

It is well known that time passed in minority cannot be included in prescription, for the latter only begins to run when the owner of the property attains his majority.

Published on the fourth of the Ides of September, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

4. The Same Emperors and Caesars to Crispinus.

If uninterrupted possession has continued without dispute, you have a right to plead prescription. We, however, decree that it shall never be valid against persons who are absent on business for the State, and especially where this takes place unexpectedly.

Published on the sixth of the Kalends of March, during the Consulate of Ambalianus and Asclepiodotus, 292.

5. The Same Emperors and Csesars to Januarius.

It is a positive rule of law that prescription cannot be pleaded in suits growing out of loans for consumption, or for use, or deposits, legacies, trusts, guardianships, or in any other personal action.

Ordered on the Kalends of February, during the Consulate of the above-mentioned Emperors.

6. The Same Emperors and Csesars to Dulcius. Having been taken captive by the enemy, and returned under the right of postliminium, you have no reason to apprehend that the pos-

session of your adversary based upon long time can be legally pleaded in a direct action in rem, or in any other which you may bring for the purpose of recovering your ownership of the property, as an act of this kind is of no avail against those who, for any reason, have the right to invoke the aid of restitution.

7. The Same Emperors and Csesars to Cassander.

Possessors of property in good faith are protected by prescription against those who have been present for ten years, or have been absent for twenty. If the relief of restitution is demanded by anyone with reference to a share of the plaintiffs, as much of the time should be deducted as would usually be counted in case anything had been done, and the remainder should be computed, which is reasonable.

8. The Emperor Justinian to Menna, Prsetorian Prefect.

We order that, exclusively in the case of soldiers who are engaged in expeditions only, that time which has elapsed during the expedition shall be pleaded in opposition to prescription, but this privilege shall not be enjoyed by them, so far as the time which they may have passed either at home, or in other places, while they were not in active service, is concerned.

Given at Constantinople, on the Kalends of April, during the Consulate of Decius, 529.

TITLE XXXVI.

WHERE PRESCRIPTION is PLEADED AGAINST A CREDITOR.

1. The Emperor Gordian to Veneria.

Unbroken silence is strengthened by the prescription of long time, and renders an action brought by creditors for the recovery of a pledge of no effect, when the debtors, or those who have succeeded to their rights, have possession of the property pledged. When, however, prescription of long time is pleaded by a possessor against his creditor, a personal action will lie in favor of the latter against the debtor.

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

If you were not the heir of a debtor, but obtained the property as a donation, and have had lawful possession of the same for the term of twenty years, the rule of law does not permit a personal action to be brought against you (for the reason that you did not succeed the debtor), nor can you be deprived of land given in pledge after the necessary time has elapsed, even when prescription based upon ten years occupancy can be pleaded against creditors, who have been present, a principle which has not only been established by Our Rescripts but also by those of the Emperors, Our predecessors.

TITLE XXXVII. CONCERNING THE PRESCRIPTION OF FORTY YEARS.

1. The Emperor Constantine to Orphitus.

It is well known that no question can be raised by the Treasury with reference to property which has no owner, after continuous occupancy of the same for the term of forty years.

2. The Emperor Zeno to ^Eneas, Count of Private Affairs. We order that when persons who have purchased any property, whether it be movable, immovable, or capable of moving itself, or which consists of rights of action, or of any other rights whatsoever, from Our Most Sacred Treasury, or, where any movable or immovable property, or any capable of moving itself, or any rights of action, or any other rights whatsover, have been given to them by the munificence of the Emperor, they shall be entitled to all the privileges to be obtained from the divine laws of the Emperor Leo, of illustrious memory, and from Our own, as well, with reference to certain estates, in preference to purchasers, and that all of them shall enjoy benefits or privileges of this description, just as if they had already been, or may hereafter be granted, in the case of individual property or inheritances.

Nor can any suits for the ownership of property, or on account of its hypothecation, or any civil, praetorian, or personal action based upon laws or Imperial Constitutions, or any other statutory provisions whatsoever (even though they may not be expressly enumerated in the present law), be brought against the purchasers of the property aforesaid, whether they already are, or may subsequently become such, or against those who, in the case of property of this kind, have been the recipients of Our generosity, or who may become such hereafter. Permission is, however, given to those who desire to do so, to institute proceedings against Our Treasury within the term of forty years, but after the said term has elapsed, they are advised that they will not be allowed to bring any actions whatsoever against it.

(1) With a view to the consideration of the rights of purchasers of property from the Treasury, We decree that whenever a person competent to sell such property states in writing that he has received the price of the same, purchasers who have paid money shall not, under such circumstances, be molested on the ground of non-payment, nor shall the said purchasers be required to prove that the price was paid, even though they may not have obtained the security of a receipt for the same. But, as it is in the power of him who receives the price not to give a receipt at a time when it was not paid, so it is proper that purchasers should enjoy perfect security by the payment of the price in this manner, and not be obliged to furnish other proof, as has already been stated.

3. The Emperor Justinian to Florus, Count of Private Affairs. It was very properly provided by the Emperor Zeno, of Divine Memory, in the case of fiscal alienations, that persons who obtain

property from Our Treasury by way of donation, purchase, or any other kind of alienation—if anything should arise to impugn the validity of the contract, either on the ground of eviction, or to produce any other annoyance with reference to the ownership or hypothecation of the property—shall not suffer any loss; and that no suits can be brought against the purchasers, or those who have received the property by way of donation, or who have possession of the same under any other title; but they can only be brought against the Treasury within the term of four years, which, having elapsed, no action will lie against the Treasury.

We know that this rule is constantly observed in fiscal alienations, but that it is not observed in the case of property acquired from private resources of the Emperor, and not from the funds of the Treasury. This is unreasonable, for why should such a difference be established when everything is understood to belong to the Emperor, and what is alienated is derived from his private property, or from that belonging to the Treasury?

In like manner, when anything is alienated by the Empress, why should it not enjoy the same privilege? Our stewards, by whom We are accustomed to administer Our estates when anything is sold, are required to attach to the bills of sale agreements with reference to eviction, and others having a view to private convenience, and to acknowledge obligations of this kind in instruments relating to alienations, as well as those concerning changes or compromises, where such transactions take place. This also refers to those who do not acknowledge the Imperial Majesty, nor realize what a distance exists between private fortune and Imperial rank, but attempt to injure and cause loss to Our stewards, by whom the affairs of the Imperial household are conducted.

For the purpose of correcting all these things, We order by this general rule, which shall be valid for all time, that every alienation proceeding from the Imperial Palace, whether it is made by Us or by Her August Majesty the Empress, or by those who may hereafter be worthy of the Imperial Name—whether the property has already been alienated, or may be alienated hereafter—shall remain irrevocable; whether the transfer has been made by Us in person, or by Our agents in pursuance of Our authority. And let no one be so bold as to bring suit against those who acquire such property under any title whatsoever, whether the said property be movable, immovable, or capable of moving itself, or whether it consists of incorporeal rights or civil privileges, or think that there is any way open for him to molest them, but every avenue shall be closed, and every method of procedure, and every hope of the tolerance of such malignancy, shall be excluded.

They shall, however, have the right to bring actions in rem or hypothecary actions against Us within the term of four years, as they can do against the Treasury, if they think that they are entitled to such actions; and such a cause shall proceed by Our order and be decided in the proper manner. When, however, the said term of four

years has elapsed, no one will be entitled to bring any suit whatsoever against Us. Therefore, because We know that not only We, Ourselves, but also Our Illustrious Consort, the Empress, has already given, sold, and alienated much property in other ways, and that Our liberality, as well as that of Our Illustrious Consort, the Empress, has been, above all, displayed with reference to churches, hospitals, poorhouses, as well as bishops, monks, and innumerable other persons, We order that they also shall hold by an indisputable title what they have acquired, and that no proceeding shall be instituted against them, and that, within the term of four years from the present time, they shall all have a right to bring suit against Us to recover said property; but they are hereby notified that, after the said term of four years has expired, they shall be entitled to no recourse against Us. For as Imperial rank is entitled to many privileges, all Imperial donations shall be irrevocable, without being recorded, and the title to any property which the Illustrious Emperor may have given to his August Consort temporarily, or during marriage, or which he himself may have received from his Illustrious Consort, the Empress, as a donation, shall immediately become complete, without being subject to confirmation by time, and this shall be considered an Imperial privilege. For why should those who, giving their advice and their efforts, toil day and night for the benefit of the entire world, not enjoy privileges becoming their rank?

Therefore, Your Excellency, as well as all Our other judges, shall cause these provisions to be observed which We have promulgated for the honor of the Imperial Name, and for the security of those who have experienced Our bounty, and which shall be valid from the time when, by the Divine Will, We assumed the Imperial insignia.

Given at Constantinople, on the fifth of the Kalends of December, after the fifth Consulate of Lampadius and Orestes, 581.

TITLE XXXVIII.

THE CLAIM TO PROPERTY BELONGING TO THE CROWN, OR

TO THAT BELONGING TO THE TEMPLES, SHALL NOT BE

BARRED BY PRESCRIPTION.

1. The Emperors Valens and Valentinian to Probus, Praetorian Prefect of Gaul.

It has repeatedly been ordered that freedmen and serfs attached to the Imperial domain, as well as their offspring and other descendants, who have left Our land and engaged in other different occupations, shall be restored to Our estates and stripped of any dignity which they may have fraudulently obtained, and shall not be permitted to avail themselves of any prescription.

2. The Emperors Valentinian, Theodosius, and Arcadius to Dexter, Count of Private Affairs.

We order that all lands held by tenants or under emphyteusis, and which are the property of the State or the Emperor, or belong

173

to the sacred temples, or have been sold in any province, or alienated in pursuance of any other contract, by persons who had possession of them wrongfully and contrary to law, shall be restored; and that no prescription can be pleaded against their restoration, so that those who have purchased them legally cannot demand the repayment of the price of the same.1

Given at Constantinople, on the fifth of the Nones of July, during the Consulate of Valentinian, Consul for the fourth time, and Eutro-pius, 387.

3. The Emperors Arcadius and Honorius to Paulus, Count of the Imperial Domain.

If anyone should have the boldness to take possession of land forming part of the Imperial Domain, its rights shall be recovered in accordance with the provisions of the ancient census. Therefore Your Highness should not pay any more attention to rescripts which have been fraudulently obtained than to prescription of long time, or to the new census; and hence you must restore everything which has been taken away to its proper place, for temporary possession or a new return cannot abolish the privilege enjoyed by Our property.

Given on the fifth of the Kalends of April, during the Consulate of Arcadius, Consul for the fifth time, and Honorius, Consul for the third time, 396.

TITLE XXXIX.

CONCERNING THE PRESCRIPTION OP THIRTY AND FORTY

YEARS.

1. The Emperors Diocletian and Maximian to Ariana.

As you allege that, during your absence, certain persons who coveted your lands purposely caused them to be sold at a low price, by the Governor of the province, under the pretext of the collection of taxes, if the lawful time from the day of the sale within which you can claim said land has passed, the Governor of the province shall take cognizance of your case, and shall decide whatever the law directs.

If, however, the time prescribed by law from the day of the public sale has not yet elapsed, the judge, having examined your allegations, shall decide what the nature of the case requires, being aware that if he should ascertain the sale to be unjust, the price paid under a fraudulent contract of this kind must be returned to the purchaser, in accordance with the tenor of the Imperial Constitutions.

2. The Emperor Valens and Valentinian to Volusianus, Prastorian Prefect.

Improper action is taken with reference to the owners of land when such a precarious title is granted to possessors that they cannot be molested for any cause after the lapse of forty years, as the law

1 "Nullum tempus aut locus occurrit regi."—ED.

of Constantine provides that no other title whatever shall be required by possessors who have held property for themselves but not for others. It is established that those shall not be designated possessors who occupy property on the condition of the payment of a certain fixed sum as rent. Therefore, no one who has obtained possession as a lessee, by retaining the property of another for a long time, can obtain the ownership of the same for himself; for otherwise, the owners might lose the land which they have leased, or be obliged to exclude valuable tenants, or to publicly proclaim their ownership every year. Given on the eighth of the Kalends of August, during the Consulate of Valens and Valentinian, 365.

3. The Emperors Arcadius and Honorius to Asclepiodotus, Pree-torian Prefect.

The right to bring special actions in rem, or general personal actions, cannot be extended beyond the term of thirty years. When any property or right is claimed, or anyone has a suit or a prosecution of any kind brought against him, the prescription of thirty years can be pleaded against the plaintiff.

The same law is applicable in the case of a person who endeavors to recover property which has been pledged or hypothecated, not from his debtor, but from another who has had it in his possession for a long time; therefore, where actions have not been brought within thirty year's from the time in which this could be done, they cannot longer be prosecuted. Nor will it be sufficient to obtain a special and favorable answer, even though this be secured by personal application and petition to the Emperor, or even to state this in court, unless, after the Imperial Rescript has been mentioned, or the demand formally made, an agreement has been effected through a bailiff, nor can a defence based on infirmity of sex, or on absence, or service in the army, be set up in opposition to this law, but only on the ground of the minority of the defendant, even though he may be represented by his guardian.

For, after persons who have been subject to the care of a curator become of age, their rights, as well as those of others, must necessarily be dependent upon possession for the term of thirty years. Rights of action, considered perpetual, are extinguished by the prescription cf thirty continuous years, but not those which were limited in former times to a certain term.

We decree that, after this period has elapsed, no one shall have the power to proceed, even if he should attempt to excuse himself by professing ignorance of the law.

Given at Constantinople, on the Kalends of September, during the Consulate of Victor.

4. The Emperor Anastasius to Matronianus, Prsetorian Prefect.

We, desiring to permanently dispose of every opportunity to cause injury, do decree that all prescriptions having reference to time, which are derived from the ancient laws or from Imperial decrees, shall

endure in full force, just as if they had been specifically and definitely enumerated in this law; and those who now have a right to avail themselves of them, or may in the future acquire such a right, shall, in accordance with their tenor, be able to do so for all time hereafter.

And wishing to supplement what may have been omitted, either in words or meaning in prescriptions formerly in force, We order, by this law (which shall be valid for all time) that if there should be any contract or action which has not been expressly provided for by the rules governing the prescriptions above mentioned which, by means of either an accidental or an intentional interpretation, appears to afford means to evade the restrictions imposed by the prescriptions aforesaid, it shall be included in this Our most salutary law, and it shall, unquestionably, be extinguished after the lapse of forty years, and no private or public action relating to any cause or person which has been extinguished by the silence of the aforesaid forty years shall be brought.

Anyone, however, who, under some title which has been undisputed during the above-mentioned period, has had possession of property without any judicial controversy having been raised with reference to it, still holds the same, shall remain secure in its ownership; and any slave who, after the expiration of said term, without having his case submitted to judicial investigation, has obtained an advantage of this kind, shall become free under the provisions of this most salutary law.

Given at Constantinople, on the third of the Kalends of . . . , during the Consulate of Olybrius.

5. The Same Emperor to Thomas, Prsetorian Prefect of Illyria.

We do not permit the prescription of forty years to be pleaded by those who are called to the office of decurion, but We order that they shall always be-compelled to remain in the civil condition in which they were born. For the law which We have promulgated applies to other conditions, and former constitutions are not repealed by the said new law, which plainly directs that decurions and their children shall be returned to their former status without reference to any prescription whatsoever.

6. The Same Emperor to Leo, Prsetorian Prefect.

We, having ascertained that certain persons have attempted to apply the Imperial Constitutions which treats of the prescription of forty years to the prejudice of the payment of public contributions, alleging that if anyone had failed to pay anything for that time or longer, or had paid less than he should, he would be released from liability for taxes, and that they cannot be collected or he be compelled to pay them, as an attempt of this kind is well known to be contrary to both the spirit and the letter of Our law, We, therefore, order that those who have had possession of any property continuously for the term of forty years, without any lawful interruption, shall not, in any way, be deprived of the possession or ownership of the said property, but that they can be compelled to pay any public tax imposed upon

them by the civil law, and that no prescription of any time can be pleaded in a case of this description.

7. The Emperor Justin to Archelaus, Praetorian Prefect.

As it is a well-known rule of law that an hypothecary action is extinguished after the lapse of thirty years, so far as foreign possessors of the encumbered property are concerned, if the silence is not interrupted as provided by law, that is to say, by an agreement, or where the incapacity of one of the parties who has not arrived at the age of puberty is demonstrated, he will have recourse against the debtors or heirs of the possessors, either immediate or remote, who will not be entitled to take advantage of any prescription.

We have taken occasion to amend this law, to prevent possessors of this kind from being subject to constant apprehension.

(1) Therefore, We order that the right to bring the hypothecary action on the ground of property remaining in the hands of debtors or their heirs shall not be extended beyond the term of forty years within which said action can be brought, unless some agreement has been made, or the minority of the party enjoying the right is involved (as has already been stated), so that the difference existing between the actions brought against the debtor or his heir, and against strangers, for the recovery of the property, shall only consist in the number of years, but that the two shall be similar in all other respects.

With reference to personal actions, those rules shall be observed which have been prescribed by former constitutions.

(2) But as the question frequently arose in judicial controversies as to whether a creditor claiming prior rights could, after the lapse of thirty years, molest a subsequent creditor, who had possession of the land under hypothecation, the latter being the representative of the debtor, and holding possession like him, We hav^e considered it necessary to dispose of it. Hence, We order that while a common debtor is living, the prescription of thirty years cannot be pleaded against a prior creditor, but that there will be ground for the prescription of forty years, because, while the debtor is living, the prior creditor should reasonably think that the subsequent creditor holds possession of the property for and in the name of the common debtor. And therefore, if the debtor should die, the subsequent creditor having possession in his name can, with good reason, plead prescription of thirty years.

In accordance with this distinction, the computation of time should be made in such a way that the prescription of the subsequent creditor will date from the death of the debtor. If, however, he should wish to add the time during which he had possession after the death of the debtor to that which he had during the lifetime of the latter, or while the common debtor himself had possession, then the rights conferred by prescription of forty years must be considered, and the subsequent creditor must show that he had possession for a term sufficient to complete the period of forty years, by which the debtor himself would have been able to exclude him, in his turn.

(3) The same rule must be observed in the computation of time, where the subsequent creditor is ready to tender payment of the debt to the prior creditor, and the latter attempts to bar him by pleading the prescription of long possession.

(4) It is more than manifest that, in all contracts in which either promises or agreements are entered into subject to any condition, depending upon a fixed, or indefinite time, after the condition has been fulfilled, or the certain or uncertain time has elapsed, the prescription of thirty or forty years, which is pleaded in personal or hypothecary actions, begins to run.

The result of this is that in marriages, in which the restitution of the dowry is provided for, or in the case of ante-nuptial donations, in which it is customary to specify the indefinite date of death or divorce, after the dissolution of marriage, the prescription which can be pleaded in personal as well as in hypothecary actions, begins to

run.

(5) Moreover, there is no doubt that if any one of those to whom something is due holds property which has been hypothecated to him without the employment of violence, an interruption of prescription takes place by means of this possession, if less than thirty or forty years has passed; and much more is this the case, if the interruption was caused by an agreement, as such possession bears a resemblance to the joinder of issue.

If one of the debtors should give his creditor additional security for the purpose of securing his obligation, the time of the abovementioned prescription will be considered as having been interrupted, so far as the original security is concerned, and the prescription in both personal and hypothecary actions will run from the date of the novation; for it would be dishonorable for the debtor to dispute this, in order to avoid his liability to his creditor, after having given him a second security for the former debt.

(6) With reference to promises, legacies, and other obligations which require the giving or payment of something every year, or every month, or at any other prescribed date, it is clear that the times of the above-mentioned prescription should not be computed from the date of such an obligation, but from the beginning of each year, or each month, or from any other time which may be specified.

Moreover, permission should not be given to anyone who has held any property under emphyteutical right, for the term of forty, or any other number of years, who alleges that he is entitled to ownership of the said property, to acquire the same on account of the time which has elapsed; as what is granted under emphyteutical right must always remain in the same condition, since the lessee, or the agent who has charge of the business of another, is obliged to restore the said property to the owner, if he wishes him to do so, even though he may allege that he is not obliged to surrender it, and is entitled to possession of the same by prescription, after the expiration of a certain

time.

Given during the Kalends of December, ....

8. The Emperor Justinian to Menna, Prsetorian Prefect.

When anyone has held possession of any property which was obtained in good faith by purchase, agreement, donation, or any other contract, for ten or twenty years, and has acquired for himself the right of prescription based on long time, against the owners of said property, or creditors who claim that they are entitled to it through hypothecation, and he afterwards loses possession of said property by accident, We order that he shall be entitled to an action to recover the same. If anyone carefully examines the ancient laws, he will ascertain that they authorize this.

(1) If, however, anyone should cease to hold possession of property, where the owner or someone who has a lien on it has been barred by prescription of thirty or forty years, We direct that the abovementioned relief shall be afforded him, not indiscriminately, but in moderation; and if anyone should, in the beginning, have held the said property in good faith, he can avail himself of the same advantage.

But where he acquired it in bad faith, he shall, for this reason, be considered unworthy, so that he who was the original owner of the property, or held it under a pledge and was barred by the effect of the above-mentioned prescription, can acquire the benefit of possession for himself, in the capacity of a new possessor.

If, however, he had no right to such property at any time, then the original owner, or the creditor who had possession of it under hypothecation, shall, with their heirs, be permitted to recover it from the unlawful possessor, notwithstanding that the former possessor has already excluded him by means of the prescription of thirty or forty years, unless the illegal possessor himself is protected by the prescription of thirty or forty years, to be computed from the time when the former possessor, who evicted him, lost possession of said property.

(2) We, however, decree that these rules shall only apply to possessors who have obtained control of the property without violence, for if anyone should forcibly remove it, the former possessor shall, by all means, be entitled to it without any opposition.

(3) If, anyone, however, should obtain the property, not by violence, but by a judicial decision, he shall only be responsible for the time when the former possessor was absent, and was summoned to court, and he, like others entitled to the ownership of the property, shall be permitted, within a year, to take the said property if he presents himself, and offers security for the conduct of the case, and to obey the decision with reference to the matter in litigation.

(4) We decree that the prescription of thirty or forty years shall, in the case of contracts in which interest is promised, begin to run from the time when the debtor has failed to pay it.

Given at Constantinople, on the third of the Ides of December, during the Consulate of our Lord the Emperor Justinian.

9. The Same to Demosthenes, Prsetorian Prefect. Certain persons frequently call their opponents into court, and in the prosecution of judicial proceedings are not able to bring their cases to a definite conclusion, and as the conditions of life are subject to constant variation, they, in the meantime, having preserved silence either on account of the superior power of their adversaries, or their own weakness, or for innumerable other reasons which can neither be mentioned nor enumerated, appear to have forfeited their rights, because, after the last trial of the case, the term of thirty years has elapsed, and having been opposed by a prescription of this kind see their property transferred to others, which in former times caused them much sorrow and with good reason, as they had no remedy.

We, desiring to correct this, do not permit such a prescription based upon the lapse of thirty years to be pleaded in a case of this kind, but even though a personal action was brought in the first place, We authorize it to be extended to the fortieth year, as he who is in the beginning absolutely silent as to his rights does not resemble him who filed his complaint, came into court, and went to trial, but for some cause or other was prevented from finishing his case. And, although the plaintiff himself may have died, We decree that he can leave the conduct of his action to his posterity, and that his heirs or successors shall be permitted to conduct it to a conclusion, and not be in any way barred by the prescription of thirty years.

The period available (that is to say, the term of forty years), We decree shall be computed from the time when the last judicial investigation took place, after both parties failed to proceed.

TITLE XL.

CONCERNING THE ABOLITION OF THE PRESCRIPTION OF A

YEAR AFFECTING CONTRACTS MADE IN ITALY, AND THE

DIFFERENT TERMS, EXCEPTIONS, PRESCRIPTIONS, AND

INTERRUPTIONS OF THE SAME.

1. The Emperor Justinian to Julian, Prsetorian Prefect.

With reference to the exception of a year which is applicable to contracts made in Italy, such an enormous mass of controversies has arisen in all the tribunals that it is difficult to enumerate and impossible to explain them; for, in the first place, it has been attended with so many technicalities and difficulties that it is necessary for many things to agree in order for it to take effect. Then some authorities have interpreted the said period in such a liberal way that it can be extended as long as ten years; others have held that it should be limited to five, and in Our time, different constructions have been made by judges with reference to this computation; hence this exception does not readily produce any effect upon litigation.

Therefore, as other exceptions of time or prescriptions appear to Us to be sufficient, We are not willing for the subjects of Our Empire

to be embarrassed by difficulties of this kind, and therefore the abovementioned exception of a year having been absolutely abolished, all other lawful exceptions and prescriptions shall have full force in the courts, whether they depend upon the lapse of ten, twenty, thirty, or forty years, or whether they run for a shorter time.

(1) As nothing prevents matters which are in any way doubtful from being explained by clearer or more comprehensive laws, We direct that all personal actions which any voluminous interpretation has attempted to extend beyond the limit of thirty years shall be terminated by the said period of thirty years, unless the lawful method, which was mentioned by the ancient laws as well as ours, introduced an interruption of the time, and that the hypothecary action alone shall be extinguished after the expiration of forty years.

Hence, let no one venture to decide that a suit in partition, or for the division of property owned in common, or for the establishment of boundaries, or of partnership, or of theft, or of property seized with violence, or any other personal action, can be brought after a longer time than thirty years. But where a suit could properly be brought in the beginning, and, having once been instituted, was not renewed by repeated false allegations (as was stated in the action of theft) it may be terminated after the above-mentioned time has expired.

All actions which have been brought in the courts, even though they are personal ones, and have been argued, and afterwards abandoned, are hereby excepted; for, in the case of these, Our former law provided that not thirty, but forty years must elapse from the time when the litigants last became silent with reference to their claims.

(2) In order that this law may not appear to be imperfect, since provision has already been made for prescription to run against the sons of a family with reference to their mother's estate, from the time when they were released from paternal control, but nothing was especially provided with reference to other property which cannot be acquired, We order, by this clearly stated law, that no prescription can be pleaded against the sons of a family in all cases in which property is not acquired for their parents, except from the time when they could have brought suit, that is to say, after they had been released from the control of their father, or of him in whose power they were; for who could blame them for not doing this, even if they were willing, when they could not act on account of the opposition of the law?

Given at Constantinople, on the fifteenth of the Kalends of April, during the Consulate of Lampadius and Orestes, 530.

2. The Same Emperor to John, Prsstorian Prefect.

In order that We may protect the interests of all persons in a more thorough manner, and that neither absence, superior authority, nor the infamy of an adversary may injure anyone, but that a distinction may be made between the negligent and the vigilant, We decree that if he who has possession of property belonging to another, or

which is pledged to a creditor, should be absent, and the owner of the said property or the creditor, desires to exercise his right of action, he shall not be permitted to do so in the absence of his adversary, who has possession of the property, or who labors under the disadvantage of either infancy or insanity, and has no guardian or curator to represent him, or is subject to superior power, and that the owner or creditor aforesaid cannot seize the property by his own authority; but permission is hereby given him to appear before the Governor of the province, or to send him a statement in writing, and file his complaint within the time prescribed by law, and, by so doing, interrupt the prescription, and this shall be amply sufficient for the purpose. If, however, he should be unable to appear before the Governor, he can apply to the bishop of the diocese, or the Defender of the City, and state his wishes in writing without delay. When the Governor, the bishop, or the Defender of the City is absent, he shall be permitted to publish his intention in the place where the possessor has his domicile, by means of a statement signed by a notary, or if there are no notaries in the city, by one signed by three witnesses, and this shall be sufficient for the interruption of any prescription, whether it be of three years, or for a longer time, or even for thirty or forty years.

All other prescriptions of long time, whether they are of thirty or forty years, which have been established either by ancient legislators or by Ourselves, shall remain in full force.

Given at Constantinople, during the Kalends of October, after the Consulate of Lampadius and Orestes, 531.

3. The Same to John, Praetorian Prefect.

Where one person is indebted to another on account of several different claims, and, having brought suit, did not include in his petition the separate amount of each, but only stated the entire indebtedness, a doubt arose among the ancient authorities whether all of the debts had been brought into court, or whether the proceedings only related to the oldest one, or whether the act of the creditor was void, as his intention appeared to be uncertain.

We have found disputes of this kind in many cases which have been brought in the courts, and, above all, with reference to the interruption of prescription. If, for instance, a personal action had been brought, and no mention of an hypothecary action was made, certain authorities held that the personal action was affected by the interruption of prescription, but that the hypothecary action was extinguished on account of its not having been referred to.

And if someone had alleged in general terms that another was indebted to him, additional doubts arose whether all competent actions should be considered to be included in a mere statement of this kind, or whether, as they were passed over in silence, they were barred by prescription, as they acquired no support from the uncertain wording of the petition.

Therefore, We order that no doubt of this kind shall be entertained hereafter in cases in court, but anyone who has instituted proceedings against his debtor, and has produced the document evidencing his agreement, whether it only refers to his indebtedness in a general way, or specifically mentions a single obligation, the plaintiff shall be considered to have brought all his claims into court, and his petition shall be held to include all personal as well as hypothecary causes of action; and the course of prescription will be interrupted, as prescriptions pleaded against persons who are negligent and careless of their own rights are odious.

TITLE XLI.

CONCERNING ALLUVION, MARSHES, AND PASTURES BROUGHT INTO ANOTHER CONDITION.

1. The Emperor Gordian to Marcus.

Although it is not lawful to divert the natural course of a stream to another place by artificial means, still it is not forbidden to protect a bank against a rapid current. But where a river, having left its former channel, makes another for itself, the land which it surrounds remains the property of the former owner. If, however, it does this by degrees, and carries soil elsewhere, this is acquired under the right of alluvion by the person to whose land it is added.

2. The Emperors Arcadius, Honorius, and Theodosius to Csesarius, Prastorian Prefect.

Persons whom the inundations of the River Nile enrich are required to pay taxes in proportion to the lands which they hold. Those, however, who deplore the loss of their estates from this cause are, on the other hand, released from the burden of taxation. The new proprietors protected by Our generosity should remain content with the possession of what they hold, and gratefully pay the taxes assessed upon them.

3. The Emperors Valentinian and Theodosius to Cyrus, Prsstorian Prefect.

Land acquired by the possessors by virtue of the right of alluvion either in Egypt on account of the inundations of the Nile, or in other provinces through the overflow of different rivers, can neither be sold by the Treasury, claimed by anyone, assessed separately, nor be the subject of additional taxation, and this We decree by this law, which shall remain forever valid, lest We may appear to ignore the defects of alluvial titles, or render the property injurious to the possessors of the same.

In like manner, We do not permit lands which, in former times, were either marshes or devoted to pasture, and are now rendered fertile at the expense of the possessors of the same, to be sold, claimed, or assessed separately as capable of cultivation and subject to in-

creased taxation, lest those who are diligent may not regret that their labors have been dedicated to the culture of the soil, and may realize that their industry did not result in their injury.

We decree that violators of this law shall be punished by a fine of fifty pounds of gold, and Your Highness will also be included, if you should make any other construction of this law, in order to countenance the claims of those who may demand it.

TITLE XLII.

CONCERNING THE DECISIONS OF PRAETORIAN PREFECTS.

