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THE INSTITUTES OF JUSTINIAN
Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn, Barrister-at-Law, Fellow and Late Tutor of New College, Oxford
Fifth Edition (1913)
PROOEMIVM
In the name of Our Lord, Jesus Christ.
The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the Africans, pious, prosperous, renowned, victorious, and triumphant, ever august,
To the youth desirous of studying the law:
The imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times both of war and of peace, and the ruler of Rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes.
With deepest application and forethought, and by the blessing of God, we have attained both of these objects. The barbarian nations which we have subjugated know our valour, Africa and other provinces without number being once more, after so long an interval, reduced beneath the sway of Rome by victories granted by Heaven, and themselves bearing witness to our dominion. All peoples too are ruled by laws which we have either enacted or arranged. Having removed every inconsistency from the sacred constitutions, hitherto inharmonious and confused, we extended our care to the immense volumes of the older jurisprudence; and, like sailors crossing the mid-ocean, by the favour of Heaven have now completed a work of which we once despaired. When this, with God's blessing, had been done, we called together that distinguished man Tribonian, master and exquaestor of our sacred palace, and the illustrious Theophilus and Dorotheus, professors of law, of whose ability, legal knowledge, and trusty observance of our orders we have received many and genuine proofs, and especially commissioned them to compose by our authority and advice a book of Institutes, whereby you may be enabled to learn your first lessons in law no longer from ancient fables, but to grasp them by the brilliant light of imperial learning, and that your ears and minds may receive nothing useless or incorrect, but only what holds good in actual fact. And thus whereas in past time even the foremost of you were unable to read the imperial constitutions until after four years, you, who have been so honoured and fortunate as to receive both the beginning and the end of your legal teaching from the mouth of the Emperor, can now enter on the study of them without delay. After the completion therefore of the fifty books of the Digest or Pandects, in which all the earlier law has been collected by the aid of the said distinguished Tribonian and other illustrious and most able men, we directed the division of these same Institutes into four books, comprising the first elements of the whole science of law. In these the law previously obtaining has been briefly stated, as well as that which after becoming disused has been again brought to light by our imperial aid. Compiled from all the Institutes of our ancient jurists, and in particular from the commentaries of our Gaius on both the Institutes and the common cases, and from many other legal works, these Institutes were submitted to us by the three learned men aforesaid, and after reading and examining them we have given them the fullest force of our constitutions.
Receive then these laws with your best powers and with the eagerness of study, and show yourselves so learned as to be encouraged to hope that when you have compassed the whole field of law you may have ability to govern such portion of the state as may be entrusted to you.
Given at Constantinople the 21st day of November, in the third consulate of the Emperor Justinian, Father of his Country, ever august.
BOOK I.
TITLES I. Of Justice and Law II. Of the law of nature, the law of nations, and the civil law III. Of the law of persons IV. Of men free born V. Of freedmen VI. Of persons unable to manumit, and the causes of their incapacity VII. Of the repeal of the lex Fufia Caninia VIII. Of persons independent or dependent IX. Of paternal power X. Of marriage XI. Of adoptions XII. Of the modes in which paternal power is extinguished XIII. Of guardianships XIV. Who can be appointed guardians by will XV. Of the statutory guardianship of agnates XVI. Of loss of status XVII. Of the statutory guardianship of patrons XVIII. Of the statutory guardianship of parents XIX. Of fiduciary guardianship XX. Of Atilian guardians, and those appointed under the lex Iulia et Titia XXI. Of the authority of guardians XXII. Of the modes in which guardianship is terminated XXIII. Of curators XXIV. Of the security to be given by guardians and curators XXV. Of guardians' and curators' grounds of exemption XXVI. Of guardians or curators who are suspected
TITLE I. OF JUSTICE AND LAW
Justice is the set and constant purpose which gives to every man his due.
1 Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust.
2 Having laid down these general definitions, and our object being the exposition of the law of the Roman people, we think that the most advantageous plan will be to commence with an easy and simple path, and then to proceed to details with a most careful and scrupulous exactness of interpretation. Otherwise, if we begin by burdening the student's memory, as yet weak and untrained, with a multitude and variety of matters, one of two things will happen: either we shall cause him wholly to desert the study of law, or else we shall bring him at last, after great labour, and often, too, distrustful of his own powers (the commonest cause, among the young, of ill-success), to a point which he might have reached earlier, without such labour and confident in himself, had he been led along a smoother path.
3 The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.
4 The study of law consists of two branches, law public, and law private. The former relates to the welfare of the Roman State; the latter to the advantage of the individual citizen. Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome.
TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW
1 The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished. The civil law of Rome, and the law of all nations, differ from each other thus. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations. Thus the laws of the Roman people are partly peculiar to itself, partly common to all nations; a distinction of which we shall take notice as occasion offers.
2 Civil law takes its name from the state wherein it binds; for instance, the civil law of Athens, it being quite correct to speak thus of the enactments of Solon or Draco. So too we call the law of the Roman people the civil law of the Romans, or the law of the Quirites; the law, that is to say, which they observe, the Romans being called Quirites after Quirinus. Whenever we speak, however, of civil law, without any qualification, we mean our own; exactly as, when 'the poet' is spoken of, without addition or qualification, the Greeks understand the great Homer, and we understand Vergil. But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free. The law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consumption, and very many others.
3 Our law is partly written, partly unwritten, as among the Greeks. The written law consists of statutes, plebiscites, senatusconsults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law.
4 A statute is an enactment of the Roman people, which it used to make on the motion of a senatorial magistrate, as for instance a consul. A plebiscite is an enactment of the commonalty, such as was made on the motion of one of their own magistrates, as a tribune. The commonalty differs from the people as a species from its genus; for 'the people' includes the whole aggregate of citizens, among them patricians and senators, while the term 'commonalty' embraces only such citizens as are not patricians or senators. After the passing, however, of the statute called the lex Hortensia, plebiscites acquired for the first time the force of statutes.
5 A senatusconsult is a command and ordinance of the senate, for when the Roman people had been so increased that it was difficult to assemble it together for the purpose of enacting statutes, it seemed right that the senate should be consulted instead of the people.
6 Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the 'lex regia,' which was passed concerning his office and authority. Consequently, whatever the Emperor settles by rescript, or decides in his judicial capacity, or ordains by edicts, is clearly a statute: and these are what are called constitutions. Some of these of course are personal, and not to be followed as precedents, since this is not the Emperor's will; for a favour bestowed on individual merit, or a penalty inflicted for individual wrongdoing, or relief given without a precedent, do not go beyond the particular person: though others are general, and bind all beyond a doubt.
7 The edicts of the praetors too have no small legal authority, and these we are used to call the 'ius honorarium,' because those who occupy posts of honour in the state, in other words the magistrates, have given authority to this branch of law. The curule aediles also used to issue an edict relating to certain matters, which forms part of the ius honorarium.
8 The answers of those learned in the law are the opinions and views of persons authorized to determine and expound the law; for it was of old provided that certain persons should publicly interpret the laws, who were called jurisconsults, and whom the Emperor privileged to give formal answers. If they were unanimous the judge was forbidden by imperial constitution to depart from their opinion, so great was its authority.
9 The unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute.
10 And this division of the civil law into two kinds seems not inappropriate, for it appears to have originated in the institutions of two states, namely Athens and Lacedaemon; it having been usual in the latter to commit to memory what was observed as law, while the Athenians observed only what they had made permanent in written statutes.
11 But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.
12 The whole of the law which we observe relates either to persons, or to things, or to actions. And first let us speak of persons: for it is useless to know the law without knowing the persons for whose sake it was established.
TITLE III. OF THE LAW OF PERSONS
In the law of persons, then, the first division is into free men and slaves.
1 Freedom, from which men are called free, is a man's natural power of doing what he pleases, so far as he is not prevented by force or law:
2 slavery is an institution of the law of nations, against nature subjecting one man to the dominion of another.
