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.
30 On the other hand, if one man builds a house on another's land with
his own materials, the house belongs to the owner of the land. In this
case, however, the right of the previous owner in the materials is
extinguished, because he is deemed to have voluntarily parted with them,
though only, of course, if he was aware that the land on which he was
building belonged to another man. Consequently, though the house should
be destroyed, he cannot claim the materials by real action. Of course,
if the builder of the house has possession of the land, and the owner of
the latter claims the house by real action, but refuses to pay for the
materials and the workmen's wages, he can be defeated by the plea of
fraud, provided the builder's possession is in good faith: for if he
knew that the land belonged to some one else it may be urged against him
that he was to blame for rashly building on land owned to his knowledge
by another man.
31 If Titius plants another man's shrub in land belonging to himself,
the shrub will become his; and, conversely, if he plants his own shrub
in the land of Maevius, it will belong to Maevius. In neither case,
however, will the ownership be transferred until the shrub has taken
root: for, until it has done this, it continues to belong to the
original owner. So strict indeed is the rule that the ownership of
the shrub is transferred from the moment it has taken root, that if a
neighbour's tree grows so close to the land of Titius that the soil of
the latter presses round it, whereby it drives its roots entirely into
the same, we say the tree becomes the property of Titius, on the ground
that it would be unreasonable to allow the owner of a tree to be a
different person from the owner of the land in which it is rooted.
Consequently, if a tree which grows on the boundaries of two estates
drives its roots even partially into the neighbour's soil, it becomes
the common property of the two landowners.
32 On the same principle corn is reckoned to become a part of the soil
in which it is sown. But exactly as (according to what we said) a man
who builds on another's land can defend himself by the plea of fraud
when sued for the building by the owner of the land, so here too one who
has in good faith and at his own expense put crops into another man's
soil can shelter himself behind the same plea, if refused compensation
for labour and outlay.
33 Writing again, even though it be in letters of gold, becomes a part
of the paper or parchment, exactly as buildings and sown crops become
part of the soil, and consequently if Titius writes a poem, or a
history, or a speech on your paper and parchment, the whole will be held
to belong to you, and not to Titius. But if you sue Titius to recover
your books or parchments, and refuse to pay the value of the writing,
he will be able to defend himself by the plea of fraud, provided that he
obtained possession of the paper or parchment in good faith.
34 Where, on the other hand, one man paints a picture on another's
board, some think that the board belongs, by accession, to the painter,
others, that the painting, however great its excellence, becomes part of
the board. The former appears to us the better opinion, for it is absurd
that a painting by Apelles or Parrhasius should be an accessory of a
board which, in itself, is thoroughly worthless. Hence, if the owner
of the board has possession of the picture, and is sued for it by the
painter, who nevertheless refuses to pay the cost of the board, he will
be able to repel him by the plea of fraud. If, on the other hand, the
painter has possession, it follows from what has been said that the
former owner of the board, [if he is to be able to sue at all], must
claim it by a modified and not by a direct action; and in this case,
if he refuses to pay the cost of the picture, he can be repelled by the
plea of fraud, provided that the possession of the painter be in good
faith; for it is clear, that if the board was stolen by the painter, or
some one else, from its former owner, the latter can bring the action of
theft.
35 If a man in good faith buys land from another who is not its owner,
though he believed he was, or acquires it in good faith by gift or some
other lawful title, natural reason directs that the fruits which he has
gathered shall be his, in consideration of his care and cultivation:
consequently if the owner subsequently appears and claims the land by
real action, he cannot sue for fruits which the possessor has consumed.
This, however, is not allowed to one who takes possession of land which
to his knowledge belongs to another person, and therefore he is obliged
not only to restore the land, but to make compensation for fruits even
though they have been consumed.
36 A person who has a usufruct in land does not become owner of
the fruits which grow thereon until he has himself gathered them;
consequently fruits which, at the moment of his decease, though ripe,
are yet ungathered, do not belong to his heir, but to the owner of the
land. What has been said applies also in the main to the lessee of land.
37 The term 'fruits,' when used of animals, comprises their young,
as well as milk, hair, and wool; thus lambs, kids, calves, and foals,
belong at once, by the natural law of ownership, to the fructuary.
But the term does not include the offspring of a female slave, which
consequently belongs to her master; for it seemed absurd to reckon human
beings as fruits, when it is for their sake that all other fruits have
been provided by nature.
38 The usufructuary of a flock, as Julian held, ought to replace any of
the animals which die from the young of the rest, and, if his usufruct
be of land, to replace dead vines or trees; for it is his duty to
cultivate according to law and use them like a careful head of a family.
39 If a man found treasure in his own land, the Emperor Hadrian,
following natural equity, adjudged to him the ownership of it, as he
also did to a man who found one by accident in soil which was sacred or
religious. If he found it in another man's land by accident, and without
specially searching for it, he gave half to the finder, half to the
owner of the soil; and upon this principle, if a treasure were found in
land belonging to the Emperor, he decided that half should belong to
the latter, and half to the finder; and consistently with this, if a man
finds one in land which belongs to the imperial treasury or the people,
half belongs to him, and half to the treasury or the State.
40 Delivery again is a mode in which we acquire things by natural law;
for it is most agreeable to natural equity that where a man wishes to
transfer his property to another person his wish should be confirmed.
Consequently corporeal things, whatever be their nature, admit of
delivery, and delivery by their owner makes them the property of the
alienee; this, for instance, is the mode of alienating stipendiary and
tributary estates, that is to say, estates lying in provincial soil;
between which, however, and estates in Italy there now exists, according
to our constitution, no difference.