1. The Emperors Diocletian and Maximian to Thalassius, Prse-torian Prefect of Illyria.

We grant the right of petition to litigants against whom a decision has been rendered by the Praetorian Prefecture, if they allege that they have been injured contrary to law, but We do not concede them the right of appeal, even though the decision was said to have been rendered with reference to a curia, or for some other object of general utility, or for any other reason, as it is not conducive to the public welfare to deny to individuals the assistance of a law; and hence the right of petition against decisions of the Prastorian Prefecture is given them only within the term of two years after the judge who decided the case has retired from office.

Given at Constantinople, on the third of the Ides of August, during the Consulate of Theodosius, Consul for the thirteenth time, and Festus, Consul for the fifth time, 439.

TITLE XLIII.

How AND WHEN A JUDGE SHOULD RENDER A DECISION

IN THE PRESENCE OF BOTH PARTIES, OR IN THE ABSENCE

OF ONE OF THEM.

1. The Emperor Marcus JElius Antoninus to Publicius.

You will not always be obliged to decide against an absent party under the Rescript of My Father, by which it was provided that decisions could even be rendered against those who are absent, for by this it is meant that you can decide against one who is not present, but not that it is absolutely necessary for you to do so.

2. The Emperor Gordian to Severus.

It is certain that although judgment has not been rendered under the terms of the Peremptory Edict, a decision can be given by the judge against those who, having been notified, have refused to appear in court.

Given on the fourth of the Kalends of April, under the Consulate of Gordian and Pontianus, 139.

3. The Same Emperor to Antistius.

You cannot avoid complying with the judgment on the ground that it was rendered during your absence, and without your knowledge, and as you allege, no defence was made, if, when you first learned of it, you did not immediately file a complaint; for the decision which has been rendered will not be valid if you did not consent to it.

Published on the fourth of the Ides of June, during the Consulate of Gordian and Aviola, 240.

4. The Emperor Philip to Domitian.

If, as you state, the adverse party obtained a judgment against you on the ground of contumacy, on a holiday when you were absent, or while you were ignorant that it had been rendered by the judge, the Governor will, not without reason, assign the case to another judge to be settled by his decision.

Published on the fifth of the Ides of October, during the Consulate of Peregrinus and -SSlianus, 245.

5. The Same Emperor and the Csesar Philip to Longinm.

If (as you allege) the Governor of the province, after having appointed a certain place for hearing the case, fraudulently decided it against you elsewhere during your absence, whatever was done shall have no effect whatever in law.

6. The Emperors Valerian and Galliemis to Domitius.

If the Governor refused to admit the appeal made by the guardian of your wards at the time when they, having become adults, had no curator, he will be required to hear the case again; for any decision rendered at that time should not prejudice the rights of said minors, they having been deprived of a just defence and the assistance of a curator.

7. The Emperor Diocletian and Maximian to Marinus.

It is certain that judgments rendered against absent parties not guilty of contumacy, and who have not been notified in the usual way, cannot be considered as res judicata.

Published on the third of the Kalends of April, during the Consulate of Diocletian, Consul for the fifth time, and Maximian, Consul for the fourth time, 293.

8. The Same Emperors to Claudia.

It is in conformity with law that the Governor of the province, after having observed all the legal formalities and notified the adverse party three times by means of letters, or once for all by a peremptory edict to appear as is required, if the latter perseveres in his obstinacy, to hear the allegations of the party who is present, or take care that his successor shall do so. Wherefore, if the other party has been summoned three times and still obstinately refuses to appear, it

will not be unreasonable for the judge to either compel him to do so, or transfer the possession of the property in dispute to you, and make your adversary the plaintiff, or, having heard your defence, render his decision as the law may require.

Published on the third of the Kalends of October, ....

Extract from Novel 112, Chapter III. Latin Text.

He who has once brought suit, whether by instituting proceedings in court or by the presentation of a petition to the Emperor, can notify the judge, and the latter having served notice on his adversary, the plaintiff will be required to prosecute the suit to the end.

If, however, he should defer doing so on the demand of the defendant, he shall be summoned by three edicts at intervals of thirty days, for the reason that the voice of the public crier reaches but few persons. This citation may be issued by persons appointed by the Emperor, and applies even if the case has not yet begun.

If, after having been summoned, the plaintiff refuses to proceed, he shall be allowed the term of a year, and if he fails to act during that time, the judge, having heard the allegations of the party who is present, and ascertained the truth, shall render his decision. But where the plaintiff appears within a year, he shall not be allowed to proceed, unless he first pays the defendant the expenses which he has incurred. If, when these are paid, he again fails to prosecute the case for a year, after having been summoned three times, and the aforesaid term has expired, he shall lose all his rights of action.

9. The Same Emperors to Leontius.

It has very properly been provided that three summonses have all the force of a peremptory edict against persons guilty of contumacy.

Published on the eleventh of the Kalends of November, during the ^Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time.

10. The Same Emperors to Blesius.

As you went on a journey, not of your own free will, but through necessity, the law will not permit any judgment to be rendered against you so as to injure you in any way, when your absence was the result of necessity.

Published on the third of the Ides of May, during the Consulate of Tiberanus and Dio, 291.

11. The Same Emperors and Csesars to Valerius.

As you state that the suit was begun when all the parties were present, and that afterwards judgment was rendered against you, although you were absent, and you did not appeal within the time prescribed by law, many Imperial Constitutions oppose your demand to have the judgment rendered against you set aside.

TITLE XLIV.

CONCERNING OPINIONS RENDERED WITH REFERENCE TO STATEMENTS MADE IN A WRITTEN PETITION.

1. The Emperors Valerian and Gallienus to Quintus.

The decision of an arbiter is void if he himself did not deliver it to the parties litigant, even though he may have notified them in writing. Therefore, if what you allege is true, your case can be heard again by the Governor of the province, without taking into account the fact that you did not appeal.

2. The Emperors Valens, Valentinian, and Gratian to Probus, Prse-torian Prefect.

We think that it should be perpetually established by this law that judges who are required to hear and determine cases should not arrive at sudden conclusions, but should render their decisions after careful consideration and reflection; and, after having revised them, and reduced them to writing with the greatest accuracy, they ought to deliver them in this form to the parties interested, and not afterwards be permitted to correct or change them, with the exception of the Illustrious Praetorian Prefect and others who administer important offices, and eminent judges to whom permission is granted to read their final decisions, or have this done by their attendants and the other officers in their service.

Given on the eleventh of the Kalends of February, during the Consulate of Gratian, Consul for the second time, and Probus, 371.

3. The Same Emperors to Probus, Praetorian Prefect.

We order by Our general laws that all judges whom We have invested with the power of dispensing justice in the various provinces, after having heard the cases, shall render their final decision in writing. We add to this law that any judgment rendered without having been reduced to writing shall not be worthy of the name, and the formality of an appeal shall not be required for the annulment of such a wrongful decree.

Given on the third of the Nones of December, under the Consulate of Gratian, Consul for the fourth time, and Equitius, 374.

Extract from Novel 117, Chapter III. Latin Text.

When the suits are of little importance, and the property involved of trifling value, or the parties of inferior rank, the Governor must hear them and render judgment orally, and without any costs, nor shall the bishop be required to reduce his decision to writing in cases where persons subject to his authority are concerned.

TITLE XLV.

CONCERNING THE FINAL AND INTERLOCUTORY DECISIONS OF ALL JUDGES.

1. The Emperors Severus and Antoninus to Quintilian.

The decision of your predecessor does not appear to Us to be legal, as he, in rendering it between the plaintiff and the defendant's attorney, did not decide against the latter but the client represented by him, who did not appear personally in court. You can, therefore, hear the cause again, just as if it had never been tried.

Given on the fourth of the Kalends of July, during the Consulate of Antoninus, Consul for the third time, and Geta, 209.

2. The Emperor Antoninus to Sextilius.

If the arbiter appointed by the magistrate was in possession of his freedom when he rendered his award, even though he was subsequently reduced to slavery, the award rendered by him will, nevertheless, have the authority of res judicata.

3. The Emperor Alexander to Vecti^ls.

The Governor of the province is aware of the fact that a final decision, which does not include either condemnation or acquittal, is not considered legal.

Published during the Kalends of October.

4. The Same Emperor to Severus.

It is certain that a decision rendered by a Governor contrary to the usual formalities required in judgments does not obtain the authority of res judicata.

Published on the fifteenth of the Kalends of January, during the Consulate of Alexander and Dio, 230.

5. The Emperor Philip and the Csesar Philip to Montanus.

If the Attorney of the Treasury ordered the property of those indebted to it to be delivered to their sureties, under the condition that they should indemnify the Treasury, no appeal will lie from his decision, and it consequently must be obeyed as rendered.

6. The Emperors Cams, Carinus, and Numerianus to Zoilus.

As you allege that the decision of the Governor is void for the reason that he did not render it in public, but in a secret place, and without the presence of his attendant, no injury can result to you from anything that he decided.

Published on the fifth of the Kalends of December, during the Consulate of Carus and Carinus, 283.

7. The Emperors Diocletian and Maximian, and the Csesars, to Isidora.

The Governor of the province, by persuading you to compromise with your relatives in the action on stipulation which you brought

against them, does not extinguish the verbal obligation, which can only be annulled in a way provided by law, for the mere act of a judge has not the force of a judicial decision, as his authority is confined within certain limits, as has been frequently established. Wherefore, if, having heard the case, the Governor did not decide in accordance with the rules of law, his words persuading you to permanently dispose of the action (if you had one) could not produce this effect.

8. The Same Emperors and Csssars to Licinius.

If Theodora, whom you allege was liberated either on account of a purchase or because of her delivery to a creditor in discharge of a debt, has been decided to be free, the judgment cannot be set aside without having recourse to an appeal. But if suit was brought, and a decision rendered after he who is said to be the owner of the woman was notified, you will not be prevented from recovering the amount of your interest in the purchase, if you bought her, or to recover the debt, if she was given in payment for one.

9. The Same Emperors and Csesars to Domnus.

After final judgment in a case, anything decided by the magistrate who rendered it, or his successor, with reference to the question already disposed of, does not obtain the force of res judicata, nor do decisions involving possession in any way prejudice the ownership of the property, and interlocutory decrees do not, for the most part, terminate an action.

Ordered on the Nones of April, during the Consulate of the Caesars.

10. The Same Emperors and Csesars to Menodorus.

Anyone invested with judicial authority is not allowed to forbid a person to remain in his own country. Given on the third of the Nones ....

11. The Same Emperors and Csssars to Lucian.

When the judge, by a final decision, merely orders that an oath shall be tendered, without adding what shall be done if the oath is taken, or refused, it is clear that his decision will be of no force or effect.

12. The Emperors Arcadius and Honorius to Julian, Proconsul of Asia,.

Judges can render their decisions in the Latin as well as in the Greek language.

13. The Emperor Justinian to Demosthenes, Praetorian Prefect.

Let no judge or arbiter think that he is compelled to abide by any of the results of Imperial consultations which he does not consider to have been stated properly and in accordance with law, and this

applies with still greater force to the decisions of the Illustrious Prefects and other dignitaries, for if any matters have not been properly disposed of, this defect should not be extended to the decrees of other judges, as the decisions of courts should not be founded upon the examples set by others, but upon the laws. The final decisions of the Prefecture, or the court of any other supreme magistrate, are not binding if not legal, and We order all Our judges to conform to the truth, and to follow the principles of law and justice. Given on the third of the Kalends of November ....

14. The Same Emperor to Demosthenes, Prastorian Prefect.

As that distinguished man, Papinian, very properly stated in his book of Questions, that a judge could not only discharge the defendant from liability, but could render a decision against the plaintiff himself, if, on the other hand, he should find that he was indebted to the defendant, We also order this rule to be extended so that the judge may be permitted to render a decision against the plaintiff, and require him to either pay or do something without allowing any exception to be pleaded against him on the ground that he is not a competent judge of the plaintiff, for he should not object to have the same judge whom he had accepted in the beginning of the case decide against him at the end.

Given on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.

Extract from Novel 96, Chapter II. Latin Text.

In consequence of this, if I have been sued by anyone, and desire to sue him in return, I will not be permitted to do so except before the same judge; and, if he is displeasing to my adversary, he can reject him within twenty days, and have another appointed before whom the case can be tried a second time. Then the case against me having been first disposed of, I shall be permitted to have my own heard.

15. A Law which is not Authentic.

16. The Same Emperor to Julian, Prsetorian Prefect.

As it is customary for magistrates to render interlocutory decrees setting forth that the parties shall not be permitted to have recourse to an appeal, or to call their jurisdiction in question before a final decision has been given, certain authorities held that before issue has been joined, a judge cannot be objected to, nor can an appeal be taken from his interlocutory decree. For as the same terms are applicable to an appeal as to an objection to jurisdiction, and an appeal cannot be taken before issue has been joined, they thought that no one would be permitted to refuse a judge before issue had been joined, which is by no means prohibited. Hence judges must be careful to use terms of this kind together, and without making any distinction between them.

TITLE XLVI.

CONCERNING DECISIONS WHICH ARE RENDERED WITHOUT STATING THE EXACT AMOUNT TO BE PAID.

1. The Emperors Severus and Antoninus to &liana.

It is clear that the judge did not render his decision against the rule of law in providing, as you allege, that interest must be paid until the amount mentioned in the judgment has been settled.

2. The Emperor Alexander to Marcellinus.

Although the sum of money due is not stated in the decision of the Curator of the State, his decision, nevertheless, is valid, since he ordered the State to be indemnified.

3. The Emperor Gordian to JEmylius.

The following decision, namely, "Pay the entire amount due with legal interest," does not comply with the requirements of the action to enforce judgment, as a judicial decision which does not specify a certain sum only obtains the authority of res judicata when the amount has been mentioned in some other part of the documents belonging to the case.

4. The Same Emperor to Saturnina.

The following decision, namely, "Pay what you have received in good faith," as it is uncertain how much the debtor received, and how much is demanded of him—and especially when the judge who promulgated the decision out of the regular order has rendered an interlocutory decree that the dowry which had been given and which was claimed had not been paid—does not obtain the authority of judgment.

Therefore, if another judge should afterwards render a judgment and decide against you, and you do not appeal from his decision, you will confirm it by your own act.

TITLE XLVII. CONCERNING DECISIONS RENDERED FOR DAMAGES.

1. The Emperor Justinian to John, Prsetorian Prefect.

As an infinite number of doubts with reference to damages arose among the ancients, it seems best to Us, as far as is possible, to reduce this prolixity into more narrow limits. Hence We order that, whenever the amount or the nature of the property is certain, as in the case of sales, leases, and all other contracts, the damages shall not exceed double the value of the property. In other instances, however, where the value seems to be uncertain, the judges having jurisdiction shall carefully ascertain the actual amount of the loss, and damages to that amount shall be granted, and it shall not be reduced by any machinations and immoderate perversions of values leading to in-

extricable confusion, lest, when the calculation is indefinitely reduced, it may become impossible of application; as We know that it is in conformity with Nature that those penalties alone should be exacted which can be imposed with a proper degree of moderation, or are definitely prescribed by the laws'.

Our Constitution not only applies where loss, but also to where profit is involved, for the reason that the ancient authorities held that damages could be collected from him who did not obtain any profit, when he could have done so.

Let the promulgation of this Constitution put an end to verbosity in all cases, in accordance with what has been already stated.

Given at Constantinople on the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 530.

TITLE XLVIII.

WHERE A DECISION HAS BEEN RENDERED BY A JUDGE WHO is SAID NOT TO BE COMPETENT.

1. The Emperor Alexander to Sabinianus.

When a judge has been appointed to decide a certain matter, and renders an opinion with reference to others which have no connection with it, he performs an act which is void in law.

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

2. The Emperor Gordian to Licinia.

If a military judge, who was not appointed by one who had authority to do so, should hear a case which ought to have been determined by means of a civil proceeding, his act will not have the authority of a legal decision, and an appeal need not be taken.

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

If a judge appointed to determine the right of ownership did not render judgment against you on this point, the Governor of the province, after having been applied to, shall take cognizance of your case, and decide it, and the right of ownership will, by no means, be prejudiced because it is established that a decision has been rendered with reference to possession.

Ordered at Herculaneum, on the Nones of November, during the Consulate of the Caesars, 297.

4. The Emperors Gratian, Valentinian, and Theodosius to Potitus, Vicegerent.

This rule also applies to the cases of private persons, namely, that a decision rendered by a judge without authority does not bind any of the litigants.

Given on the tenth of the Kalends of October ....

TITLE XLIX.

CONCERNING THE PENALTY TO WHICH A JUDGE is LIABLE WHO HAS RENDERED AN IMPROPER DECISION, AND THE PUNISHMENT WHICH MAY BE INFLICTED UPON ANYONE WHO ATTEMPTS TO CORRUPT A JUDGE, OR His ADVERSARY. 1. The Emperor Antoninus to Gaudius.

It is established that, where in any case, either public or private, or in which the Treasury is interested, money is paid by anyone, whether to the judge or to the adversary of the former, he who, doubtful of the justice of his cause, placed a corrupt hope of success in the payment of money, will lose his action.

Given on the seventh of the Kalends of January, during the Consulate of the two Aspers, 213.

Extract from Novel 124, Chapter II. Latin Text.

By the new law, which provides that where any person acknowledges that he has given or promised something to another, and can prove it, he shall be pardoned, but he who received the bribe or accepted the promise, if the case involves the payment of money, shall be required, by the Count of Private Affairs, to pay three times the amount of what was given, and double the amount of what was promised, and shall be deprived of his office, and when the case is a criminal one, all his property shall be confiscated, and he shall be sent into exile.

If, however, the litigant should be unable to prove that anything was either given or promised, and he who is said to have accepted it swears that he did not receive anything from him or from anyone else, or that no promise was made, he shall be discharged. The litigant who was unable to prove his allegations shall be compelled by the Count of Private Affairs,1 to deposit in his hands a sum equal to the amount involved in the suit, which shall be prosecuted to a conclusion, and in a criminal case, all his property having been confiscated, a decision shall be rendered by a competent judge in conformity with law. If the person indicated by the litigant should refuse to take the oath aforesaid, he shall be subjected to the abovementioned penalty.

When, however, one of the parties litigant swears that he did not either give or promise anything, and if it should be proved within the term of ten months after the decision has been rendered that he did give or promise something, both those who gave and those who received the money or other property shall suffer the penalties aforesaid.

2. The Emperor Constantine to Felix.

He who has been corrupted by money, or who, through partiality, has rendered a wrongful decision, shall be required to indemnify the

1 The Comes Rerum Privatarum, who took the place, and discharged the duties of the former Imperial Procurator or Steward, was the official to whom was committed the care and management of the private demesnes of the Emperor.—ED.

party whom he injured, not only for the costs of the suit, but also to assume the risk of the same.

Given at Constantinople, on the eighth of the Kalends of November, during the Consulate of Constantine, Consul for the fifth time, and Licinius, 319.

TITLE L.

A DECISION WHEN ONCE RENDERED CANNOT BE REVOKED.

1. The Emperor Gordian to Secundus.

There is no doubt that anyone cannot revoke either his own decision or that of his predecessor, and it is a well-known rule of law that it is not necessary to take an appeal from a decision of this kind.

Published during the Kalends of March, ....

2. The Emperors Diocletian and Maximian, and the Caesars, to Alexander.

The Perpetual Edict clearly states that peremptory exceptions which have been omitted in the beginning can be pleaded subsequently before judgment is rendered. If this has not previously been done, complete restitution will be permitted; for where judgment has been rendered against persons over the age of twenty-five years, on the ground that prescription was not contested, it cannot be annulled without having recourse to the remedy of appeal.

Given at Nicomedia, on the seventh of the Kalends of January, during the Consulate of the Caesars.

3. The Emperor Constantine to Proculus.

It has been decided that rescripts which have been granted shall not have authority when the cases to which they relate have once been terminated by a judicial decision which admitted of no appeal, but those who have obtained rescripts of this kind should also be excluded from making use of them in court.

Given at Constantinople, on the sixth of the Kalends of January, during the Consulate of the Emperor ....

TITLE LI.

CONCERNING THE PROFITS AND THE EXPENSES OF LITIGATION.

1. The Emperors Diocletian and Maximian, and the Cassars, to Alexander.

The term "profits" only includes what remains after the deduction of the legitimate expenses.

Given on the third of the Nones of April, during the Consulate of

the Caesars.

2. The Emperor Valentinian to Olybrius, Praetorian Prefect.

The defeated party litigant is not only required to restore the property, but also to pay over the profits which he himself has obtained, as well as those which he could have acquired, and he must pay them from the time that he knew that he was a possessor in bad faith, as established by the action brought in court.

This rule shall also apply to an heir whose property is held by the same defective title.

Given on the third of the Kalends of March, ....

3. The Emperors Honorius and Theodosius to Asclepiodotus, Prse-torian Prefect.

After a matter has been terminated and settled by compromise, no action, even if based upon a rescript, will be granted for the purpose of recovering the expenses, unless, all the parties being present, the judge who rendered an opinion in the first matter stated in his decision that the expenses of the case should be paid to the successful party, or that he had a right to resort to legal proceedings to collect them, for where anyone has been released from future liability when the case was decided, it would be infamous to authorize another action to be brought with reference to what had been settled by the first one.

Given at Constantinople, on the third of the Kalends of April, during the Consulate of Asclepiodotus and Marinianus, 423.

4. The Emperors Valentinian. Theodosius, and Arcadius, Edict to the People.

He by whose demand someone has been summoned in accordance with the legal formalities to a place far from his residence, and the hearing of his case protracted, is hereby notified that, if by his fault the trial was deferred, or if he should not himself be present, or should be unable to prove his allegations, he must pay the penalty prescribed by the laws for malicious litigations; and if the expenses were incurred in a pecuniary case, the value of the property claimed, as well as the time consumed in the journey, having been considered, the judge shall render a decision in accordance with his estimate of the damages sustained.

Given at Constantinople, on the fifth of the Ides of October, during the Consulate of Valentinian, Consul for the seventh time, and Avie-nus, 450.

5. A Law which is not Aiithentic.

6. The Emperor Anastasius to Stephen, General of the Army.

As certain persons allege that they enjoy privileges, some of them under the laws and Imperial constitutions, and others through special favors which have been granted them, as well as with reference to the payment of taxes by agreement for which they are only liable to a specified amount, and are not required to pay the costs of litigation at all, or only a small part of the same, We decree by this law that whoever enjoys a privilege of this kind, or may hereafter obtain it in

any way, is hereby notified that those against whom he has instituted any civil or criminal proceeding will also enjoy the same right; as it would be intolerable for those who are entitled to the privileges aforesaid to be permitted to collect, as plaintiffs, anything more from their adversaries than they themselves, as defendants, if beaten, would be compelled to surrender to them, in turn; so, in order that this rule may be observed in every instance involving privileges granted through liberality, or generally attaching to certain offices, classes, or dignities, or which have been specially bestowed upon certain persons, or which may hereafter be conferred, whether this has been expressly stated in the Imperial grants or Rescripts or whether it has been omitted, We order it to be enforced.

TITLE LII. CONCERNING RES JUDICATA.

1. The Emperor Antoninus to Stellator.

A judicial decision must be adhered to, but if you can prove that the party in whose favor judgment was rendered against you has received what he appeared to have lost by theft, you can defend yourself by an exception on the ground of fraud, if he attempts to carry the judgment into execution.

Given on the twelfth of the Kalends of March, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus.

2. The Same Emperor to Pacatianus.

If a case which has been decided could be revived under the pretext of a mistake in calculation, litigation would never end.

Published at Rome, on the day before the Nones of . . . , during the Consulate of Lsetus and Cerealis, 216.

3. The Same Emperor to Demetrius and Others.

If it should appear that you have collected money by means of fraudulent accounts, and you have been ordered to refund it with a penalty, and you did not appeal from the decision of the Governor, you will be obliged to pay the entire amount of the judgment.

4. The Emperor Gordian to Antoninus.

It is a bad precedent to revive a case which has been decided, under the pretext of the discovery of new documents. Given on the eighth of the Ides of March.

5. The Emperors Diocletian and Maximian, and the Csesars, to Valentine.

It is clearly proved that the party demanding a delay for payment acquiesced in the decision, and he is in the same position as one who in any other way has agreed to it; for a case which has been terminated should not be suffered to be revived.

6. The Emperors Honorius and Theodosius to Julian, Proconsul of Africa.

We desire that matters which have been transacted by public authority shall remain forever valid, as the public faith should not pass away with the death of the official having jurisdiction.

Given on the third of the Kalends of September, during the Consulate of Constans, 414.

TITLE LIII. CONCERNING THE EXECUTION OF JUDGMENT.

1. The Emperors Severus and Antoninus to Justin.

The court was too hasty in ordering the pledges of Marcella to be taken in execution and sold, for in order that the procedure prescribed by law may be observed, you must first bring suit against your adversary, and the case having been heard, have judgment rendered in your favor.

Published on the third of the Kalends of February, during the Consulate of Albinus and jEmilianus, 207.

2. The Same Emperors to Agrippa.

If you have not changed the judgment by novation, the Governor of the province, after the pledges have been taken in execution and sold, shall order the proceeds to be disposed of for your benefit. If, however, the case has been altered by novation, an action on stipulation will lie in your favor, and a competent judge having been appointed, you can proceed in accordance with the legal formalities.

3. The Same Emperors to Agrippa.

The nature of the transaction and the delay in payment which has resulted demand a more speedy remedy; therefore, if you appear before the Governor of the province, whose duty it is to see that the judgment is executed, and state that although the land given in pledge has, in accordance with the contract, for a long time been offered at public sale, it has not yet found a purchaser on account of the intrigues of the adverse party, he will place you in possession of the said land, in order that by this means the execution which has been so long delayed may be issued.

Given on the eleventh of the Kalends of July, during the Consulate of Messala and Sabinus, 215.

4. The Same Emperors to the Soldier Marcellus.

The Governor of the province will not permit your pay to be withheld for the purpose of satisfying the judgment which has been rendered against you, since this can be accomplished by having recourse to other measures.

Published on the third of the Nones ....

5. The Emperor Gordian to Amandus.

It is well known that the claims of a debtor can be taken in execution where judgment has been rendered against him.

Published on the third of the Ides of October, during the Consulate of Atticus and Prsetextus, 243.

6. The Emperor Philip and the Caesar to Titian.

If (as you allege) the court officer appointed to execute the judgment assumed judicial duties, and thought that a decision should be rendered contrary to what had previously been determined with reference to your case, the opinion given by him can never obtain the torce of a judgment.

7. The Emperors Diocletian and Maximian to Theodorus.

If the restoration to which you were entitled has been delayed by the protracted and unconcealed efforts of the adverse party, and the slaves who were the subject of controversy have died, their value should be paid to you by him who prevented you from receiving them. The animals, also, together with their offspring, shall be delivered to you by the intervention of the Governor.

8. The Same Emperors and Caesars to Nicomachus.

It is clear that the official whose duty it is to see that the judgment is executed after it has been rendered, and the case has been heard and argued by the parties, is the only person who can give force and effect to the decision.

Without date or designation of Consulate.

9. The Same Emperors and Csesars to Glyco.

Bring suit before the Governor of the province against those whom you allege to be your debtors, whether they acknowledge the obligation or deny it, and having had judgment rendered against them, if they do not satisfy it by payment within the time prescribed by law, the Governor, observing the legal formalities shall, after the pledges have been seized and sold, see that execution takes place in the manner repeatedly mentioned in the Imperial constitutions.

Ordered on the Nones of November, during the Consulate of the Csesars.

TITLE LIV.

CONCERNING INTEREST ON A JUDGMENT. 1. The Emperor Antoninus to the Managers of Estates. He who proceeds against the property of a defeated party litigant in accordance with the judgment rendered shall, in addition to the principal, be entitled to interest at twelve per cent for the time which elapsed during which he refused to obey the judgment.

2. The Emperor Justinian to Menna, Prsetorian Prefect.

Those who have been ordered to pay a certain sum of money, and have failed to do so for more than four months from the date of the judgment, or, if an appeal was taken, have failed to satisfy it from the day of its confirmation, We decree shall be required to pay interest at twelve per cent; and what has been prescribed by former laws which imposed upon them interest at twenty-four per cent, or by Our law which fixed the rate at six per cent, shall not apply to the cases of such persons.

Given at Constantinople, on the seventh of the Ides of April, during the Consulate of Decius, 529.

3. The Same Emperor to John, Praetorian Prefect. We decree that if anyone should have judgment rendered against him, and a further delay of four months has been granted by Us, he shall, after that time has expired, be compelled to pay interest at the rate of twelve per cent in accordance with the terms of the judgment; but this shall only be on the principal and not on the interest which was originally included in the judgment, for We have already decided that the collection of interest on interest shall be abolished, and have left no case in which this can be done. For if this was left without correction, something absurd and awkward must necessarily result, as interest arising from contracts is legally payable, and is very frequently fixed by Our laws at a lower rate than twelve per cent; and compound interest would necessarily be imposed at a higher rate than simple interest. If interest ran at twelve per cent at all times on a judgment, this would rarely happen under the provisions of contracts, and if, by certain articles of Our law exceptions have, in some instances, been made, the necessities of the case were responsible for the apparent injustice.

Hence, We, desiring to correct this by means of a proper remedy, do hereby order that interest only on the principal to the amount of twelve per cent shall be collected on a judgment, and that interest on interest, no matter at what rate, shall not be exacted; since if the original contract was changed by the judgment, interest should not be collected on the contract after the judgment was rendered, for otherwise, it would only be payable on the principal as a result of the judgment ; and because both principal and interest were included in a single sum, it should not be concluded that interest on the entire amount could be collected, but only on the principal.

(1) As the ancients, by an exceedingly pernicious regulation under which, in the satisfaction of a judgment, indulgence was granted for two months to persons who had lost their cases, their sureties, however, were not permitted to enjoy this privilege, as the successful parties (the principals who had judgment rendered against them being left for the time on account of the provisions of the law) were authorized to collect the money or take the property which was the object of the judgment from the sureties or mandators of the former, We, desiring to abolish this injustice, do hereby order that the delay

of four months which We granted to the principals in the case shall also be extended to their sureties and mandators, in order that the law may not be evaded, for when anyone who volunteers to defend a case is compelled to make payment, and he, in his turn, forces the defendant involuntarily to satisfy him, the defeated party does not experience the benefit of Our indulgence, because, through his surety, he was compelled to pay the money which he owes.

TITLE LV.

WHERE JUDGMENT is RENDERED AGAINST SEVERAL PERSONS AT ONCE.

1. The Emperor Alexander to Victor.

If you and your colleagues have not had judgment in full rendered against you severally, but only jointly for a single and specified sum, and it is not stated in the judgment that what cannot be collected from one shall be made up by the other, the effect of the decision is that each party shall be liable for an equal portion. Therefore, if, in obedience to the judgment, you have paid your share, you cannot be compelled to pay that of the other party if he should fail to do so.

2. The Emperor Gordian to Annianus.

Whenever judgment is rendered against two guardians, each of whom had employed an attorney to defend him, liability for the amount of the judgment is considered to have been divided between them, hence it is a well-established rule of law that what cannot be collected from one cannot be recovered from the other.