3 The name 'slave' is derived from the practice of generals to order the preservation and sale of captives, instead of killing them; hence they are also called mancipia, because they are taken from the enemy by the strong hand.
4 Slaves are either born so, their mothers being slaves themselves; or they become so, and this either by the law of nations, that is to say by capture in war, or by the civil law, as when a free man, over twenty years of age, collusively allows himself to be sold in order that he may share the purchase money.
5 The condition of all slaves is one and the same: in the conditions of free men there are many distinctions; to begin with, they are either free born, or made free.
TITLE IV. OF MEN FREE BORN
A freeborn man is one free from his birth, being the offspring of parents united in wedlock, whether both be free born or both made free, or one made free and the other free born. He is also free born if his mother be free even though his father be a slave, and so also is he whose paternity is uncertain, being the offspring of promiscuous intercourse, but whose mother is free. It is enough if the mother be free at the moment of birth, though a slave at that of conception: and conversely if she be free at the time of conception, and then becomes a slave before the birth of the child, the latter is held to be free born, on the ground that an unborn child ought not to be prejudiced by the mother's misfortune. Hence arose the question of whether the child of a woman is born free, or a slave, who, while pregnant, is manumitted, and then becomes a slave again before delivery. Marcellus thinks he is born free, for it is enough if the mother of an unborn infant is free at any moment between conception and delivery: and this view is right.
1 The status of a man born free is not prejudiced by his being placed in the position of a slave and then being manumitted: for it has been decided that manumission cannot stand in the way of rights acquired by birth.
TITLE V. OF FREEDMEN
Those are freedmen, or made free, who have been manumitted from legal slavery. Manumission is the giving of freedom; for while a man is in slavery he is subject to the power once known as 'manus'; and from that power he is set free by manumission. All this originated in the law of nations; for by natural law all men were born free—slavery, and by consequence manumission, being unknown. But afterwards slavery came in by the law of nations; and was followed by the boon of manumission; so that though we are all known by the common name of 'man,' three classes of men came into existence with the law of nations, namely men free born, slaves, and thirdly freedmen who had ceased to be slaves.
1 Manumission may take place in various ways; either in the holy church, according to the sacred constitutions, or by default in a fictitious vindication, or before friends, or by letter, or by testament or any other expression of a man's last will: and indeed there are many other modes in which freedom may be acquired, introduced by the constitutions of earlier emperors as well as by our own.
2 It is usual for slaves to be manumitted by their masters at any time, even when the magistrate is merely passing by, as for instance while the praetor or proconsul or governor of a province is going to the baths or the theatre.
3 Of freedmen there were formerly three grades; for those who were manumitted sometimes obtained a higher freedom fully recognised by the laws, and became Roman citizens; sometimes a lower form, becoming by the lex Iunia Norbana Latins; and sometimes finally a liberty still more circumscribed, being placed by the lex Aelia Sentia on the footing of enemies surrendered at discretion. This last and lowest class, however, has long ceased to exist, and the title of Latin also had become rare: and so in our goodness, which desires to raise and improve in every matter, we have amended this in two constitutions, and reintroduced the earlier usage; for in the earliest infancy of Rome there was but one simple type of liberty, namely that possessed by the manumitter, the only distinction possible being that the latter was free born, while the manumitted slave became a freedman. We have abolished the class of 'dediticii,' or enemies surrendered at discretion, by our constitution, published among those our decisions, by which, at the suggestion of the eminent Tribonian, our quaestor, we have set at rest the disputes of the older law. By another constitution, which shines brightly among the imperial enactments, and suggested by the same quaestor, we have altered the position of the 'Latini Iuniani,' and dispensed with all the rules relating to their condition; and have endowed with the citizenship of Rome all freedmen alike, without regard to the age of the person manuumitted, and nature of the master's ownership, or the mode of manumission, in accordance with the earlier usage; with the addition of many new modes in which freedom coupled with the Roman citizenship, the only kind of freedom now known may be bestowed on slaves.
TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR INCAPACITY
In some cases, however, manumission is not permitted; for an owner who would defraud his creditors by an intended manumission attempts in vain to manumit, the act being made of no effect by the lex Aelia Sentia.
1 A master, however, who is insolvent may institute one of his slaves heir in his will, conferring freedom on him at the same time, so that he may become free and his sole and necessary heir, provided no one else takes as heir under the will, either because no one else was instituted at all, or because the person instituted for some reason or other does not take the inheritance. And this was a judicious provision of the lex Aelia Sentia, for it was most desirable that persons in embarrassed circumstances, who could get no other heir, should have a slave as necessary heir to satisfy their creditors' claims, or that at least (if he did not do this) the creditors might sell the estate in the slave's name, so as to save the memory of the deceased from disrepute.
2 The law is the same if a slave be instituted heir without liberty being expressly given him, this being enacted by our constitution in all cases, and not merely where the master is insolvent; so that in accordance with the modern spirit of humanity, institution will be equivalent to a gift of liberty; for it is unlikely, in spite of the omission of the grant of freedom, that one should have wished the person whom one has chosen as one's heir to remain a slave, so that one should have no heir at all.
3 If a person is insolvent at the time of a manumission, or becomes so by the manumission itself, this is manumission in fraud of creditors. It is, however, now settled law, that the gift of liberty is not avoided unless the intention of the manumitter was fraudulent, even though his property is in fact insufficient to meet his creditors' claims; for men often hope and believe that they are better off than they really are. Consequently, we understand a gift of liberty to be avoided only when the creditors are defrauded both by the intention of the manumitter, and in fact: that is to say, by his property being insufficient to meet their claims.
4 The same lex Aelia Sentia makes it unlawful for a master under twenty years of age to manumit, except in the mode of fictitious vindication, preceded by proof of some legitimate motive before the council.
5 It is a legitimate motive of manumission if the slave to be manumitted be, for instance, the father or mother of the manumitter, or his son or daughter, or his natural brother or sister, or governor or nurse or teacher, or fosterson or fosterdaughter or fosterbrother, or a slave whom he wishes to make his agent, or a female slave whom he intends to marry; provided he marry her within six months, and provided that the slave intended as an agent is not less than seventeen years of age at the time of manumission.
6 When a motive for manumission, whether true or false, has once been proved, the council cannot withdraw its sanction.
7 Thus the lex Aelia Sentia having prescribed a certain mode of manumission for owners under twenty, it followed that though a person fourteen years of age could make a will, and therein institute an heir and leave legacies, yet he could not confer liberty on a slave until he had completed his twentieth year. But it seemed an intolerable hardship that a man who had the power of disposing freely of all his property by will should not be allowed to give his freedom to a single slave: wherefore we allow him to deal in his last will as he pleases with his slaves as with the rest of his property, and even to give them their liberty if he will. But liberty being a boon beyond price, for which very reason the power of manumission was denied by the older law to owners under twenty years of age, we have as it were selected a middle course, and permitted persons under twenty years of age to manumit their slaves by will, but not until they have completed their seventeenth and entered on their eighteenth year. For when ancient custom allowed persons of this age to plead on behalf of others, why should not their judgement be deemed sound enough to enable them to use discretion in giving freedom to their own slaves?
TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA
Moreover, by the lex Fufia Caninia a limit was placed on the number of slaves who could be manumitted by their master's testament: but this law we have thought fit to repeal, as an obstacle to freedom and to some extent invidious, for it was certainly inhuman to take away from a man on his deathbed the right of liberating the whole of his slaves, which he could have exercised at any moment during his lifetime, unless there were some other obstacle to the act of manumission.
TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT
Another division of the law relating to persons classifies them as either independent or dependent. Those again who are dependent are in the power either of parents or of masters. Let us first then consider those who are dependent, for by learning who these are we shall at the same time learn who are independent. And first let us look at those who are in the power of masters.
1 Now slaves are in the power of masters, a power recognised by the law of all nations, for all nations present the spectacle of masters invested with power of life and death over slaves; and to whatever is acquired through a slave his owner is entitled.