41 And ownership is transferred whether the motive of the delivery
be the desire to make a gift, to confer a dowry, or any other motive
whatsoever. When, however, a thing is sold and delivered, it does not
become the purchaser's property until he has paid the price to the
vendor, or satisfied him in some other way, as by getting some one else
to accept liability for him, or by pledge. And this rule, though laid
down also in the statute of the Twelve Tables, is rightly said to be a
dictate of the law of all nations, that is, of natural law. But if the
vendor gives the purchaser credit, the goods sold belong to the latter
at once.
42 It is immaterial whether the person who makes delivery is the owner
himself, or some one else acting with his consent.
43 Consequently, if any one is entrusted by an owner with the management
of his business at his own free discretion, and in the execution of his
commission sells and delivers any article, he makes the receiver its
owner.
44 In some cases even the owner's bare will is sufficient, without
delivery, to transfer ownership. For instance, if a man sells or makes
you a present of a thing which he has previously lent or let to you or
placed in your custody, though it was not from that motive he originally
delivered it to you, yet by the very fact that he suffers it to be
yours you at once become its owner as fully as if it had been originally
delivered for the purpose of passing the property.
45 So too if a man sells goods lying in a warehouse, he transfers the
ownership of them to the purchaser immediately he has delivered to the
latter the keys of the warehouse.
46 Nay, in some cases the will of the owner, though directly only
towards an uncertain person, transfers the ownership of the thing, as
for instance when praetors and consuls throw money to a crowd: here they
know not which specific coin each person will get, yet they make the
unknown recipient immediately owner, because it is their will that each
shall have what he gets.
47 Accordingly, it is true that if a man takes possession of property
abandoned by its previous owner, he at once becomes its owner himself:
and a thing is said to be abandoned which its owner throws away with the
deliberate intention that it shall no longer be part of his property,
and of which, consequently, he immediately ceases to be the owner.
48 It is otherwise with things which are thrown overboard during a
storm, in order to lighten the ship; in the ownership of these things
there is no change, because the reason for which they are thrown
overboard is obviously not that the owner does not care to own them any
longer, but that he and the ship besides may be more likely to escape
the perils of the sea. Consequently any one who carries them off after
they are washed on shore, or who picks them up at sea and keeps them,
intending to make a profit thereby, commits a theft; for such things
seem to be in much the same position as those which fall out of a
carriage in motion unknown to their owners.
TITLE II. OF INCORPOREAL THINGS
Some things again are corporeal, and others incorporeal.
1 Those are corporeal which in their own nature are tangible, such as
land, slaves, clothing, gold, silver, and others innumerable.
2 Things incorporeal are such as are intangible: rights, for instance,
such as inheritance, usufruct, and obligations, however acquired. And it
is no objection to this definition that an inheritance comprises things
which are corporeal; for the fruits of land enjoyed by a usufructuary
are corporeal too, and obligations generally relate to the conveyance of
something corporeal, such as land, slaves, or money, and yet the right
of succession, the right of usufruct, and the right existing in every
obligation, are incorporeal.
3 So too the rights appurtenant to land, whether in town or country,
which are usually called servitudes, are incorporeal things.
TITLE III. OF SERVITUDES
The following are rights appurtenant to country estates: 'iter,'
the right of passage at will for a man only, not of driving beast or
vehicles; 'actus,' the right of driving beasts or vehicles (of which two
the latter contains the former, though the former does not contain the
latter, so that a man who has iter has not necessarily actus, while if
he has actus he has also iter, and consequently can pass himself even
though unaccompanied by cattle); 'via,' which is the right of going, of
driving any thing whatsoever, and of walking, and which thus contains
both iter and actus; and fourthly, 'aquaeductus,' the right of
conducting water over another man's land.
1 Servitudes appurtenant to town estates are rights which are attached
to buildings; and they are said to appertain to town estates because all
buildings are called 'town estates,' even though they are actually in
the country. The following are servitudes of this kind--the obligation
of a man to support the weight of his neighbour's house, to allow a beam
to be let into his wall, or to receive the rain from his neighbour's
roof on to his own either in drops or from a shoot, or from a gutter
into his yard; the converse right of exemption from any of these
obligations; and the right of preventing a neighbour from raising his
buildings, lest thereby one's ancient lights be obstructed.
2 Some think that among servitudes appurtenant to country estates ought
properly to be reckoned the rights of drawing water, of watering cattle,
of pasture, of burning lime, and of digging sand.
3 These servitudes are called rights attached to estates, because
without estates they cannot come into existence; for no one can acquire
or own a servitude attached to a town or country estate unless he has an
estate for it to be attached to.
4 When a landowner wishes to create any of these rights in favour of
his neighbour, the proper mode of creation is agreement followed by
stipulation. By testament too one can impose on one's heir an obligation
not to raise the height of his house so as to obstruct his neighbour's
ancient lights, or bind him to allow a neighbour to let a beam into
his wall, to receive the rain water from a neighbour's pipe, or allow a
neighbour a right of way, of driving cattle or vehicles over his land,
or conducting water over it.
TITLE IV. OF USUFRUCT
Usufruct is the right of using and taking the fruits of property not
one's own, without impairing the substance of that property; for being
a right over a corporeal thing, it is necessarily extinguished itself
along with the extinction of the latter.
1 Usufruct is thus a right detached from the aggregate of rights
involved in ownership, and this separation can be effected in very many
ways: for instance, if one man gives another a usufruct by legacy, the
legatee has the usufruct, while the heir has merely the bare ownership;
and, conversely, if a man gives a legacy of an estate, reserving
the usufruct, the usufruct belongs to the heir, while only the bare
ownership is vested in the legatee. Similarly, he can give to one man
a legacy of the usufruct, to another one of the estate, subject to the
other's usufruct. If it is wished to create a usufruct in favour of
another person otherwise than by testament, the proper mode is agreement
followed by stipulation. However, lest ownership should be entirely
valueless through the permanent separation from it of the usufruct,
certain modes have been approved in which usufruct may be extinguished,
and thereby revert to the owner.