TITLE LVI. WHO ARE NOT INJURED BY A JUDGMENT.

1. The Emperor Alexander to Masculinus.

If you did not commit the defence of your property to your brother, and did not ratify his acts, the exception of res judicata will not affect you, and therefore you will not be prevented from conducting your case without prejudice on account of the judgment.

Published during the Nones of May, under the Consulate of Alexander, 223.

2. The Emperor Gordian to Athenius.

Where judgment has been rendered between certain parties, those who did not appear in the case will experience neither benefit nor injury, and therefore your granddaughter cannot be prejudiced where a judgment has been rendered against her co-heirs, if nothing was decided against her.

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

It is a perfectly clear rule of law that, even in criminal cases, those who did not appear in court will not be affected, if, perchance, they should seem to have sustained any injury.

4. The Same Emperors and Csesars to Soterianus.

It has frequently been held that where a case has been decided between certain parties, the rights of one who is absent, and equally interested, will not be prejudiced.

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

TITLE LVII.

NOTICES, LETTERS, PROCLAMATIONS, AND SIGNATURES DO NOT POSSESS THE AUTHORITY OF JUDGMENTS.

1. The Emperor Antoninus to Rogatianus.

Notification by a judge who directs certain interest to be paid by persons who failed to discharge a debt within a specified time does not have the force of a stipulation.

Given on the day before the Ides of January, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Maximus.

The fact that the Governor of the province, by a letter, ordered you to pay a certain sum of money to the State, does not have the effect of a judicial decision.

Given on the fourth of the Ides of March, during the Consulate of Maximus, Consul for the second time, and Julianus, 234.

3. The Same Emperor to Zoticus.

It has frequently been stated in Rescripts that a decision rendered after the trial of a case cannot be revoked by the signature of the Emperor.

Published on the sixth of the Ides of September, during the Consulate of Albinus and Maximus, 228.

4. The Emperor Gordian to Asclepiodotus.

The interlocutory decree of a Governor, which has been duly recorded, ordering the party sued to obey it by making payment of a debt or be liable to double or quadruple damages, is rather the act of one who gives warning than the decision of a magistrate, as the rule of law declares that an act of this kind does not obtain the force of a judgment.

5. The Same Emperor to Jucundus.

The judge who admitted the controversy should have heard and examined the allegations of both parties, for there is no doubt that the

note which he appended to the petition, and by which he placed one of the parties in possession of the land, cannot be considered to take the place of a judgment.

6. The Emperor Philip and the Csesar Philip to Cassianus.

It is clear that a proclamation published by the Governor of a province cannot have the force of a judgment any more than a summons.

7. The Emperor Constantine to Bassus, Prsetorian Prefect.

It is not proper or customary for a judgment rendered after a prolonged contest to be stated in a few written phrases.

Given on the fifteenth of the Kalends of April, during the Consulate of Constantine, Consul for the sixth time, and Maximus, 306.

TITLE LVIII.

WHERE A JUDGMENT is BASED ON FORGED DOCUMENTS OR FALSE EVIDENCE.

1. The Emperors Severus and Antoninus to Bassianus.

If you desire to declare a will to be forged, in accordance with the terms of which the illustrious Proconsul has rendered a judgment, he will grant you a hearing, notwithstanding this is barred by the judgment, because the question as to the forgery of the will has not yet been decided.

2. The Emperor Alexander to Optatus.

Those who did not appeal when they were able to prove that they had lost their case by reason of forged documents should be heard just as if the suit was begun for the first time, as they are giving information with reference to a crime.

Published on the sixth of the Kalends of October, during the Consulate of Julian, Consul for the second time, and Crispinus.

3. The Same Emperor to Clement.

You will not be prevented from proving in the ordinary way that the evidence which the adverse party produced against you in court is (as you allege) false. The judgment, however, shall not be set aside unless you can show that he who rendered it decided against you, because he relied upon the genuineness of an instrument which is proved to have been forged.

Published on the seventh of the Kalends of September, ....

4. The Emperor Gordian to Herennius.

The execution of a judgment is usually suspended, and recovery of what has been paid granted, if it can be shown by positive evidence that the judge was deceived by a forged instrument, the commission of the crime having afterwards been established.

Published on the fifth of the Ides of September, ....

TITLE LIX. CONCERNING CONFESSIONS.

1. The Emperor Antoninus to Julianus.

It has been decided that confessions made in court have the effect of judgments, therefore you have no right to revoke your confession, as you will be compelled to make payment.

Adopted on the third of the Kalends of October, during the Consulate of Gentian and Bassus, 212.

TITLE LX.

ACTS PERFORMED OR JUDGMENTS RENDERED BETWEEN SOME PERSONS CANNOT PREJUDICE THE RIGHTS OF

OTHERS.

1. The Emperors Diocletian and Maximian to Epicratus.

It has frequently been decided that matters transacted by certain persons cannot prejudice the rights of others. Wherefore, although you state that some of the heirs of him whom you allege to have been your debtor have paid you, the others should not be pressed for settlement unless the indebtedness is proved to be due.

Given at Byzantium, on the fifth of the Kalends of April, during the Consulate of the above-mentioned Emperors.

2. The Same Emperors and Cassars to Epicrates.

It is a well-known rule of law that a compromise made between certain parties cannot prejudice the rights of another who is absent. Therefore, having appeared before the Governor of the province, prove that your grandmother gave you the slave in question, and if the Governor should find that he legally belongs to you for this reason, he will cause him to be restored to you, for if the others divided the slave during your absence, they could not deprive you of any of your rights.

3. The Same Emperors and Cassars to Fortunata.

If you, along with your brother, succeeded to your mother, and your brother entered into a compromise with the creditors of the estate with reference to your share of the same, and did so without your consent, he could not extinguish the right acquired by you to your share of said estate.

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

TITLE LXI. CONCERNING REFERENCES TO THE EMPEROR.

1. The Emperor Constantine to Profuturus, Prefect of Subsistence.

When a judge thinks that the case should be referred to Us, and

does not decide between the parties, but concludes that the point upon

which he is in doubt ought to be left to Our wisdom, or if he has rendered a judgment, he must not prevent the litigants from afterwards appealing from it, for fear that it may be reversed, being well aware that if he does so, an appeal can, nevertheless, legally be taken. Nothing should be sent to Us which needs a complete examination. Whenever the judge believes that a case should be referred to Us, he must immediately order all the litigants to be notified that a consultation is about to take place, and if the point referred is not sufficiently explicit, or appears to be contrary to law, the judge shall, without any unnecessary delay, be required to place the petition upon

record.

Given at Sirmium, on the fourth of the Kalends of February, during the Consulate of Constantine, Consul for the fifth time, and Lici-nius, 312.

Extract from Novel 125, Chapter I. Latin Text.

Under the provisions of the new law, where a case has been thoroughly examined it should be terminated by the decision, which should be formally executed, unless an appeal is taken.

2. The Emperors Valentinian and Valens to Viventius, Prsetorian Prefect.

The Governors of provinces must not think that criminal cases originating in their jurisdiction should be referred to Us unless they have previously notified the parties that this is to be done, for only the truth will be established when the matters are referred, whether their allegations are refuted or confirmed by their consent.

Given on the twenty-third of the Kalends of January, during the Consulship of Valentinian and Valens, 365.

3. The Same Emperors and Gratian to Apodemius.

If when either reason or necessity requires Our decision in any instance, and an opinion is expected, the submission of the reference must include the whole case, so that, having been read, it will not be necessary for all the documents to be reviewed; still, all of them should accompany the application.

Given on the sixth of the Ides of May, during the Consulate of Our Noble Prince Valentinian, and Victor, 369.

TITLE LXII. CONCERNING APPEALS AND IMPERIAL DECISIONS.

1. The Decree of the Divine Severus, Published with Reference to Marcus Priscus, on the Ides of January, during the Consulate of Pom-peianus and Avitus, 210.

The Governor of the province must first determine the question of possession, and then inquire into the crime of violence, and if he should not do so, there will be good ground to appeal from his decision.

2. The Emperor Alexander to Plautianus.

What you demand is not new, hence you must not be denied the right to appeal, even though one of My Rescripts is pleaded against you.

3. The Emperor Gordian to Victor.

It has frequently been established that, where an appeal was taken, although it may have been rejected by the court, nothing took place to prejudice the decision, and that everything remains in the same condition that it was when judgment was rendered.

Published on the fourth ....

4. The Emperor Philip and the Csesar Philip to Probus.

If, having been appointed to the office of clerk, you did not appeal, the laws cannot be violated by your refusal.

5. The Emperors Diocletian and Maximian, and the Csesars, to Valens and Others.

If the Governor of the province, to whom you have appealed, should decide that you were not to blame because you did not file your petition within the time prescribed by law, but that this resulted from the death of the person who had been charged with presenting it, he will grant you relief in accordance with the terms of the Perpetual Edict.

6. The Same Emperors and Csesars decree:

It is proper for those who have jurisdiction of appeals, and hear them, to dispose of them in such a way that it may be understood that the appeal was filed after a decision was rendered by the court below, as it is not right that, under any pretext whatever, the case should be sent back to the trial judge, but in every instance it must be ended by its own decision; as the salutary law enacted with reference to this provides that, after the appellate judge has passed upon the appeal, recourse cannot be had to the magistrate from whose decision the appeal was taken. Wherefore, judges are hereby notified that, under no pretext whatever, can litigants be sent back to their own provinces, as appellate judges in every instance are only permitted to determine whether the appeal was properly taken or not.

(1) If one of the litigants should think that he has failed to make use of some good defence in his allegations before the lower court, he can avail himself of it before the judge who has cognizance of the appeal, as it is Our desire that judges should only decide in conformity with justice, and that no important evidence which may have been omitted should be excluded.

(2) When anyone, after having taken an appeal, thinks that the presence of certain persons is necessary for him to establish the truth before the judge who has jurisdiction of the appeal, because he believes that it was concealed, and the judge decides that this ought to be done, the appellant should pay the said witnesses their travelling

expenses, for justice demands that he who thinks that he is interested in having them summoned should do this.

(3) However, with reference to those who, accused of capital offences, have appealed from the sentences passed upon them, neither they themselves nor those who appeal in their behalf, can do so until the case has been fully heard and argued and judgment has been rendered, and We order that this rule shall be observed, in order that if the defendant is unable to obtain a solvent surety he may be kept in custody, and that the judges shall send their decisions as well as copies of the documents filed by the appellants, together with the replies made to them, to the court of appeal, so that the condition of the case may be made clear to the appellate judge, and its merits having been considered, judgment be rendered in accordance with the rights of each of the parties.

(4) In order that the power to appeal may not be rashly and indiscriminately granted, We decree that he who has failed to establish his case on appeal shall be compelled by a competent judge to pay a reasonable penalty.

(5) Where, however, anyone having conducted his own case in court, and having been defeated, desires to appeal, he must file his petition on the same day, or on the next after judgment has been rendered. He who is transacting the business of another must, under the same circumstances, appeal within three days.

Extract from Novel 23, Chapter I. Latin Text. At present, the term of ten days from the date of the judgment is granted in which to file an appeal.

END OP THE EXTRACT.

THE TEXT OP THE CODE FOLLOWS .

(6) The judge shall, without delay, notify the other party that an appeal has been taken, even when the appellant does not request it, but the former is by no means required to furnish security to conduct his side of the appeal.

Without date or designation of Consulate.

7. The Same Emperors and Caesars to Nero.

If those who have been appointed to civil offices, to the decurionate, or to any other honors, even though they may have been released from the discharge of their duties by the Emperor, do not avail themselves of the aid of an appeal, they will be considered to have confirmed their appointments by their own consent. Therefore, as you have been appointed to a public office, and have appealed, prove before the Governor of the province that you have done so for a good reason.

8. The Same Emperors and Csesars to Opimiamiis. Where a decision has been rendered against someone who is more than twenty-five years of age, and an appeal was not taken within

the time prescribed by law, and the Governor of the province ascertains that the matter was not settled by compromise while the appeal was pending, he shall see that the judgment is executed.

9. The Same Emperors and Caesars to Our Dear Haberad.

The principal party in the case can himself prosecute an appeal which his attorney has taken in the course of the proceedings, even during the absence of the latter.

10. The Same Emperors and Csssars to Titian.

If an attorney appointed by a curator should lose the case, he himself as well as the curator can invoke the aid of appeal, or the curator alone can exercise that right. If, however, the minor should, in the meantime, claim the indulgence due to his age, or attain his majority, he can, in his own name, conduct the appeal.

Ordered on the day before the Kalends of October, during the Consulate of the Caesars.

11. The Same Emperors and Csesars to Antoninus.

Citizens, and the inhabitants of towns who have good excuses and did not appeal after having legally been appointed to office, will not be permitted to establish the trust of their allegations.

12. The Emperor Constantine to Catulinus.

Where an appeal has been filed in a civil case it is, under no circumstances, allowed for the appellant to be kept in prison, or subjected to any kind of injury whatsoever, or be tortured or even exposed to insult. It is, however, otherwise in criminal prosecutions, for in these, even if an appeal can be taken, the defendant must be kept in custody until the case has been decided after the appeal, if he is not able to furnish a surety who is solvent.

Adopted on the fifteenth of the Kalends of May, during the Consulate of Volusianus and Annianus, 314.

13. The Same Emperor to Petronius Probianus, Greeting.

From the time when proceedings in civil cases were instituted between private individuals, and you determined to consult or refer them to Us, or you admitted the appeal, and complied with the requisite legal formalities, nothing afterwards should be permitted or performed by you in any way, even if any evidence of Our favor should be produced, but you must, in obedience to former laws, do all that is required and see that the case is sent to the Imperial Court.

Published during the Ides of October, during the Consulate of Sabinus and Rufinus, 316.

14. The Same Emperor to Bassus, Prefect of the City.

Litigants have a right to immediately appeal orally, without doing so in writing, if the circumstances of the judgment demand it, and this applies to civil as well as to criminal cases.

Given at Sirmium, on the eighth of the Ides of June, during the Consulate of Gallicanus and Bassus, 317.

15. The Same Emperor to Severus Vicegerent.

In order that it may not be necessary for cases which have been brought before Us on appeal to be sent back to the lower court, We order that all necessary information be inserted in the papers. We are compelled to be lenient in rendering Our Decrees, as there is reason to apprehend that where a case has not been thoroughly investigated the opportunity for further examination may be lost. Therefore, a judge shall be liable to perpetual infamy if all the matters stated by the litigants in the examination and the evidence are not inserted, and cannot be found in the documents accompanying the

appeal.

Given at Aquileia, on the tenth of the Kalends of July, during the Consulate of Constantine, Consul for the fifth time, and Licinius, 319.

16. The Same Emperor to Maximus.

Those also are entitled to the benefit of an appeal against whom judgment has been rendered by a deputy appointed by the Emperor.

Given at Sirmium, on the day before the Ides of January, during the Second Consulate of Crispus and Constantine, 321.

17. The Same Emperor to Julian, Prefect of the City.

When, after a case has been heard by any of the Praetors, an appeal is taken by either party, the appellant must obey the judgment of the Prefect of the City.

Given at Heraclea on the third of the Nones of August, during the Consulate of Constantine, Consul for the seventh time, and the Caesar Constantius, Consul for the third time, 326.

18. The Same Emperor to Victor, Collector of Taxes of the City of Rome.

As some debtors of the Treasury, when ordered to pay certain sums of money, are accustomed to evade execution by having recourse to an appeal, which they do not afterwards attempt to prosecute, it has been decided that if they do not comply with all the formalities prescribed by law within the proper time, the appeal shall be held to have been abandoned, and the amount due shall immediately be collected.

Given on the day before the Kalends of August, during the Consulate of Constantius and Maximus, 327.

19. The Same Emperor to All the Inhabitants of the Provinces.

We permit appeals to be taken from the decisions of Proconsuls, counts, and those who preside in the place of prefects, whether the decisions have been made on appeal, after delegation, or under ordinary jurisdiction, but the judge must give a copy of the decision to the appellant, as well as send to Us all the pleadings of the parties, together with the arguments on both sides, as well as his own decision.

We do not permit an appeal to be taken from the decisions of Praetorian Prefects. If the defeated party can show that he applied for an appeal, but that the judge refused to entertain it, he can go before the Prefect and begin the case again just as if an appeal had been taken. If the appellant is shown not to have appealed on proper grounds, and loses his case, he shall be. branded with infamy. If, however, he should succeed, the judge who refused to receive his appeal must be prosecuted before Us, in order that he may be properly punished.

Given at Constantinople on the Kalends of September, during the Consulate of Bassus and Ablavius, 331.

20. The Same Emperor to Albinus.

The power of appeal is granted in cases of great as well as minor importance, and the judge should not think that he has sustained any injury because the litigant has had recourse to an appeal.

Given on the seventh of the Ides of April, during the Consulate of Marcellinus and Probinus.

21. The Emperors Constantius and Constans to Lollianus, Prse-torian Prefect.

As ordinary judges frequently hold that appeals should be rejected, it is hereby decreed that if any judge should refuse to permit an appeal to be taken, which is not against the execution of the judgment but against the judgment itself, which has been finally rendered, he shall be compelled to pay thirty pounds of gold to the Treasury of Our Largesses, and his officer shall also be required to pay the same amount, unless he can show that he obstinately resisted, and opposed, in writing, the decision rendered by the judge.

Given on the eighth of the Kalends of August, during the Consulate of Arbitio and Lollianus, 355.

22. The Same Emperor to Volusianus, Prsetorian Prefect.

Where a judgment has been rendered with reference to property which has no owner, or that of which persons have been deprived by law as being unworthy to hold it, and anyone thinks that an appeal should be taken, his right to do so shall be admitted.

Given on the third of the Kalends of August, during the Consulate of Arbitio and Lollianus, 355.

23. The Same Emperor to the Senate.

When an appeal is taken from judgments rendered in Bithynia, Paphlagonia, Lydia, the Islands of the Hellespont, Phrygia, Europe, Rodope, and Mount Hemus, the appellant must comply with the decision of the Prefect of this City.

24. The Emperor Valentinian and Valens to the Council of the City of Carthage, Greeting.

The necessity is imposed upon judges not only to permit an appeal to be taken, but also to remember that the term of only thirty days is

granted from the date of the judgment within which the parties litigant are to be notified that an appeal has been granted. The judge and his officer shall be liable to a fine if they fail to observe these rules in

every particular.

Given at Milan, on the day before the Nones of February, during the Consulate of the Divine Jovian and Varonianus, 364.

25. The Emperors Gratian, Valentinian, and Theodosius to Sya-grius, Prsetorian Prefect.

We order that appeals from judgments imposing fines shall be

permitted.

Given on the fourteenth of the Kalends of July, during the Consulate of Gratian, Consul for the fifth time, and Theodosius, 380.

26. The Same Emperors to Pelagius, Count of Private Affairs.

Let an appeal to Your Excellency be taken from the decision of the Imperial Procurator, so that if the trifling value of the property involved, or the distance, does not permit the litigants to appear in your court, refer the matter to the Governor of the province for his decision, if you should approve of this being done.

Given at Milan, on the fifteenth of the Kalends of March, during the Consulate of Arcadius and Bauto, 385.

27. The Emperors Theodosius, Arcadius, and Honorius to Evodius, Proconsul of Africa.

Appointments made by notices or edicts without public authority are not valid, and if the proper formalities have not been complied with, it is not necessary to appeal from them.

Given at Milan, on the seventeenth of the Kalends of January, during the Consulate of Olybrius and Probinus, 395.

28. The Same Emperors to Neridius, Proconsul of Asia-Anyone who has taken an appeal is hereby notified that he has a right to change his mind, and withdraw his petition, in order that the opportunity for just repentance may not be lost.

Given at Constantinople, on the eleventh of the Kalends of August, during the Consulate of Arcadius, Consul for the fourth time, and Honorius, Consul for the third time, 396.

29. The Same Emperors to Eutychianus, Prsetorian Prefect. It shall not be lawful for persons sentenced to punishment, after having been condemned for the enormity of their crimes, to be arbitrarily removed and held by force, and from humane considerations, We do not refuse to persons of this kind the power to appeal in criminal cases, provided this is done within the time prescribed by law; so that a more careful examination may take place, where injustice is thought to have been committed, and the safety of a man endangered through the error or prejudice of the court.

However, if a Proconsul, the Count of the East, the Augustal Prefect, or any of the Imperial Deputies were among the judges, it is

hereby decreed that an appeal cannot be taken to Us, but they shall have the most ample power to execute sentence; for We desire them to have full authority to punish those who are condemned in the manner prescribed by law, if circumstances and the crime demand it.

Given on the sixth of the Kalends of August, during the Consulate of Honorius, Consul for the fourth time, and Eutychianus, 393.

30. The Same Emperors to Theodore, Prsstorian Prefect.

When anyone appeals for the reason that he wishes to avoid the judgment rendered against him by a judge whom he regards as suspicious, he shall have full power to do so; nor need he be apprehensive of the undue severity of judges, as he can easily appeal from any injurious decision which they may render, and especially as the Praetorian Prefect is the only one from whom he is not permitted to appeal without losing his case. Therefore, all persons are informed that the right of appeal is granted to them from the unjust decisions of judges, and from the rulings of those who are suspected, in capital cases, as well in those involving the loss of their fortunes.

Given at Milan, on the seventh of the Ides of June, during the Consulate of Theodore, Consul for the fifth time, 399.

31. The Emperors Theodosius and Honorius to Asclepiodotus, Prse-torian Prefect.

If the judge of the lower court refuses to permit an appeal to be taken against his decision, to the tribunal of Your Highness, or to the Prefecture of the City, or if the appeal having been admitted, he should refuse to notify the parties, the appellant shall, according to the ancient law, be entitled to the term of a year from the date of the decision to file a complaint on account of this injustice, as well as to prosecute the judge; or where an appeal of this kind was not allowed after having been requested of the judge of the lower court, the appellant will be entitled to six months for the purpose of doing these things.

If, however, the judge should refuse to grant the appeal, or to refer the case to the proper magistrate, four months shall be granted, so that those acts which We have prescribed having been performed, the appellant may proceed during the time known to have been fixed by law for the prosecution of appeals.

Given at Constantinople, on the third of the Kalends of April, during the Consulate of Asclepiodotus and Marinianus, 423.

32. The Emperors Theodosius and Valentinian to Cyrus, Prsetorian Prefect.

We order that hereafter there shall be no recourse to Us by appeal from the decisions of judges of distinguished rank, lest the rights of others may seem to be infringed if We are called upon to consider them, and are called away from the occupations which We are pursuing for the general welfare. If, however, a case should be appealed from the decision of any of the Proconsuls, or the Augustal Prefect, or from

that of the Count of the East, or of any of the Vicegerents of the Emperor, We order that the illustrious Praetorian Prefect, who is a member of Our retinue, as well as the illustrious Quaestor of Our Palace, shall take cognizance of the appeal in the same order, and with the observation of the same formalities, and at the same times as other actions taken up in one appeal are decided in the Imperial Council; and this shall be done, even though some of the eminent magistrates aforesaid have the right, as judges, to hear appeals.

(1) When an appeal is taken from a decision of a duke who is at the same time a Governor, the Prefect shall be required to hear and determine the same, in accordance with the ordinary rules of his tribunal.

(2) In all the different judicial proceedings which We have introduced instead of references to Us, or the notices or other matters connected with the same, where an appeal is taken from the decision of a judge, the above-mentioned distinguished magistrates must hear the appellants and take cognizance of their demands, and We order Our secretaries to obtain the papers and record them, and notify the parties litigant, and the officials associated with the illustrious Quaestor shall execute the judgments.

(3) These rules shall apply where an appeal was taken from the decision of a judge who did not hear the case by virtue of a special appointment, for when the time of the execution of a judgment is extended by an appeal from the decision of a judge who was specially designated for that purpose, it will be necessary for the magistrate who appointed him to ascertain whether or not there is good ground for an appeal.

(4) We think that it is eminently proper to add to this most salutary law that if the Emperor, after having been applied to, should assign the case to a private individual, or to one or more persons who are not of illustrious rank, to be heard (as is customary), and an appeal should be taken from the decision of the person thus appointed, the illustrious Praetorian Prefect, who is one of Our retinue, shall hear and decide the case along with the illustrious Qusestor, at the proper time.

Our secretaries shall receive and record all matters heard and decided by Our arbiters, and notify the litigants in writing, and they shall also receive and examine any appeals taken from the awards of arbiters especially appointed by Us (even though they be of illustrious rank) provided the cases are referred to the Council of the Empire.

(5) But when an appeal is taken from the decision of the illustrious and distinguished judges who do not belong to the court of last resort, We order that it shall be heard by Us, even though it may have been taken from the decision of someone who was appointed by Us to decide it, and who was not originally of illustrious rank, but was afterwards raised to the dignity of a noble.

The same rule shall also be observed when another arbiter also not of noble birth is associated with him.

(6) Moreover, anything which has not been expressly stated in this law shall be understood to remain subject to the rules of the ancient laws and constitutions.

33. The Same Emperors to Cyrus, Prsetorian Prefect.

In a case in which the attendant of an officer of the rank of general, with reference to whose status a controversy arises in a province on the ground that he is a decurion, or is a member of the retinue of the Governor, and is detained in the province for the reason that he has not paid his taxes, or discharged his official duties, and the decision of the Governor of the province is not executed, for the reason that an appeal has been taken from the same, We order that the case shall be decided by Your Highness, along with the distinguished general, according to its merits, even though the general may have appointed the Governor of the province to hear it.

34. The Emperor Justinian to Demosthenes, Prsetorian Prefect.

We decree that when any judge of superior or inferior rank suggests that a matter which We appointed him to decide, or which he should determine as belonging to his jurisdiction, should be referred to Us, the case which has been appealed shall be decided by Us in Council, whether his opinion accompanied the reference or not (provided he did not state it to the parties) ; or if nothing of this kind was added, but he simply requested a reply from Our Majesty, the case should not be determined until Our order, two illustrious men who are either of patrician, consular, or prefectorian rank, and whom We have selected for that purpose, are ordered to be joined with the illustrious Quaestor of Our Palace, and with him examine the appeal (whether they do so in the presence or the absence of the parties to the suit), and give their opinion concerning the case; and the decision made by these most eminent magistrates shall be considered as final; and permission shall not be given to appeal from it, or to raise any doubt whatever concerning the same.

We decree that this rule shall not only apply where a single judge has referred a case of this kind to Us, but where two or more judges were appointed and none of them agreed, but each one submitted a different opinion for Our consideration; or where they all consulted Us as to what disposition should be made of the case.

35 and 36. Laws which are not Authentic.

37. The Emperor Justinian to Menna, Prsstorian Prefect.

We think that the following should be added where appeals are taken by which it is customary to bring matters for final determination to the Imperial Palace, namely, when the amount in dispute does not exceed ten pounds of gold, one judge alone, and not two (as was formerly the practice) shall be appointed to decide it. If, however, the value of the property exceeds that amount but is not more than twenty pounds of gold, the matter shall be submitted to two illustrious judges, who will take cognizance of the question involved, which must

be reduced to writing by the clerks, so that if they differ, they may call in the illustrious Quaestor, and the doubt be disposed of by his

decision.

In actions, however, where the property involved exceeds in value the sum of twenty pounds of gold, they should be brought before the distinguished nobles who compose the Council of State of Our Sacred Palace, so that, in accordance with what has already been established, not only the defeated party but also the one who is successful may have the case referred to one or two judges, but this must be done within the term of two years, as, after that time has elapsed, We refuse to authorize it. Any decisions made by one or more of these judges shall, under no circumstances, be subject to appeal. We, however, permit new allegations to be made by the litigants before the said judge or judges, just as in the case of a reference to the Council of Our Sacred Palace.

Given at Constantinople, on the eighth of the Ides of April, during

the Consulate of Decius, 329.

38. The Same Emperor to Demosthenes, Prsetorian Prefect.

Where an appeal was taken from the decision of a duke, whether under his regular jurisdiction, or whether he was especially appointed to hear the case by the Emperor, or whether he himself was included among the eminent magistrates, or was of illustrious rank, or even if he was of higher position (as military men as well as those of consular rank often discharge duties of this kind when required to do so by the public welfare), no distinction being made on this account, but only the ducal dignity being considered, the appeal having been taken from the decision of any duke whomsoever, shall not, as was formerly the case, be disposed of by the judges, but We order that it shall be referred to and decided by the most sublime Master of the Offices, and the most excellent Qusestor of Our Palace, who shall hear it together, as is done in Our Council of State, and that it shall be recorded by Our Imperial Secretaries, and that none of the provisions of the ancient law with reference to such cases shall be observed, but it shall only be brought before the said most eminent magistrates.

39. The Same Emperor to Julian, Prsetorian Prefect.

We, having greater consideration for Our subjects than they themselves would perhaps display, do hereby amend an ancient rule, that is to say, in cases of appeal, he alone who had recourse to such a proceeding is entitled to have the decision of the judge corrected, but the other party who failed to do this is compelled to obey the decision, no matter what it may be.

Hence We order that if the appellant should come into court, and state the grounds for appeal, and his adversary wishes to contest the judgment, and is prepared, he can do so, if his position is worthy of the attention of the court. But when he is absent the judge must, nevertheless, use his authority to protect his rights.

(1) Moreover, with reference to the legal documents required for the appeal, which, by all means, must be read before the distinguished

and learned men composing the Imperial Council, the parties litigant, as well as those who draw up said documents, must be careful not to use too many words, and not to repeat statements which have already been made therein, but they must only insert those things which set forth the causes for the appeal, expressed in concise language, and must see that they do not contain any new matter, or make additions to supply what was omitted, for they are hereby notified that if this is not done, those who drew up the papers will be liable to the just indignation of the judges of the court of appeal, for a succinct statement of the facts and an abridgment of the opinions of the eminent magistrates who originally heard the case will be amply sufficient.

(2) We remember that, by a law which We recently promulgated, We order that one judge should be appointed to hear cases in which a sum up to the value of ten pounds of gold is involved, and that two should be appointed when the value was twenty pounds of gold, in accordance with the custom observed in cases brought before the Imperial Council.

But as, at first sight, the amount might not appear to be so large, and in the final decision the judge or judges concluded that a greater one should be considered, and since it was not possible for them to exceed the limits by which they were bound, We grant them full power in cases of this kind to adopt a larger sum than that above mentioned, if the value of the property was more than originally estimated by them, and they shall be permitted to render their decision in conformity to the truth, and not in accordance with the first appraisement, in order that magistrates may not be impeded in the discharge of their duties, but may strictly enforce observance of the laws, and in every respect exert their judicial authority.

Given at Constantinople, on the sixth of the Kalends of April, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE LXIII.

CONCERNING DELAYS, AND THE AMENDMENTS OF APPEALS OR REFERENCES TO THE EMPEROR.

1. The Emperor Constantine to Crispinus.

If anyone, having been appointed duumvir, or honored with any other office, or invested with any public charge during his absence, should invoke the aid of appeal, he will only be entitled to the term of two months in which to file his application, to be computed from the time when he can show that he was first notified of his appointment; but if he was present, the said term of two months must be computed from the very day when his appointment was made.

Given on the eighth of the Ides of July, during the Consulate of Constantine, Consul for the sixth time, and the Caesar Constantius, 820.