2 But in the present day no one under our sway is permitted to indulge in excessive harshness towards his slaves, without some reason recognised by law; for, by a constitution of the Emperor Antoninus Pius, a man is made as liable to punishment for killing his own slave as for killing the slave of another person; and extreme severity on the part of masters is checked by another constitution whereby the same Emperor, in answer to inquiries from presidents of provinces concerning slaves who take refuge at churches or statues of the Emperor, commanded that on proof of intolerable cruelty a master should be compelled to sell his slaves on fair terms, so as to receive their value. And both of these are reasonable enactments, for the public interest requires that no one should make an evil use of his own property. The terms of the rescript of Antoninus to Aelius Marcianus are as follow:—'The powers of masters over their slaves ought to continue undiminished, nor ought any man to be deprived of his lawful rights; but it is the master's own interest that relief justly sought against cruelty, insufficient sustenance, or intolerable wrong, should not be denied. I enjoin you then to look into the complaints of the slaves of Iulius Sabinus, who have fled for protection to the statue of the Emperor, and if you find them treated with undue harshness or other ignominious wrong, order them to be sold, so that they may not again fall under the power of their master; and the latter will find that if he attempts to evade this my enactment, I shall visit his offence with severe punishment.'
TITLE IX. OF PATERNAL POWER
Our children whom we have begotten in lawful wedlock are in our power.
1 Wedlock or matrimony is the union of male and female, involving the habitual intercourse of daily life.
2 The power which we have over our children is peculiar to Roman citizens, and is found in no other nation.
3 The offspring then of you and your wife is in your power, and so too is that of your son and his wife, that is to say, your grandson and granddaughter, and so on. But the offspring of your daughter is not in your power, but in that of its own father.
TITLE X. OF MARRIAGE
Roman citizens are joined together in lawful wedlock when they are united according to law, the man having reached years of puberty, and the woman being of a marriageable age, whether they be independent or dependent: provided that, in the latter case, they must have the consent of the parents in whose power they respectively are, the necessity of which, and even of its being given before the marriage takes place, is recognised no less by natural reason than by law. Hence the question has arisen, can the daughter or son of a lunatic lawfully contract marriage? and as the doubt still remained with regard to the son, we decided that, like the daughter, the son of a lunatic might marry even without the intervention of his father, according to the mode prescribed by our constitution.
1 It is not every woman that can be taken to wife: for marriage with certain classes of persons is forbidden. Thus, persons related as ascendant and descendant are incapable of lawfully intermarrying; for instance, father and daughter, grandfather and granddaughter, mother and son, grandmother and grandson, and so on ad infinitum; and the union of such persons is called criminal and incestuous. And so absolute is the rule, that persons related as ascendant and descendant merely by adoption are so utterly prohibited from intermarriage that dissolution of the adoption does not dissolve the prohibition: so that an adoptive daughter or granddaughter cannot be taken to wife even after emancipation.
2 Collateral relations also are subject to similar prohibitions, but not so stringent. Brother and sister indeed are prohibited from intermarriage, whether they are both of the same father and mother, or have only one parent in common: but though an adoptive sister cannot, during the subsistence of the adoption, become a man's wife, yet if the adoption is dissolved by her emancipation, or if the man is emancipated, there is no impediment to their intermarriage. Consequently, if a man wished to adopt his son-in-law, he ought first to emancipate his daughter: and if he wished to adopt his daughter-in-law, he ought first to emancipate his son.
3 A man may not marry his brother's or his sister's daughter, or even his or her granddaughter, though she is in the fourth degree; for when we may not marry a person's daughter, we may not marry the granddaughter either. But there seems to be no obstacle to a man's marrying the daughter of a woman whom his father has adopted, for she is no relation of his by either natural or civil law.
4 The children of two brothers or sisters, or of a brother and sister, may lawfully intermarry.
5 Again, a man may not marry his father's sister, even though the tie be merely adoptive, or his mother's sister: for they are considered to stand in the relation of ascendants. For the same reason too a man may not marry his great-aunt either paternal or maternal.
6 Certain marriages again are prohibited on the ground of affinity, or the tie between a man or his wife and the kin of the other respectively. For instance, a man may not marry his wife's daughter or his son's wife, for both are to him in the position of daughters. By wife's daughter or son's wife we must be understood to mean persons who have been thus related to us; for if a woman is still your daughterinlaw, that is, still married to your son, you cannot marry her for another reason, namely, because she cannot be the wife of two persons at once. So too if a woman is still your stepdaughter, that is, if her mother is still married to you, you cannot marry her for the same reason, namely, because a man cannot have two wives at the same time.
7 Again, it is forbidden for a man to marry his wife's mother or his father's wife, because to him they are in the position of a mother, though in this case too our statement applies only after the relationship has finally terminated; otherwise, if a woman is still your stepmother, that is, is married to your father, the common rule of law prevents her from marrying you, because a woman cannot have two husbands at the same time: and if she is still your wife's mother, that is, if her daughter is still married to you, you cannot marry her because you cannot have two wives at the same time.
8 But a son of the husband by another wife, and a daughter of the wife by another husband, and vice versa, can lawfully intermarry, even though they have a brother or sister born of the second marriage.
9 If a woman who has been divorced from you has a daughter by a second husband, she is not your stepdaughter, but Iulian is of opinion that you ought not to marry her, on the ground that though your son's betrothed is not your daughterinlaw, nor your father's betrothed you stepmother, yet it is more decent and more in accordance with what is right to abstain from intermarrying with them.
10 It is certain that the rules relating to the prohibited degrees of marriage apply to slaves: supposing, for instance, that a father and daughter, or a brother and sister, acquired freedom by manumission.
11 There are also other persons who for various reasons are forbidden to intermarry, a list of whom we have permitted to be inserted in the books of the Digest or Pandects collected from the older law.
12 Alliances which infringe the rules here stated do not confer the status of husband and wife, nor is there in such case either wedlock or marriage or dowry. Consequently children born of such a connexion are not in their father's power, but as regards the latter are in the position of children born of promiscuous intercourse, who, their paternity being uncertain, are deemed to have no father at all, and who are called bastards, either from the Greek word denoting illicit intercourse, or because they are fatherless. Consequently, on the dissolution of such a connexion there can be no claim for return of dowry. Persons who contract prohibited marriages are subjected to penalties set forth in our sacred constitutions.
13 Sometimes it happens that children who are not born in their father's power are subsequently brought under it. Such for instance is the case of a natural son made subject to his father's power by being inscribed a member of the curia; and so too is that of a child of a free woman with whom his father cohabited, though he could have lawfully married her, who is subjected to the power of his father by the subsequent execution of a dowry deed according to the terms of our constitution: and the same boon is in effect bestowed by that enactment on children subsequently born of the same marriage.
TITLE XI. OF ADOPTIONS
Not only natural children are subject, as we said, to paternal power, but also adoptive children.
1 Adoption is of two forms, being effected either by rescript of the Emperor, or by the judicial authority of a magistrate. The first is the mode in which we adopt independent persons, and this form of adoption is called adrogation: the second is the mode in which we adopt a person subject to the power of an ascendant, whether a descendant in the first degree, as a son or daughter, or in a remoter degree, as a grandson, granddaughter, great-grandson, or great-granddaughter.
2 But by the law, as now settled by our constitution, when a child in power is given in adoption to a stranger by his natural father, the power of the latter is not extinguished; no right passes to the adoptive father, nor is the person adopted in his power, though we have given a right of succession in case of the adoptive father dying intestate. But if the person to whom the child is given in adoption by its natural father is not a stranger, but the child's own maternal grandfather, or, supposing the father to have been emancipated, its paternal grandfather, or its great-grandfather paternal or maternal, in this case, because the rights given by nature and those given by adoption are vested in one and the same person, the old power of the adoptive father is left unimpaired, the strength of the natural bond of blood being augmented by the civil one of adoption, so that the child is in the family and power of an adoptive father, between whom and himself there existed antecedently the relationship described.