2 A usufruct may be created not only in land or buildings, but also in
slaves, cattle, and other objects generally, except such as are actually
consumed by being used, of which a genuine usufruct is impossible by
both natural and civil law. Among them are wine, oil, grain, clothing,
and perhaps we may also say coined money; for a sum of money is in a
sense extinguished by changing hands, as it constantly does in simply
being used. For convenience sake, however, the senate enacted that a
usufruct could be created in such things, provided that due security be
given to the heir. Thus if a usufruct of money be given by legacy, that
money, on being delivered to the legatee, becomes his property, though
he has to give security to the heir that he will repay an equivalent
sum on his dying or undergoing a loss of status. And all things of this
class, when delivered to the legatee, become his property, though they
are first appraised, and the legatee then gives security that if he dies
or undergoes a loss of status he will ay the value which was put upon
them. Thus in point of fact the senate did not introduce a usufruct
of such things, for that was beyond its power, but established a right
analogous to usufruct by requiring security.
3 Usufruct determines by the death of the usufructuary, by his
undergoing either of the greater kinds of loss of status, by its
improper exercise, and by its nonexercise during the time fixed by
law; all of which points are settled by our constitution. It is also
extinguished when surrendered to the owner by the usufructuary (though
transfer to a third person is inoperative); and again, conversely,
by the fructuary becoming owner of the thing, this being called
consolidation. Obviously, a usufruct of a house is extinguished by
the house being burnt down, or falling through an earthquake or faulty
construction; and in such case a usufruct of the site cannot be claimed.
4 When a usufruct determines, it reverts to and is reunited with the
ownership; and from that moment he who before was but bare owner of the
thing begins to have full power over it.
TITLE V. OF USE AND HABITATION
A bare use, or right of using a thing, is created in the same mode as a
usufruct, and the modes in which it may determine are the same as those
just described.
1 A use is a less right than a usufruct; for if a man has a bare use of
an estate, he is deemed entitled to use the vegetables, fruit, flowers,
hay, straw, and wood upon it only so far as his daily needs require:
he may remain on the land only so long as he does not inconvenience its
owner, or impede those who are engaged in its cultivation; but he
cannot let or sell or give away his right to a third person, whereas a
usufructuary may.
2 Again, a man who has the use of a house is deemed entitled only to
live in it himself; he cannot transfer his right to a third person, and
it scarcely seems to be agreed that he may take in a guest; but besides
himself he may lodge there his wife, children, and freedmen, and other
free persons who form as regular a part of his establishment as his
slaves. Similarly, if a woman has the use of a house, her husband may
dwell there with her.
3 When a man has the use of a slave, he has only the right of personally
using his labour and services; in no way is he allowed to transfer his
right to a third person, and the same applies to the use of beasts of
burden.
4 If a legacy be given of the use of a herd or of a flock of sheep, the
usuary may not use the milk, lambs, or wool, for these are fruits; but
of course he may use the animals for the purpose of manuring his land.
5 If a right of habitation be given to a man by legacy or in some other
mode, this seems to be neither a use nor a usufruct, but a distinct
and as it were independent right; and by a constitution which we have
published in accordance with the opinion of Marcellus, and in the
interests of utility, we have permitted persons possessed of this right
not only to live in the building themselves, but also to let it out to
others.
6 What we have here said concerning servitudes, and the rights of
usufruct, use, and habitation, will be sufficient; of inheritance and
obligations we will treat in their proper places respectively. And
having now briefly expounded the modes in which we acquire things by the
law of nations, let us turn and see in what modes they are acquired by
statute or by civil law.
TITLE VI. OF USUCAPION AND LONG POSSESSION
It was a rule of the civil law that if a man in good faith bought a
thing, or received it by way of gift, or on any other lawful ground,
from a person who was not its owner, but whom he believed to be such, he
should acquire it by usucapion--if a movable, by one year's possession,
and by two years' possession if an immovable, though in this case
only if it were in Italian soil;--the reason of the rule being the
inexpediency of allowing ownership to be long unascertained. The
ancients thus considered that the periods mentioned were sufficient to
enable owners to look after their property; but we have arrived at a
better opinion, in order to save people from being overquickly defrauded
of their own, and to prevent the benefit of this institution from being
confined to only a certain part of the empire. We have consequently
published a constitution on the subject, enacting that the period of
usucapion for movables shall be three years, and that ownership of
immovables shall be acquired by long possession--possession, that is to
say, for ten years, if both parties dwell in the same province, and for
twenty years if in different provinces; and things may in these modes
be acquired in full ownership, provided the possession commences on a
lawful ground, not only in Italy but in every land subject to our sway.
1 Some things, however, not withstanding the good faith of the
possessor, and the duration of his possession, cannot be acquired by
usucapion; as is the case, for instance, if one possesses a free man, a
thing sacred or religious, or a runaway slave.
2 Things again of which the owner lost possession by theft, or
possession of which was gained by violence, cannot be acquired by
usucapion, even by a person who has possessed them in good faith for the
specified period: for stolen things are declared incapable of usucapion
by the statute of the Twelve Tables and by the lex Atinia, and things
taken with violence by the lex Iulia et Plautia.
3 The statement that things stolen or violently possessed cannot, by
statute, be acquired by usucapion, means, not that the thief or violent
dispossessor is incapable of usucapion--for these are barred by another
reason, namely the fact that their possession is not in good faith; but
that even a person who has purchased the thing from them in good faith,
or received it on some other lawful ground, is incapable of acquiring by
usucapion. Consequently, in things movable even a person who possesses
in good faith can seldom acquire ownership by usucapion, for he who
sells, or on some other ground delivers possession of a thing belonging
to another, commits a theft.
