ENACTMENTS OF JUSTINIAN.
|~ Book L ~|
( S. P. Scott, The Civil Law, XI, Cincinnati, 1932 ).
1. Ulpianus, On the Edict, Book II.
Either birth, manumission, or adoption, creates a citizen of a municipality.
(1) Properly speaking, indeed, those only are designated citizens of a municipal town who have the right of citizenship, and share the municipal duties with us. Now, however, we improperly call those citizens of a municipal town who are the residents of any town, as, for instance, those who live in Campania, or in Puteola.
(2) Therefore, anyone born of parents dwelling in Campania is styled a citizen of Campania. If, however, his father came from Campania, and his mother from Puteola, he is likewise considered a citizen of Campania, unless his mother enjoys some special privilege of birth; for then he will be a citizen of the town where his mother was born. Thus, for instance, it is conceded as a privilege to the people of Troy that when the mother was born at Troy, her son will become a citizen of that city. This same privilege is also granted to the people of Delphi. Celsus states that the inheritants of Pontus also enjoy this advantage, through the favor of the Great Pompey, that is to say, that anyone whose mother was born in Pontus will be a citizen of that country. Certain authorities, however, hold that this privilege was only granted to children born in lawful marriage, but Celsus does not adopt this opinion. For it would not have been provided that a child born out of wedlock should follow the condition of its mother (as it has the same origin that she has), but the rule could only apply to children born of parents whose birthplaces were in different cities.
2. The Same, Disputations, Book I.
Whenever a son under paternal control is created a decurion, with the consent of his father, the latter is required, as surety for his son, to be responsible for the performance of all the duties pertaining to the office of decurion. The father is considered to have given his consent for his son to become a decurion if, having been present at his nomination, he did not oppose it. Hence, anything that his son does while in office, his father will be responsible for as his surety.
(1) We should understand the transaction of the business of an office to be the handling of the public funds, or decisions with reference to their expenditure.
(2) The incumbent will also be liable for any supervisors of work, or of anything else in which the State is interested.
(3) The father will be liable if the son is appointed his successor.
(4) He will also be liable if he has farmed out the public taxes.
(5) If the son has not taken care to appoint guardians, when requested to do so, or if he selects such as are not suitable, or if he does not require security, or accepts a guardian who is not solvent, there is no doubt that he himself will be responsible. The father, however, will still be liable, when sureties are accustomed to be bound under these circumstances. This, however, is not customary, as has been stated in a Rescript; because the sureties only promise that the estate shall be secure, but, so far as pecuniary matters are concerned, the estate is not interested in the appointment of wards.
(6) He who remains absent a longer time than is authorized by his furlough, or contrary to the terms of the same, can still hold office.
3. The Same, On Sabinus, Book XXV.
It has been established that a son under paternal control can have a domicile.
4. The Same, On the Edict, Book XXXIX.
He can not only establish his domicile where his father has his, but anywhere else.
5. Paulus, On the Edict, Book XLV.
Labeo says that he who carries on business to the same extent in several places has no domicile in any of them. It is, however, stated that certain authorities hold that he can be a resident of, and have a domicile in several places. This is true.
6. Ulpianus, Opinions, Book II.
The statement of one's birthplace, which is not correct, does not alter the fact of a person's origin; for a man's actual birthplace is not lost by mistake, nor by his falsely, giving a different place from the true one. Nor can anyone, by rejecting the country where he was born, nor by misrepresentation on this point, change the truth.
(1) A son derived his origin from the town in which his father was born, but he does not follow the domicile of the latter.
(2) It was decided by men learned in the law that anyone can have his domicile in two different places, that is where he builds in two different places, and is not considered to reside in one more than in the other.
(3) Freedmen follow the place of birth or domicile of their patrons, which is also the case with their children.
7. The Same, On the Duties of Proconsul, Book V.
When anyone is manumitted by several masters, he follows the birthplaces of all his patrons.