2. The Emperors Theodosius and Valentinian to Cyrus, Praetorian Prefect.

We think that it will be to the advantage of Our reign for the provisions of the laws having reference to time granted to litigants to be amended, and that pretexts for delay should, under all circumstances, be abolished. We order that, after an appeal has been granted, the time allowed for the prosecution of the same, whether this has been done by the illustrious Governor of the province, or by an eminent judge, shall, in the first place, be six months. If the appellant permits this time to go by, We grant him an additional term of thirty-one days. If he should let this pass, We allow him, in like manner, a third term of the same number of days. If the third term should also expire, We decree that he shall be entitled to a fourth and final term of thirty-one days. If the appellant should also let this fourth term elapse, We decree that he shall be granted the term of three months longer, to petition Us to have his right to appeal restored. This application having been made, We decree that it will not be necessary to notify his adversary or to mention the time which has expired, in his petition, but We direct that the term of three months shall be computed from the date of the expiration of the fourth and last term, even though restoration of his right of appeal was granted one day before, or the judgment was not rendered by one of the illustrious Prefects.

These rules shall not prejudice the adverse party, as the expiration of the time is not uncertain, but is well known to all persons, and they apply to appeals from the decisions of the illustrious Governors of provinces, as well as from those of eminent judges. Where an appeal is taken from the decision of an arbiter in a province, who has been specially appointed by the Emperor, We authorize three similar terms, after the first one has expired (as above stated) to which the appellant shall be entitled, but he shall have no restoration of his right to appeal granted by Us, so that, after the ninety-three days shall have elapsed, the execution of the judgment must be ordered.

If, however, the arbiter was specially appointed in this Most Holy City, by the Praetorian Prefect,, the Master of the Offices, or any other official of exalted rank, and the appeal should be taken against either the ruling or decision rendered by the lower court, the first term within which it can be brought shall consist of two months, but the other three shall be computed as above set forth. Anyone who takes an appeal from the decision of an arbiter, who has been specially appointed by the Governor of a province, or an eminent judge, shall be entitled to two months in which to file it, and also for three other terms as above enumerated.

With reference to the observance of the terms aforesaid, We order that if they should happen to occur during holidays, those which precede them may be counted by the litigants as available.

If anyone, without observing the provisions of the law, should permit the time to elapse, he can be opposed in the first instance by his adversary, or by the judge if the appellant alone is present in

court, and the latter shall be considered as having accepted the decision without having been subjected to any restraint.

Given on the twelfth of the Kalends of May, during the Consulate of Valentinian, Consul for the fifth time, and Anatolius, 440.

Extract from Novel 29, at the Beginning. Latin Text.

A year is granted to the party who takes an appeal, within which time he must prosecute it, either alone or in company with his adversary ; or, where there is good reason for doing so, he may be granted still another year, and if the case has not been disposed of at the expiration of that time, the decision will stand confirmed.

If the appellant has failed to proceed when only one month remains of the term of two years, the successful party will have the right to have him summoned, and whether he is found or not, the former can make his allegations, and the decision shall be either affirmed or set aside; and, in every instance, judgment for the costs, dependent upon the number of terms which have been granted, shall be rendered against the absent party. If, after the lapse of the term of two years, neither of the parties should appear, the decision shall be affirmed.

Extract from Novel 93, Chapter I. Latin Text.

Where, however, arbiters are chosen by the parties after an appeal has been taken and brought before the appellate court, whether it has been heard or not, and, in the meantime, the term of two years within which the appeal must be disposed of in accordance with law has expired, and, for this reason, the case again comes under the jurisdiction of the appellate judge, the parties will not be prejudiced by the lapse of time; but the case can proceed and reach a legitimate termination, even if ten thousand more terms of two years have elapsed, unless the said term of two years shall have expired after the judgment was rendered without an appeal having been taken.

Extract from Novel 23, Chapter II. Latin Text.

Where a case is intended to be referred to the Imperial Council, it will not be prejudiced by delay until the Emperor himself has brought it to the attention of the Council, and it has been finally disposed of in the ordinary way by the illustrious dignitaries composing the same.

Extract from Novel 119, Chapter IV. Latin Text.

When an appeal has been taken, and one or both of the parties have been granted more time, or only one of them has availed himself of the right to appeal, and has appeared before the judge who is to examine the appeal, or before his advisors, or those who present cases to the court, and the judge appoints a certain time for the case to be heard, We do not wish the rights of either or both of the parties to be prejudiced on this account, but that, after this, appeals of this kind shall be examined and terminated by decisions in accordance with law.

3. The Emperor Justini-an to Appio, Praetorian Prefect. Let no one think that, in the future, he will be permitted to appeal to the members of the Imperial Council after the legally established

terms have expired, either by means of a petition, or through a Rescript of the Emperor granting him restitution of his right, nor in any other way whatsoever; but all persons shall be required to use due diligence for the purpose of taking advantage of appeals within the time fixed by law, and a statement of what has taken place in the lower court and has been made the basis of appeal shall not be filed in the office of the Imperial Secretary near the expiration of the term, lest, by evil schemes, the termination of the case may be interfered with, but this shall be done immediately after the appeal has been taken, or at least before half of the prescribed period has elapsed, in order that the party who has appealed may not lose his right on account of the little time that remains.

4. The Same Emperor to Tatianus, Master of the Offices.

We decree by this Imperial lav; that where appeals are taken to the Emperor permission shall be given to the appellant, as well as the adverse party, to make use of new allegations or exceptions which may, indeed, not be applicable to the new proceeding, but arise from and are connected with questions known to have been brought up before the lower court.

If, however, it should be shown that any allegation was made, or any document introduced before the lower court, proof of which the party employing it was not able to present at that time, but which can now be done without delay before the members of the Imperial Council, they should admit it, in order that, by doing so, more light may be thrown upon the matters in dispute.

5. The Same Emperor to Tribonian, Qusestor of the Imperial Palace.

As by former laws, in case of appeals, provision was not made for the time occupied by parties residing at a distance from Our Most Sacred Court, it appears to Us to be necessary to establish a proper scale for these distances. Therefore, We order that when any case is appealed from the frontier of Egypt, or Lydia, or from the Orient, or from both Cilicias, or from the Armenians, as well as from all Illyria, the term of six months shall be granted, as by the ancient law, and this shall neither be diminished or increased. When, however, a case is appealed from any other portion of Our Empire, as, for instance, from the Departments of Asia, Pontus, or Thrace, to this Royal City, We order that, instead of the term of six months above mentioned, only that of three shall be conceded, and the other three terms which follow shall consist of three months, that is to say ninety-three days, whether the first term of six months or the other one of three is allowed, according to the enumeration of the places which We have just made; but the other period of three months, which .is usually granted by the Council for the purpose of reinstating the party in his right of appeal, shall remain unaltered, and shall be added to those previously designated, so that, in one instance, the term allowed shall consist of a year, and in the other of nine months.

(1) As, in former times, one day was granted by the ancient legislators at the end of each term, which was designated "The Fatal

Day," and it often happened (as mortals are exposed to many accidents) when appeals were taken, that either from illness, length of time, or other causes (which would not be easy to remember or enumerate), the said fatal day passed without the parties taking advantage of it, and the time for appealing expired, and the estates of men were thereby endangered, We, for the purpose of disposing of these injurious vicissitudes of fortune, do order that hereafter not merely one fatal day shall be reckoned, but if the appellant shall have appeared at any time within four days preceding the fatal day, or within five days after that time, and shall bring his action before a competent judge, the law shall be considered to have been complied with. He should not be expected to deplore the loss of his case, but he ought to rejoice in the privilege We bestow upon him, as We are aware that suits are frequently endangered through an error in calculation as to the time within which the judge should act, which it is to be hoped will not occur hereafter, because of the remedy afforded under the present law.

This privilege is applicable to all delays, whether they have been granted by specially appointed judges or by others, and which the laws have mentioned as being required to be kept or observed, so that ten fatal days, instead of only one, shall everywhere be established.

(2) In those instances, however, with reference to which the term of two years has been prescribed, whenever cases are heard in this Imperial City by the assembled Council of the Nobles of Our Sacred Palace, We limit the time to one instead of two years, so that within that period the papers in the case may be collected, and delivered to Our devoted Secretaries, and the arguments in opposition be made', if this should be desirable, and the litigants be compelled to bring the case before Our Imperial Council. A successful party shall, in accordance with what has already been decided, be permitted to present his case there at once, without waiting for the expiration of a year, if he should wish to do so.

(3) When, however, proceedings have been begun in Our Imperial Council, and have not been concluded on the same day, We permit them to be continued, as it would be unjust for men to lose their cases for the reason that the Imperial Council was occupied with matters brought before it by the Emperor.

(4) We think that it is reasonable for what follows to be added to this law, namely: that if anyone should have taken his case before an appellate judge, prior to the expiration of the time prescribed by law (whether one or both parties were present), and, having formulated his appeal, should afterwards depart and abandon it, and the remainder of the time should pass in inactivity, and the term of a year elapse after the case was begun, the successful party not being able to have the judgment executed on account of the case being still incomplete, and not having the power to bring it to a conclusion, as the absence of the appellant, did not, of itself, cause it to be terminated, We, for the purpose of removing this injustice (as the adverse party can, even in the absence of the appellant, proceed with the case, for

the reason that the special privilege enjoyed by the magistrate having jurisdiction of an appeal authorizes him to dispose of it when only one party is present), do hereby order that if the said appellant does not attend to the case, and conduct it to the end, when he was to blame because the trial did not proceed, he will forfeit his right of appeal, and the judgment rendered against him shall remain in full force and effect, just as if an appeal had not been taken in the first place, unless the said appellant can establish by perfectly clear evidence that he intended to use every effort to have the case heard, but was unable to do so, either through the fault of the judge, or for some other cause over which he had no control. For, under such circumstances, We grant him another term of a year, and if this should elapse, and the case not be terminated within that time, We decree that he shall be deprived of the benefit of an appeal, because he had full power to appear before Us, and complain of the delay of the judge, and profit by Our indulgence.

(5) In conformity with the above, the same rule shall apply to appeals from the decisions of Our distinguished Prefects brought before Our Imperial Council, on the application of one or both parties, not only because of the absence of one of them, but also on account of the expiration of the terms prescribed by law.

(6) Moreover, if the parties came to the conclusion that their dispute should be settled by means of a written agreement, neither of them shall have the right to invoke the aid of an appeal, or take advantage of the lapse of time, and We decree that a compromise of this kind shall stand, for under such circumstances, We desire the harshness of the laws to be mitigated by the agreement of the litigants.

Given at Chalcedon, on the fifteenth of the Kalends of December, during the fifth Consulate of Decius, 526.

TITLE LXIV. WHEN IT is NECESSARY TO APPEAL.

1. The Emperor Alexander to Apollinarus and Others.

You allege that the sentence has no force, as it was pronounced in opposition to a judgment from which no appeal was taken. If you can prove this readily, without having recourse to an appeal, what has been decided will not have the authority of a judicial decision.

Published on the eighth of the Kalends of April, during the Consulate of Alexander, 223.

2. The Same Emperor to Capilaneis.

When a question with reference to the succession of the deceased arose between you and your grandmother, and a judge appointed by the Governor of the province decided that the deceased, although under the age of fourteen years, could make a will, and by this means you obtained the advantage over your grandmother, it is evident that the decision having been rendered in violation of a plain rule of law can

have no force; therefore, in this instance, it will not be necessary to have recourse to an appeal. If, however, an inquiry was made as to the age of the deceased, and it was ascertained that he had completed his fourteenth year, and the judge decided that for this reason he could make a will, and you did not appeal, or you failed to prosecute the appeal after it was taken, you cannot again bring up a matter which has been decided.

3. The Emperor Gordian to Ingenuus.

If (as you allege) you were appointed to the duumvirate, and your previous designation as decurion was suspended on account of the appeal which you made to the eminent judges against your selection for the latter office, it is clear that your appointment to the duumvirate will not be prejudiced before your appeal has been disposed of by the above-mentioned judges.

4. The Emperors Valerian and Gallienus, and the Caesar Valerian to Julianus.

As you state that several magistrates have been appointed judges in your case, and that only one of them has rendered a decision, there does not seem to be any necessity to appeal, as the decision is not valid in law.

5. The Emperors Cams, Carimis, and Numerianus to Domitian.

Governors can impose fines within certain limits. If the Governor of the province should exceed his authority, and fine you more than the amount prescribed by law, there is no doubt that what appears to have been done illegally is void, and can be set aside without appeal.

Published during the Ides of January, during the Consulate of Carus and Carinus, 283.

6. The Same Emperors to Germanus.

If the judge appointed by the Governor of the province to hear the case is said not to have rendered his decision on the day that the Governor appointed, but a considerable time afterwards, in order to avoid the introduction of technicalities and the delay which will result from a fruitless appeal, the Governor of the province must decide the entire case, without it being necessary to have recourse to an appeal.

7. The Emperors Diocletian and Maximian to Nicagora.

It has already been decreed by our Imperial Predecessors that decisions rendered by corrupt judges for the sake of reward are void in law, even if no appeal should be taken.

8. The Same Emperors to Constantine.

If your father did not give his consent to your appointment as decurion, and you were still in the fifteenth year of your age, and the Governor of the province, having been applied to, should find that you are not eligible to the said office of decurion, he will revoke the unjust

appointment as being void on account of your age, even if no appeal was taken.

9. The Same Emperors and Csesars to Rufina.

We grant to veterans who, after service in the legions or under the standards for twenty years, have obtained an honorable and regular discharge, the privilege of being exempt from onerous public duties. Moreover, desiring to remunerate the faithful devotion of Our soldiers by this mark of Our indulgence, We hereby release them from the necessity of appealing, when judgments are rendered against them.

10. The Emperor Justinian to Menna, Prsetorian Prefect.

For the sake of maintaining unimpaired the honor of judges, where one of the parties, considering himself injured by their final decision, takes an appeal, We forbid the other party, who was successful, to appeal from the same judgment on the ground that he did not receive anything as costs and damages in the case, or received less than he ought to have done, as he himself admits that the decision was justly rendered. The judges, however, or the nobles of Our Imperial Palace, when the amount involved in the case is not of great value, and they think that the successful party is entitled to his expenses, have power to grant him a reasonable sum for that purpose, without rendering it necessary for him to appeal. And as he is permitted by former laws to apply for this relief, if his adversary should fail to appeal to Our Council, We nevertheless authorize this to be done, but We forbid any imputation to be cast upon the court by taking an appeal when it is unnecessary.

Given on the eighth of the Ides of April, ....

TITLE LXV. WHOSE APPEALS SHOULD NOT BE RECEIVED.

1. The Emperor Antoninus to Sabinus.

The appeal of a party who, being absent through obstinacy, has had judgment rendered against him after having been regularly summoned to conduct his case, cannot be received, if the matter has previously been summarily examined.

Published on the Nones of July, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperors Constantius and Constans to Hierocles, Consular of Syria.

You will be careful to note that no homicide, poisoner, malefactor, adulterer, or any person who has been guilty of manifest violence, who has been convicted by witnesses, or with his own mouth has confessed that he is guilty of vices and crimes, shall be heard, if he takes an appeal.

We, however, wish it to be observed that justice requires that where witnesses have been called, instruments produced, and other evidence offered, and a judgment has been rendered against the culprit, and the latter does not confess his guilt, or, terrified by the fear of torture, states anything against himself, he shall not be denied the right of appeal.

Given on the fifth of the Ides of December, during the Consulate of Leontius and Sallust, 344.

3. The Emperors Valentinian and Valens to Modestus, Praetorian Prefect.

An appeal from the decision of his own judge is not permitted to any official, except solely where, in a civil proceeding, he has brought suit before his own judge with reference to an estate, but any official can, under other circumstances, appeal from the sentence of the said judge, and the right is granted him by law to appear by an attorney.

Given on the fourth of the Ides of June, during the Consulate of Valentinian and Valens, 365.

4. The Emperors Valentinian, Valens, and Gratian to Olybrius, Prefect of the City.

We order that no appeal shall be taken where satisfaction of a claim is demanded by the Treasury, or where the payment of public taxes is in question, or the recovery of a debt, either public or private is involved (provided that the indebtedness has been clearly proved), so that judicial authority may be severely exercised against the delinquent if guilty of contumacy.

Published at Rome, on the fifteenth of the Kalends of September, during the second Consulate of Valentinian and Valens, 368.

5. The Emperors Valens, Gratian, and Valentinian to Thalassius, Proconsul of Africa.

It has been thoroughly established by the laws and Imperial Constitutions that an appeal cannot be taken from an execution, unless the officer charged with it has exceeded the terms of the judgment. When an appeal of this kind is taken, We think that it should be held that the execution is suspended, and if the property, which the officer charged with the execution attempted to return, is movable, it should be taken from the possessor and sequestered after the appeal, to be restored eventually to the party whom the judge may decide is entitled to it.

Where, however, execution was issued with reference to either the possession or the ownership of property, and it is suspended by an appeal, all the profits acquired therefrom during the time of the appeal, or subsequently obtained, shall be placed on deposit, and the land left temporarily in the hands of the appellant. Litigants, however, are notified that, if they appeal either from the execution of the judgment, or from the judgment itself, and it should appear that they have done so wrongfully, they shall be fined the sum of fifty pounds of gold.

Given on the third of the Kalends of February, during the Con-

sulate of Valens, Consul for the sixth time, and Valentinian, Consul for the second time, 378.

6. The Emperors Gratian, Valentinian, and Theodosius to Hypa-tius, Prefect of the City.

Anyone who has ventured to appeal against the opening of the will of a deceased person, or to prevent those who, it is evident, have been appointed heirs, from being placed in possession of the estate, if the judge having jurisdiction should hold that the appeal which has been interposed in such a matter ought to be received, he who appealed so improperly shall pay a fine of twenty pounds of silver, and the judge who connived at such a base proceeding shall be fined an equal sum.

Given.on the Nones of April, during the Consulate of Ausonius, Consul for the tenth time, and Olybrius, 379.

7. The Same Emperors and Arcadius to Pelagius, Count of Private Affairs.

No appeal shall be permitted either from interlocutory decrees or from other judicial acts, before a final decision has been rendered in its proper order.

8. The Emperors Arcadius and Honorius to Apollodorus, Count of Private Affairs.

The interest of the public as well as that of Our Private Treasury requires that claims due to Our Household should not be deferred by the cunning arts of debtors. Wherefore, We decree that the following rule shall be obeyed, namely: that those who have been openly and manifestly ascertained to be public debtors shall be denied the privilege of appeal, and their application for the same shall be rejected.

Given at Milan, on the third of the Ides of August, during the Consulate of Arcadius, Consul for the fourth time, and Honorius, Consul for the third time, 396.

TITLE LXVI.

WHERE THE APPELLANT DIES WHILE THE APPEAL is

PENDING.

1. The Emperor Alexander to Julianus.

Even after the death of the party who appealed, his heirs are required either to continue the case on appeal, or to acquiesce in the

original decision.

Published on the third of the Nones of December, during the Consulate of Alexander, 223.

2. The Same to Marcellina.

My Parents ordered that the property of him who, having been accused of a capital crime, did not appear, and died before the case was heard, should belong to his heirs.

Published on the third of the Nones of December, during the Consulate of Alexander, 223.

3. The Same Emperor to Ulpius.

If anyone sentenced to exile with confiscation of his property should appeal, and should die while the appeal is pending, although the crime vanished with his death, still the case involving his property must proceed. For it makes a great difference whether a capital penalty which deprives the accused of his property has been imposed (in which case the crime, having been extinguished by his death, no question with reference to it can survive), or whether the property is taken, not as the result of condemnation for the crime, but by a special decision of the Governor, for the defendant being dead, the question of the crime alone is removed, but that of the disposition of the property remains.

Published during the Ides of March, during the Consulate of Modestus and Probus, 279.

4. The Emperor Gordian to Alexander.

If your father, having been appointed to the decurionate and appealed, died while the appeal was pending, the question of the appointment is terminated by his death.

5. The Same Emperor to Felix.

Although the female slave, with reference to whose ownership a controversy arose and a decision was rendered against you by the Governor of the province, died, still, as an appeal was taken in the case, and as you allege that it was pending along with other cases, this appeal should be heard and decided in its regular order, so far as the disposal of the peculium of said slave is concerned.

6. The Emperor Constantine to Bassus, Prefect of the City.

If one of the litigants should die while the appeal is still pending, his heirs will be entitled not only to the remaining time which remained to the deceased, but also to four months in addition. Where, however, a certain time was granted to the heirs for deliberation, after this has expired, the term of four months more shall be granted them, in order that they, being ignorant of business, or having doubts as to whether they should accept the estate or not, may not suffer loss before acquiring any benefit.

Published at Sirmium, on the twelfth of the Kalends of June, during the second Consulate of the Csesars Crispus and Constantine, 331.

TITLE LXVII.

CONCERNING THOSE WHO DO NOT APPEAL THROUGH FEAR OF THE JUDGE.

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

If a judicial decision was rendered against you and you did not invoke the aid of an appeal, you understand that you must abide by the

decision, for you need fear nothing in the presence of the Imperial

Council.

Given on the fifteenth of the Kalends of June, ....

2. The Emperor Julian to Geminianus.

The privilege of having the right to appeal restored to them is denied to those who did not apply within the time prescribed by law. Therefore, all who, under the pretext of fear, fail to appeal from the decisions of Prefects of the City, Masters of the Offices, Generals of the Army, Proconsuls, Counts, Prefects of the East, Augustal Vicegerents, or any other magistrates whomsoever, shall be excluded from reviving their cases. But persons who have suffered violence, and make a public statement of the facts within the lawful time during which they have a right to appeal, or show by their statements that they intended to do so, shall, by reason of this fact, have the support of equity, just as if an appeal had been taken.

Published on the fifteenth of the Kalends of July, during the Consulate of Mamertinus and Nevitta, 362.

TITLE LXVIII. WHERE ONE OR MORE OF THE PARTIES APPEAL.

1. The Emperor Alexander to Licinius.

If it is proved to the court that the same judgment was rendered against you as against the party whose appeal was decided to be just, and that there was no separation on account of any difference of facts in the case, he will not fail to see that you also, who did not appeal, shall profit by the success of the other party, in accordance with what has frequently been decided.

Published on the fourteenth of the Kalends of September, ....

2. The Same Emperor to Serenus.

When one of several parties in the same case appeals and his 'appeal is decided to be just, it will also benefit those who did not appeal. Where, however, one of them obtained restitution in opposition to the judgment, on the ground of his age, this will be of no advantage to another who is older, but did not appeal in his own name.

TITLE LXIX.

WHERE AN APPEAL is TAKEN AGAINST TEMPORARY POSSESSION.

1. The Emperors Valentinian, Theodosius, and Arcadius to Eusig-nius, Praetorian Prefect.

Where proceedings have been instituted with reference to temporary possession, even though an appeal may have been taken, the judgment rendered will, nevertheless, be effective, as the question of

possession must be decided, in order that that of ownership may remain intact.

Given at Milan, on the fourteenth of the Kalends of December, during the Consulate of our Prince Honorius, and Evodius, 386.

TITLE LXX.

No ONE SHALL BE PERMITTED TO APPEAL POB THE THIRD TIME IN ONE AND THE SAME CASE, OR TO REFUSE TO OBEY THE JUDGMENT OP A COURT WHICH HAS BEEN RENDERED TWICE AND CONFIRMED BY THE DECISION OF A PREFECT.

1. The Emperor Justinian to Menna, Prsetorian Prefect.

When a party has appealed a second time in a case, he shall not be permitted to do so again with reference to the same matters, in the same suit, or to refuse to comply with the judgment of the distinguished Praetorian Prefect. Permission, however, is granted to litigants for whom an arbiter has been appointed to question the jurisdiction of the judge who appointed him, before issue had been joined, for a proceeding of this kind has by no means the effect of an appeal.1

1 Much of the civil procedure of the Romans has been transmitted to posterity, and some of it, under other designations, survives in the forms of Common Law practice. The legis actiones, namely sacramenti, judicia postulatio, condictio, manus injectio, and pignoris capio have already been described.

These were succeeded by the Formulary System to meet the ever-increasing requirements of a rapidly growing state, and the resultant altered conditions of society.

Under this improved method of procedure, the ends of justice were much more readily attained, and the interests of litigants preserved from injury and loss, than under the harsh and inflexible rules which have previously controlled the administration of the law.

It was the practice, before suit was brought, for an attempt at a compromise to be made, in which the services of the friends and relatives of both parties were voluntarily enlisted; if their efforts were unsuccessful, a summons, the in jus vocatio, oral in form, was served upon the defendant in person. Anyone who happened to be present could be called upon to witness the service, and this having been accomplished, the plaintiff could bring his adversary into court by main force, if necessary.

The formula ordinarily consisted of four parts: the demonstratio, or a brief statement of the plaintiff's case drawn up by the magistrate; the intentio, which set forth in detail his claim and the grounds on which it was founded, as fully and concisely as possible; the condemnatio, which empowered the court to find for either party to the suit; and the adjudicatio, which conferred upon him the right to award the property in controversy to whichever of the litigants he might decide was entitled to it. The first of these which was merely a recitation of facts to define the general character of the action, was not absolutely essential, and was, at times, dispensed with. The second, however, contained the vital portion of the proceedings, the issue of law or fact upon which the entire case was dependent, and it could not be omitted or curtailed. The adjudicatio was principally employed by heirs in actions for partition, for the division of partnership property, and for the settlement of the boundaries of contiguous estates, when in dispute.

The answer of the defendant, or exceptio, was filed immediately after the intentio.

Exceptions were either perpetual or peremptory, temporary or dilatory, their effect being evident from these designations without further explanation.

TITLE LXXI. WHO CAN MAKE AN ASSIGNMENT OP THEIR PROPERTY.

1. The Emperor Alexander to Iren&us.

When the creditors of those who make an assignment of their property are not paid in full, the latter are not released from liability, for the only advantage they derive from doing so is that, if judgment should be rendered against them, they cannot be placed in prison.

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

2. The Emperor Philip and the Csesar Philip to Abascantus. If you are prepared to pay what you owe, after judgment has been rendered against you in favor of the State, because you have hastily

If the plaintiff so desired, he could deny the allegations by means of a replicatio, which the defendant could contest in his turn by a duplicatio, the latter to be answered by the triplicatio of the plaintiff.

When the pleadings were terminated and accepted by the court, litis contesta-tio, or joinder of issue, was said to have taken place. This was considered by Roman jurists as the most critical stage of the proceedings, being their actual commencement, and imposing new obligations upon both parties and their heirs, for from this date he who gained the case had a right to claim all profits and advantages arising from, or connected with, the matter in controversy, and, on the other hand, corresponding liabilities attached to the defeated party.

Issue having been joined, both parties entered into an undertaking to appear for trial upon a day designated by the court, a judge having previously been

appointed.

There were two kinds of judgments at civil law, known as "ordinary" and "extraordinary": the first, where matters of law and fact were heard and determined by different legal officials; the second, where both were disposed of by the same magistrate. Ordinary judgments were the only ones recognized by Roman jurisprudence for almost ten centuries.

It is doubtful whether the right of appeal was admitted under the domination of the Kings; after that period, however, there is no question as to its existence .and frequent exercise. During the era of the Republic an appeal could be taken at any time during the progress of a suit, from one magistrate to another, who was not even required to be invested with superior jurisdiction. The general rule under the Empire was that an appeal lay from an inferior magistrate to the Urban and Prsetorian Prefects, the jurisdiction of the latter being final, as the Imperial representatives. The Emperor, with this Council, constituted the court of last resort in appeals from the Urban Prefects, and ultimately the decisions of the Praetorian Prefects could be reviewed by the sovereign, through the employment of a proceeding called supplicatio, or petition.

The Roman judicial calendar was divided into dies fasti, on which sessions of court could be regularly held; dies nefasti, during which all legal and secular business was suspended, as conflicting with the worship of the gods to whom these days were consecrated; and dies intercisi, which partook of the nature of both the others, being partly available for the transaction of worldly affairs, and partly devoted to the ceremonies of religion, and regarded as half holidays. The public games celebrated in the spring and fall of each year gave rise to protracted vacations. It was also the custom not to hold court during vintage and harvest. Provisions of a similar character with reference to the observance of holidays under the Christian dispensation were inserted in the Visigothic Code and Las Siete Partidas. The Emperor Marcus Aurelius fixed the number of judicial days at two hundred and thirty during the entire year.—ED.

consented to assign your property, you need have no apprehension that you will be deprived of your right to the same, if it has not yet been sold.

Published on the thirteenth of the Kalends of February, during the Consulate of the Emperor Philip, and Retianus, 246.

3. The Emperors Valerian and Gallienus to Julianus.

If your father made an assignment of his property on account of civil liabilities which he had incurred, an inquiry should be made as to his means, and the estate which you allege you acquired after your emancipation should not be interfered with. In order that this may be accomplished, you should invoke the justice of the Governor.

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

It is a well-known fact that the benefit of the Lex Julia, having reference to the assignment of property for the benefit of creditors, was extended by the Constitutions of Our Divine Predecessors to the Provinces, so that such assignments may take place there, but creditors are not allowed to divide the said property on their own authority, and hold it by the right of ownership, but they are obliged to sell it, and can then indemnify themselves as far as the proceeds permit this to be done.

Therefore, you, having the possession of the property of him who assigned it to you on the sole ground that you are his creditor, against the rule of law, it is clear that the claimant will not be barred by the prescription of long time, but if it is shown that he did not assign the property, but gave it to you in payment of his debt, the Governor of the province will grant you a hearing with reference to your ownership of the same.

5. The Same Emperors and Csesars to Myro.

The assignment of property by anyone on account of his being unable to meet some indebtedness incurred on account of municipal offices or duties, can, by no means, be admitted, but those who are liable must discharge their obligations in proportion to the pecuniary resources of each.

6. The Emperor Theodosius.

In every assignment of property, no matter for what cause it is made, the statement of the assignor alone should be required, and the precise formalities introduced by former laws are hereby abolished.

(1) The same Emperor said: "In every assignment of property the sole statement of the intention of the party who makes it is sufficient."

Given on the Kalends of May, during the Consulate of Our Prince Honorius, and Evodius, 386.

7. The Emperor Justinian to Julian, Prsetorian Prefect. As sons under paternal control can hold property which is forbidden to be acquired by their fathers, as well as peculium, not only

castrense, but also what they can obtain with the consent of the former, •why should the power to assign their property be refused them? The reason for this is that those who are under paternal control are understood to possess nothing in their own right, still, in order that they may not suffer injury, they should be allowed to make an assignment, for if the head of a family is permitted to have the weak aid of assignment on account of the fear of some injury to which he may be subjected, why should We deny this right to children of either sex who are under paternal control ? For it is a perfectly clear rule of law that, where those who are under the control of others, subsequently, as heads of families, acquire anything, this can legally be seized by creditors to the amount of the indebtedness.

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

8. The Same Emperor to John, Prsetorian Prefect. When, as is customary, a petition is presented to Us to allow someone to have recourse to the wretched expedient of making an assignment of his property, and his creditors are given the choice to grant him five years for payment of their claims, or to accept the assignment, that by so doing his reputation may be preserved, and the prospect of all bodily suffering be removed, where some of the creditors are willing to allow the term of five years, but others insist that an immediate assignment be made, it was constantly doubted which of them should be heard.