4 However, this admits of exception; for if an heir, who believes a
thing lent or let to, or deposited with, the person whom he succeeds,
to be a portion of the inheritance, sells or gives it by way of dowry to
another who receives it in good faith, there is no doubt that the latter
can acquire the ownership of it by usucapion; for the thing is here not
tainted with the flaw attaching to stolen property, because an heir does
not commit a theft who in good faith conveys a thing away believing it
to be his own.
5 Again, the usufructuary of a female slave, who believes her offspring
to be his property, and sells or gives it away, does not commit a theft:
for theft implies unlawful intention.
6 There are also other ways in which one man can transfer to another
property which is not his own, without committing a theft, and thereby
enable the receiver to acquire by usucapion.
7 Usucapion of property classed among things immovable is an easier
matter; for it may easily happen that a man may, without violence,
obtain possession of land which, owing to the absence or negligence of
its owner, or to his having died and left no successor, is presently
possessed by no one. Now this man himself does not possess in good
faith, because he knows the land on which he has seized is not his own:
but if he delivers it to another who receives it in good faith, the
latter can acquire it by long possession, because it has neither
been stolen nor violently possessed; for the idea held by some of the
ancients, that a piece of land or a place can be stolen, has now been
exploded, and imperial constitutions have been enacted in the interests
of persons possessing immovables, to the effect that no one ought to
be deprived of a thing of which he has had long and unquestioned
possession.
8 Sometimes indeed even things which have been stolen or violently
possessed can be acquired by usucapion, as for instance after they have
again come under the power of their real owner: for by this they are
relieved from the taint which had attached to them, and so become
capable of usucapion.
9 Things belonging to our treasury cannot be acquired by usucapion. But
there is on record an opinion of Papinian, supported by the rescripts of
the Emperors Pius, Severus, and Antoninus, that if, before the property
of a deceased person who has left no heir is reported to the exchequer,
some one has bought or received some part thereof, he can acquire it by
usucapion.
10 Finally, it is to be observed that things are incapable of being
acquired through usucapion by a purchaser in good faith, or by one who
possesses on some other lawful ground, unless they are free from all
flaws which vitiate the usucapion.
11 If there be a mistake as to the ground on which possession is
acquired, and which it is wrongly supposed will support usucapion,
usucapion cannot take place. Thus a man's possession may be founded on
a supposed sale or gift, whereas in point of fact there has been no sale
or gift at all.
12 Long possession which has begun to run in favour of a deceased person
continues to run on in favour of his heir or praetorian successor, even
though he knows that the land belongs to another person. But if the
deceased's possession had not a lawful inception, it is not available
to the heir or praetorian successor, although ignorant of this. Our
constitution has enacted that in usucapion too a similar rule shall
be observed, and that the benefit of the possession shall continue in
favour of the successor.
13 The Emperors Severus and Antoninus have decided by a rescript that a
purchaser too may reckon as his own the time during which his vendor has
possessed the thing.
14 Finally, it is provided by an edict of the Emperor Marcus that after
an interval of five years a purchaser from the treasury of property
belonging to a third person may repel the owner, if sued by him, by
an exception. But a constitution issued by Zeno of sacred memory has
protected persons who acquire things from the treasury by purchase,
gift, or other title, affording them complete security from the moment
of transfer, and guaranteeing their success in any action relating
thereto, whether they be plaintiffs or defendants; while it allows those
who claim any action in respect of such property as owners or pledges
to sue the imperial treasury at any time within four years from the
transaction. A divine constitution which we ourselves have lately issued
has extended the operation of Zeno's enactment, respecting conveyances
by the treasury, to persons who have acquired anything from our palace
or that of the Empress.
TITLE VII. OF GIFTS
Another mode in which property is acquired is gift. Gifts are of two
kinds; those made in contemplation of death, and those not so made.
1 Gifts of the first kind are those made in view of approaching death,
the intention of the giver being that in the event of his decease the
thing given should belong to the donee, but that if he should survive or
should desire to revoke the gift, or if the donee should die first, the
thing should be restored to him. These gifts in contemplation of death
now stand on exactly the same footing as legacies; for as in some
respects they were more like ordinary gifts, in others more like
legacies, the jurists doubted under which of these two classes
they should be placed, some being for gift, others for legacy: and
consequently we have enacted by constitution that in nearly every
respect they shall be treated like legacies, and shall be governed by
the rules laid down respecting them in our constitution. In a word, a
gift in contemplation of death is where the donor would rather have the
thing himself than that the donee should have it, and that the latter
should rather have it than his own heir. An illustration may be found in
Homer, where Telemachus makes a gift to Piraeus.
2 Gifts which are made without contemplation of death, which we call
gifts between the living, are of another kind, and have nothing in
common with legacies. If the transaction be complete, they cannot be
revoked at pleasure; and it is complete when the donor has manifested
his intention, whether in writing or not. Our constitution has settled
that such a manifestation of intention binds the donor to deliver,
exactly as in the case of sale; so that even before delivery gifts
are completely effectual, and the donor is under a legal obligation to
deliver the object. Enactments of earlier emperors required that
such gifts, if in excess of two hundred solidi, should be officially
registered; but our constitution has raised this maximum to five hundred
solidi, and dispensed with the necessity of registering gifts of this
or of a less amount; indeed it has even specified some gifts which are
completely valid, and require no registration, irrespective of their
amount. We have devised many other regulations in order to facilitate
and secure gifts, all of which may be gathered from the constitutions
which we have issued on this topic. It is to be observed, however,
that even where gifts have been completely executed we have by our
constitution under certain circumstances enabled donors to revoke them,
but only on proof of ingratitude on the part of the recipient of the
bounty; the aim of this reservation being to protect persons, who have
given their property to others, from suffering at the hands of the
latter injury or loss in any of the modes detailed in our constitution.