3 When a child under the age of puberty is adopted by rescript of the Emperor, the adrogation is only permitted after cause shown, the goodness of the motive and the expediency of the step for the pupil being inquired into. The adrogation is also made under certain conditions; that is to say, the adrogator has to give security to a public agent or attorney of the people, that if the pupil should die within the age of puberty, he will return his property to the persons who would have succeeded him had no adoption taken place. The adoptive father again may not emancipate them unless upon inquiry they are found deserving of emancipation, or without restoring them their property. Finally, if he disinherits him at death, or emancipates him in his lifetime without just cause, he is obliged to leave him a fourth of his own property, besides that which he brought him when adopted, or by subsequent acquisition.
4 It is settled that a man cannot adopt another person older than himself, for adoption imitates nature, and it would be unnatural for a son to be older than his father. Consequently a man who desires either to adopt or to adrogate a son ought to be older than the latter by the full term of puberty, or eighteen years.
5 A man may adopt a person as grandson or granddaughter, or as great-grandson or great-granddaughter, and so on, without having a son at all himself; 6 and similarly he may adopt another man's son as grandson, or another man's grandson as son.
7 If he wishes to adopt some one as grandson, whether as the son of an adoptive son of his own, or of a natural son who is in his power, the consent of this son ought to be obtained, lest a family heir be thrust upon him against his will: but on the other hand, if a grandfather wishes to give a grandson by a son in adoption to some one else, the son's consent is not requisite.
8 An adoptive child is in most respects in the same position, as regards the father, as a natural child born in lawful wedlock. Consequently a man can give in adoption to another a person whom he has adopted by imperial rescript, or before the praetor or governor of a province, provided that in this latter case he was not a stranger (i.e. was a natural descendant) before he adopted him himself.
9 Both forms of adoption agree in this point, that persons incapable of procreation by natural impotence are permitted to adopt, whereas castrated persons are not allowed to do so.
10 Again, women cannot adopt, for even their natural children are not subject to their power; but by the imperial clemency they are enabled to adopt, to comfort them for the loss of children who have been taken from them.
11 It is peculiar to adoption by imperial rescript, that children in the power of the person adrogated, as well as their father, fall under the power of the adrogator, assuming the position of grandchildren. Thus Augustus did not adopt Tiberius until Tiberius had adopted Germanicus, in order that the latter might become his own grandson directly the second adoption was made.
12 The old writers record a judicious opinion contained in the writings of Cato, that the adoption of a slave by his master is equivalent to manumission. In accordance with this we have in our wisdom ruled by a constitution that a slave to whom his master gives the title of son by the solemn form of a record is thereby made free, although this is not sufficient to confer on him the rights of a son.
TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED
Let us now examine the modes in which persons dependent on a superior become independent. How slaves are freed from the power of their masters can be gathered from what has already been said respecting their manumission. Children under paternal power become independent at the parent's death, subject, however, to the following distinction. The death of a father always releases his sons and daughters from dependence; the death of a grandfather releases his grandchildren from dependence only provided that it does not subject them to the power of their father. Thus, if at the death of the grandfather the father is alive and in his power, the grandchildren, after the grandfather's death, are in the power of the father; but if at the time of the grandfather's death the father is dead, or not subject to the grandfather, the grandchildren will not fall under his power, but become independent.
1 As deportation to an island for some penal offence entails loss of citizenship, such removal of a man from the list of Roman citizens has, like his death, the effect of liberating his children from his power; and conversely, the deportation of a person subject to paternal power terminates the power of the parent. In either case, however, if the condemned person is pardoned by the grace of the Emperor, he recovers all his former rights.
2 Relegation to an island does not extinguish paternal power, whether it is the parent or the child who is relegated.
3 Again, a father's power is extinguished by his becoming a 'slave of punishment,' for instance, by being condemned to the mines or exposed to wild beasts.
4 A person in paternal power does not become independent by entering the army or becoming a senator, for military service or consular dignity does not set a son free from the power of his father. But by our constitution the supreme dignity of the patriciate frees a son from power immediately on the receipt of the imperial patent; for who would allow anything so unreasonable as that, while a father is able by emancipation to release his son from the tie of his power, the imperial majesty should be unable to release from dependence on another the man whom it has selected as a father of the State? 5 Again, capture of the father by the enemy makes him a slave of the latter; but the status of his children is suspended by his right of subsequent restoration by postliminium; for on escape from captivity a man recovers all his former rights, and among them the right of paternal power over his children, the law of postliminium resting on a fiction that the captive has never been absent from the state. But if he dies in captivity the son is reckoned to have been independent from the moment of his father's capture. So too, if a son or a grandson is captured by the enemy, the power of his ascendant is provisionally suspended, though he may again be subjected to it by postliminium. This term is derived from 'limen' and 'post,' which explains why we say that the person who has been captured by the enemy and has come back into our territories has returned by postliminium: for just as the threshold forms the boundary of a house, so the ancients represented the boundaries of the empire as a threshold; and this is also the origin of the term 'limes, signifying a kind of end and limit. Thus postliminium means that the captive returns by the same threshold at which he was lost. A captive who is recovered after a victory over the enemy is deemed to have returned by postliminium.
6 Emancipation also liberates children from the power of the parent. Formerly it was effected either by the observance of an old form prescribed by statute by which the son was fictitiously sold and then manumitted, or by imperial rescript. Our forethought, however, has amended this by a constitution, which has abolished the old fictitious form, and enabled parents to go directly to a competent judge or magistrate, and in his presence release their sons or daughters, grandsons or granddaughters, and so on, from their power. After this, the father has by the praetor's edict the same rights over the property of the emancipated child as a patron has over the property of his freedman: and if at the time of emancipation the child, whether son or daughter, or in some remoter degree of relationship, is beneath the age of puberty, the father becomes by the emancipation his or her guardian.
7 It is to be noted, however, that a grandfather who has both a son, and by that son a grandson or granddaughter, in his power, may either release the son from his power and retain the grandson or granddaughter, or emancipate both together; and a great-grandfather has the same latitude of choice.
8 Again, if a father gives a son whom he has in his power in adoption to the son's natural grandfather or great-grandfather, in accordance with our constitution on this subject, that is to say, by declaring his intention, before a judge with jurisdiction in the matter, in the official records, and in the presence and with the consent of the person adopted, the natural father's power is thereby extinguished, and passes to the adoptive father, adoption by whom under these circumstances retains, as we said, all its old legal consequences.
9 It is to be noted, that if your daughterinlaw conceives by your son, and you emancipate or give the latter in adoption during her pregnancy, the child when born will be in your power; but if the child is conceived after its father's emancipation or adoption, it is in the power of its natural father or its adoptive grandfather, as the case may be.
10 Children, whether natural or adoptive, are only very rarely able to compel their parent to release them from his power.
TITLE XIII. OF GUARDIANSHIPS
Let us now pass on to another classification of persons. Persons not subject to power may still be subject either to guardians or to curators, or may be exempt from both forms of control. We will first examine what persons are subject to guardians and curators, and thus we shall know who are exempt from both kinds of control. And first of persons subject to guardianship or tutelage.
1 Guardianship, as defined by Servius, is authority and control over a free person, given and allowed by the civil law, in order to protect one too young to defend himself:
2 and guardians are those persons who possess this authority and control, their name being derived from their very functions; for they are called guardians as being protectors and defenders, just as those entrusted with the care of sacred buildings are called 'aeditui.'
3 The law allows a parent to appoint guardians in his will for those children in his power who have not attained the age of puberty, without distinction between sons and daughters; but a grandson or granddaughter can receive a testamentary guardian only provided that the death of the testator does not bring them under the power of their own father. Thus, if your son is in your power at the time of your death, your grandchildren by him cannot have a guardian given them by your will, although they are in your power, because your death leaves them in the power of their father.
4 And as in many other matters afterborn children are treated on the footing of children born before the execution of the will, so it is ruled that afterborn children, as well as children born before the will was made, may have guardians therein appointed to them, provided that if born in the testator's lifetime they would be family heirs and in his power.