Where a doubt of this kind exists, We think that Our opinion should be readily accepted by everyone, that is to say, We choose and authorize the more humane, instead of the harsher course, and decree that the case shall be decided either by the amount of the indebtedness, or according to the number of the creditors.

Where, however, there is one creditor whose claim is found to be greater than all the others, that is to say, if all of them were united into one, and the entire indebtedness computed, it would be greater in amount than the rest combined, this decision shall prevail, whether the creditor is willing to grant the time above mentioned or to accept an assignment of the property. But if there are several creditors who have different claims, the one who has the largest should be preferred to the others, whether the creditors are equal or unequal in number, as the case should be decided, not in accordance with the number of creditors, but by the amount of the indebtedness.

If the claims are found to be equal in amount, but the number of the creditors is unequal, then the majority of the creditors shall obtain the preference, and the decision shall be made in compliance with their wishes. When, however, the debts, as well as the number of creditors are equal, then those shall be preferred who incline to the more humane course, and do not require an assignment of the property, but are willing to grant the time, and, with reference to this choice, no difference shall be observed between hypothecary and other creditors.

When an assignment is made, the judge shall exercise his authority by dividing the property among the individual creditors, as prescribed by law, and no prejudice shall result to any creditor from the delay of five years, so far as prescription is concerned.

TITLE LXXII.

CONCERNING THE SEIZURE AND SALE OP PROPERTY BY AUTHORITY OF COURT, AND THE SEPARATION OP THE SAME.

1. The Emperor Antoninus to Attica.

With reference to the estate of a deceased person it is clear that the case of legatees is preferable to that of those to whom his heir has bequeathed property, since they can sue them, as they could have done his heir, for the first bequest can be collected as a debt, and what has been left by the deceased will only be available after the failure to pay it.

2. The Emperor Gordian to Aristo.

It is part of the jurisdiction of the Praetor under the Edict, after it has been established that the creditors of an estate are entitled to indemnity, that they shall be granted a separation of the property, whenever they demand it, and proper cause is shown. Therefore, you will obtain what you desire, if you can prove that you did not proceed against the heir as representing the estate, but that you were compelled by necessity to bring him into court.

3. The Same Emperor to Claudiana.

The suit which you have brought against your debtor on the contract which preceded the assignment of his property is contrary to the rule of law, as equity furnishes him with the relief of an exception. You can, however, again bring suit against him, if he has subsequently acquired other property, and the Governor of the province should authorize you to do so.

4. The Emperors Diocletian and Maximian, and the Cassars, to Clariana.

The demand which you make, namely, that one of the creditors who has a written claim against the debtor, and has seized the property of the latter, is obliged to satisfy all the other creditors, is contrary to law.

5. The Same Emperors and Csesars to Acyndinus.

If it is established that the property of your debtor is unoccupied, and it has not been seized by the Treasury, you can lawfully demand to be placed in possession by a competent judge.

Given on the seventeenth of the Kalends of January, under the Consulate of ....

6. The Same Emperors and Csesars to Agattiomarus.

Creditors cannot legally demand that the property of their debtor be transferred to them in satisfaction of their claims. Therefore, if the other creditors of your debtor have received property by way of pledge, there is no doubt that their claims will be preferred to yours, as you have only a written obligation. If, however, it should be proved that the property of your creditor is not encumbered to anyone either specially or generally, and the common debtor himself, or his heir, died without leaving any successor, the interest of all the creditors will be protected, not by asserting their right to the ownership of the property, but by obtaining possession of and selling the same, and each one should receive a share of the proceeds in proportion to the amount of nis claim.

7. The Same Emperors and Csesars to Domnus.

If your wife has been appointed heir by her uncle, who was her debtor for the third part of his estate, she will not be prevented from collecting the debt from his co-heirs in proportion to their two-thirds, as the right of action is not merged, except so far as the share of the estate to which she succeeded is concerned. If, however, the co-heirs should be insolvent, and a separation of property is demanded, she will not be allowed to suffer any loss.

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

8. The Same Emperors and Csesars to Elida.

The wife of the deceased, or other creditors who have been placed in possession of the property of the estate for the purpose of preserving it can, by no means, be considered to have acquired the ownership of the same for this reason.

9. The Same Emperors and Csesars to Teruncius.

As you allege that he of whom you complain is indebted to you on account of the administration of your business, having appeared before the Governor of the province, you can legally bring suit against him. If it is established that he is your debtor, and that in an attempt to defraud you of your rights, he has concealed himself, and does not make any defence, you can, by virtue of the Edict, obtain possession of his property, and the time prescribed by law having expired, you will not be forbidden by a competent judge to sell the same.

Given on the fourteenth of the Kalends of December, during the Consulate of Diocletian and Maximian.

10. The Emperor Justinian to John, Prsetorian Prefect.

In cases where money was due, and property which belonged to the debtor had not been hypothecated to secure payment, and he, fearing the harshness of his creditors, concealed himself, and they, having instituted proceedings with reference to said property, demand that possession of the same should be transferred to them, We find that the

question arose among the ancient authorities whether other creditors, to whom he was also indebted, could share in the possession of the property, and desiring to remove this doubt, do order by this general Imperial Constitution that, where not all the creditors, having claims of this kind, but only certain ones, are placed in possession of the property under a judicial decree, not only they, but all others having such claims shall enjoy the same privilege, and have a common interest with those who first obtained possession, and in whose favor a decree was rendered, as above stated; for what could be more just than that all those who are admitted to the possession of the property of the debtor should share an advantage of this description?

But, in order that the negligence of the others may not be a source of perpetual annoyance to those creditors who are shown to have been more diligent in the collection of their claims, it seems to Us to be equitable to direct that the other creditors who are not known, to have exerted such diligence shall share in the possession of said property, and that they shall be entitled to the term of two years if they are present and live in the same province in which those who have possession of it reside, and in case of their absence shall have the term of four years in which to prove their claims to the creditors in possession and pay the expenses pro rata to those who obtained the judgments. Those who incurred such expenses in order to obtain possession of the property, must prove the amount of the same under oath, because it is an established rule that they shall be reimbursed in proportion to the amount of their claims. After the time above mentioned has expired, however, the creditors who have obtained possession as aforesaid shall not be molested or subjected to loss, and they can bring any actions against their debtors to which they think that they are entitled under the laws.

(1) But if those creditors who hold possession should sell the property, either by virtue of a judicial decree or for any other lawful reason, or if they should transfer every right which they are known to have in said property to other persons, after the time which has been prescribed by Us, and receive a certain sum of money in payment for the same, anything which is found to be in excess of what is due to them, they will, by all means, be required to seal up in the presence of notaries, and deposit in the strong box of the Holy Church of the town in which the said transaction took place, after a statement has been drawn up by the notaries aforesaid, in the presence of the person who sold the property or transferred it to other persons, in which not only the amount of money which was paid for the sale or transfer of said property, as well as that of the surplus which remained after the discharge of the debt, shall be set forth, so that if any creditor should subsequently appear and produce evidence of a debt, he can be paid out of said surplus.

If another creditor should appear, the Governor of the province shall make an examination of his claim without any charge, and if he should not admit it, the reverend Stewards or Treasurers of the Holy Church in which the money is deposited shall not be subjected to any loss or expense, but the creditor shall be entitled to receive the amount

of his debt, pro rata,, out of the money deposited under the decree of the Governor. To prevent the creditors from practicing any fraud, machination, or evasion in the sale or transfer of said property, We order that the statement drawn up with reference to the transaction shall, with all the customary formalities, be recorded in the office of the Defender of the City, whether the amount of the price was equal to that of the debt, or whether it was more, or less; and this should take place, not only in the presence of notaries, as aforesaid, but also in that of the most reverend Treasurer of the Church in whose hands the excess of the money, if there was any, was deposited under seal.

The vendor, or the person who transferred the property, shall be required to make oath on the Holy Scriptures that this was not done to favor either the purchaser or him to whom the property was delivered, and that he did not fraudulently receive a lower price for the same than it was worth, but the highest one in fact which, after every effort, it was possible for him to obtain.

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

TITLE LXXIII. CONCERNING THE PRIVILEGE OF THE TREASURY.

1. The Emperor Antoninus to Eutropia.

If the property of your husband was seized by the Treasury for the payment of claims incurred during his administration as Chief Centurion of the Triarii, any of it that you can prove beyond question to be yours shall be separated from the rest, and returned to you.

2. The Same Emperor to Valeriana.

Although your former husband may have had judgment rendered against him on account of your dowry, still, if he made a contract with the Treasury before his property was encumbered to you, the claim of the Treasury will be preferred to yours. If, however, he became liable to the Treasury after you had obtained a lien on his property, the claim of the Treasury to said property will not take precedence of yours.

Published on the fourteenth of the Kalends of November, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Same Emperor to Juliana.

If, when you paid money for your husband, you did not have the claim of the Treasury transferred to you, and did not receive a house or any other property from him by way of security, you will be entitled to a personal action, but your claim by which you allege that the taxes have again been farmed out to him cannot be preferred to that of the Treasury, as, under the terms of that contract, whatever property he has or did have at the time the agreement was entered into, is encumbered to the Treasury by the right of pledge. Therefore, with the exception of the indemnity to which the Treasury is entitled, you

will not be prevented from suing your debtor, in the ordinary way, for the sum which you have paid in his behalf to the Treasury.

Published on the third of the Kalends of January, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

4. The Same Emperor to Quintus.

If the debtor, to whom you state that the land in question belonged, sold it before he owed anything to the Treasury, My attorney will see that you are not subjected to annoyance on this account, for even though he afterwards became the debtor of the Treasury, still, any property which did not belong to him at that time cannot, for this reason, be encumbered to the Treasury by the right of pledge.

Published on the third of the Kalends of July, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

5. The Emperor Alexander to Menna.

If the money which a creditor received from his debtor should afterwards be decided to justly belong to the Treasury, it will be due without interest, because it was acquired, not under a contract for interest, but as being the property of the Treasury by special privilege.

Published on the fifteenth of the Kalends of June, during the Consulate of Fuscus and Dexter, 226.

6. The Emperor Gordian to Severiana.

As you yourself state that your father was a debtor of the Treasury, and you allege that, at the time of your marriage, he gave you possession of certain property, you understand that the Attorney of the Treasury can institute proceedings to revoke said gift, on the ground that said property was pledged to the Treasury.

Published on the Nones of June, during the Consulate of Sabinus and Venustus, 241.

7. The Emperors Valerian and Gallienus, and the Csssar Valerian, to Diodorus.

If, after you have paid for a debtor to the Treasury the balance which he owed, and a competent judge has assigned to you the right of the Treasury, and deprived the creditors (to whom the Treasury had a preferred claim) of the property in your favor, they cannot molest you for the reason that you hold it by this title.

Published on the fifteenth of the Kalends of June, during the Consulate of ^milianus and Bassus, 260.

TITLE LXXIV. CONCERNING THE PRIVILEGE OF DOWRY.

1. The Emperors Severus and Antoninus to Firm/us.

You should know that the dotal privilege which women avail themselves of in an action of dowry does not pass to their heirs.

Published on the Kalends of May, during the Consulate of Pompei-anus and Avitus, 210.

TITLE LXXV.

CONCERNING THE REVOCATION OF CONTRACTS BY WHICH

PROPERTY HAS BEEN ALIENATED FOR THE PURPOSE OF

DEFRAUDING CREDITORS.

1. The Emperor Antoninus to Cassia.

An heir who, after having entered upon the estate, transfers it to another, remains liable to the creditors of the estate. Therefore, if he did this for the purpose of defrauding you, and you have seized and sold his property in the ordinary way, you can revoke the contract by which it is proved that the property was fraudulently alienated.

Published on the second of the Ides of October, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Symphoriana.

If you did not accept the estate of your father, his creditors cannot proceed against you on account of the property which was given to you by way of dowry, when it is not shown that the said property was previously pledged to them, unless, after the estate of the deceased was found to be insufficient to pay his debts, it should be proved that the dowry had been constituted for the purpose of defrauding his creditors.

3. The Emperors Diocletian and Maximian, and the Ctesars, to Acindynus.

If you refused to accept the estate of your father, and none of the property of the same was transferred to you as a donation for the purpose of defrauding creditors, the Governor of the province will not permit you to be sued by the private creditors of your father.

4. The Same Emperors and Csesars to Epagathus.

It is a well-known rule of law that the sons of a debtor have no power to revoke contracts made by their father for the purpose of defrauding his creditors.

Published on the tenth of the Kalends of May, during the Consulate

of the above-mentioned Emperors.

5. The Same Emperors and Csesars to Crescentius.

It is a well-recognized legal principle that the interests of creditors shall be protected against a person who, after judgment has been rendered against him, does not satisfy it within the time prescribed; and no defence is made by bringing an action in factum against the purchaser, where property has been sold after the remaining assets have been found to be insufficient, and the purchaser knowingly and fraudulently bought the property, or against him who has possession under a lucrative title, whether he was aware of the fraud or not.

Ordered on the tenth of the Kalends of November, during the Consulate of the above-mentioned Emperors.

6. The Same Emperors and Csesars to Menandra.

If you have formally released an obligation, you are advised that the right to sue is only granted by the Perpetual Edict against the party guilty of fraud, within the year during which he could be compelled to make payment, or committed a fraudulent act by which he became unable to do so.

THE CODE OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.

SECOND EDITION. BOOK Vill.

TITLE I. CONCERNING INTERDICTS.

1. The Emperor Alexander to Evocatus.

As you allege that the roots of trees planted on the neighboring land of Agathangelus threaten the safety of your house, the Governor, by virtue of the edicts published by the Praetor, and which begin as follows, "If the tree extends over the house of another," or "If it projects over the field of another," and it is proved to those who have charge of such matters that no injury can be caused to the neighbor by said trees, the question will be decided as justice requires.

Published on the sixth of the Kalends of April, during the Consulate of Julian, Consul for the second time, and Crispinus.

2. The Emperors Valerian and Gallienus to Messia.

The Governor of the province cannot, even by means of an interdict, proceed against a person who is not a resident of the province.

Published on the seventh of the Kalends of May, during the Consulate of Secularis and Donatus, 261.

3. The Emperors Diocletian and Maximian, and the Cassars, to Pompeianus, Prsetorian Prefect.

It is a well-known rule of law that where legal proceedings have been instituted with reference to the possession or ownership of property, the question of possession must first be determined by a proper action, and after this has been done, the proof of the disputed ownership shall be required of him who was defeated in the case involving possession. But although interdicts are not properly applicable in extraordinary proceedings, still a case of this kind must be decided in the same manner.

Published at Sirmium, on the Kalends of January, during the Consulate of the above-mentioned Emperors.

4. The Emperors Arcadius and Honorius to ^Emilianus, Prsetorian Prefect.

When anyone wishes to avail himself of an interdict, he must be ordered to make his allegations, and state his case in the ordinary manner in court, avoiding the technicalities employed by the ancients in proceedings of this description.

Published on the thirteenth of the Kalends of . . . , during the Consulate of Arcadius, Consul for the sixth time, and Probus, 406.

TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM.

1. The Emperors Severus and Antoninus to Justus.

If you intend to claim the estate which you allege belonged to your father, prove the facts upon which you base your claim before the judges having jurisdiction of the case. For although, after having been passed over in the will, you have accepted praetorian possession of the estate, still, you cannot obtain possession by virtue of the interdict Quorum bonorum, unless you can prove that you are a son of the deceased, and that you have acquired the estate itself, or praetorian possession of the property constituting the same.

Published on the eighth of the Kalends of January, during the Consulate of Lateranus and Rufinus, 198.

2. The Emperors Diocletian and Maximian, and the Cassars, to Marcus.

If, by virtue of the Edict, you demanded the estate after having obtained possession of the same (it having belonged to the sister of your paternal uncle who died intestate, without leaving any children), and you were successful in your application, the Governor of the province will cause the property which belonged to her at the time of her death and which was held by others, either as heirs or possessors of or which they have fraudulently relinquished possession to be delivered to you, in accordance with the tenor of the interdict Quorum bonorum.

Published on the sixth of the Kalends of April, during the Consulate of the Caesars.

3. The Emperors Arcadius and Honorius to Petronius, Vicegerent of the Spains.

It is established that a husband is excluded from the estate of his wife who died intestate, leaving brothers, as the opinions of all jurists, as well as the Law of Nature itself, make them her heirs. Therefore We order, all efforts to the contrary notwithstanding, that the property shall be transferred to the claimant under the interdict Quorum

bonorum, and that the action with reference to the ownership of the same shall not be barred.

Given at Milan on the sixth of the Kalends of August, during the Consulate of Olybrius and Probinus, 395.

TITLE III. CONCERNING THE INTERDICT QUORUM LEGATORUM.

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

There is sufficient provision made for the appointed heir by the Falcidian Law, which authorizes him to retain the fourth of the estate where it is proved to have been exhausted by the legacies. Wherefore, if the legatee, or the beneficiary of the trust, whom you assert succeeded the testator, accepted possession of the estate without the consent of your father, and retained the legacy or other property left to him by the terms of the trust, you can begin proceedings under the interdict by which provision is made for the appointed heirs, as against the legatees, and after having furnished the security which must be given, you can be placed in possession of the property and retain the fourth of the same to which you are entitled.

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

TITLE IV. CONCERNING THE INTERDICT UNDE Vi.

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

A person lawfully in possession has the right to use a moderate degree of force to repel any violence exerted for the purpose of depriving him of possession, if he holds it under a title which is not defective.

Published on the fifteenth of the Kalends of December, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

2. The Same Emperors and Csesars to Alexander.

It is a positive rule of law that, by the employment of an interdict, those who have been forcibly ejected from property can have it restored to them if the available year has not expired, and that the heirs shall be liable for the amount which in the meantime has come into their hands.

Ordered during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and Csesars to Ulpia and Proculina.

You made an exceedingly improper demand when you requested Us to grant you the authority of an Imperial Rescript to confirm your

possession of property which you acknowledge you obtained by violence.

Ordered on the eighth of the Ides of April, during the Consulate

of the Caesars.

4. The Same Emperors and Csesars to Hyginus.

If you have been forcibly dispossessed, you can bring suit under the Lex Julia having reference to private violence against the guilty party and, under the terms of the interdict, you, as the former possessor, can compel him to give you possession, and there is no doubt that he can also be compelled to surrender the income which he may have obtained from the land.

Ordered at Sirmium, on the sixth of the Ides of April, during the Consulate of the Csesars.

5. The Emperor Constantine to Tertullians.

Anyone who has seized land is liable to the penalty prescribed by law, provided he is proved to have been guilty of violence, for, when the possession of property is obtained by others, either through mistake or the negligence of the owner, it should be restored without the imposition of a penalty.

Given on the sixth of the Kalends of May, during the Consulate of Gallicanus and Symmachus, 330.

6. The Emperors Gratian, Valentinian, and Theodosius to Potitus, Prefect of the City.

All persons are informed that, in every instance where the owners of property are sued either under a Rescript published by the Emperor, or by virtue of the decision of any judge, and the parties are absent, notice should be served upon their agents or attorneys, in order that no occasion for injury may arise from the source of the law. If the litigants should fail to obey Our orders, they shall be deprived of all rights to the matter in dispute.

(1) When the curators or guardians of minors, acting in collusion, cause the said minors to lose their cases, and be deprived not only of the property which they are entitled to, but of the profits as well, We come to their relief in order that they may not suffer injury through the culpable rashness of others. Possession shall at once be restored to him who was deprived of it, and the curators or guardians shall be punished by perpetual banishment, and their property confiscated.

Given on the second of the Nones of April, during the Consulate of Antoninus and Syagrius, 382.

7. The Emperors Valentinian, Theodosius, and Arcadius to Mes-sianus, Count of Private Affairs.

If anyone should be so bold as to forcibly seize property in possession of the Treasury, or of any persons whomsoever, before a judicial decision has been rendered, the owner of the same, after having established his right to the possession of what he took, shall restore it to the possessor, and shall lose all title to the said property.

If, however, he forcibly took possession of what belonged to another, he shall not only restore it to the possessor, but shall also be compelled to pay him the value of said property.

Given on the seventeenth of the Kalends of June, during the Consulate of Timasius and Promotus, 389.

8. The Emperors Arcadius and Honorius to Paliphilus.

The interdict of temporary possession, which does not always have reference to public or private violence, shall be heard at once, and without being reduced to writing.

Given at Milan, on the sixth of the Ides of June, during the Consulate of Olybrius and Probinus, 395.

9. The Emperor Zeno to Sebastian, Praetorian Prefect.

If, after the act of violence has been proved in court, the question with reference to the property removed or seized is taken up, as well as the damage sustained at the time, and the person who suffered the violence cannot prove the loss of each individual article, an estimate having been made by the judge in accordance with the character of the person, and the nature of the transaction, the plaintiff must establish by his oath the general value of the property which he lost, but he shall not be permitted to swear to an estimate higher than that fixed by the judge, and the amount having been stated under oath in this manner, the court must render judgment accordingly.

Given at Constantinople, on the Ides of December, after the fifth Consulate of Armatius, 477.

10. The Same Emperor to Sebastian, Praetorian Prefect.

It is not unreasonable for an ancient constitution, as well as the present one, to declare that those who unlawfully seize the possession of another should be punished. Hence those who lease or retain possession of property belonging to others cannot, with impunity, attempt to prevent the lessors of said property from recovering possession of it according to law, which possession they only granted them temporarily, when the latter can advance no legal right to the same, and prefer to offer resistance, and not suffer the owners to recover the possession to which they are justly entitled, but wait for an order of court. If the decision should, under such circumstances, be against them, We decree that, for their impudence and injustice, they shall not only be compelled to surrender to the successful party possession of the property which they were unwilling to voluntarily restore to the owner until a final decision had been rendered, but also to pay him a sum equal to its value.

Given at Constantinople, on the fifth of the Kalends of April, during the Consulate of Theoderic and Venantius, 424.

11. The Emperor Justinian to John, Prsetorian Prefect.

When a doubt arose among the members of the Illyrian Bar, as to what course should be pursued concerning those who, without the

authority of a judicial decree, retained possession of property left vacant during the absence of the owner, for the reason that the ancient laws did not provide for the recovery of possession of this kind, either by the interdicts Unde vi or Quod vi out clam, or by any other legal proceeding, violence not having occurred in taking possession of the property, and as no action was allowed the owner except the one in rem, We, not permitting anyone to seize the property or possession of others by his own authority, do hereby order that a possessor of this kind shall be understood to be a thief, and held liable under the general provisions set forth in the ancient laws treating of the restitution of possession against persons of this kind. For it is ridiculous to say or believe that anyone could, through ignorance, occupy property belonging to another as his own. All persons should know that what is not theirs must assuredly belong to someone else, as a provision of this kind was long ago prescribed by the ancient laws in the action of theft, for they declared that if anyone should take the property of another without the consent of the owner, he will be liable in an action of theft; and the laws which have been promulgated by Us with reference to the recovery of possession shall be applicable to these cases, if the term of thirty years from the time when possession was taken has not elapsed.

Given on the thirteenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 532.

TITLE V.

WHERE THE POSSESSION OF AN ABSENT PERSON is INTERFERED WITH BY FORCE OR IN ANY OTHER WAY.

1. The Emperor Constantius to Severus.

The judges of absent persons who have been deprived of the possession of property must admit their legal demands, as well as exert the full force of their authority to protect them, and diligently inquire whether the possession of him who is absent for any reason was retained in his behalf, by one of his neighbors, ascendants, relatives, friends, tenants, freedmen or slaves. Nor shall the claims of those who have possession in the name of the absent party be rejected, even if they are slaves, on the ground that they were not authorized to institute legal proceedings by the owner, although it is not lawful for persons of this condition to appear in court.

But after the time for recovering possession prescribed by law has elapsed, temporary possession shall be granted without any delay to the parties bringing suit, just as if the owner of the property, having returned, was conducting the case.

We, however, grant the owner the right of action to recover possession, no matter when he may return, because restitution of possession might, in the meantime, be deferred on account of the bad faith of slaves, or the negligence of neighbors, parents, friends, tenants, or freedmen, as the expiration of the time prescribed by law for the

recovery of possession should not prejudice the rights of those who are absent.

Everything unjustly interfered with having been restored to its former condition, whatever relates to the discussion of the case shall remain unaltered, and decision shall be reserved until the appearance of the just and lawful owners, who are absent, as it is amply sufficient for protection against acts of violence to be afforded those holding possession of the property in the name of the absent parties.

Given at Constantinople, on the Kalends of November, during the Consulate of Constantius, Consul for the seventh time, and the Csesar Constans, Consul for the third time, 326.

2. The Emperors Arcadius and Honorius to Petronius, Vicegerent of the Spains.

No answer of the Emperor obtained by the petition of a litigant, nor any interlocutory decree of a judge can, in any manner, change the condition of the possession so far as an absent person who is entitled to the ownership of the property is concerned, because the merits of the case must be determined by the evidence of the parties interested.

Given at Milan, on the fifteenth of the Kalends of January, during the Consulate of Caesarius and Atticus, 397.

TITLE VI. CONCERNING THE INTERDICT UTI POSSIDETIS.

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

The Governor of the province, by employing the interdict Uti possidetis, will prevent any violence being done to you because of the land in dispute, provided you have not obtained possession of the same from another, either by force, clandestinely, or under a precarious title, and he will examine the question of ownership after the provisions of the Perpetual Edict with reference to furnishing security or transferring possession have been complied with.

Given at Nicomedia, on the third of the Ides of October, during the Consulate of the Caesars.

TITLE VII.

CONCERNING THE PRODUCTION OF WILLS. 1. The Emperors Valerian and Gallienus to Germanus.

If the children under the age of puberty were subject to the control of their father, and you were substituted for them, and they died before reaching puberty, the estate will belong to you, and you can avail yourself of the interdict to compel the production of the will.

Published on the seventh of the Kalends of May, during the Consulate of Secularus and Donatus, 261.

TITLE Vill.

CONCERNING THE PRODUCTION OR INTRODUCTION OF CHILDREN AND FREEMEN IN COURT.

1. The Emperor Antoninus to Justin.

If (as you allege) you are your own master, and have obtained a judgment with reference to the property of the mother's estate, you can sue the persons against whom a decision was rendered in your favor. If, however, anyone should appear who asserts that you are his son and under his control, recourse having been had to the interdict, the truth of his claim shall be investigated.

Published on the sixth of the Ides of April, during the Consulate of the two Aspers, 213.

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

Go before the Governor of the province and demand that your sons be produced.

Published at Byzantium on the fifth of the Ides of April, during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and Csesars to Evodia.

If you think that Philip should, by means of an interdict, be compelled to produce his daughter, the Governor of the province, having been applied to, will take cognizance of your dispute.

Ordered at Nicomedia, on the twelfth of the Kalends of December, during the Consulate of the above-mentioned Emperors.

TITLE IX. CONCERNING THE PRECARIOUS AND SALVIAN INTERDICTS.

1. The Emperor Gordian to Aristo.

If your debtor should, without your releasing the lien, sell property which has been pledged to you, you will have the right to claim the said property, but not under the Salvian interdict, for it can only be employed against a lessee or a debtor; but you must proceed by the Servian Action, or the one which has been devised in imitation of it, and which should be brought against the purchaser.

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

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

It is clearly stated in the interdict to be filed against them that the heirs of one who had a precarious right of habitation are required to surrender the house to which the right attaches.

TITLE X. CONCERNING PRIVATE BUILDINGS.

1. The Emperors Severus and Antoninus to Taurus.

You can (as you desire to do) construct a bath, and place a building above it, provided, however, that you observe the law enacted with reference to those who build above a bath; that is to say, you must erect the superstructure as well as the bath itself upon arches, and do not raise it above the ordinary height.

Without date or designation of Consulate.

2. The Emperor Alexander to Diogenes.

It is forbidden both by an Edict of the Divine Vespasian and a Decree of the Senate to demolish a building and remove the marble composing it for the purpose of selling the same, but an exception is made where the marble is to be transferred from one building to another, as this can be done. Owners, however, are not permitted to transfer the materials in such a way that, when the buildings are demolished, the general appearance of the neighborhood will be rendered less attractive.

Published on the eleventh of the Kalends of January, during the Consulate of Alexander, 225.

3. The Same Emperor to Evocatus.

The Governor of the province, after proper investigation, and in accordance with what is frequently done in controversies of this kind which arise in towns, must decide whether you will be permitted to demolish your entire house, not for the purpose of rebuilding it in the city, but in order to convert it into a garden, and whether this can be effected with the consent of a magistrate and that of your neighbors.

Published on the seventh of the Kalends of April, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

4. The Emperor Philip and the Csesar Philip to Victor.

If (as you allege) the other joint-owner of the building refuses to pay his share of the expense incurred for necessary repairs, you will not be obliged to have recourse to extraordinary proceedings, as you propose to do, for if you alone have rebuilt the house, and your partner does not pay his share of the expense with interest at the rate of twelve per cent within the term of four months, or if it should be proved that he is to blame for not having done so, you can demand and obtain the ownership of the entire property in accordance with the provisions of the ancient laws.

Published on the fourth of the Kalends of April, during the Consulate of Philip and Titian, 346.

5. The Emperors Diocletian and Maximian, and the Csesars, to Octwvius.

If he against whom you have petitioned, being aware that the part of the land in question belongs to you, and well knowing that he had

no rights either as a partner of a joint-owner, proceeded to construct a bath under the assumption of joint-ownership, with the intention of acquiring the entire property if you did not pay your share of the expense, and also attempted to rebuild a bath which had been demolished, and as all structures placed on the land of another belong to the soil, and the expense incurred in their construction should not be refunded to those who wrongfully erected them, under the terms of an ancient Edict of the Divine Hadrian, the Governor of the province, mindful of the public law on this point, shall act as legally required in the settlement of the controversy.

Published on the sixth of the Nones of October, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

6. The Emperor Constantine to Elpidius, acting as Deputy of the Prsetorian Prefect.

If anyone, after the promulgation of this law, should remove from the city to the country any ornaments taken from a house, that is to say, any marble or columns, he shall be deprived of the building which he decorated in this way. Where, however, anyone desires to transfer any columns or marble from a house which is falling into ruin in a city to another house of his own in a different town, he shall be permitted to do so, as these materials continue to be public ornaments, remaining as they do in both instances, in cities.

The same authority is also granted to transfer ornaments of this kind to another place of the same description, even though it may be necessary to transport them through the middle of a city, or beyond the walls, provided that those materials which have been taken from one town shall only be used in another.

Given on the sixth of the Kalends of June, during the second Consulate of Crispus and Constantius, 321.

7. The Emperor Julian to Vitianus, Vicegerent of Africa.

No one shall be permitted to remove or transport any columns or statues, of any material whatsoever, out of a province.

Given on the sixth of the Kalends of November, during the Consulate of Julian, Consul for the fourth time, and Sallust, 363.

8. The Emperors Valens, Gratian, and Valentinian to Modestus, Prsetorian Prefect.

The decurions of each city are required, even against their consent, either to repair houses within cities in which they formerly resided, or to entirely rebuild them, when this becomes necessary, because they are always obliged to discharge their duties in the same city in which they live, and should, so far as they can, contribute to the size of the same.