3 There is another specific kind of gift between the living, with which
the earlier jurists were quite unacquainted, and which owed its
later introduction to more recent emperors. It was called gift before
marriage, and was subject to the implied condition that it should not
be binding until the marriage had taken place; its name being due to the
fact that it was always made before the union of the parties, and could
never take place after the marriage had once been celebrated. The first
change in this matter was made by our imperial father Justin, who, as
it had been allowed to increase dowries even after marriage, issued a
constitution authorizing the increase of gifts before marriage during
the continuance of the marriage tie in cases where an increase had been
made to the dowry. The name 'gift before marriage' was, however, still
retained, though now inappropriate, because the increase was made to it
after the marriage. We, however, in our desire to perfect the law, and
to make names suit the things which they are used to denote, have by
a constitution permitted such gifts to be first made, and not merely
increased, after the celebration of the marriage, and have directed that
they shall be called gifts 'on account of' (and not 'before') marriage,
thereby assimilating them to dowries; for as dowries are not only
increased, but actually constituted, during marriage, so now gifts
on account of marriage may be not only made before the union of
the parties, but may be first made as well as increased during the
continuance of that union.
4 There was formerly too another civil mode of acquisition, namely, by
accrual, which operated in the following way: if a person who owned
a slave jointly with Titius gave him his liberty himself alone by
vindication or by testament, his share in the slave was lost, and went
to the other joint owner by accrual. But as this rule was very bad as a
precedent--for both the slave was cheated of his liberty, and the kinder
masters suffered all the loss while the harsher ones reaped all the
gain--we have deemed it necessary to suppress a usage which seemed so
odious, and have by our constitution provided a merciful remedy, by
discovering a means by which the manumitter, the other joint owner,
and the liberated slave, may all alike be benefited. Freedom, in whose
behalf even the ancient legislators clearly established many rules at
variance with the general principles of law, will be actually acquired
by the slave; the manumitter will have the pleasure of seeing the
benefit of his kindness undisturbed; while the other joint owner, by
receiving a money equivalent proportionate to his interest, and on the
scale which we have fixed, will be indemnified against all loss.
TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE
It sometimes happens that an owner cannot alienate, and that a nonowner
can. Thus the alienation of dowry land by the husband, without the
consent of the wife, is prohibited by the lex Iulia, although, since
it has been given to him as dowry, he is its owner. We, however, have
amended the lex Iulia, and thus introduced an improvement; for that
statute applied only to land in Italy, and though it prohibited a
mortgage of the land even with the wife's consent, it forbade it to be
alienated only without her concurrence. To correct these two defects we
have forbidden mortgages as well as alienations of dowry land even when
it is situated in the provinces, so that such land can now be dealt with
in neither of these ways, even if the wife concurs, lest the weakness
of the female sex should be used as a means to the wasting of their
property.
1 Conversely, a pledgee, in pursuance of his agreement, may alienate
the pledge, though not its owner; this, however, may seem to rest on the
assent of the pledgor given at the inception of the contract, in which
it was agreed that the pledgee should have a power of sale in default of
repayment. But in order that creditors may not be hindered from pursuing
their lawful rights, or debtors be deemed to be overlightly deprived of
their property, provisions have been inserted in our constitution and
a definite procedure established for the sale of pledges, by which the
interests of both creditors and debtors have been abundantly guarded.
2 We must next observe that no pupil of either sex can alienate anything
without his or her guardian's authority. Consequently, if a pupil
attempts to lend money without such authority, no property passes, and
he does not impose a contractual obligation; hence the money, if it
exists, can be recovered by real action. If the money which he attempted
to lend has been spent in good faith by the wouldbe borrower, it can
be sued for by the personal action called condiction; if it has been
fraudulently spent, the pupil can sue by personal action for its
production. On the other hand, things can be validly conveyed to pupils
of either sex without the guardian's authority; accordingly, if a debtor
wishes to pay a pupil, he must obtain the sanction of the guardian to
the transaction, else he will not be released. In a constitution
which we issued to the advocates of Caesarea at the instance of the
distinguished Tribonian, quaestor of our most sacred palace, it has with
the clearest reason been enacted, that the debtor of a pupil may safely
pay a guardian or curator by having first obtained permission by the
order of a judge, for which no fee is to be payable: and if the judge
makes the order, and the debtor in pursuance thereof makes payment, he
is completely protected by this form of discharge. Supposing, however,
that the form of payment be other than that which we have fixed, and
that the pupil, though he still has the money in his possession, or has
been otherwise enriched by it, attempts to recover the debt by action,
he can be repelled by the plea of fraud. If on the other hand he has
squandered the money or had it stolen from him, the plea of fraud will
not avail the debtor, who will be condemned to pay again, as a penalty
for having carelessly paid without the guardian's authority, and not
in accordance with our regulation. Pupils of either sex cannot validly
satisfy a debt without their guardian's authority, because the money
paid does not become the creditor's property; the principle being that
no pupil is capable of alienation without his guardian's sanction.
TITLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE
We acquire property not only by our own acts, but also by the acts
of persons in our power, of slaves in whom we have a usufruct, and of
freemen and slaves belonging to another but whom we possess in good
faith. Let us now examine these cases in detail.