5 If a testamentary guardian be given by a father to his emancipated son, he must be approved by the governor in all cases, though inquiry into the case is unnecessary.
TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL
1 Persons who are in the power of others may be appointed testamentary guardians no less than those who are independent; and a man can also validly appoint one of his own slaves as testamentary guardian, giving him at the same time his liberty; and even in the absence of express manumission his freedom is to be presumed to have been tacitly conferred on him, whereby his appointment becomes a valid act, although of course it is otherwise if the testator appointed him guardian in the erroneous belief that he was free. The appointment of another man's slave as guardian, without any addition or qualification, is void, though valid if the words 'when he shall be free' are added: but this latter form is ineffectual if the slave is the testator's own, the appointment being void from the beginning.
2 If a lunatic or minor is appointed testamentary guardian, he cannot act until, if a lunatic, he recovers his faculties, and, if a minor, he attains the age of twentyfive years.
3 There is no doubt that a guardian may be appointed for and from a certain time, or conditionally, or before the institution of the heir.
4 A guardian cannot, however, be appointed for a particular matter or business, because his duties relate to the person, and not merely to a particular business or matter.
5 If a man appoints a guardian to his sons or daughters, he is held to have intended them also for such as may be afterborn, for the latter are included in the terms son and daughter. In the case of grandsons, a question may arise whether they are implicitly included in an appointment of guardians to sons; to which we reply, that they are included in an appointment of guardians if the term used is 'children,' but not if it is 'sons': for the words son and grandson have quite different meanings. Of course an appointment to afterborn children includes all children, and not sons only.
TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES
In default of a testamentary guardian, the statute of the Twelve Tables assigns the guardianship to the nearest agnates, who are hence called statutory guardians.
1 Agnates are persons related to one another by males, that is, through their male ascendants; for instance, a brother by the same father, a brother's son, or such son's son, a father's brother, his son or son's son. But persons related only by blood through females are not agnates, but merely cognates. Thus the son of your father's sister is no agnate of yours, but merely your cognate, and vice versa; for children are member's of their father's family, and not of your mother's.
2 It was said that the statute confers the guardianship, in case of intestacy, on the nearest agnates; but by intestacy here must be understood not only complete intestacy of a person having power to appoint a testamentary guardian, but also the mere omission to make such appointment, and also the case of a person appointed testamentary guardian dying in the testator's lifetime.
3 Loss of status of any kind ordinarily extinguishes rights by agnation, for agnation is a title of civil law. Not every kind of loss of status, however, affects rights by cognation; because civil changes cannot affect rights annexed to a natural title to the same extent that they can affect those annexed to a civil one.
TITLE XVI. OF LOSS OF STATUS
Loss of status, or change in one's previous civil rights, is of three orders, greatest, minor or intermediate, and least.
1 The greatest loss of status is the simultaneous loss of citizenship and freedom, exemplified in those persons who by a terrible sentence are made 'slaves of punishment,' in freedmen condemned for ingratitude to their patrons, and in those who allow themselves to be sold in order to share the purchase money when paid.
2 Minor or intermediate loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water and to deportation to an island.
3 The least loss of status occurs when citizenship and freedom are retained, but a man's domestic position is altered, and is exemplified by adrogation and emancipation.
4 A slave does not suffer loss of status by being manumitted, for while a slave he had no civil rights:
5 and where the change is one of dignity, rather than of civil rights, there is no loss of status; thus it is no loss of status to be removed from the senate.
6 When it was said that rights by cognation are not affected by loss of status, only the least loss of status was meant; by the greatest loss of status they are destroyed—for instance, by a cognate's becoming a slave—and are not recovered even by subsequent manumission. Again, deportation to an island, which entails minor or intermediate loss of status, destroys rights by cognation.
7 When agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree, though if all are in the same degree, all are entitled.
TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS
The same statute of the Twelve Tables assigns the guardianship of freedmen and freedwomen to the patron and his children, and this guardianship, like that of agnates, is called statutory guardianship; not that it is anywhere expressly enacted in that statute, but because its interpretation by the jurists has procured for it as much reception as it could have obtained from express enactment: the fact that the inheritance of a freedman or freedwoman, when they die intestate, was given by the statute to the patron and his children, being deemed a proof that they were intended to have the guardianship also, partly because in dealing with agnates the statute coupled guardianship with succession, and partly on the principle that where the advantage of the succession is, there, as a rule, ought too to be the burden of the guardianship. We say 'as a rule,' because if a slave below the age of puberty is manumitted by a woman, though she is entitled, as patroness, to the succession, another person is guardian.
TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS
The analogy of the patron guardian led to another kind of socalled statutory guardianship, namely that of a parent over a son or daughter, or a grandson or granddaughter by a son, or any other descendant through males, whom he emancipates below the age of puberty: in which case he will be statutory guardian.
TITLE XIX. OF FIDUCIARY GUARDIANSHIP
There is another kind of guardianship known as fiduciary guardianship, which arises in the following manner. If a parent emancipates a son or daughter, a grandson or granddaughter, or other descendant while under the age of puberty, he becomes their statutory guardian: but if at his death he leaves male children, they become fiduciary guardians of their own sons, or brothers and sisters, or other relatives who had been thus emancipated. But on the decease of a patron who is statutory guardian his children become statutory guardians also; for a son of a deceased person, supposing him not to have been emancipated during his father's lifetime, becomes independent at the latter's death, and does not fall under the power of his brothers, nor, consequently, under their guardianship; whereas a freedman, had he remained a slave, would at his master's death have become the slave of the latter's children. The guardianship, however, is not cast on these persons unless they are of full age, which indeed has been made a general rule in guardianship and curatorship of every kind by our constitution.
TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA ET TITIA
Failing every other kind of guardian, at Rome one used to be appointed under the lex Atilia by the praetor of the city and the majority of the tribunes of the people; in the provinces one was appointed under the lex Iulia et Titia by the president of the province.
1 Again, on the appointment of a testamentary guardian subject to a condition, or on an appointment limited to take effect after a certain time, a substitute could be appointed under these statutes during the pendency of the condition, or until the expiration of the term: and even if no condition was attached to the appointment of a testamentary guardian, a temporary guardian could be obtained under these statutes until the succession had vested. In all these cases the office of the guardian so appointed determined as soon as the condition was fulfilled, or the term expired, or the succession vested in the heir.
2 On the capture of a guardian by the enemy, the same statutes regulated the appointment of a substitute, who continued in office until the return of the captive; for if he returned, he recovered the guardianship by the law of postliminium.
3 But guardians have now ceased to be appointed under these statutes, the place of the magistrates directed by them to appoint being taken, first, by the consuls, who began to appoint guardians to pupils of either sex after inquiry into the case, and then by the praetors, who were substituted for the consuls by the imperial constitutions; for these statutes contained no provisions as to security to be taken from guardians for the safety of their pupils' property, or compelling them to accept the office in case of disinclination.
4 Under the present law, guardians are appointed at Rome by the prefect of the city, and by the praetor when the case falls within his jurisdiction; in the provinces they are appointed, after inquiry, by the governor, or by inferior magistrates at the latter's behest if the pupil's property is of no great value.
5 By our constitution, however, we have done away with all difficulties of this kind relating to the appointing person, and dispensed with the necessity of waiting for an order from the governor, by enacting that if the property of the pupil or adult does not exceed five hundred solidi, guardians or curators shall be appointed by the officers known as defenders of the city, along with the holy bishop of the place, or in the presence of other public persons, or by the magistrates, or by the judge of the city of Alexandria; security being given in the amounts required by the constitution, and those who take it being responsible if it be insufficient.
6 The wardship of children below the age of puberty is in accordance with the law of nature, which prescribes that persons of immature years shall be under another's guidance and control.
7 As guardians have the management of their pupils' business, they are liable to be sued on account of their administration as soon as the pupil attains the age of puberty.