The possessors of houses, who are not decurions, must repair them if they have fallen into decay and have been neglected, and the judges shall exert their authority to enforce observance of this law.1

1 The decurio or curialis of the Romans was a member of the curia, or local senate of a town or city, which was charged with its government, corresponding in

Given on the thirteenth of the Kalends of November, during the Consulate of Gratian, Consul for the fourth time, and Nerobaudus, 377.

9. The Emperors Theodosius, Arcadius, and Honorius to JEmili-anus, Prefect of the City.

Where anyone who owns property in the neighborhood of a public building intends to erect a house upon it, he must remember when building it to leave the space of fifteen feet between the two edifices, so that, by means of this space, the public building will not be endangered, and the private individual will not, hereafter, run the risk of having his house demolished for having constructed it in a place where he had no right to do so.

Given on the tenth of the Kalends of November, during the Consulate of Arcadius, Consul for the sixth time, and Probus, 406.

10. The Emperors Honorius and Theodosius to Monaxius, Prie-torian Prefect.

Persons who desire to do so shall be permitted to surround their own lands, or premises known to belong to them, with a wall, in the provinces of Mesopotamia, Osdroena, Euphrates, Second Syria, Phoenicia, Libanus, Second Cilicia, both the provinces of Armenia, both the Provinces of Cappadocia, Polemoniac, Pontus, the Hellespont, and all other provinces where it may be desirable to do so.

Given at Constantinople, on the third of the Nones of May, during the Consulate of Theodosius, Consul for the eleventh time, and Con-stantius, Consul for the third time, 421.

11. The Same Emperors to Severinus, Prsetorian Prefect.

Balconies (called in Greek re^osa?), whether they have already been, or may hereafter be, built in the provinces, shall, without exception, be demolished, unless they have a space of ten feet between them for the free circulation of air. Moreover, in places where the buildings of private individuals adjoin public warehouses, the space of fifteen feet must be left between the balconies. We have established this interval in the case of buildings so that, if anyone should attempt to encroach upon the space prescribed, that is to say, erect a balcony projecting over the distances of ten and fifteen feet above mentioned, he may know that not only what he built will be demolished, but that the house will itself be confiscated to Our Treasury.

many respects to the boards of aldermen and municipal councils of the present day. Originally, the munus, or official responsibility, was only an incident of the position, or honor, and was not imposed upon the appointee, if unwilling; but more recent laws practically divested him of any distinction it conferred, while reserving and enforcing compliance with all the obnoxious features which characterized the employment, for which the exemptions and privileges subsequently granted by the emperors to the incumbents did not, in their eyes, by any means afford adequate compensation. Acceptance of the office was compulsory, and as it involved the discharge of duties which were always more or less onerous and disagreeable, it was execrated by the citizens, who availed themselves of every possible pretext to avoid public service in that capacity.—ED.

Given on the third of the Kalends of October, during the Consulate of Asclepiodotus and Marinianus, 423.

12. This Law is not Authentic.

13. The Emperor Justinian to John, Prsetorian Prefect.

As a doubt arose whether the Constitution of the Emperor Zeno, of Divine Memory, addressed to Amantius, Prefect of the City, and relating to servitudes, was only local in its effect, and intended to be observed in this most flourishing City, and whether the ancient laws which conflict with it were applicable to the provinces, We, thinking that it would be unworthy of Our reign for one law to be obeyed in this way in this Imperial City, and another by the inhabitants of Our provinces, do hereby decree that the same constitution shall prevail in all the cities of the Roman Empire, and that everything shall be done in accordance with its provisions, and if the ancient law was, in any way, altered by the present one, the latter shall be observed by the Governors of the various provinces; in other words, all regulations which are not changed by the law of Zeno, but are contained in the ancient enactments, shall everywhere remain in full force.

Given at Constantinople, during the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531.

TITLE XI.

CONCERNING THE NOTICE PROHIBITING THE ERECTION OF A NEW STRUCTURE.

1. The Emperor Justinian to John, Prsetorian Prefect.

We are aware that a doubt arose among the ancients with reference to a notice not to erect a new structure, and that where one person had warned another not to proceed with it, he could not again prohibit him from doing so after a year has elapsed from the time when the notice was served. This appears to Us to be doubly unjust, for either he did not have good grounds for forbidding him to erect the building (and if this was the case it was not right that he should prevent him from doing so for an entire year), or if he did have good cause to serve the notice, he should be permitted again to forbid its construction after the expiration of a year.

Therefore We, for the purpose of preventing such injustice, do order that if anyone should serve a notice of this kind in this Imperial City, the case shall be brought before the Urban Prefect, and if this is done in any province, the matter shall be disposed of by the Governor of the same within the term of three months. If, however, any impediment should arise to prevent the decision of the case, he who was erecting the building shall be allowed to proceed with the work, after having furnished security to the Urban Prefect, or the Governor of the province, that if his building should be ascertained to have been constructed contrary to law he will demolish, at his own expense, all of it that he erected after notice was served upon him.

This law is enacted in order that the construction of buildings may not be prevented by notices which are unreasonable, and at the same time that the interests of those who have good reason for serving such notices may be protected.

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

TITLE XII. CONCERNING PUBLIC WORKS.

1. The Emperors Constantius and Constans to Catulinus.

Many persons have, through the concessions of judges, obtained exemption from the construction of public works, and therefore We decree that unlawful privileges of this description shall, hereafter, be of no force or effect.

Given at Sirmium, on the sixth of the Kalends of August, during the Consulate of Ursus, Lupulus and Polemius, 338.

2. The Same Emperors to Marcellinus, Count of the East.

You understand that where expenses have been incurred in the construction of public works, credit should be given for the same.

Given at Constantinople, on the fifth of the Nones of October, during the Consulate of Limenius and Catulinus, 349.

3. This Law is not Authentic.

4. The Same Emperors to Ecdicius, Prefect of Egypt.

Buildings for the use of judges, and public edifices, must always be devoted to the dispensation of justice, and the use of the people.

Published at Antioch, on the fourth of the Nones of December, under the Consulate of Mamertinus and Nevitta, 362.

5. The Emperors Valentinian and Valens to Symmachus, Prefect of the City.

No judge shall, without Our sanction, erect a new building within the limits of ancient and modern Rome, unless he wishes to do so at his own expense. We, however, grant all of them permission to repair any building of which they make use, if it is shown that it is about to fall into ruin.

Given on the eighth of the Kalends of June, under the Consulate of Jovian and Varonianus, 364.

6. The Emperors Gratian, Valentinian, and Theodosius to Proculus.

No prescription of time, nor even the authority of a rescript, shall be pleaded in favor of what has been done contrary to public law, and therefore all buildings or other structures, which are known to have been erected in different cities, either in the Forum or in any other public place, and are injurious to the ornamentation, convenience, and suitable appearance of the City, shall be demolished.

Given at Constantinople, on the third of the Ides of June, during the Consulate of Merobaudus, Consul for the second time, and Satur-ninus, 383.

7. The Same Emperors to Cynegius, Prsstorian Prefect.

All persons should emulously and in unison assist in the repair or construction of harbors, aqueducts, and walls; nor shall anyone's rank, no matter what it may be, exempt him from the performance of this duty.

Given at Constantinople, on the fifteenth of the Kalends of February, during the Consulate of Richomer and Clearchus, 384.

8. The Same Emperors to Cynegius, Prsstorian Prefect.

All those to whom have been committed the construction of public works, where money for this purpose has been advanced to them in the ordinary way, shall, with their heirs, be liable for their completion within the term of fifteen years, so that if any defect of construction should be discovered within the prescribed time, it may be made good out of their estates, except in cases which are the result of accident.

Given at Constantinople, on the third of the Nones of February, during the Consulate of Arcadius and Bauto, 385.

9. The Emperors Theodosius, Arcadius, and Honorius to Aurelian, Prefect of the City.

Your Highness knows that where a grant is made by Us for the construction of public buildings, the rule must be observed that no house shall be demolished, under the pretext of the erection of a building, whose value is estimated at more than fifty pounds of silver; and where the houses are worth more than that sum, We must be applied to, and the Imperial authority exerted, if a larger'amount is demanded.

Given at Constantinople, on the third of the Kalends of March, during the Consulate of Theodosius, Consul for the third time, and Abundantius, 393.

10. The Same Emperors to Rufinus, Praetorian Prefect.

Judges shall be considered guilty of high treason who cause their names to be inscribed upon buildings erected at the public expense, without mentioning that of the Emperor.

Given on the third of the Nones of July, during the Consulate of Arcadius, Consul for the third time, and Honorius, Consul for the second time, 394.

11. The Emperors Arcadius and Honorius to Eusebius, Count of the Sacred Largesses.

In order that Our magnificent cities and towns may not become ruined through the effect of age, We hereby set aside the third part of the income from the public lands for the repair of public buildings and baths.

Given at Milan, on the eleventh of the Kalends of July, during the Consulate of Olybrius and Probinus, 395.

12. The Same Emperors to Csesarius, Praetorian Prefect.

All Governors of provinces are hereby notified that the inhabitants of cities, without distinction of rank, are obliged to contribute to the construction of new city walls, or the repair of the old ones, and that the expense of the same must be distributed so that the allotment of each will be in accordance with his means, and the real property of the citizens be taxed in proportion to the estimate of the structure to be erected, so that no more may be demanded than necessity requires, and no less, for fear construction may be prevented.

This tax must also be equally imposed upon lands which yield a revenue, and everyone shall be compelled to pay his share of the expense, and no excuse shall be accepted, and no immunity from contribution granted under any pretext whatsoever.

Given on the eighth of the Kalends of April, during the Consulate 6f Arcadius, Consul for the fourth time, and Honorius, Consul for the third time, 396.

13. The Same Emperors to Theodore, Praetorian Prefect.

No judge shall be so rash as to presume to erect a new building without Our authority, or remove from different edifices any ornaments, marbles, or other materials which are proved to have been for the use and adornment of the City, and transport them somewhere else without the order of Your Highness, for if anyone should do so in violation of this law, he shall be fined six pounds of gold.

Municipal magistrates shall be liable to the same sentence if, relying upon this Decree, they do not protect the ornaments of their birthplace. Judges, however, can, by their own authority, erect warehouses or stables by way of manifesting their laudable devotion to Us.

Given at Milan, on the third of the Kalends of January, during the Consulate of Honorius, Consul for the fourth time, and Eutychi-anus, 398.

14. The Same Emperors to Severus, Prefect of the City.

We order that the buildings commonly called parapetasia,1 or others which are attached to the walls of cities, or to public buildings, and on account of whose condition the neighborhood is threatened with fire or some other danger, or which occupy the space of public squares, or interfere with the porticos of public edifices, shall be demolished and destroyed.

Given at Constantinople, on the fifth of the Ides of October, during the Consulate of Honorius, Consul for the fourth time, and Eutychi-anus, 398.

15. The Same Emperors to Eutychiamts, Praetorian Prefect.

If, at any time, certain men should appear and request Us to grant them the use of a public building, and a rescript is granted to that effect, they shall not be allowed the use of said building unless it is

1 That is, "resembling a screen," a Greek term applicable to a building which obstructs the light, or interferes with the approach to another.—ED.

ruinate, almost destroyed, and of very little value to the city, after the rescript has been presented to Your Highness and you have ascertained that this is the fact.

Given on the Ides of December, during the Consulate of Honorius, Consul for the fourth time, and Eutychianus, 398.

16. The Same Emperors to JEmilianus, Prsetorian Prefect.

When, either on account of age, or because of some accident, necessity demands that a portico or some other public building should be repaired, it shall be permitted, even without consulting the Emperor, to remove with all due reverence either his statue or those of former sovereigns, provided that, after the building has been repaired, they are returned to their proper places.

Given at Constantinople, on the fifth of the Kalends of July, during the Consulate of Arcadius, Consul for the sixth time, and Probus, 406.

17. The Emperors Honorius and Theodosius to Monaxius, Prae-torian Prefect.

Any place within the precincts of Our palace, in this city, which is occupied by private buildings to the inconvenience of the former, shall be immediately demolished, as it is not proper for the palace to be confined by the walls of private residences, for the home of the Emperor should be separate from those of all other persons; and they alone shall have the right to live .near the palace who have lawfully been granted this privilege by the Emperor, or who are required to do so by their public duties; and, for the future, all persons are hereby prohibited from any encroachment of this description.

Given at Constantinople, on the ninth of the Kalends of March, during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the third time, 409.

18. The Same Emperors to Anthemius, Prsetorian Prefect.

We order that the towers of the new wall, which was built for the protection of this magnificent City, shall, after the work has been completed, be set apart for the use of those on whose land the said wall has been erected by your care and foresight, and with Our consent. This privilege is granted to them forever by the terms of this law, but under the condition that every year those who have surrendered their rights to said land shall make the necessary repairs at their own expense, and while they enjoy the use and benefit of public property, they must not forget that the care and responsibility for said repairs are part of their duty. In this manner the splendor of the work and the defence of the city will be connected with the utility and advantage of private individuals, and both will be preserved.

Given on the second of the Nones of April, during the Consulate of Lucius, 413.

19. The Same Emperors to Severinus, Prsetorian Prefect.

For the reason that several houses, with their workshops, are said to have been erected in the porticos of Zeuxippus, We order that,

without any exception, the rents of the aforesaid buildings shall be appropriated proportionally for the construction of new windows, as well as for the repair of the roofs, and the maintenance of the baths of this Imperial City.

Given on the fifth of the Ides of January, during the Consulate of Victor, 424.

20. The Emperors Theodosius and Valentinian to Cyrus, Prefect of the City.

We order those persons who, without the authority of an Imperial Rescript communicated to them by Your Highness, have included entire ends of streets or portions of the same in their houses, or have appropriated porticos, to return to the public use of the city what they have in this way taken for their own use, and if anyone should hereafter be guilty of such audacity, he shall be liable to a fine of fifty pounds of gold.

Given on the Kalends of November, during the Consulate of Theodosius, Consul for the seventeenth time, and Festus, 439.

21. The Same Emperors to Cyrus, Prsetorian Prefect.

We order that the Basilica, which has been embellished with gold and marble, shall remain intact for all time, and that its ornamentation shall not be obscured by the introduction of the statue of anyone, nor by paintings placed there in anyone's honor; and We decree that, in no part of said Basilica, shall any assembly be held, or any banquet be given; and We also decree that no one shall be permitted to introduce horses, or celebrate marriages therein.

Given at Constantinople, on the eleventh of the Kalends of February, during the Consulate of Valentinian, Consul for the fifth time, and Anatolius, 440.

22. The Emperor Leo to Erythrius.

No judge shall be allowed to construct a new building either in this renowned City, or in any of the provinces, before those which one or more of his predecessors may have left unfinished, or which have been demolished on account of age, or abandoned through neglect, have been completed by his diligence and industry, for just as much distinction is acquired by repairing buildings which are old, and require to be rebuilt, and in finishing those which have been begun by others but left imperfect, as in erecting new ones.

Given at Constantinople, on the second of the Kalends of March, during the Consulate of Martian and Zeno, 448.

TITLE XIII.

CONCERNING THE CONTRACTORS OF PUBLIC WORKS AND THE SENATORS OP CITIES.

1. The Emperor Zeno to Arcadius, Prsstorian Prefect. We order that the Governors of provinces and the illustrious judges of different districts, that is to say, the Augustal Prefect, the Count

of the East, and all Proconsuls and Vicegerents, together with those composing their retinues shall, in conformity with the tenor of the general regulations established by Your Highness, refrain from interfering with any public works or aqueducts which either have been constructed at the public expense, or by the voluntary munificence of anyone, or which may hereafter be constructed; nor shall they, in any way or at any time, claim for themselves a single siliqua of the solidi out of the amount to be expended in handling the public revenues, whether the work has been completed or is to be undertaken hereafter; nor shall they acquire for themselves any gain, for they have no concern in matters of this kind, as the municipal bodies are charged with them when they are placed under their supervision.

Any persons, however, who promise to erect a public building at their own expense, shall not be required by law to do the work, even though it was certain that it depended upon a promise or a contract alone; and We decree that their heirs shall not, in any way, or at any time, be subjected to annoyance, or be compelled to render an account of the work performed, or that any controversy shall be raised on the ground that the entire amount of money promised has not been expended on the work, or that it was done in such a way as to be useless, or under any other pretext whatsoever.

If the illustrious Governor of the province or his subordinates should, in opposition to what has been prescribed, violate the provisions of this Our most sacred law by interfering with the expenditure of the public revenues on any public work, or by claiming a single siliqua or any other sum whatsoever out of the said revenues, or on account of the works above mentioned, the five principal officers of his retinue shall be condemned to perpetual exile, and their property shall be confiscated to the city which they have injured, and the Governor of the province himself shall be fined fifty pounds of gold. The distinguished judges, also (even though they may have been decorated with the highest honors), as well as their subordinates (as above stated), shall be liable to the same penalties.

TITLE XIV. CONCERNING PLEDGES AND HYPOTHECATIONS.

1. The Emperors Severus and Antoninus to Timothy.

A debtor who alleges that he has transferred to his creditors the property which he pledged to them is by no means released from liability.

Published on the fifth of the Kalends of March, during the Consulate of Severus, Consul for the second time, and Albinus, 195.

2. The Same Emperors to Lucius.

Although it is established that your adversary received certain property specially, by way of pledge, and that the remainder has been pledged to him in general terms and hence he has an equal right to

all of it, the strictness of the rule should, nevertheless, be relaxed. Therefore, if it is certain that he can collect the entire debt from the sale of the property which was specifically pledged to him, the Governor of the province will order that you shall not be deprived of that portion of the same property which was subsequently encumbered.

Published on the second of the Kalends of June, during the Consulate of Chilo and Libo, 205.

3. The Same Emperors to Maximus.

Creditors, who have made an agreement with their debtors that if the money due is not paid to them at the designated time they may take possession of their property, are not considered to have used violence if they do so, but they should, nevertheless, obtain possession by authority of the Governor.

Published on the Kalends of May, during the second Consulate of Antoninus and Geta, 206.

4. The Same Emperors to Bellius.

As you acknowledge that you have received the money and hypothecated your lands, you have no reason to complain that you have been compelled to encumber them; therefore, if you wish to recover your property, pay your creditor the money which you owe him.

Given on the third of the Kalends of June, during the third Consulate of Antoninus and Geta, 209.

5. The Emperor Antoninus to Domitius.

The illustrious Governor of the province will hear you when you apply to him for the enforcement of your right to the property pledged to you, and it will not be prejudiced by the judgment rendered against your debtor if it should be proved that he acted in collusion with your adversary, or (as you allege) the case was not heard, but that your debtor was defeated by the proof of prescription.

Published at Rome, on the Ides of March, under the Consulate of the two Aspers, 213.

6. The Same to Quintus.

In calculating the amount of a debt, that also is computed which has been paid out of the property pledged for the repair of highways, or anything else which it is proved that the creditor was obliged to disburse.

Published on the third of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

7. The Emperor Gordian to Martianus.

The usucaption of a pledge does not annul the agreement made with the creditor.

Published on the Nones of September, during the Consulate of Pius and Pontianus, 234.

8. The Same Emperor to Festus.

Although you have obtained a judgment in a personal action which is brought either against the principal debtor, his sureties, or his mandators, you will, nevertheless, still retain the right to the property pledged.

Published on the Ides of March, during the Consulate of Gordian and Aviola, 240.

9. The Same Emperor to Atticus.

If the ownership of the property which has been given in pledge has been transferred to you by the woman who owned it, and afterwards the creditor, or his heirs, attempt to hold said property, claim it before the Governor of the province, who will see that possession is restored to you, under the condition that you pay the balance due after the crops obtained by the creditor has been deducted.

Published on the third of the Kalends of October, during the Consulate of Gordian and Aviola, 240.

10. The Emperors Diocletian and Maximian, and the Caesars, to Alexander.

When debtors are present, notice should first be served upon them; therefore, if, after having been notified, they do not pay the debt, you can have recourse to the pledge, or the property which has been hypothecated, and which you state has been specifically described in a certain instrument, and the Governor of the province will not hesitate to afford you his assistance by means of the actions to which you are entitled.

Given on the fourteenth of the Kalends of February, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

11. The Same Emperors and Csssars to Euphrosinus.

It is not lawful for the property of anyone appointed to an office to be pledged to the person who appointed him, without the authority of the Governor.

Ordered on the third of the Ides of March, during the Consulate of the above-mentioned Emperors.

12. The Same Emperors and Csesars to Eusebius.

If your deceased wife, having borrowed money, pledged her own property, and you became her heir, although it may not have been provided by the instrument evidencing the obligation that, after the debt was paid you could sue the creditor, still, if this was done, you have a right to bring suit and compel him to return to you the articles that were pledged.

Ordered on the fifth of the Kalends of April, during the Consulate of the above-mentioned Emperors.

13. The Same Emperors and Csesars to Matrona. As you state in your petition that the property pledged has been transferred to you and given in payment of the debt by your mistress,

who was over the age of twenty-five years, the contract and the will of your debtor will be sufficient confirmation of your ownership.

Ordered at Heraclia, on the third of the Kalends of May, under the Consulate of the above-mentioned Emperors.

14. The Same Emperors and Ciesars to Apianus.

When pledges are sold by the debtor, it is a positive rule of law that the creditors have power to bring a personal action against him, or one in rem, against those who are in possession of the pledges.

Ordered at Heraclia, on the Kalends of May, during the Consulship of the above-mentioned Emperors.

Extract from Novel 112, Chapter I. Latin Text.

This takes place when the debtor does not pay his creditor out of the proceeds of the property sold, for he is permitted to sell it for the purpose of doing this.

15. The Same Emperors and Csesars to Basilida.

It is certain that a debtor cannot prejudice the rights of a creditor by either selling, donating, bequeathing, or leaving under a trust the property pledged, and therefore if you can prove that it was pledged to you, you can assert your right to the same.

Ordered at Heraclia, on the fifth of the Nones of May, during the Consulate of the above-mentioned Emperors.

16. The Same Emperors and Csesars to Heroidus.

Although your brother did not lend his own money, but lent yours in his name, and received a pledge as security, he could not acquire any right to the article pledged.

Signed at Adrianople, on the third of the Ides of May, during the Consulate of the above-mentioned Emperors.

17. The Same Emperors and Csesars to Pontia.

Even though your brother purchased land with the money which you lent him, still, if he did not hypothecate the said land to you either specifically or in general terms, the payment of your money is not secured by the pledge of the land, but you will not be prevented from bringing a personal action before the Governor of the province to collect the debt.

Ordered on the twelfth of the Kalends of June, during the Consulate of the above-mentioned Emperors.

18. The Same Emperors and Csesars to Evodius.

Legal proceedings instituted on account of pledges or hypothecations are in rem.

Ordered at Sirmium, on the Kalends of December, during the Consulate of the above-mentioned Emperors.

19. The Same Emperors and Csssars to Maximus.

As a creditor is not responsible for pledges where irresistible force is employed, so he is required to use ordinary diligence with reference to such property, and is responsible for both fraud and negligence.

Given on the seventeenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

20. The Same Emperors and Csesars to Alexander.

A creditor can, by no means, legally be compelled to demand the payment of his claims, but if you tendered what you alleged that you owed to the heirs of Evodianus, and they refused to accept it, you should seal it up and deposit it, and then you can bring suit before the Governor for the purpose of forcing them to return the property

pledged.

Published on the seventeenth of the Kalends of February, during

the Consulate of the above-mentioned Emperors.

21. The Same Emperors and Ciesars to Vietus.

Where a third party, by payment of the debt, releases property which has been hypothecated, he can demand the amount that he paid, but he cannot acquire the ownership of said property.

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

22. The Same Emperors and Csesars to Antiochianus.

A second creditor, by paying the prior creditor his debt, acquires for himself the right to the property pledged, and is entitled to receive from the debtor both the principal and interest which he paid, but he cannot collect compound interest.

Published at Nicomedia, on the third of the Ides of December, during the Consulate of the Caesars.

23. The Same Emperors and Csesars to Macedonianus.

Anyone over twenty-five years of age cannot claim pledges the right to which he has relinquished, as the agreement alone which he entered into, as well as the law which considers his intention, will prevent him from doing so.

Ordered at Nicomedia, on the eighteenth of the Kalends of January, under the Consulate of the Csesars.

24. The Same Emperors and Csesars to Marcus.

A creditor cannot be compelled to bring a personal action against his debtors if he has neglected to bring one of pledge.

Ordered at Nicomedia, on the fifteenth of the Kalends of January, during the Consulate of the Csesars.

Extract from Novel 4, Chapter II. Latin Text.

This rule applies where the debtor is in possession of the property encumbered, but if another is in possession of it, the hypothecary

action cannot be brought until the principal and his surety have been sued in the personal action. If the debt is not satisfied out of the property hypothecated by the debtor, then recourse can be had to that hypothecated by the surety, if there is any. This rule is also applicable to heirs.

25. The Same Emperors and Cassars to Dracontius.

Even though the slave who was pledged may have died, the right to payment of the debt remains unimpaired.

Given at Nicomedia, on the sixth of the Kalends of January, during the Consulate of the Caesars.

26. The Same Emperors and Cassars to Mauritius.

If your debtor pledged to you his secretary, who is a slave, sue him by whom you allege that the slave was removed, before the Governor of the province.

Signed at Sirmium, on the fourth of the Kalends of January, under the Consulate of the Caesars.

27. The Emperor Justinian to Menna, Prsetorian Prefect.

We, for the purpose of permanently remedying all the abuses which have arisen with reference to the hypothecation of property, which money-brokers, bankers, or business men of every other description practice against those who lend them money, do hereby order that if, having made a contract of this kind, they should acquire for their children, or for any of their relatives some office which can be sold, or transmitted to heirs under certain conditions, even if it is not established that the money by which the children were benefited came from the said creditors, or that the relatives obtained the office purchased (for it is sufficient that the contrary should not be proved, namely, that others have furnished the money out of their own estates), the creditors shall have the right to collect the entire debt from those who have possession of the said office, or to exact from them as much as the office can be sold for.

We order that this rule shall apply, even if it is proved that the said merchants obtained the offices for strangers by the payment of their creditor's money, so that as, generally speaking, debtors themselves are permitted to sell the offices or transmit them to their heirs, creditors also, who can claim the offices aforesaid by the right of hypothecation, shall be allowed to sell them, even during the lifetime of the debtors, unless their debts are paid; and after their death they can collect from the incumbents of the offices the payment of their claims according to the average value of the same, or the appraisement made when they were bestowed by the Emperor.

This rule shall be observed for the protection of creditors as against merchants personally, although those who hold the offices may, under no circumstances, be liable for the indebtedness. We order that this law shall in the future apply to offices obtained not only when bankers or merchants have acquired them for their children or other relatives,

but also for strangers, by the payment of money belonging to their

creditors.

Given on the Kalends of June, during the Second Consulate of Our

Lord the Emperor Justinian, 526.

Extract from Novel 53, Chapter V. Latin Text.

This rule only applies where the money has been borrowed for the purpose of purchasing the office; otherwise, the children or wife of the deceased shall be preferred to other creditors. If, however, there should be none of these, then We grant this privilege to the creditors.

TITLE XV.

CONCERNING CASES IN WHICH PROPERTY is TACITLY PLEDGED OR HYPOTHECATED.

1. The Emperor Antoninus to Speratus.

The entire property of those who are liable to the payment of taxes is encumbered by pledge to secure the collection of the same.

2. The Same Emperor to Proculus.

It is certain that the property of him who makes a contract with the Treasury is encumbered, as by a pledge, although this may not have been expressly provided.

Given on the sixth of the Kalends of March, during the Consulate of Messala and Sabinus, 215.

3. Extract from a Rescript of the Emperor Alexander Addressed to Demosthenes.

Although the income of land given in pledge (even where this has not been explicitly stated) is, by tacit agreement, included in the property encumbered, still, land which has been purchased with the proceeds of the crops is considered by no jurist to be embraced in this

category.

Published during the Ides of October, during the Consulate of Maximus, Consul for the second time, and JElianus, 224.

4. The Emperor Carus, Carinus, and Numerianus to Africanus.

It is well enough known, and sufficiently based upon reason, that property given by way of dowry to women who marry Chief Centurions of the Triarii is liable for the indebtedness incurred during the administration of the latter. This, however, is true with certain restrictions, as the woman does not become liable, except where the entire property of the Centurion and of those who appointed him, having been exhausted, nothing is found to remain.

Given on the fifth of the Ides of August, during the Consulate of Carus and Carinus, 285.

5. The Emperors Diocletian and Maximum, and the Csesars, to Corinthia.

If it is shown that the slaves in question were not transferred with the property which it was decided was encumbered, and that they were not specially pledged for the payment of the debt, the Governor of the province will order them to be returned. Nor can their restitution be delayed under the pretext that rent is due, since, if the woman who was the owner of the property can prove that there is anything due to her as rent, or for any other reason, it is proper for her to exact payment by law.

Ordered on the twelfth of the Kalends of February, during the Consulate of the Cassars.

6. The Emperors Theodosius and Valentinian to Florentius, Prze-torian Prefect.

When a mother who has obtained the legal guardianship of her children contracts a second marriage in violation of the oath which she took before causing another guardian to be appointed for them, she shall pay to the said children what is due to them under her administration of the guardianship, and the property of her deceased husband, as well as her own, will be considered as pledged for the discharge of any indebtedness contracted by her during her administration of the guardianship.

Given on the sixth of the Ides of . . . , during the Consulate of Theodosius, Consul for the seventeenth time, and Festus, 409.

7. The Emperor Justinian to John, Prsetorian Prefect.

We order that the property brought into a house by a tenant shall be tacitly pledged to the owner for the rent, and this law shall apply not only to ancient and modern Rome and their territory, but also to the provinces of Our Empire, for We desire that all the inhabitants shall have the benefit of this equitable presumption.

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

TITLE XVI.

WHERE PROPERTY BELONGING TO ANOTHER is PLEDGED. 1. The Emperors Severus and Antoninus to Carpus.

The agent did not lawfully pledge the house of his principal without the consent of the latter. If, however, it is established that he employed the money of the creditor for the benefit of the property of his principal, an exception can be pleaded, if the former desires what has been loaned to be collected.

Published on the eleventh of the Kalends of November, during the Consulate of Severus, Consul for the second time, and Albinus, 195.

2. The Same Emperors to Latina.

If you prove before the Governor of the province that the fields or gardens in dispute are yours, you understand that they cannot be hypothecated to a creditor by another person, even though this was done without your knowledge, unless you concealed your title to said property for the purpose of defrauding the creditor.

Published on the first of the Ides of October, during the second Consulate of Antoninus and Geta, 206.

3. The Emperors Antoninus to Martia.

Neither the curator of an adult, nor the guardian of a minor, can legally pledge the movable property of him whose affairs he administers, unless he borrows money on what is pledged.

Published on the fifth of the Kalends of February, during the Consulate of the two Aspers, 213.

4. The Emperor Alexander to Secundus.

Even if your son was more than twenty-five years of age, if he was still under your control he could not hypothecate any of your property against your consent.

Published on the fifth of the Kalends of November, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

5. The Emperors Diocletian and Maximian to Eutichius.

As property which did not yet belong to the debtor was pledged by him, and afterwards became his own, it is clear that an ordinary action on pledge will not lie, but equity requires that a praetorian action resembling that of pledge should be granted.