1 Formerly, whatever was received by a child in power of either sex,
with the exception of military peculium, was acquired for the parent
without any distinction; and the parent was entitled to give away or
sell to one child, or to a stranger, what had been acquired through
another, or dispose of it in any other way that he pleased. This,
however, seemed to us to be a cruel rule, and consequently by a general
constitution which we have issued we have improved the children's
position, and yet reserved to parents all that was their due. This
enacts that whatever a child gains by and through property, of which
his father allows him the control, is acquired, according to the old
practice, for the father alone; for what unfairness is there in property
derived from the father returning to him? But of anything which the
child derives from any source other than his father, though his father
will have a usufruct therein, the ownership is to belong to the child,
that he may not have the mortification of seeing the gains which he has
made by his own toil or good fortune transferred to another.
2 We have also made a new rule relating to the right which a father had
under earlier constitutions, when he emancipated a child, of retaining
absolutely, if he pleased, a third part of such property of the child
as he himself had no ownership in, as a kind of consideration for
emancipating him. The harsh result of this was that a son was by
emancipation deprived of the ownership of a third of his property; and
thus the honour which he got by being emancipated and made independent
was balanced by the diminution of his fortune. We have therefore enacted
that the parent, in such a case, shall no longer retain the ownership of
a third of the child's property, but, in lieu thereof, the usufruct of
one half; and thus the son will remain absolute owner of the whole of
his fortune, while the father will reap a greater benefit than before,
by being entitled to the enjoyment of a half instead of a third.
3 Again, all rights which your slaves acquire by tradition, stipulation,
or any other title, are acquired for you, even though the acquisition be
without your knowledge, or even against your will; for a slave, who
is in the power of another person, can have nothing of his own.
Consequently, if he is instituted heir, he must, in order to be able to
accept the inheritance, have the command of his master; and if he has
that command, and accepts the inheritance, it is acquired for his master
exactly as if the latter had himself been instituted heir; and it is
precisely the same with a legacy. And not only is ownership acquired for
you by those in your power, but also possession; for you are deemed to
possess everything of which they have obtained detention, and thus
they are to you instruments through whom ownership may be acquired by
usucapion or long possession.
4 Respecting slaves in whom a person has only a usufruct, the rule is,
that what they acquire by means of the property of the usufructuary,
or by their own work, is acquired for him; but what they acquire by
any other means belongs to their owner, to whom they belong themselves.
Accordingly, if such a slave is instituted heir, or made legatee
or donee, the succession, legacy, or gift is acquired, not for the
usufructuary, but for the owner. And a man who in good faith possesses a
free man or a slave belonging to another person has the same rights as
a usufructuary; what they acquire by any other mode than the two we have
mentioned belongs in the one case to the free man, in the other to the
slave's real master. After a possessor in good faith has acquired the
ownership of a slave by usucapion, everything which the slave acquires
belongs to him without distinction; but a fructuary cannot acquire
ownership of a slave in this way, because in the first place he does not
possess the slave at all, but has merely a right of usufruct in him,
and because in the second place he is aware of the existence of another
owner. Moreover, you can acquire possession as well as ownership through
slaves in whom you have a usufruct or whom you possess in good faith,
and through free persons whom in good faith you believe to be your
slaves, though as regards all these classes we must be understood to
speak with strict reference to the distinction drawn above, and to mean
only detention which they have obtained by means of your property or
their own work.
5 From this it appears that free men not subject to your power, or whom
you do not possess in good faith, and other persons' slaves, of whom
you are neither usufructuaries nor just possessors, cannot under any
circumstances acquire for you; and this is the meaning of the maxim
that a man cannot be the means of acquiring anything for one who is
a stranger in relation to him. To this maxim there is but one
exception--namely, that, as is ruled in a constitution of the Emperor
Severus, a free person, such as a general agent, can acquire possession
for you, and that not only when you know, but even when you do not know
of the fact of the acquisition: and through this possession ownership
can be immediately acquired also, if it was the owner who delivered the
thing; and if it was not, it can be acquired ultimately by usucapion or
by the plea of long possession.
6 So much at present concerning the modes of acquiring rights over
single things: for direct and fiduciary bequests, which are also among
such modes, will find a more suitable place in a later portion of our
treatise. We proceed therefore to the titles whereby an aggregate of
rights is acquired. If you become the successors, civil or praetorian,
of a person deceased, or adopt an independent person by adrogation, or
become assignees of a deceased's estate in order to secure their liberty
to slaves manumitted by his will, the whole estate of those persons is
transferred to you in an aggregate mass. Let us begin with inheritances,
whose mode of devolution is twofold, according as a person dies testate
or intestate; and of these two modes we will first treat of acquisition
by will. The first point which here calls for exposition is the mode in
which wills are made.
TITLE X. OF THE EXECUTION OF WILLS
The term testament is derived from two words which mean a signifying of
intention.
1 Lest the antiquities of this branch of law should be entirely
forgotten, it should be known that originally two kinds of testaments
were in use, one of which our ancestors employed in times of peace and
quiet, and which was called the will made in the comitia calata, while
the other was resorted to when they were setting out to battle, and was
called procinctum. More recently a third kind was introduced, called the
will by bronze and balance, because it was made by mancipation, which
was a sort of fictitious sale, in the presence of five witnesses and a
balance holder, all Roman citizens above the age of puberty, together
with the person who was called the purchaser of the family. The two
first-mentioned kinds of testament, however, went out of use even in
ancient times, and even the third, or will by bronze and balance, though
it has remained in vogue longer than they, has become partly disused.
2 All these three kinds of will which we have mentioned belonged to the
civil law, but later still a fourth form was introduced by the praetor's
edict; for the new law of the praetor, or ius honorarium, dispensed
with mancipation, and rested content with the seals of seven witnesses,
whereas the seals of witnesses were not required by the civil law.