TITLE XXI. OF THE AUTHORITY OF GUARDIANS
In some cases a pupil cannot lawfully act without the authority of his guardian, in others he can. Such authority, for instance, is not necessary when a pupil stipulates for the delivery of property, though it is otherwise where he is the promisor; for it is an established rule that the guardian's authority is not necessary for any act by which the pupil simply improves his own position, though it cannot be dispensed with where he proposes to make it worse. Consequently, unless the guardian authorizes all transactions generating bilateral obligations, such as sale, hire, agency, and deposit, the pupil is not bound, though he can compel the other contracting party to discharge his own obligation.
1 Pupils, however, require their guardian's authority before they can enter on an inheritance, demand the possession of goods, or accept an inheritance by way of trust, even though such act be advantageous to them, and involves no chance of loss.
2 If the guardian thinks the transaction will be beneficial to his pupil, his authority should be given presently and on the spot. Subsequent ratification, or authority given by letter, has no effect.
3 In case of a suit between guardian and pupil, as the former cannot lawfully authorize an act in which he is personally concerned or interested, a curator is now appointed, in lieu of the old praetorian guardian, with whose cooperation the suit is carried on, his office determining as soon as it is decided.
TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED
Pupils of either sex are freed from guardianship when they reach the age of puberty, which the ancients were inclined to determine, in the case of males, not only by age, but also by reference to the physical development of individuals. Our majesty, however, has deemed it not unworthy of the purity of our times to apply in the case of males also the moral considerations which, even among the ancients, forbade in the case of females as indecent the inspection of the person. Consequently by the promulgation of our sacred constitution we have enacted that puberty in males shall be considered to commence immediately on the completion of the fourteenth year, leaving unaltered the rule judiciously laid down by the ancients as to females, according to which they are held fit for marriage after completing their twelfth year.
1 Again, tutelage is terminated by adrogation or deportation of the pupil before he attains the age of puberty, or by his being reduced to slavery or taken captive by the enemy.
2 So too if a testamentary guardian be appointed to hold office until the occurrence of a condition, on this occurrence his office determines.
3 Similarly tutelage is terminated by the death either of pupil or of guardian.
4 If a guardian suffers such a loss of status as entails loss of either liberty or citizenship, his office thereby completely determines. It is, however, only the statutory kind of guardianship which is destroyed by a guardian's undergoing the least loss of status, for instance, by his giving himself in adoption. Tutelage is in every case put an end to by the pupil's suffering loss of status, even of the lowest order.
5 Testamentary guardians appointed to serve until a certain time lay down their office when that time arrives.
6 Finally, persons cease to be guardians who are removed from their office on suspicion, or who are enabled to lay down the burden of the tutelage by a reasonable ground of excuse, according to the rules presently stated.
TITLE XXIII. OF CURATORS
Males, even after puberty, and females after reaching marriageable years, receive curators until completing their twenty-fifth year, because, though past the age fixed by law as the time of puberty, they are not yet old enough to administer their own affairs.
1 Curators are appointed by the same magistrates who appoint guardians. They cannot legally be appointed by will, though such appointment, if made, is usually confirmed by an order of the praetor or governor of the province.
2 A person who has reached the age of puberty cannot be compelled to have a curator, except for the purpose of conducting a suit: for curators, unlike guardians, can be appointed for a particular matter.
3 Lunatics and prodigals, even though more than twentyfive years of age, are by the statute of the Twelve Tables placed under their agnates as curators; but now, as a rule, curators are appointed for them at Rome by the prefect of the city or praetor, and in the provinces by the governor, after inquiry into the case.
4 Curators should also be given to persons of weak mind, to the deaf, the dumb, and those suffering from chronic disease, because they are not competent to manage their own affairs.
5 Sometimes even pupils have curators, as, for instance, when a statutory guardian is unfit for his office: for if a pupil already has one guardian, he cannot have another given him. Again, if a testamentary guardian, or one appointed by the praetor or governor, is not a good man of business, though perfectly honest in his management of the pupil's affairs, it is usual for a curator to be appointed to act with him. Again, curators are usually appointed in the room of guardians temporarily excused from the duties of their office.
6 If a guardian is prevented from managing his pupil's affairs by illhealth or other unavoidable cause, and the pupil is absent or an infant, the praetor or governor of the province will, at the guardian's risk, appoint by decree a person selected by the latter to act as agent of the pupil.
TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS
To prevent the property of pupils and of persons under curators from being wasted or diminished by their curators or guardians the praetor provides for security being given by the latter against maladministration. This rule, however, is not without exceptions, for testamentary guardians are not obliged to give security, the testator having had full opportunities of personally testing their fidelity and carefulness, and guardians and curators appointed upon inquiry are similarly exempted, because they have been expressly chosen as the best men for the place.
1 If two or more are appointed by testament, or by a magistrate upon inquiry, any one of them may offer security for indemnifying the pupil or person to whom he is curator against loss, and be preferred to his colleague, in order that he may either obtain the sole administration, or else induce his colleague to offer larger security than himself, and so become sole administrator by preference. Thus he cannot directly call upon his colleague to give security; he ought to offer it himself, and so give his colleague the option of receiving security on the one hand, or of giving it on the other. If none of them offer security, and the testator left directions as to which was to administer the property, this person must undertake it: in default of this, the office is cast by the praetor's edict on the person whom the majority of guardians or curators shall choose. If they cannot agree, the praetor must interpose. The same rule, authorizing a majority to elect one to administer the property, is to be applied where several are appointed after inquiry by a magistrate.
2 It is to be noted that, besides the liability of guardians and curators to their pupils, or the persons for whom they act, for the management of their property, there is a subsidiary action against the magistrate accepting the security, which may be resorted to where all other remedies prove inadequate, and which lies against those magistrates who have either altogether omitted to take security from guardians or curators, or taken it to an insufficient amount. According to the doctrines stated by the jurists, as well as by imperial constitutions, this action may be brought against the magistrate's heirs as well as against him personally;
3 and these same constitutions ordain that guardians or curators who make default in giving security may be compelled to do so by legal distraint of their goods.
4 This action, however, will not lie against the prefect of the city, the praetor, or the governor of a province, or any other magistrate authorized to appoint guardians, but only against those to whose usual duties the taking of security belongs.
TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION
There are various grounds on which persons are exempted from serving the office of guardian or curator, of which the most common is their having a certain number of children, whether in power or emancipated. If, that is to say, a man has, in Rome, three children living, in Italy four, or in the provinces five, he may claim exemption from these, as from other public offices; for it is settled that the office of a guardian or curator is a public one. Adopted children cannot be reckoned for this purpose, though natural children given in adoption to others may: similarly grandchildren by a son may be reckoned, so as to represent their father, while those by a daughter may not. It is, however, only living children who avail to excuse their fathers from serving as guardian or curator; such as have died are of no account, though the question has arisen whether this rule does not admit of an exception where they have died in war; and it is agreed that this is so, but only where they have fallen on the field of battle: for these, because they have died for their country, are deemed to live eternally in fame.
1 The Emperor Marcus, too, replied by rescript, as is recorded in his Semestria, that employment in the service of the Treasury is a valid excuse from serving as guardian or curator so long as that employment lasts.
2 Again, those are excused from these offices who are absent in the service of the state; and a person already guardian or curator who has to absent himself on public business is excused from acting in either of these capacities during such absence, a curator being appointed to act temporarily in his stead. On his return, he has to resume the burden of tutelage, without being entitled to claim a year's exemption, as has been settled since the opinion of Papinian was delivered in the fifth book of his replies; for the year's exemption or vacation belongs only to such as are called to a new tutelage.
3 By a rescript of the Emperor Marcus persons holding any magistracy may plead this as a ground of exemption, though it will not enable them to resign an office of this kind already entered upon.
4 No guardian or curator can excuse himself on the ground of an action pending between himself and his ward, unless it relates to the latter's whole estate or to an inheritance.