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

6. The Same Emperors and Csesars to Zosimus.

She who gave in pledge to her creditor land which she had already transferred as a donation to her children has rendered herself liable to the counteraction of pledge, and could not injure the owners in any respect, as the Servian Action plainly shows that property cannot be held by the right of pledge unless it belongs to the person incurring the obligation, and it is also perfectly certain that the property ol another cannot be encumbered by anyone against the consent of the owner.

Ordered at Philippopolis, on the fifth of the Ides of July, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Cornelia.

If your guardian gave your slave in pledge to secure the payment of borrowed money employed for his own use, and, after you attained your majority, you did not give your consent to the transaction, the property will not be encumbered as a pledge.

Ordered on the sixth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

8. The Emperors Honorius and Theodosius to John, Prsetorian Prefect.

Land cannot be encumbered except by someone who has the legal right to do so. Hence, in accordance with justice, and by the authority of the laws it is stated that no lien can, without the knowledge or consent of the owner, be placed upon such property by a slave, an agent, a tenant, a steward, or a lessee.

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

TITLE XVII.

WHAT PROPERTY WHEN PLEDGED CAN OR CANNOT BE

RENDERED LIABLE FOR A DEBT, AND IN WHAT WAY A

PLEDGE is GIVEN.

1. The Emperors Severus and Antoninus to Optatus.

It is not reasonable to suppose that your children by a concubine, and other effects which usually are only pledged under a special agreement, constitute part of property encumbered by a general contract including your possessions.

Published on the twelfth of the Kalends of April, during the Consulate of Lateranus and Rufinus, 198.

2. The Same Emperors to Rogatus.

As it is settled that the obligation of pledge is created by consent, We entertain no doubt that he who pledged the agreements for the purchase of his lands intended to hypothecate the lands themselves.

Published on the fifth of the Kalends of July, during the Consulate of Aper and Maximus, 208.

3. The Emperor Antoninus to Restitutus.

If you have placed the body of your daughter in a tomb, you have made the tomb religious. This having been done, there is no doubt that the tomb cannot be encumbered by anyone, as the laws concerning religion forbid it.

Published on the third of the Kalends of April, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

4. The Emperor Alexander to Evocatus.

It was long since decided that the claim of a debtor can be pledged either generally or specifically. Therefore, if the debtor to whom you lent the money should not discharge his obligation, he whose claim was given to you by way of pledge can be compelled by equitable actions, unless he pays the person whom he himself owes, and security

has not been furnished for the settlement of your obligation, to pay you the amount that you can prove is due to you from his creditor, to the extent that he himself is indebted.

Published on the day before the Kalends of March, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

5. The Same Emperor to Septimius.

To pledge, by a private agreement, the prizes to be obtained in an athletic contest is, under no circumstances, allowed, and therefore they are not considered included even if a general contract for the pledge of all property should be made.

Published on the third of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and Paternus, 234.

6. The Emperors Diocletian and Maximian, and the Caesars, to Rufus.

Anyone who received either your children or persons who are free, by way of pledge for the money which he lent you, deceives himself in attempting to evade the law, as it is clear that the obligation of pledge was not contracted, except with reference to such property as the debtor could legally encumber.

Ordered at Heraclia, on the Kalends of May, under the Consulate of the above-mentioned Emperors*

7. The Emperor Constantine to all the Inhabitants of the Provinces.

We order that the officers appointed by any judge for the collection of debts which are the subject of a civil action shall not remove from the possession of others any slaves, oxen, or implements used for the cultivation of the soil, on the ground that they have been pledged, by which act the payment of taxes may be delayed. Therefore, if any agent, creditor, prefect of a district or village, or decurion, should be convicted of having done this, he shall be subjected by a penalty to be determined by the judge.

Given at Sirmium, on the third of the Nones of June, during the Consulate of Constantine and Licinius, 312.

8. The Emperors Honorius and Theodosius to Probus, Count of the Imperial Largesses.

It is settled that nothing which is used for the cultivation of the soil can be removed under the pretext that it has been pledged.

Given on the sixth of the Ides of June, during the Consulate of Constans and Constantius, 414.

Constitution of Frederick.

Agricultural laborers, who are occupied in rustic pursuits, whether they reside on farms or merely cultivate the land, shall be secure in every part of Our Empire, so that no one can be found so audacious as to presume to seize, take, or carry away either their persons, their oxen, their tools, or anything else used for the tillage of the soil.

If, however, anyone should rashly presume to violate this decree, he shall restore fourfold the amount of what he carried away, and shall be branded with infamy by the law, in addition to being punished with the displeasure of the Emperor.

9. The Emperor Justinian to Menna, Prsetorian Prefect.

If anyone should insert the following words into the instrument evidencing a contract, namely, "For the liability, and at the risk of the property which belongs to me," or "I promise to pay you at the risk of my property," We decree that these words shall be sufficient for the hypothecation of any property which the debtor has at the time, or may thereafter acquire, notwithstanding that the terms of former laws do not seem to apply to special hypothecation, as it is just rather to consider the intention of the contracting parties than the meaning of their words.

With reference to general hypothecations, and for the purpose of carrying out the wishes of the contracting parties, We decree that even if the debtor should not, when he encumbers his property, add, "The property which I have at present, as well as that which I may acquire in the future," the general right of hypothecation will include anything that he may subsequently obtain.

Given at Constantinople, on the third of the Ides of December, during the Consulate of Our Lord the Emperor Justinian, Consul for the second time, 538.

TITLE XVIII.

WHO ARE PREFERRED CREDITORS WHEN PROPERTY is PLEDGED.

1. The Emperors Severus and Antoninus to Secundus.

Anyone who receives property in pledge which has already been encumbered in this way can confirm his right by paying the prior creditor the money which is due to him; or, if he should tender it, and the other should refuse to accept it, he must seal it up, and deposit it, and not convert it to his own use.

Published on the Kalends of February, during the Consulate of Lateranus and Rufinus, 198.

2. The Emperor Antoninus to Chrestus and Others.

If you were placed in possession of land belonging to an estate for the purpose of preserving the same, under a decree of the Praetor, who rendered a decision with reference to the trust before your adversary obtained the said land through hypothecation, by virtue of a judgment, you become preferred creditors by the decree of the Praetor who gave the decision in your favor; and where several parties claim the property because of a pledge, he who is first in order shall be preferred by law.

Published on the fifth of the Ides of May, during the Consulate of the two Aspers, 213.

3. The Same Emperor to Varus.

If you receive a tract of land in pledge before it was encumbered to the State, as you were first in time, so you will be preferred by law.

Published on the fifth of the Ides of October, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 213.

4. The Same Emperor to Sylvanus.

As you allege that the municipality of the Heliopolitans has, under the terms of the decree, been placed in possession not only of the private property of the heir but also of that belonging to the estate, you understand that although your father made a contract with Sosianus, still, if the city had the right to bring a personal action against him, it should be preferred under the law of pledge, so far as any property which it seized to protect a judgment rendered by a magistrate is concerned.

Published on the second of the Ides of December, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

5. The Emperor Alexander to Septimius.

The prior creditor cannot be compelled to discharge your debt, as you took a pledge on the property after he did, but if you pay him all that is due to him, you will have the exclusive right to the pledge.

Published on the third of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and Paternus, 234.

6. The Same Emperors Valerian and Gallienus to Philoxenus.

When property is encumbered in general terms and is afterwards specifically pledged to another, as the creditor who made the first contract has the prior lien by virtue of the general obligation, if you purchased the property before the second pledge was given, you cannot be molested by him who made the subsequent loan.

Published on the second of the Ides of May, during the Consulate of Secularis, Consul for the second time, and Donatus, 261.

7. The Emperors Diocletian and Maximian, and the Caesars, to Julianus.

Although the same pledges may have been given to several creditors at different times, and those who are first in point of time are entitled to the preference, still, he who proves that the land in question was purchased with his money is declared by the law to be preferred to all others, for the reason that it is settled that the land was especially encumbered to him by the pledge.

Published on the sixteenth of the Kalends of February, during the Consulate of the above-mentioned Emperors.

Extract from Novel 18, Chapter X. Latin Text.

Likewise, the possessor of a pledge who denies that the property belongs to him whom his adversary alleges is the owner, and this

having been proved, claims the right to retain the property, stating that he should be preferred to the party who brought the suit on the ground of hypothecation, or for some other reason, he must surrender possession before an investigation of his right can take place.

8. The Same Emperors and Csesars to Fabricius.

It is a clear and positive rule of law that where the same property has been pledged at different times to two different persons, he who first received the pledge for the money lent shall be preferred, and that the second creditor cannot obtain authority to sell the pledge before the amount due to the prior creditor has been paid.

Ordered at Heraclia, on the day before the Kalends of May, during the Consulate of the above-mentioned Emperors.

9. The Same Emperors and Csesars to Asclepiodotiis.

As those who have received pledges are entitled to a real action, it is established that they should be preferred to all those in whose favor personal actions will lie.

Given on the third of the Nones of December, during the Consulate of the Csesars, 293.

10. The Same Emperors and Csesars to Pollipeuca.

As your husband encumbered the property which he received from you as dowry, and then died, those to whom he pledged it can, under no circumstances, assert their claims before tendering the amount which is due, for it is clear that creditors whose obligations have been reduced to writing cannot bring either real or personal actions against those who are not proved to have succeeded the debtor.

Published on the Nones of December, during the Consulate of the Caesars, 293.

11. The Emperor Leo to Erythrius, Praetorian Prefect.

We order that those written instruments which are often secretly made by certain persons, in the presence of their friends, for the purpose of sale, compromise, contract, the loan of money at interest, partnership, or for any other reason, and any other agreements whatsoever, called in Greek iSiox«pa, whether they were entirely written by the hands of the contracting parties or have been drawn up by a notary or any other person whomsoever, whether they bear the signatures of the contracting parties or not, or whether witnesses were called to attest them or not, or whether they are conditional or not, that is, such as are commonly reduced to writing, they shall be considered as having been publicly executed; and if any personal action based on them should be brought, it shall have full force and effect.

(1) If, however, anyone should claim for himself the right of pledge or hypothecation, by virtue of any instrument of this description, We order that he who founds his demand upon a document publicly executed shall be preferred, even if he comes after another in point of time, unless the privately executed instrument of the prior

creditor bears the signature of three witnesses, all of approved and .honorable reputation, for, in this instance, the document shall be considered to have been publicly executed.

Given on the Kalends of July, during the Consulate of Martianus and Zeno, 469.

Extract from Novel 73, Chapters I and II. Latin Text.

Where anyone prudently desires to deposit a sum of money with another, he should not solely rely upon the written receipt of the person who receives it, but should summon not less than three competent witnesses who are worthy of confidence.

But if anyone should draw up an instrument evidencing a loan or any other contract whatsoever, and not wish the transaction to become publicly known, the instrument executed with reference to the loan shall not, of itself, be worthy of faith, unless this was done in the presence of three trustworthy witnesses, whether they appeared and attached their own signatures to the instrument, or whether others testify that it was signed in their presence; for then, in either instance, it shall be considered as publicly executed and valid. If, however, anyone who either deposits or lends money, or makes any other kind of a contract, is satisfied with the signature of the individual with whom he makes it, he is hereby notified that a mere written statement of this description is not sufficient for the proof of the same.

, 12. The Emperor Justinian to John, Praetorian Prefect.

We are continually annoyed by the persistent applications of women who complain that they have lost their dowries, for the reason that the property of their husbands has been seized by creditors whose claims are prior to their own. Hence, We have examined the ancient laws, and, with reference to personal actions, find that the Actio rei uxorise which We have abolished was granted by them to the wife, and that they conferred the great privilege of precedence over all other personal actions, as well as over other creditors, even though the claims of the latter were prior in point of time. And, while this related to personal actions, when these laws came to discuss the hypothecary action, they at once relax the severity of justice, and exclude the recent hypothecations of women, if they had any rights of action, in favor of creditors who held prior ones, without having any regard to the weakness of the sex, and that husbands made use of their bodies, property, and all their lives, since almost the entire fortune of a woman is included in her dowry.

It was proper to decree that husbands should satisfy their creditors out of their own property, and not out of the dowries of their wives, as a woman possesses the dowry for the purpose of her subsistence, whether it was given by herself, or by someone else for her benefit.

(1) After having carefully examined and considered all these matters, as well as the other two Constitutions which We have promulgated concerning dowries, We, for the purpose of coming to the relief of women, and to consolidate all these rules into one, do hereby

decree an action on the ground of stipulation which We have already granted to women with reference to their dowries, and in favor of whom We have permitted a tacit hypothecation on the property of their husbands, as well as the preference over all other creditors of the former, even though the said creditors may enjoy the advantage of priority of time. For, as the Actio rei uxoriss enjoyed this privilege in case of personal actions (as We have already stated) for this reason, We now grant the wife this advantage, even where no hypothecation has taken place, although the dotal property, or any other which has been purchased with it, may not be in existence, or has been wasted or consumed in some way or other, provided it was actually given to the husband. For who does not pity those who have had to bury their husbands, and who may incur the risk of childbirth and the rearing of their children, on account of which things many privileges have been bestowed by Our laws?

Therefore, what the ancients began but did not carry to completion We have fully consummated; and We grant this privilege to a woman, whether she has children, did not have them in the first place, or has lost them. Children born of a former marriage are, however, excepted, and are preferred to their stepmothers, and We grant them a tacit hypothecation against the estate of their father, as well as against his creditors on account of their mother's dowry, and We confer the same privilege upon them by the present law, so that what was conceded to the second wife may not be refused to the first, but the rights of both remain unimpaired, just as if the mother of the children were still living. Where two dowries are due from the same estate, We desire that the one which is first in point of time shall be preferred to the other.

(2) We order that these rules shall only apply to a dowry, and not to an ante-nuptial donation, which We decree shall preserve its order of priority, and be in this way regulated among creditors, for We do not favor women for the sake of gain, but only take care that they shall suffer no loss, and be defrauded of their property.

(3) We decree that this law shall only take effect from the present time and shall not be retroactive.

Given at Constantinople, on the fifth of the Kalends of December, after the fifth Consulate of Lampadius and Orestes, 531.

Extract from Novel 96, Chapter II. Latin Text.

A woman can avail herself of this right against those who are protected by a personal privilege, as, for instance, where property is purchased, or repairs are made with her money, except those who are exempted by a new constitution, for example wives who have lent their husbands money under a written contract for the purchase of an office.

Extract from Novel 93, Chapter I. Latin Text.

When any of the property composing the dowry is in existence, it shall be preserved for the wife, who is entitled to an action in rem,

or for her children; and, on the other hand, if there are two wives, and both are living, or both are dead, or if only one of them survives, the first one, or her offspring, shall be entitled to the preference, which is clearly provided for by a new constitution.

TITLE XIX.

CONCERNING THOSE WHO SUCCEED TO THE PLACES OF PRIOR CREDITORS.

1. The Emperors Severus and Antoninus to Marcellina.

Those who satisfy the creditor of another, whose debt is secured by hypothecation, do not, merely by the payment of money, take his place; for, in order that this may be done, he who subsequently discharges the obligation must do so under the agreement that the same property will be pledged to him, and that he will succeed to the rights of the creditor. As this was not done by you (for it has been decided in court that you did not receive the pledges) it is useless for you to think that you are entitled to the benefit of Our Constitution which has reference to cases of this kind.

Published on the Ides of July, during the Consulate of Pompeianus and Abvitus, 210.

2. The Emperor Antoninus to Felix.

As you paid money to the Treasury for your father, at a time when you were not under his.control, and by so doing have succeeded to the rights of the Treasury, and have taken the place of the creditor to whom you have the money, your father's creditors, not only those in favor of whom a personal action will lie, but also those who afterwards made a contract with him secured by pledges, cannot prejudice your rights in any way by selling the pledges without your knowledge.

Therefore you understand that if anything was paid by your agents in your name, during your absence, this should be returned to you as money which was not due, and you can institute proceedings to recover the pledges to which you are entitled.

Published at Rome, on the Kalends of October, during the Consulate of Sabinus, Consul for the second time, and Anulinus, 217.

3. The Emperor Alexander to Valens.

If the preferred creditors, in whose favor the possession of the property was encumbered, which property you say you purchased with the understanding that the price would come into their hands, have been paid with your money, you will succeed to their rights, and you have a good defence against those whose claims are of more recent date than theirs.

Published on the Kalends of February, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

4. The Emperors Diocletian and Maximian to Carpophorus.

If the State has the prior lien upon the land, you, as the creditor second in point of time, by tendering the money due will succeed to the rights of the State.

Published on the fifteenth of the Kalends of June, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 285.

TITLE XX. WHERE A PRIOR CREDITOR SELLS THE PROPERTY PLEDGED.

1. The Emperor Alexander to Athenio.

If the creditor who first received the pledge should sell it, you will not be entitled to the hypothecary action for its recovery; but if the debtor gave the said pledge to the prior creditor in payment of the debt, or sold it to him, you will not be deprived of the right to recover it any more than if he had sold it to a third party.

You understand that you can only assert your right to the encumbered property if you tender to the person who holds possession of the same what is due to him under the terms of a contract which was made before yours.

Published on the Ides of May, during the Consulate of Agricola and Clementinus, 231.

2. The Emperors Diocletian and Maximian, and the Caesars, to Eudemia.

Where property has been pledged according to law, and the creditor makes a legitimate sale of the same, the debtor by afterwards offering to refund the price to the purchaser, or by tendering the amount of the debt to the creditor, cannot evict the possessor of the property.

Given on the sixth of the Kalends of April, during the Consulate of the Caesars.

3. The Same Emperors and Csesars to Theophilus.

If the second creditor does not tender the amount of the debt to the first, he cannot prevent him from selling the property pledged.

Given on the sixth of the Kalends of April, during the Consulate of the Csesars.

TITLE XXI. WHERE PROPERTY OWNED IN COMMON is PLEDGED.

1. The Emperor Antoninus to Venustus.

As your brother could not encumber the share of the property which belongs to you, without your consent, so, by giving an obligation, he has only hypothecated his own share to the creditor, therefore you understand that his contract can, in no way, prejudice your ownership.

Adopted on the third of the Kalends of December, during the Consulate of Messala and Sabinus, 215.

TITLE XXII.

CONCERNING THE PRAETORIAN PLEDGE AND ITS APPLICATION EVEN TO THE ACTIONS OF DEBTORS.

1. The Emperor Justinian to Menna, Prsetorian Prefect.

If any judges should be of the opinion that the right of praetorian pledge should be granted to someone, not only with reference to movable or immovable property, and such as is capable of moving itself, but also with regard to actions to which the debtor is entitled, We decree that they shall render judgment permitting this to be

done.

Given at Constantinople, on the Kalends of April, during the fifth

Consulate of Decius, 529.

2. The Same Emperor to Julian, Praetorian Prefect.

With the intention of disposing of the doubts raised under the ancient laws, We have considered the two kinds of hypothecation, one arising from the contracts and agreements of men, and the other sanctioned by judges, and designated praetorian. And, as We have found in agreements made with reference to pledges or hypothecations that relief is not only ordinarily granted to the creditor in possession, but also, when he is deprived of the property pledged, whether by his own fault, or not, or through accident, We have thought it to be more humane to assist the creditor by means of the praetorian pledge, no matter how he may have lost possession of the property, whether by his own fault or not, or accidentally. For even though he ought to take such care of his pledge that it may not suffer any damage, still, in order not to deal harshly with creditors, We incline to a liberal interpretation of the law, and grant them the right of recovery.

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

TITLE XXIII.

WHERE PROPERTY is SEIZED IN PURSUANCE OP A JUDGMENT.

1. The Emperor Antoninus to Gavinius.

It has frequently been stated in rescripts, that property taken in execution under a judgment by order of a magistrate who had the right to issue it can be held as a pledge and be sold, for the authority of the judge who issues the order takes the place of a legal obligation based upon a contract.

Published at Rome, on the fifth of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Valerian.

When property is seized as a pledge under a judgment, it is usually sold officially by the judge who rendered the decree, and not by him

who asked that the order should be issued. If another purchaser should not appear, or if one does appear, but should not offer a reasonable price, he in whose favor the judgment was rendered shall be permitted to bid on the property, according to law, and purchase it, just as anyone else can do.

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

3. The Emperor Gordian to Antigonus.

It is more customary for pledges seized under a judgment by the Governor of the province to be sold than to be taken possession of by the right of ownership. Where, however, a purchaser cannot be found on account of the machinations of the party against whom judgment was rendered, then the ownership of the property is usually granted to the creditor by authority of the Emperor.

Published on the Ides of A'ugust, during the Consulate of Gordian and A viola, 240.

TITLE XXIV. WHERE PROPERTY is PLEDGED A SECOND TIME.

1. The Emperor Gordian to Lampo and Others.

It has already been decided that where property has been already pledged, it can be repledged by the creditor, and the result is that an equitable action should be granted to the subsequent creditor, provided he who has the right to the pledge is protected as long as it remains subject to the lien of him who encumbered it a second time.

Where, however, you have only pledged the usufruct of land and he who received it pledged the land itself, the usufruct of which alone he was entitled to without your consent, his creditor, by selling what was not liable to encumbrance, cannot deprive you of the ownership of the same. But when it was not the usufruct, but the land itself which was pledged to your creditor, and, before the debt was paid by the owner, the second creditor sold the property, the sale cannot be rescinded after the money has been paid, as this rule has been established by the Imperial Decrees.

Published on the Ides of September, during the Consulate of Pius and Potnianus, 240.

2. The Emperors Diocletian and Maximian to Gemellus.

If the creditor did not sell the land which was pledged by your parents, but himself encumbered it to another creditor of his own, after the facts have been ascertained, you can recover the said land by application to the Governor of the province, after having paid the sum due to the creditor.

Published on the thirteenth of the Kalends of January, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

TITLE XXV.

CONCERNING THE OFFSPRING OF PROPERTY WHICH HAS BEEN PLEDGED AND ALL OTHER INCREASE OF THE SAME.

1. The Emperor Alexander to Mestrianus.

It was long since decided that the issue of a female slave who has been pledged has the same status as its mother.

Published on the Ides of May, during the Consulate of Agricola and Clementinus, 231.

2. The Emperors Diocletian and Maximian to Annosus and Antoninus.

As you gave certain slaves in pledge to secure the payment of a sum of money which you had borrowed, and you allege that the proceeds of the labor of said slaves which the creditor obtained, or could have obtained, should first be credited upon the interest, and afterwards upon the principal, and the debt having been satisfied, if the creditor should refuse to accept the balance due, it having been formally tendered and deposited under seal, the Governor of the province will order the slaves to be returned to you.

Ordered on the fifth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

TITLE XXVI. CONCERNING THE RELEASE OF PLEDGES.

1. The Emperors Severus and Antoninus to Proculus.

If you can prove before the Governor of the province that you have been manumitted, and in possession of your freedom, and that she to whom you state you were given in pledge was aware of this fact, the-creditor will appear to have consented to release the pledge, and, this being the case, it is certain that you were legally manumitted, and you cannot again be reduced to slavery by the heir of the creditor.

Published on the twelfth of the Kalends of May, during the second Consulate of Antoninus and Geta.

2. The Same Emperors to Maternus.

If you can establish that the land in question was bought by you, and that possession of the same was delivered to you with the knowledge and consent of the woman who alleges that it was encumbered in her favor by the vendor, you can plead an exception against her, for the obligation of a pledge is both contracted and released by

consent.

Published on the second of the Ides of February, during the third

Consulate of Antoninus and Geta.

3. The Emperor Alexander to Taurus.

If your debtor, who without your knowledge, or against your consent, encumbered all his property to you to secure the payment of

money loaned by you to him, should subsequently enter into a contract with the State, this does not prejudice your rights.

Published on the third of the Ides of April, during the Consulate of Albinus and Maximus.

4. The Emperor Gordian to Aquilinus.

As you state that you purchased from your debtor certain property which was pledged to another, and you made the purchase with the knowledge of the person holding the pledge, and he released the same, the encumbrance of the pledge disappeared with his consent. If no new arrangement was made by which the obligation was renewed, the property cannot be claimed on the ground that it is subject to a lien.

Published on the eleventh of the Kalends of May, during the Consulate of Gordian and Aviola.

5. The Same Emperor to Asclepiades.

You are not even now prevented from collecting the debt which you refer to, and which you released by means of a contract which was void, and you can recover the pledges in the ordinary way.

Published on the sixth of the Ides of September, during the Consulate of Gordian, Consul for the second time, and Pompeianus.

6. The Emperors Diocletian and Maximian to Argius.

If, at the time when the land was sold, creditors to whom it was encumbered had been notified by publication, and being present, did not assert their rights, they can be considered to have forfeited their claims to the property pledged.

Published on the third of the Ides of February, during the Consulate of Maximus, Consul for the second time, and Aquilinus.

7. The Same Emperors to Paulinus.

It is evident that if the creditor in whose favor the land was encumbered by your uncle, which had been evidenced by an instrument in writing, should order the said bond to be returned to your uncle, she will be considered to have also relinquished her right to the pledge.

Published on the fifth of the Ides of September, during the Consulate of Diocletian, Consul for the third time, and Maximian.

8. The Same Emperors and Csesars to Apollonius.

If the Treasury sold the property which was hypothecated, and the other creditors permitted this to be done in silence, it is clear that they have lost the right of action which they had in the property, for public sales made by the Treasury should not readily be set aside.

Published on the thirteenth of the Kalends of September, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time.

9. The Same Emperors and Ctesars to Hermianus. As you allege that you paid a sum of money bearing interest for your father-in-law in an action on mandate, the Governor of the

province will provide for your indemnification by the restitution of the money which you have paid for him, as well as the interest on the same; for if, having received from the creditor the slaves which were pledged for the debt, you delivered them to your father-in-law with the intention that your lien on them should be released, the obligation having once been extinguished, cannot be renewed.

Published on the tenth of the Kalends of October, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time.

10. The Same Emperors and Csesars to Quintilla.

Debtors who, without the consent of their creditors, alienate property which has been pledged or hypothecated to the latter, do not thereby release the preceding obligation.

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

11. The Emperor Jiistinian to John, Prsetorian Prefect.

We, employing Our customary foresight, do hereby make provision with reference to the pledging or hypothecation of property encumbered for the benefit of creditors, and afterwards sold or disposed of in any other way by the debtors, where the creditor has given his consent to the contract, and the title to the property has again become legally vested in the former owners.

In cases of this kind, the opinions of the legal authorities vary, some of them holding that the creditor is entitled to have his right to the pledge renewed on account of the clause, "Property which he may hereafter acquire," which is usually inserted in general hypothecations ; and others think that his right is entirely extinguished.

It, however, appears to Us that he who has once consented to the alienation of hypothecated property, and in this manner has relinquished his right, is not entitled to claim it afterwards, on the ground that it had been encumbered to him in the beginning, or to molest the person in possession of the same.

Given at Constantinople, after the fifth Consulate of Lampadius

and Orestes.

TITLE XXVII.

PLEDGES CAN EVEN BE HELD TO SECURE THE PAYMENT OF MONEY EVIDENCED BY A WRITTEN INSTRUMENT.

1. The Emperor Gordian to Festus.

Your right to the pledge is lost if, after a novation has been made, you have transferred the right of encumbrance to another, and security has been given you that the property will not be held by way of pledge. If an agreement was made between you and the person who, having afterwards become the owner of the land, assumed a new obligation, in order that the said land might be held by you in pledge, although you have brought a personal action and obtained a judgment,

you still have a right to the property as being encumbered. But if you were placed in possession, unless the money due, which was not secured, was either paid or tendered to you by your debtor, you will not be compelled to restore the property by means of an exception on the ground of fraud.

For you very properly assert that, if the debtors only tender the money which they have given the said pledges to secure, they should not be heard, unless they also pay the other which they simply received as a loan.

The rule does not apply to the second creditor, for he is not obliged to tender to the first the amount of the debt which is evidenced by a written instrument.

Published on the Ides of March, during the Consulate of Gordian and Aviola.

TITLE XXVIII. CONCERNING THE SALE OF PLEDGES.

1. The Emperor Alexander to Pacata.

A tract of land, which has been pledged, can by no means be sold if the creditor has collected the amount due out of the profits of the same, as the pledge is, under such circumstances, released by operation of law.

Published on the Ides of January, during the Consulate of Maximus, Consul for the second time, and -iSClianus.

2. The Same Emperor to Maxima.

A creditor who has alienated property which has been either hypothecated or pledged to him is not considered to have sold the same subject to litigation, because the debtor holds it by a precarious title.

Published on the twelfth of the Kalends of October, during the Consulate of Maximus, Consul for the second time, and Julianus.

3. The Same Emperor to Lucianus.

An action will lie against the principal debtor or his surety in favor of creditors who have sold property which has been hypothecated or pledged to them for the amount which is lacking to satisfy their claims.

Published on the third of the Nones of November, during the Consulate of Maximus, Consul for the second time, and ^Elianus. 4. The Same to Crescens.

When a creditor is about to sell property which has been hypothecated or pledged to him, he should notify the debtor, and act in good faith, and when the sale takes place he should make the announcement in the presence of a witness. Therefore, if you can prove that fraud was committed in the sale of the country seat in question, which was pledged, apply to the judge having jurisdiction of such matters, in

order that the action to which you are entitled in a case of this kind may be brought.

Published on the Kalends of June, during the Consulate of Fuscus

and Dexter.

5. The Same Emperor to Sossianus.

If you are ready to pay the balance of the debt, the Governor of the province will give you the selection of the judge by whom the amount shall be ascertained, and if the adverse party fails to appear in court, or proceeds to sell the property after you have tendered him more than the sum to which he is entitled, the fraudulent alienation will not affect your right.

6. The Emperor Gordian to Rogatus.

So long as the amount due is not paid in full to the creditor, he does not lose his right to sell the property, even if he has already collected the greater part of the debt.

Published on the thirteenth of the Kalends of September, during the Consulate of Pius and Pontianus.

7. The Same Emperor to Carus.

If payment has not been made, and the creditor should sell the property which had been pledged to him when the contract does not contain any provision to the contrary, it would be unjust to set the sale aside as if fraud had been committed, and you should not sue the purchaser, but the creditor.

Published on the fifth of the Kalends of November, during the Consulate of Pius and Pontianus.

8. The Same Emperor to Maximum.

If, before the property pledged was sold, you tendered your creditor the money which you owed him, and he refused to accept it, and witnesses were called to attest this, and you deposited the money, and matters to-day remain in the same condition, the sale of said property is not valid. But if you tendered the payment of the money before the sale was completed, and it was legally made, it cannot be rescinded.

Published on the third of the Nones of April, during the Consulate of Gordian and Aviola.

9. The Emperors Diocletian and Maximian to Cillus.

Where property has been specifically encumbered in your favor, and your debtors refused to make payment, and the indebtedness was incurred in good faith, you, observing the legal formalities, should sell the property, for it will be apparent from the price obtained for the pledge whether it is sufficient to satisfy the debt, since if anything is lacking, We do not forbid you to have recourse to other property of the debtors, by virtue of the agreement.

Published on the thirteenth of the Kalends of June, during the Consulate of Diocletian, Consul for the third time, and Maximian.