3 When, however, by a gradual process the civil and praetorian
laws, partly by usage, partly by definite changes introduced by the
constitution, came to be combined into a harmonious whole, it was
enacted that a will should be valid which was wholly executed at one
time and in the presence of seven witnesses (these two points being
required, in a way, by the old civil law), to which the witnesses
signed their names--a new formality imposed by imperial legislation--and
affixed their seals, as had been required by the praetor's edict. Thus
the present law of testament seems to be derived from three distinct
sources; the witnesses, and the necessity of their all being present
continuously through the execution of the will in order that the
execution may be valid, coming from the civil law: the signing of
the document by the testator and the witnesses being due to imperial
constitutions, and the exact number of witnesses, and the sealing of the
will by them, to the praetor's edict.
4 An additional requirement imposed by our constitution, in order to
secure the genuineness of testaments and prevent forgery, is that
the name of the heir shall be written by either the testator or the
witnesses, and generally that everything shall be done according to the
tenor of that enactment.
5 The witnesses may all seal the testament with the same seal; for, as
Pomponius remarks, what if the device on all seven seals were the same?
It is also lawful for a witness to use a seal belonging to another
person.
6 Those persons only can be witnesses who are legally capable of
witnessing a testament. Women, persons below the age of puberty, slaves,
lunatics, persons dumb or deaf, and those who have been interdicted from
the management of their property, or whom the law declares worthless and
unfitted to perform this office, cannot witness a will.
7 In cases where one of the witnesses to a will was thought free at the
time of its execution, but was afterwards discovered to be a slave, the
Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the
Emperors Severus and Antoninus declared that of their goodness they
would uphold such a will as validly made; for, at the time when it was
sealed, this witness was admitted by all to be free, and, as such, had
had his civil position called in question by no man.
8 A father and a son in his power, or two brothers who are both in the
power of one father, can lawfully witness the same testament, for there
can be no harm in several persons of the same family witnessing together
the act of a man who is to them a stranger.
9 No one, however, ought to be among the witnesses who is in the
testator's power, and if a son in power makes a will of military
peculium after his discharge, neither his father nor any one in his
father's power is qualified to be a witness; for it is not allowed to
support a will by the evidence of persons in the same family with the
testator.
10 No will, again, can be witnessed by the person instituted heir, or
by any one in his power, or by a father in whose power he is, or by a
brother under the power of the same father: for the execution of a will
is considered at the present day to be purely and entirely a transaction
between the testator and the heir. Through mistaken ideas on this matter
the whole law of testamentary evidence fell into confusion: for the
ancients, though they rejected the evidence of the purchaser of the
family and of persons connected with him by the tie of power, allowed
a will to be witnessed by the heir and persons similarly connected with
him, though it must be admitted that they accompanied this privilege
with urgent cautions against its abuse. We have, however, amended this
rule, and enacted in the form of law what the ancients expressed in the
form only of advice, by assimilating the heir to the old purchaser of
the family, and have rightly forbidden the heir, who now represents that
character, and all other persons connected with him by the tie referred
to, to bear witness in a matter in which, in a sense, they would be
witnesses in their own behalf. Accordingly, we have not allowed earlier
constitutions on this subject to be inserted in our Code.
11 Legatees, and persons who take a benefit under a will by way of
trust, and those connected with them, we have not forbidden to be
witnesses, because they are not universal successors of the deceased:
indeed, by one of our constitutions we have specially granted this
privilege to them, and, a fortiori, to persons in their power, or in
whose power they are.
12 It is immaterial whether the will be written on a tablet, paper,
parchment, or any other substance: and a man may execute any number of
duplicates of his will, for this is sometimes necessary, though in each
of them the usual formalities must be observed. For instance, a person
setting out upon a voyage may wish to take a statement of his last
wishes along with him, and also to leave one at home; and numberless
other circumstances which happen to a man, and over which he has no
control, will make this desirable.
14 So far of written wills. When, however, one wishes to make a will
binding by the civil law, but not in writing, he may summon seven
witnesses, and in their presence orally declare his wishes; this, it
should be observed, being a form of will which has been declared by
constitutions to be perfectly valid by civil law.
TITLE XI. OF SOLDIERS' WILLS
Soldiers, in consideration of their extreme ignorance of law, have
been exempted by imperial constitutions from the strict rules for the
execution of a testament which have been described. Neither the legal
number of witnesses, nor the observance of the other rules which have
been stated, is necessary to give force to their wills, provided, that
is to say, that they are made by them while on actual service; this
last qualification being a new though wise one introduced by our
constitution. Thus, in whatever mode a soldier's last wishes are
declared, whether in writing or orally, this is a binding will, by force
of his mere intention. At times, however, when they are not employed
on actual service, but are living at home or elsewhere, they are not
allowed to claim this privilege: they may make a will, even though they
be sons in power, in virtue of their service, but they must observe the
ordinary rules, and are bound by the forms which we described above as
requisite in the execution of wills of civilians.
1 Respecting the testaments of soldiers the Emperor Trajan sent a
rescript to Statilius Severus in the following terms: 'The privilege
allowed to soldiers of having their wills upheld, in whatever manner
they are made, must be understood to be limited by the necessity of
first proving that a will has been made at all; for a will can be made
without writing even by civilians. Accordingly, with reference to the
inheritance which is the subject of the action before you, if it can be
shown that the soldier who left it, did in the presence of witnesses,
collected expressly for this purpose, declare orally who he wished to be
his heir, and on what slaves he wished to confer liberty, it may well
be maintained that in this way he made an unwritten testament, and his
wishes therein declared ought to be carried out. But if, as is so common
in ordinary conversation, he said to some one, I make you my heir, or, I
leave you all my property, such expressions cannot be held to amount to
a testament, and the interest of the very soldiers, who are privileged
in the way described, is the principal ground for rejecting such a
precedent. For if it were admitted, it would be easy, after a soldier's
death, to procure witnesses to affirm that they had heard him say he
left his property to any one they pleased to name, and in this way it
would be impossible to discover the true intentions of the deceased.'