5 Again, a man who is already guardian or curator to three persons without having sought after the office is entitled to exemption from further burdens of the kind so long as he is actually engaged with these, provided that the joint guardianship of several pupils, or administration of an undivided estate, as where the wards are brothers, is reckoned as one only.
6 If a man can prove that through poverty he is unequal to the burden of the office, this, according to rescripts of the imperial brothers and of the Emperor Marcus, is a valid ground of excuse.
7 Illhealth again is a sufficient excuse if it be such as to prevent a man from attending to even his own affairs:
8 and the Emperor Pius decided by a rescript that persons unable to read ought to be excused, though even these are not incapable of transacting business.
9 A man too is at once excused if he can show that a father has appointed him testamentary guardian out of enmity, while conversely no one can in any case claim exemption who promised the ward's father that he would act as guardian to them:
10 and it was settled by a rescript of M. Aurelius and L. Verus that the allegation that one was unacquainted with the pupil's father cannot be admitted as a ground of excuse.
11 Enmity against the ward's father, if extremely bitter, and if there was no reconciliation, is usually accepted as a reason for exemption from the office of guardian;
12 and similarly a person can claim to be excused whose status or civil rights have been disputed by the father of the ward in an action.
13 Again, a person over seventy years of age can claim to be excused from acting as guardian or curator, and by the older law persons less than twentyfive were similarly exempted. But our constitution, having forbidden the latter to aspire to these functions, has made excuses unnecessary. The effect of this enactment is that no pupil or person under twentyfive years of age is to be called to a statutory guardianship; for it was most incongruous to place persons under the guardianship or administration of those who are known themselves to need assistance in the management of their own affairs, and are themselves governed by others.
14 The same rule is to be observed with soldiers, who, even though they desire it, may not be admitted to the office of guardian:
15 and finally grammarians, rhetoricians, and physicians at Rome, and those who follow these callings in their own country and are within the number fixed by law, are exempted from being guardians or curators.
16 If a person who has several grounds of excuse wishes to obtain exemption, and some of them are not allowed, he is not prohibited from alleging others, provided he does this within the time prescribed. Those desirous of excusing themselves do not appeal, but ought to allege their grounds of excuse within fifty days next after they hear of their appointment, whatever the form of the latter, and whatever kind of guardians they may be, if they are within a hundred miles of the place where they were appointed: if they live at a distance of more than a hundred miles, they are allowed a day for every twenty miles, and thirty days in addition, but this time, as Scaevola has said, must never be so reckoned as to amount to less than fifty days.
17 A person appointed guardian is deemed to be appointed to the whole patrimony;
18 and after he has once acted as guardian he cannot be compelled against his will to become the same person's curator—not even if the father who appointed him testamentary guardian added in the will that he made him curator, too, as soon as the ward reached fourteen years of age—this having been decided by a rescript of the Emperors Severus and Antoninus.
19 Another rescript of the same emperors settled that a man is entitled to be excused from becoming his own wife's curator, even after intermeddling with her affairs.
20 No man is discharged from the burden of guardianship who has procured exemption by false allegations.
TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED
The accusation of guardians or curators on suspicion originated in the statute of the Twelve Tables;
1 the removal of those who are accused on suspicion is part of the jurisdiction, at Rome, of the praetor, and in the provinces of their governors and of the proconsul's legate.
2 Having shown what magistrates can take cognizance of this subject, let us see what persons are liable to be accused on suspicion. All guardians are liable, whether appointed by testament or otherwise; consequently even a statutory guardian may be made the object of such an accusation. But what is to be said of a patron guardian? Even here we must reply that he too is liable; though we must remember that his reputation must be spared in the event of his removal on suspicion.
3 The next point is to see what persons may bring this accusation; and it is to be observed that the action partakes of a public character, that is to say, is open to all. Indeed, by a rescript of Severus and Antoninus even women are made competent to bring it, but only those who can allege a close tie of affection as their motive; for instance, a mother, nurse, grandmother, or sister. And the praetor will allow any woman to prefer the accusation in whom he finds an affection real enough to induce her to save a pupil from suffering harm, without seeming to be more forward than becomes her sex.
4 Persons below the age of puberty cannot accuse their guardians on suspicion; but by a rescript of Severus and Antoninus it has been permitted to those who have reached that age to deal thus with their curators, after taking the advice of their nearest relations.
5 A guardian is 'suspected' who does not faithfully discharge his tutorial functions, though he may be perfectly solvent, as was the opinion also of Julian. Indeed, Julian writes that a guardian may be removed on suspicion before he commences his administration, and a constitution has been issued in accordance with this view.
6 A person removed from office on suspicion incurs infamy if his offence was fraud, but not if it was merely negligence.
7 As Papinian held, on a person being accused on suspicion he is suspended from the administration until the action is decided.
8 If a guardian or curator who is accused on suspicion dies after the commencement of the action, but before it has been decided, the action is thereby extinguished;
9 and if a guardian fails to appear to a summons of which the object is to fix by judicial order a certain rate of maintenance for the pupil, the rescript of the Emperors Severus and Antoninus provides that the pupil may be put in possession of the guardian's property, and orders the sale of the perishable portions thereof after appointment of a curator. Consequently, a guardian may be removed as suspected who does not provide his pupil with sufficient maintenance.
10 If, on the other hand, the guardian appears, and alleges that the pupil's property is too inconsiderable to admit of maintenance being decreed, and it is shown that the allegation is false, the proper course is for him to be sent for punishment to the prefect of the city, like those who purchase a guardianship with bribery.
11 So too a freedman, convicted of having acted fraudulently as guardian of the sons or grandsons of his patron, should be sent to the prefect of the city for punishment.
12 Finally, it is to be noted, that guardians or curators who are guilty of fraud in their administration must be removed from their office even though they offer to give security, for giving security does not change the evil intent of the guardian, but only gives him a larger space of time wherein he may injure the pupil's property: 13 for a man's mere character or conduct may be such as to justify one's deeming him 'suspected.' No guardian or curator, however, may be removed on suspicion merely because he is poor, provided he is also faithful and diligent.
BOOK II.
TITLES I. Of the different kinds of Things II. Of incorporeal Things III. Of servitudes IV. Of usufruct V. Of use and habitation VI. Of usucapion and long possession VII. Of gifts VIII. Of persons who may, and who may not alienate IX. Of persons through whom we acquire X. Of the execution of wills XI. Of soldiers' wills XII. Of persons incapable of making wills XIII. Of the disinherison of children XIV. Of the institution of the heir XV. Of ordinary substitution XVI. Of pupillary substitution XVII. Of the modes in which wills become void XVIII. Of an unduteous will XIX. Of the kinds of and differences between heirs XX. Of legacies XXI. Of the ademption and transference of legacies XXII. Of the lex Falcidia XXIII. Of trust inheritances XXIV. Of trust bequests of single things XXV. Of codicils
TITLE I. OF THE DIFFERENT KINDS OF THINGS
In the preceding book we have expounded the law of Persons: now let us proceed to the law of Things. Of these, some admit of private ownership, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one. But most things belong to individuals, being acquired by various titles, as will appear from what follows.
1 Thus, the following things are by natural law common to all—the air, running water, the sea, and consequently the seashore. No one therefore is forbidden access to the seashore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations.
2 On the other hand, all rivers and harbours are public, so that all persons have a right to fish therein.
3 The seashore extends to the limit of the highest tide in time of storm or winter.
4 Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting-place for the cargo, as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it.
5 Again, the public use of the seashore, as of the sea itself, is part of the law of nations; consequently every one is free to build a cottage upon it for purposes of retreat, as well as to dry his nets and haul them up from the sea. But they cannot be said to belong to any one as private property, but rather are subject to the same law as the sea itself, with the soil or sand which lies beneath it.
6 As examples of things belonging to a society or corporation, and not to individuals, may be cited buildings in cities—theatres, racecourses, and such other similar things as belong to cities in their corporate capacity.
7 Things which are sacred, devoted to superstitious uses, or sanctioned, belong to no one, for what is subject to divine law is no one's property.