10. The Same Emperors and Csesars to Rufinits. Anyone who has possession of property which has been pledged, and it is purchased by another person who represents him, continues to hold it; for as he conducts the business for himself, he is not considered to have alienated it. The creditor who buys land that has been pledged, but not through someone who represents him, or does not appropriate it for himself, cannot prejudice the rights of the debtor; but the property remains in the same condition in which it was before this fraudulent act took place.

If, however, he should purchase it from the debtor, who sold it to him, it would establish a bad precedent to set aside the sale made with the consent of both parties, if neither the fraud of the adverse party, nor the employment of duress by him is proved. Therefore, if you can show by clear, positive evidence that the creditor always held possession through a fictitious purchaser, and that he afterwards bought in good faith the property which was fraudulently disposed of, you can compel the creditor to make restitution of the same, after having tendered him the payment of the debt with interest.

Published on the third of the Nones of October, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time.

11. The Same Emperors and Csesars to Rufina.

Although a woman may have specially pledged her property for another, her creditor has no right to sell it, unless she took advantage of his ignorance and deceived him, by allowing her husband to pledge her property as his own.

Published at Heraclia, on the fifth of the Kalends of May, during the Consulate of the above-mentioned Emperors.

12. The Same Emperors and Csesars to Zoticus.

If your debtor sold the property, which was pledged to you, without your consent, the ownership of the same together with its encumbrance passes to the purchaser.

Ordered at Heraclia, on the day before the Kalends of May, during the Consulate of the above-mentioned Emperors.

13. The Same Emperors and Csesars to Theodota.

Anyone who buys land which has been pledged to a creditor, and has not been placed in possession, is not entitled to a real action to recover it.

Published at Sirmium, on the sixteenth of the Kalends of December, during the Consulate of the above-mentioned Emperors.

14. The Same Emperors and Csesars to Modestus.

If your debtors have not paid you that to which you are legally entitled, the Governor of the province, having been applied to, will authorize you to sell the property hypothecated by your debtors, and which is in their possession.

Published at Sirmium, on the sixteenth of the Kalends of December, during the Consulate of the above-mentioned Emperors.

15. The Same Emperors and Csesars to Aviana.

If a debtor should corrupt the slaves that he had pledged to his creditor, and who were afterwards sold and delivered by the latter, an action in rem against the party in possession will lie not in favor of the vendor, but of the purchaser.

Given at Sirmium, on the Kalends of March, during the Consulate of the Csesars.

16. The Same Emperors and Caesars to Sylvanus.

Where one of several heirs of a debtor pledges property which he can recover by a personal action, he does not, by doing so, deprive the creditor of the right to sell the article pledged.

Ordered on the third of the Nones of April, during the Consulate of the Csesars.

17. The Same Emperors and Csesars to Agapa.

A creditor does not lose his right to property which has been encumbered by a general or special agreement, on account of its sale by another creditor who had nothing to do with the transaction.

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

18. The Same Emperors and Csesars to Caianus.

Anyone who legally purchases from a creditor property which has been pledged cannot be molested on account of the ownership of the same.

Signed on the sixth of the Kalends of May, during the Consulate of the Csesars.

19. The Same Emperors and Csesars to Lybia.

If your husband lent money, even though it was your own, you will have no right to sell in your own name the property pledged to him for the debt, if you did not succeed to him as heir.

Ordered at Heraclia, on the sixth of the Ides of November, during the Consulate of the above-mentioned Emperors.

20. The Same Emperors and Csesars to Sabinus.

If nothing was specially agreed upon, and the pledges were sold by the creditor, in accordance with the terms of the contract, for a larger sum than was due to him, even though he may have purchased land with the proceeds, an action in rem will not lie for the surplus, but one in personam must be brought, that is to say, an action on pledge.

Ordered at Byzantium, on the sixth of the Ides of November, during the Consulate of the Csesars.

TITLE XXIX.

A DEBTOR CANNOT PREVENT THE SALE OF THE PROPERTY

PLEDGED.

1. The Emperors Severus and Antoninus to Marcellus.

If there are any persons who desire to purchase the land which has been encumbered to you, they will not be prevented from doing so by the terms of the will, under which the debtor is forbidden to sell any real property belonging to him, and the penalty is added that, if he does, the land shall be forfeited to the Treasury, for it is clear that by a provision of this kind the rights of the creditor are prejudiced.

Given on the sixth of the Kalends of May, during the Consulate of Aper and Maximus.

2. The Emperor Gordian to Nepos.

The notice given to a debtor by his creditor not to sell any of the property pledged to him, or to those who wish to purchase it from him not to buy it, is only effective where he tenders the entire amount of the debt, both principal and interest, to the creditor, and the latter refuses to accept it, and the debtor then deposits the money in the presence of competent witnesses, as is required. Even if he only pays a certain proportion of the principal and interest due, the sale of the property pledged cannot be prevented. Under these circumstances, the purchaser does not become a possessor in bad faith, although he may be aware that notice has been served upon the creditor by the debtor.

Published on the third of the Nones of August, during the Consulate of Gordian and Aviola.

TITLE XXX.

WHERE PROCEEDINGS ARE INSTITUTED ON ACCOUNT OF THE SALE OF A PLEDGE.

1. The Emperor Alexander to Agrippa.

If, having applied to the Governor of the province, it should be proved that your creditor, who had a right to sell the pledges, made a fraudulent sale of the tract of land, the Governor will order him to pay you damages and interest. When, however, the said creditor, against whom judgment was rendered, is unable to pay the money, and it is proved that the purchaser bought the land in bad faith, and you tender him the amount for which the land was sold with interest, the Governor will order the purchaser in bad faith to restore you the land with its profits.

Published on the Kalends of September, during the Consulate of Alexander.

2. The Same Emperor to JEmilius.

Your father, or yourself (if his estate belongs to you as his heir) can demand from the possessors the slaves whom you allege were illegally sold by your father's creditor. If, however, title to them has

been acquired by usucaption, your father can collect the price paid for the same from the creditor who illegally disposed of them.

Published on the third of the Kalends of January, during the Consulate of Alexander. • 3. The Same to Claudius.

If your wife should prove before the Governor of the province that she owed thirty aurei, and that her creditor sold her slaves who had been pledged for that sum, for twenty aurei, and afterwards became insolvent, he will order the slaves to be restored to her, after the price paid for them has been refunded.

Published on the sixteenth of the Kalends of October, during the Consulate of Maximus, Consul for the second time, and ^lianus.

4. The Emperor Gordian to Eudemus.

As you state that a sale of the land encumbered was not made by your creditor in good faith, for the reason that the formalities which are customary in the sale of property pledged were not observed, having gone before the Governor of the province, you will have a right to proceed by a competent action, not only against your creditor, but also against the party in possession, if you can prove that he participated in the fraud with your creditor; so that the transaction which is proved to have taken place in bad faith, having been rescinded, an account of the profits and of the loss which it may appear that you have sustained, may be rendered.

Published on the Kalends of April, during the Consulate of Sabinus, Consul for the second time, and Venustus.

5. The Emperors Diocletian and Maximian, and the Csesars, to Nonia.

If the purchaser, without being guilty of fraud, bought the property pledged which was sold by the creditor before his debt was paid, the successor of the latter, and not the heir of the purchaser who is in possession of the property, should be sued.

Ordered at Nicomedia, on the sixteenth of the Kalends of January, during the Consulate of the Caesars.

TITLE XXXI. CONCERNING THE RELEASE OF PLEDGES.

1. The Emperors Severus and Antoninus to Antiochia.

The heir of a portion of the estate cannot receive his share of the pledges unless he pays the entire debt.

Published on the third of the Kalends of April, during the Consulate of Albinus and .^Emilianus, 207.

2. The Emperor Gordian to Domitius.

You should understand that the lien of a pledge continues to exist even after a personal action has been brought.

Published on the twelfth of the Kalends of June, during the Consulate of Sabinus and Venustus, 241.

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

If the amount of the debt has been paid either by the delivery or the sale of property, and the claim of the person against whom you filed your petition has been satisfied, and you can prove this before the Governor of the province, or if any balance is due, and you have tendered it, and the creditor having refused to accept it, you have sealed and deposited it, the Governor will see that the property pledged is restored to you, for it is clear that by the Perpetual Edict an action is granted to the debtor where the money has been paid to the creditor; or, if it was his fault that it was not paid, it is perfectly evident that he can legally be compelled to return the pledge.

Given on the sixth of the Ides of October, during the Consulate of the above-mentioned Emperors.

TITLE XXXII.

WHERE ONE OF SEVERAL HEIRS OF THE DEBTOR OR CREDITOR EITHER PAYS OR RECEIVES His SHARE OF THE DEBT.

1. The Emperors Valerian and Gallienus to Taurus.

It is a clear and undoubted rule of law that where a creditor dies leaving several heirs, while a personal action is divided among all by the Law of the Twelve Tables, the entire amount of the property pledged is encumbered to each one of them.

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

2. The Emperors Diocletian and Maximian, and the C&sars, to Claudia.

The personal action is divided among the heirs in proportion to . their respective shares of the estate, but where several pieces of property are pledged, and possessed by different individuals, the case is different, as the right to claim the same does not attach to the person but to the property, and as those who are in possession are not liable in proportion to their shares of the estate, but for the full amount of the claim, so they must either pay all that is due, or relinquish possession of what they hold.

Signed at Antioch, on the fifth of the Nones of ....

TITLE XXXIII.

WHERE THE PAYMENT OF MONEY is NOT MADE AFTER A

CONTRACT FOR THE PLEDGING OF PROPERTY HAS BEEN

ENTERED INTO.

1. The Emperors Severus and Antoninus to Illarus. If (as you assert) you have given security for money which was not paid to you, and you can prove that the pledge was delivered, you

can bring a real action; for the mere delivery of a pledge where no money was paid will not hold, unless it appears that an obligation has been contracted. Under these circumstances, the actual facts of the case will protect you, if you have possession of the property pledged, and your adversary institutes proceedings against you.

Published on the Kalends of September, under the Consulate of Lateranus and Rufinus, 198.

2. The Emperor Alexander to Peregrinus.

If (as you now assert) the alleged creditor did not pay your wife, who gave the pledge, any money, but extorted from her security which is not valid, her property will not be encumbered by the terms of a fraudulent document executed in violation of the truth.

Without date or designation of Consulate.

TITLE XXXIV.

CONCERNING THE RIGHT TO OBTAIN OWNERSHIP OF THE PROPERTY OF A DEBTOR.

1. The Emperor Alexander to Nicola.

When you desire to obtain the ownership of property which has been pledged, the names of the debtors who you say have failed to make payment must be given, and you must state whether you have complied with the requisite formalities, for you are informed that you cannot obtain the ownership of the entire property pledged by your debtor, even though all of it was, in general terms, encumbered in

your favor.

Published on the fourteenth of the Kalends of October, during the Consulate of Alexander, Consul for the third time, and Dio, 230.

2. The Emperor Gordian to Justa.

If your creditor obtained from Us the right to ownership of the property pledged, and a year after the rescript was issued accepted interest from you, he is considered to have relinquished the benefit of the said rescript.

Published on the day before the Nones of December, during the Consulate of Pius and Pontianus, 239.

3. The Emperor Justinian to Demosthenes, Praetorian Prefect.

We think that the ancient rule which, however, so far as documents are concerned, never appeared to be clear, should be absolutely abolished, and, in fact, should be replaced by better remedies. Therefore, the right of public sale and the power of release within a year, which were granted by the ancient law in the case of pledges which anyone wished to acquire by the right of ownership, We have ascertained only by the perusal of books, for We have never seen a pledge publicly sold in this way.

(1) Hence, We decree that if anyone should pledge his property to his creditor, and it was provided in the agreement how the pledge should be sold, whether at a certain time, or in some other way, whatever was agreed upon in the contract between the creditor and the debtor with reference to the sale of said property shall be observed. If, however, no agreement was made, the creditor shall be given permission to sell the pledge two years after notice has been given to the debtor, or after judgment has been rendered, the term to be computed from the day when the notice was issued, or the judgment published.

(2) But when no one appears who desires to purchase the property and it becomes necessary for the creditor himself to acquire it by the right of ownership, We decree that, in cases of this kind, the following shall be observed, namely: that if the debtor is present, notice shall be served upon him, even after the lapse of two years; or if he is absent, the creditor shall apply to the tribunal of the province, and ask the judge to issue a summons for the debtor to appear at a time which he shall designate, which summons shall be served by the court attendant, and contain what is claimed by the creditor, and a certain date shall be fixed, within which, if the debtor should be found, he can pay the debt and recover the pledge.

If, however, he should not be found, the judge must designate a certain time within which he shall be permitted to appear, tender the money due, and release the pledge.

(3) If, however, after the designated time has expired, the debtor should either not be found, or refuse to pay the full amount claimed, the creditor can then apply to the Emperor and petition him for the right to acquire the ownership of said property, and permission shall be granted him to do so. After this has taken place the debtor shall, through motives of humanity, be entitled to the term of two years to redeem his property, which shall be reckoned from the day when the Imperial Decree was issued; and he shall be allowed to pay the creditor, who has become the owner of the property, his debt, with interest, and reimburse him for any losses which he may have sustained, the amount of which the creditor must prove by his oath, and the debtor will then be entitled to recover his pledge.

Where, however, the said term of two years has elapsed, the creditor shall have a perfect title to the property, and his ownership will become irrevocable.

(4) But if the pledge should be found to be worth less than the debt, the creditor shall have the right to proceed against his debtor for the deficiency. When the value of the pledge and the amount of the debt are found to be equal, there is no doubt that the creditor can retain the entire property previously pledged. If, however, the debt should amount to less than the value of the pledge, then, by Our law, the excess shall be reserved for other creditors to whom the property was not pledged, or for the debtor himself.

And, that no difficulty may arise with reference to the excess, permission is hereby granted to the creditor or owner to furnish proper security for the payment of the said excess to the debtor.

(5) When, however, the creditor, after having, as owner, obtained possession of the property pledged, desires to sell it, he shall have permission to do so, and if anything over and above the amount of his claim should be collected it shall be reserved for the debtor.

But when any doubt arises with reference to the sale, for instance, if it should be asserted that a lower price was paid than the property was worth, the creditor will be obliged to make oath that he was guilty of no machination or fraud, but that he sold the property for as much as he could obtain for it; and he shall only be compelled to return to the debtor any surplus which he may have sworn to. If, however, it should be ascertained from the oath of the creditor that he received less than the amount of the debt from the sale, he will have a right to bring suit against the debtor for the remainder.

(6) We desire that there shall be a judicial decision as to the value of the property pledged, if it should remain in the hands of the creditor, and the judge must determine whether it is more or less than the indebtedness, and whatever he may hold on this point will establish the value of the pledge.

Given at Constantinople, on the fifteenth of the Kalends of April, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXXV.

CONCERNING CONTRACTS RELATING TO PLEDGES AND THE

ABOLITION OF THE LAW OF CONDITIONAL AVOIDANCE WITH

REFERENCE TO PLEDGES.

1. The Emperor Alexander to Victorinus.

He who entered into an agreement that, unless within a certain time he paid the money which he had borrowed, his creditors could sell the property hypothecated, did not make a valid contract, for he included in it the right to which his creditor was entitled when he received the pledge. Therefore, according to the Common Law, the creditor can sell the property.

Published during the Ides of October, during the Consulate of

Alexander, 223.

2. The Emperors Diocletian and Maximian, and the Cassars, to Dionysius.

If a third party has questioned the title of the purchaser to the property which you sold him, and you have given the latter a written pledge or hypothecation of another tract of land to protect him against eviction, under the condition that if he should not be evicted from the land which you sold him he will return to you the premises encumbered to him by the second contract, and that, if judgment should be rendered in this case against the person who raised the question of title, the judge will order the terms of the agreement to be complied with, if the matter remains in its former condition, and as the pur-

chaser is secure, against eviction, the land which was hypothecated shall be restored to you.

Ordered at Sirmium, on the Kalends of December, during the Consulate of the Cassars.

3. The Emperor Constantine to the People.

As the harshness of the law of conditional avoidance is conspicuous among other abuses, We have decided to declare it void, and to abolish it. Therefore, if anyone has been oppressed by a contract of this kind, he shall be relieved by this law, which annuls all past and present agreements of this kind, and forbids them to be made hereafter. We, however, order that creditors who have lost their property by this law shall have a right to recover what they have paid.

Given on the second of the Kalends of February, during the Consulate of Constantine, Consul for the seventh time, and Constantius, 326.

TITLE XXXVI. CONCERNING EXCEPTIONS OR PRESCRIPTIONS.

1. The Emperor Antoninus to Claudius.

In accordance with the terms of the ancient law, those who are indebted to an estate are liable to each one of the heirs in proportion to his share of said estate; but if you have paid all the money due to those only whom the testator mentioned by name when making the distribution, you can defend yourself against the others, by an exception on the ground of bad faith, if they should bring suit.

Published on the tenth of the Kalends of August, during the Consulate of the two Aspers, 213.

2. The Same Emperor to Julius.

If judgment has not been rendered against you, you can bring an action to recover your share in the house to which you allege that you are entitled, for an exception on the ground of res judicata can only be pleaded against the party, or his heirs between whom the case was heard, and judgment rendered.

Published on the fifteenth of the Kalends of March, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Same Emperor to Vital.

If you did not bring the action of guardianship against your brother, who was formerly your guardian, do so now, and do not fear that an exception based on an agreement will be filed, provided you can prove that fraud and deceit have been committed, for a replication on the ground of deception, when pleaded, renders the action a bona fide one, and excludes the effect of any fraud which may have been committed.

4. The Emperor Alexander to Julianus and Others.

As you state that the case has not yet finally been decided but merely continued, there is no doubt that your right to defend yourself still remains unimpaired.

Published on the second of the Nones of October, during the Consulate of Maximus, Consul for the second time, and .^Elianus, 224.

5. The Emperors Diocletian and Maximian, and the Csesars, to Basilius.

Although the interdict Unde vi must be resorted to within a year, still it is evident that, by'the authority of the law, a perpetual exception can be pleaded by him who, although having been violently attacked, has, nevertheless, retained possession of the property.

Ordered on the Kalends of May, during the Consulate of the abovementioned Emperors.

6. The Same Emperors and Csesars to Helena.

If an agreement was made with reference to an exception, you can, without restriction of time, reply by pleading an exception on the ground of fraud.

Ordered on the Kalends of September, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Caesars to Menander.

If your debtor paid you a smaller amount than he owed you, and you did not give him a release, you will not be prevented from bringing suit to recover what is proved not to have been paid, and you can in your replication plead an exception on the ground of fraud against the One founded on the agreement.

Ordered on the second of the Kalends of March, during the Consulate of the Csesars.

8. The Same Emperors and Csesars to Aurelius.

The peremptory exception which it was sufficient to plead in the first place, even though this may have been neglected, can be filed at any time before judgment is rendered.

Ordered on the fifteenth of the Kalends of November, during the Consulate of the Caesars.

9. The Same Emperors and Csesars to Mutianus.

If you think that the plaintiff cannot prove his claim, it is not necessary for you to make any defence. When, however, while acknowledging the validity of it, you allege that you are protected by an exception, cognizance of the exception alone should be taken. For if you have any doubt of the justice of your opponent's cause, your exception ought only to be considered after the plaintiff has proved his claim in accordance with his allegations, for then it will be proper for it to be examined.

Ordered on the third of the Nones of November, during the Consulate of the Caesars.

10. The Same Emperors and C&sars to Aquilina.

Plaintiffs do not protect themselves by means of exceptions, the benefits of which are granted to defendants under certain circumstances, but they can establish their claims by means of replications, if they have any which are valid.

Ordered at Nicomedia, on the Kalends of December, during the Consulate of the Caesars.

11. The Same Emperors and Csesars to Neo.

It is settled that while the case remains unchanged, those who represent the parties can avail themselves of the same exceptions and defences to which their principals would have been entitled.

12. The Emperor Julian to Julian, Count of the East.

If an advocate, during the progress of a case, should desire to avail himself of a dilatory exception which he neglected to make use of in the beginning, and he is deprived of this resource, but still perseveres in setting up this ill-timed defence, he shall be fined a pound of gold.

Given at Antioch, on the seventh of the Ides of March, during the Consulate of Julian, Consul for the eighth time, and Sallust, 363.

13. The Emperors Honorius and Theodosius to Symmachus, Proconsul of Africa.

The authority of the law declares that exceptions to jurisdiction must always be pleaded by litigants at the beginning of a case.

Given at Ravenna, on the fifth of the Kalends of September, during the Consulate of Honorius, Consul for the tenth time, and Theodosius, Consul for the sixth time.

TITLE XXXVII. CONCERNING DISPUTED PROPERTY. 1. The Emperors Severus and Antoninus to Paulina. As the creditor has sold the pledge, a purchase of property subject to contest cannot be considered to have been made, even though the debtor may have forbidden the sale to take place.

Published on the Kalends of May, during the Consulate of Aper and Maximus, 208.

Extract from Novel 112, Chapter I. Latin Text.

Disputed property is that with reference to whose ownership a question has arisen between the possessor and another person who claims it, where either an action has been brought, or a petition presented to the Emperor, and a judge been appointed by him subsequently to take cognizance of the case.

2. The Emperor Constantine to the People of the Provinces.

While« a suit is pending, the plaintiff is not permitted to transfer any rights of action which are in litigation, or any property which he alleges is retained by the defendant, to any person connected with him, or to any stranger, either by donation, sale, or any other kind of a contract whatsoever; and, if he should do so, the case shall still proceed just as if nothing had been done.

Given on the Kalends of March, during the Consulate of Bassus and Ablavius, 331.

3. The Emperors Gratian, Valentinian, and Theodosius to Tattian, Praetorian Prefect.

Where anyone who has bequeathed, either by a will or a codicil, any property, the title to which is in dispute, or any claim of doubtful validity, or any movable or immovable property, to Our Treasury or to a person in authority, or to anyone else, or has left the same under a trust, or as part of an estate, neither Our Treasury, nor anyone else shall have the right to contest the ownership of the same, or appear in court, but a judicial appraisement of it must be made, and it shall be delivered to those to whom the rights of action for property in dispute have been bequeathed. The heirs, themselves, should conduct the case, and claim, at their own risk, the said property whose title is contested, and which has been left by will. It has been decided with reference to written claims which are of doubtful validity that the heirs of persons who have left bequests to the Treasury, or to other legatees, after having estimated the value of the same, can sue those who they may consider liable.

Given at Thessalonica, on the fifteenth of the Kalends of July, and again at Constantinople, on the thirteenth of the Kalends of January, during the Consulate of Gratian, Consul for the fifth time, and Theodosius, 380.

4. The Emperor Justinian to John, Prastorian Prefect. We decree that if anyone should, while a case is pending, transfer to any person whomsoever either the rights of action or the property involved, whether the latter knows or is ignorant that the title to said actions or property is in dispute, a certain distinction shall be observed between the contracting parties, so that when anyone knowingly receives such property either through a sale, a donation, or by virtue of any other kind of a contract, he is hereby notified that he will be compelled not only to return the property, but also will be deprived of the price of the same, but the profit shall not accrue to him who made the sale but to the Treasury, to which he shall be required by law to

pay an equal sum.

If, however, the purchaser should buy property whose title was in dispute, without being aware of the fact, or should obtain it by any other kind of a contract, then the alienation shall be considered void, and the price shall be returned to the purchaser, together with a sum equal to one-third of the amount of the same; for it is only just

that on account of the fraudulent intent and secret duplicity of the vendor, who did not inform the purchaser that the title to the property was being contested in court, he should be punished by being forced to pay a sum equal to the third part of the price, as We have already decreed.

This penalty shall not only be imposed in the case of other contracts, but also with reference to donations, so that a true appraisement having been made, he who transferred the property to another shall be fined, and all instruments evidencing transactions of this kind shall have no force or effect.

All contracts relating to dowries, ante-nuptial donations, compromises, or the distribution of estates, as well as those providing for the disposal of property by means of legacies or trusts, or where rights of action have been given or accepted, are, however, not subject to the provisions of this law.

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

Extract from Novel 112, Chapter I. Latin Text.

At present, if the heir is successful, he must deliver to the legatee the property of which he appears to be the owner, but when judgment is rendered against him, and he loses the case, only the result of a lawsuit is considered to have been bequeathed to him, and therefore the other party interested should be present at the trial, to see that there is no collusion.

TITLE XXXVIII. CONCERNING THE CONTRACTION OP A STIPULATION.

1. The Emperors Severus and Antoninus to Secundus.

Although the letter which you have inserted in your petition does not set forth that he to whom security was given did not stipulate, still, if the transaction took place between parties who were present, it must be believed that the stipulation preceded, and the response followed.

Adopted on the seventeenth of the Kalends of May, during the Consulate of Severus, Consul for the third time, and Victorinus, 201.

2. The Same Emperors to Petronius.

If you stipulated that the money should be paid to your daughter, whom you had under your control, you will not be prevented from requiring the obligation to be complied with.

Published on the Nones of November, during the Consulate of Faustinus and Rufinus, 211.

3. The Emperor Antoninus to Hadrian.

If, when you lent the money, you did so in the name of Julianus, the stipulation was made with reference to a person who was absent.

As a stipulation entered into under such circumstances is void, you understand that no obligation exists, except that contracted through the property, hence if Julianus should collect the money from your g debtor, and you have ratified the payment of the same, you will be entitled to an action against him on the ground of voluntary agency. Published on the sixth of the Kalends of March, during the Consulate of Prassens and Extricatus.

4. The Emperor Alexander to Sabina.

According to the opinion of my friend, the Jurist Domitius Ulpianus, Prefect of Subsistence, the woman who wished to have power to bequeath half of her dowry at the time of her death and made a stipulation to that effect is considered to have stipulated that the said portion of her dowry should be restored to her when she died.

5. The Emperors Diocletian and Maximian, and the Csssars, to Isidora.

In accordance with what has been frequently decided, the laws do not always permit a man to be compelled to do what he agreed to by a mere promise without consideration. But as you allege that your adversary agreed under the stipulation to pay you, in addition, an amount equal to the value of the property, if he did not fulfill his contract, and as, after the case was brought into court, this condition of the obligation is shown to have existed, it is established that you have good ground to demand the payment of the said sum which was also included in this stipulation.

6. The Same Emperors and Csesars to Erotius.

You ought to have known that where, under a compromise, something was agreed to be given, whether a certain or an uncertain amount was stipulated for, it can be recovered.

Ordered at Sirmium, on the sixteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Antonius.

The absence of either a guardian or a curator does not, in any way, affect the validity of a stipulation, as there is no doubt that a woman, who is under the age of twenty-five years, can enter into a stipulation during the absence of her curator.

Ordered on the sixteenth of the Kalends of February, during the Consulate of the Ceesars.

8. The Same Emperors and Csesars to Posidonius and Others.

The promise to furnish a slave who will never die is impossible of execution, but anyone who stipulates for the payment of money after the death of a slave can legally demand it.

Ordered on the twelfth of the Kalends of March, during the Consulate of the Caesars.

9. The Same Emperors and Csesars to Capita.

If, when terrified by the fear of death or corporeal suffering, you bound yourself to Zeno under a stipulation, you can defend yourself against him by an exception on this ground, if he should bring an action. Where, however, nothing of this kind was proved, your promise will not be void merely because you brought a criminal accusation against your adversary, or intend to do so, as the stipulation was not entered into from some base motive, but for a commendable reason. But if the money was promised as a consideration for not bringing a criminal accusation, the demand will be refused, as it is not legal to make agreements of this kind.

Ordered on the fifth of the Ides of October, during the Consulate of the Csesars.

10. The Emperor Leo to Erythrius, Prsetorian Prefect.

All stipulations, even if they are not expressed in formal or direct words, but in any words whatsoever, with the consent of the contracting parties, and they are in conformity with the laws, shall be valid.

Given at Constantinople, on the Kalends of January, during the Consulate of Martianus and Zeno, 469.

11. The Emperor Justinian to Menna, Prsetorian Prefect.

We, intending to absolutely abolish certain technical difficulties of the ancients, namely: that where anyone has made a stipulation, or left anything by way of legacy, or under a trust, by the terms of his will, in the following words: "After my death," "At the time of my death," or "The day before my death," We decree that everything included in a stipulation, a contract, an agreement, or any disposition made by a testator in his will, which is to take effect after his death, or the day before he dies, shall, nevertheless, be valid, in accordance with the tenor of said contract or will.

Given at Constantinople, on the third of the Ides of December, during the Consulate of Our Lord the Emperor Justinian, 528.

12. The Same Emperor to Menna, Prsetorian Prefect.

Desiring to elucidate the great obscurity of the ancient laws, which, up to this time, has afforded a great opportunity for the protraction of litigation, We order that where anyone stipulates that he will either do or give something at a certain time, or both, or promises what the stipulator desires, and then adds that if what was promised should not be done at the designated time, he will pay a certain penalty, the debtor is hereby advised that he cannot avoid the penalty to which he subjected himself, on the ground that no one notified him, but he will be liable to the said penalty according to the terms of the stipulation, even without any notice, as he should retain in his memory what he agreed to do, and not require to be reminded of it by others. Given at Constantinople, on the ninth of the Ides of April, during the fifth Consulate of Decius, 529.

13. The Same Emperor to Julian, Prsetorian Prefect.

In order to settle the disputes arising out of the ancient law, We decree, in general terms, that every stipulation, whether it consists in giving anything, doing anything, or both giving something or performing some act, shall be transmitted both to and against heirs, whether any special mention has been made of them or not, for why should what is just, so far as the principal parties are concerned, not be transmitted both in favor of and against their successors?

And, as it is held that stipulations of this description, having reference to something which should be given, can still be performed by heirs, the subtle and superfluous opinion, by which it is decided that what is imposed on one person cannot possibly be executed by another, is hereby abolished. For, as the nature of all men is more or less similar, why cannot any of them do what others can, and why should the wills of men be void on account of an over nice distinction

of this kind?

Given at Constantinople, on the Kalends of August, during the

Consulate of Lampadius and Orestes, 530.

14. The Same to John, Prsetorian Prefect.

It is now proper to dispose of an important question which frequently comes up in the tribunals, in order to prevent it from causing any further annoyance to the Government. In many contracts, and especially in those having reference to the payment of interest, it is usual for the stipulations to be entered into through the agency of slaves, who, induced by want of fidelity, at times avail themselves of this opportunity to raise controversies; as, in some instances, it is. contended that the slave did not make the stipulation, or asserted that he did not belong to the person by whom the terms of the written contract should be carried out; and in others, it is alleged that the papers were not drawn up by slaves but by the parties themselves, who were present, hence a doubt arose whether proof should be offered that the parties were present.

Therefore, as it is convenient for slaves to be employed in making contracts, and where it is stated that the principals themselves were present, and this was not the case, on account of the dignity of the persons involved, or because they are women (as the natural modesty of the latter does not permit them to be present during every transaction) , We order that documents of this kind shall be valid under all circumstances; and, whether they set forth that they were drawn up by slaves, who were said to belong to certain persons, or not, the slave shall, by all means, be considered to have been present, and to have drawn up the stipulation, and that it has been acquired by the person stated therein to be his master, and that no question shall arise whether the slave himself, or his