2 A soldier too may make a will though dumb and deaf.
3 This privilege, however, which we have said soldiers enjoy, is allowed
them by imperial constitutions only while they are engaged on actual
service, and in camp life. Consequently, if veterans wish to make a will
after their discharge, or if soldiers actually serving wish to do this
away from camp, they must observe the forms prescribed for all
citizens by the general law; and a testament executed in camp without
formalities, that is to say, not according to the form prescribed by
law, will remain valid only for one year after the testator's discharge.
Supposing then that the testator died within a year, but that a
condition, subject to which the heir was instituted, was not fulfilled
within the year, would it be feigned that the testator was a soldier at
the date of his decease, and the testament consequently upheld? and this
question we answer in the affirmative.
4 If a man, before going on actual service, makes an invalid will,
and then during a campaign opens it, and adds some new disposition, or
cancels one already made, or in some other way makes it clear that he
wishes it to be his testament, it must be pronounced valid, as being, in
fact, a new will made by the man as a soldier.
5 Finally, if a soldier is adrogated, or, being a son in power, is
emancipated, his previously executed will remains good by the fiction
of a new expression of his wishes as a soldier, and is not deemed to be
avoided by his loss of status.
6 It is, however, to be observed that earlier statutes and imperial
constitutions allowed to children in power in certain cases a civil
peculium after the analogy of the military peculium, which for that
reason was called quasimilitary, and of which some of them were
permitted to dispose by will even while under power. By an extension
of this principle our constitution has allowed all persons who have a
peculium of this special kind to dispose of it by will, though subject
to the ordinary forms of law. By a perusal of this constitution the
whole law relating to this privilege may be ascertained.
TITLE XII. OF PERSONS INCAPABLE OF MAKING WILLS
Certain persons are incapable of making a lawful will. For instance,
those in the power of others are so absolutely incapable that they
cannot make a testament even with the permission of their parents, with
the exception of those whom we have enumerated, and particularly of
children in power who are soldiers, and who are permitted by imperial
constitution to dispose by will of all they may acquire while on actual
service. This was allowed at first only to soldiers on active service,
by the authority of the Emperors Augustus and Nerva, and of the
illustrious Emperor Trajan; afterwards, it was extended by an enactment
of the Emperor Hadrian to veterans, that is, soldiers who had received
their discharge. Accordingly, if a son in power makes a will of his
military peculium, it will belong to the person whom he institutes
as heir: but if he dies intestate, leaving no children or brothers
surviving him, it will go to the parent in whose power he is, according
to the ordinary rule. From this it can be understood that a parent
has no power to deprive a son in his power of what he has acquired on
service, nor can the parent's creditors sell or otherwise touch it; and
when the parent dies it is not shared between the soldier's son and
his brothers, but belongs to him alone, although by the civil law the
peculium of a person in power is always reckoned as part of the property
of the parent, exactly as that of a slave is deemed part of the property
of his master, except of course such property of the son as by imperial
constitutions, and especially our own, the parent is unable to acquire
in absolute ownership. Consequently, if a son in power, not having a
military or quasimilitary peculium, makes a will, it is invalid, even
though he is released from power before his decease.
1 Again, a person under the age of puberty is incapable of making a
will, because he has no judgement, and so too is a lunatic, because he
has lost his reason; and it is immaterial that the one reaches the age
of puberty, and the other recovers his faculties, before his decease.
If, however, a lunatic makes a will during a lucid interval, the will
is deemed valid, and one is certainly valid which he made before he
lost his reason: for subsequent insanity never avoids a duly executed
testament or any other disposition validly made.
2 So too a spendthrift, who is interdicted from the management of his
own affairs, is incapable of making a valid will, though one made by him
before being so interdicted holds good.
3 The deaf, again, and the dumb cannot always make a will, though here
we are speaking not of persons merely hard of hearing, but of total
deafness, and similarly by a dumb person is meant one totally dumb, and
not one who merely speaks with difficulty; for it often happens that
even men of culture and learning by some cause or other lose the
faculties of speech and hearing. Hence relief has been afforded them by
our constitution, which enables them, in certain cases and in certain
modes therein specified, to make a will and other lawful dispositions.
If a man, after making his will, becomes deaf or dumb through ill health
or any other cause, it remains valid notwithstanding.
4 A blind man cannot make a will, except by observing the forms
introduced by a law of our imperial father Justin.
5 A will made by a prisoner while in captivity with the enemy is
invalid, even though he subsequently returns. One made, however,
while he was in his own state is valid, if he returns, by the law of
postliminium; if he dies in captivity it is valid by the lex Cornelia.
TITLE XIII. OF THE DISINHERISON OF CHILDREN
The law, however, is not completely satisfied by the observance of the
rules hereinbefore explained. A testator who has a son in his power must
take care either to institute him heir, or to specially disinherit him,
for passing him over in silence avoids the will; and this rule is so
strict, that even if the son die in the lifetime of the father no heir
can take under the will, because of its original nullity. As regards
daughters and other descendants of either sex by the male line, the
ancients did not observe this rule in all its strictness; for if these
persons were neither instituted nor disinherited, the will was not
avoided, but they were entitled to come in with the instituted heirs,
and to take a certain portion of the inheritance. And these persons the
ascendant was not obliged to specially disinherit; he could disinherit
them collectively by a general clause.