8 Those things are sacred which have been duly consecrated to God by His ministers, such as churches and votive offerings which have been properly dedicated to His service; and these we have by our constitution forbidden to be alienated or pledged, except to redeem captives from bondage. If any one attempts to consecrate a thing for himself and by his own authority, its character is unaltered, and it does not become sacred. The ground on which a sacred building is erected remains sacred even after the destruction of the building, as was declared also by Papinian.
9 Any one can devote a place to superstitious uses of his own free will, that is to say, by burying a dead body in his own land. It is not lawful, however, to bury in land which one owns jointly with some one else, and which has not hitherto been used for this purpose, without the other's consent, though one may lawfully bury in a common sepulchre even without such consent. Again, the owner may not devote a place to superstitious uses in which another has a usufruct, without the consent of the latter. It is lawful to bury in another man's ground, if he gives permission, and the ground thereby becomes religious even though he should not give his consent to the interment till after it has taken place.
10 Sanctioned things, too, such as city walls and gates, are, in a sense, subject to divine law, and therefore are not owned by any individual. Such walls are said to be 'sanctioned,' because any offence against them is visited with capital punishment; for which reason those parts of the laws in which we establish a penalty for their transgressors are called sanctions.
11 Things become the private property of individuals in many ways; for the titles by which we acquire ownership in them are some of them titles of natural law, which, as we said, is called the law of nations, while some of them are titles of civil law. It will thus be most convenient to take the older law first: and natural law is clearly the older, having been instituted by nature at the first origin of mankind, whereas civil laws first came into existence when states began to be founded, magistrates to be created, and laws to be written.
12 Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. So far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it.
13 It has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of any one who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it.
14 Bees again are naturally wild; hence if a swarm settles on your tree, it is no more considered yours, until you have hived it, than the birds which build their nests there, and consequently if it is hived by some one else, it becomes his property. So too any one may take the honeycombs which bees may chance to have made, though, of course, if you see some one coming on your land for this purpose, you have a right, to forbid him entry before that purpose is effected. A swarm which has flown from your hive is considered to remain yours so long as it is in your sight and easy of pursuit: otherwise it belongs to the first person who catches it.
15 Peafowl too and pigeons are naturally wild, and it is no valid objection that they are used to return to the same spots from which they fly away, for bees do this, and it is admitted that bees are wild by nature; and some people have deer so tame that they will go into the woods and yet habitually come back again, and still no one denies that they are naturally wild. With regard, however, to animals which have this habit of going away and coming back again, the rule has been established that they are deemed yours so long as they have the intent to return: for if they cease to have this intention they cease to be yours, and belong to the first person who takes them; and when they lose the habit they seem also to have lost the intention of returning.
16 Fowls and geese are not naturally wild, as is shown by the fact that there are some kinds of fowls and geese which we call wild kinds. Hence if your geese or fowls are frightened and fly away, they are considered to continue yours wherever they may be, even though you have lost sight of them; and any one who keeps them intending thereby to make a profit is held guilty of theft.
17 Things again which we capture from the enemy at once become ours by the law of nations, so that by this rule even free men become our slaves, though, if they escape from our power and return to their own people, they recover their previous condition.
18 Precious stones too, and gems, and all other things found on the seashore, become immediately by natural law the property of the finder:
19 and by the same law the young of animals of which you are the owner become your property also.
20 Moreover, soil which a river has added to your land by alluvion becomes yours by the law of nations. Alluvion is an imperceptible addition; and that which is added so gradually that you cannot perceive the exact increase from one moment of time to another is added by alluvion.
21 If, however, the violence of the stream sweeps away a parcel of your land and carries it down to the land of your neighbour it clearly remains yours; though of course if in the process of time it becomes firmly attached to your neighbour's land, they are deemed from that time to have become part and parcel thereof.
22 When an island rises in the sea, though this rarely happens, it belongs to the first occupant; for, until occupied, it is held to belong to no one. If, however (as often occurs), an island rises in a river, and it lies in the middle of the stream, it belongs in common to the landowners on either bank, in proportion to the extent of their riparian interest; but if it lies nearer to one bank than to the other, it belongs to the landowners on that bank only. If a river divides into two channels, and by uniting again these channels transform a man's land into an island, the ownership of that land is in no way altered:
23 but if a river entirely leaves its old channel, and begins to run in a new one, the old channel belongs to the landowners on either side of it in proportion to the extent of their riparian interest, while the new one acquires the same legal character as the river itself, and becomes public. But if after a while the river returns to its old channel, the new channel again becomes the property of those who possess the land along its banks.
24 It is otherwise if one's land is wholly flooded, for a flood does not permanently alter the nature of the land, and consequently if the water goes back the soil clearly belongs to its previous owner.
25 When a man makes a new object out of materials belonging to another, the question usually arises, to which of them, by natural reason, does this new object belong—to the man who made it, or to the owner of the materials? For instance, one man may make wine, or oil, or corn, out of another man's grapes, olives, or sheaves; or a vessel out of his gold, silver, or bronze; or mead of his wine and honey; or a plaster or eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest, or a chair out of his timber. After many controversies between the Sabinians and Proculians, the law has now been settled as follows, in accordance with the view of those who followed a middle course between the opinions of the two schools. If the new object can be reduced to the materials out of which it was made, it belongs to the owner of the materials; if not, it belongs to the person who made it. For instance, a vessel can be melted down, and so reduced to the rude material—bronze, silver, or gold—of which it is made: but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey out of which it was compounded. But if a man makes a new object out of materials which belong partly to him and partly to another—for instance, mead of his own wine and another's honey, or a plaster or eyesalve of drugs which are not all his own, or cloth of wool which belongs only in part to him—in this case there can be no doubt that the new object belongs to its creator, for he has contributed not only part of the material, but the labour by which it was made.
26 If, however, a man weaves into his own cloth another man's purple, the latter, though the more valuable, becomes part of the cloth by accession; but its former owner can maintain an action of theft against the purloiner, and also a condiction, or action for reparative damages, whether it was he who made the cloth, or some one else; for although the destruction of property is a bar to a real action for its recovery, it is no bar to a condiction against the thief and certain other possessors.
27 If materials belonging to two persons are mixed by consent—for instance, if they mix their wines, or melt together their gold or their silver—the result of the mixture belongs to them in common. And the law is the same if the materials are of different kinds, and their mixture consequently results in a new object, as where mead is made by mixing wine and honey, or electrum by mixing gold and silver; for even here it is not doubted that the new object belongs in common to the owners of the materials. And if it is by accident, and not by the intention of the owners, that materials have become mixed, the law is the same, whether they were of the same or of different kinds.
28 But if the corn of Titius has become mixed with yours, and this by mutual consent, the whole will belong to you in common, because the separate bodies or grains, which before belonged to one or the other of you in severalty, have by consent on both sides been made your joint property. If, however, the mixture was accidental, or if Titius mixed the two parcels of corn without your consent, they do not belong to you in common, because the separate grains remain distinct, and their substance is unaltered; and in such cases the corn no more becomes common property than does a flock formed by the accidental mixture of Titius's sheep with yours. But if either of you keeps the whole of the mixed corn, the other can bring a real action for the recovery of such part of it as belongs to him, it being part of the province of the judge to determine the quality of the wheat which belonged to each.
29 If a man builds upon his own ground with another's materials, the building is deemed to be his property, for buildings become a part of the ground on which they stand. And yet he who was owner of the materials does not cease to own them, but he cannot bring a real action for their recovery, or sue for their production, by reason of a clause in the Twelve Tables providing that no one shall be compelled to take out of his house materials (tignum), even though they belong to another, which have once been built into it, but that double their value may be recovered by the action called 'de tigno iniuncto.' The term tignum includes every kind of material employed in building, and the object of this provision is to avoid the necessity of having buildings pulled down; but if through some cause or other they should be destroyed, the owner of the materials, unless he has already sued for double value, may bring a real action for recovery, or a personal action for production. |
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