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 numberpreferably the eldest of the next of kinare 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 freewere 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 rejectedto 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 officialan act which might be performed anywhere, and did not, by any means, imply appearance before a judicial tribunaland 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 daya 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.