8. Marcianus, On Public Prosecutions, Book I.
The Divine Brothers stated in a Rescript that decurions should not be forced to furnish grain to the people at a lower price than the supply of provisions demands; and this is also provided by other Imperial Constitutions.
9. Neratius, Parchments, Book III.
He who has not a legitimate father derives his origin from his mother, which should be reckoned from the day on which he was born.
10. Marcianus, On Informers.
No city has the same privilege as the Treasury with reference to the property of a debtor, unless it has been expressly conceded by the Emperor.
11. Papinianus, Questions, Book II.
The Emperor, Titus Antoninus, stated in a Rescript addressed to Lentulus Verus that the duties of magistrates were individual, but that their responsibility was common. This should be understood to mean that the responsibility only attaches to the entire body, if the property could not have been preserved by the one who transacted the business, nor by those who were his sureties, if he, at the time that he relinquished his office, was not solvent; but, on the other hand, if the person or the security was suitable or solvent when suit could have been brought, each one will be liable for whatever he administered.
(1) Where, however, he who appointed the magistrate on his own responsibility is solvent, should the action first be brought against him as a surety; or, indeed, will it be the same as if the business was improperly transacted by his colleague ? It was decided that he should first be sued who appointed the magistrate, as in the case of a surety, since his colleague is proceeded against on account of his negligence, and to collect the penalty; but he who nominated the magistrate is sued because of his guarantee.
12. Tine Same, Opinions, Book I.
It is not necessary to grant a praetorian action against the colleague of the appointed magistrate.
13. The Same, Questions, Book II.
What, then, would be the rule, if one of the magistrates was absent for the entire year; or if, while present, he did not transact the public business through either obstinacy, ignorance, or ill health, and his colleague alone attended to it all, and it was not properly done? The following order shall be followed: first, he who conducted the public business, and those who were sureties for him, shall be sued for the entire amount, and after all these have been exhausted, he who appointed an insolvent person will be liable; and finally, the other magistrate, who did not attend to any public affairs, should be called to account. Nor can he who appointed the magistrate properly decline general liability, as he should have known that he whom he appointed took the office as an individual, and assumed common responsibility. For when two magistrates transact business, and money which is due can not be collected from one of them, he who nominated him can be sued for the entire amount when this is necessary.
14. The Same, Questions, Book XV.
Municipal magistrates are understood to know what those to whom the highest interests of the State are entrusted are cognizant of.
15. The Same, Opinions, Book I.
He who has been removed from the Order of Decurions for a certain time, and afterwards restored, cannot be admitted to new honors as a person who has been relegated for the time that he was deprived of his rank. It has been decided in both these instances that it must be ascertained whether the parties who have been convicted of an offence deserved a sentence of this kind; for if they received a more severe one than they should have done, or have been branded with infamy, they ought afterwards to be liberated, and the matter be considered as disposed of. When, however, they have been subjected to a less severe penalty than that legally prescribed, they will, nevertheless, be included among persons who are infamous; as a question of fact depends upon the decision of the judge, but the authority of the law does not.
(1) When anyone appoints a successor to himself, and the latter is solvent when his term of office expires, it is not necessary for an action to be granted.
(2) Where lands are transferred by means of a secret trust, for the purpose of defrauding public claims, they can be demanded by the Treasury; and the purchaser of the property fraudulently sold will be forced to pay as much again out of his own pocket.
(3) The right of birth is not altered by adoption, so far as the discharge of official duties and the acceptance of public employment are concerned, for a son can be compelled by his adoptive father to accept a new employment.
16. Hermogenianus, Epitomes of Law, Book I.
Where, however, he has been emancipated by his adoptive father, he not only ceases to be his son, but also is no longer a citizen of the town of him whose son he becomes by adoption.
17. Papinianus, Opinions, Book I.
A freedman is not excused from civil employment on account of services due to his patron, for it makes no difference whether he renders his services or performs his duties to his patron, or not.
(1) The freedmen of Senators, however, who transact the business of their patrons, are excused from guardianship by a Decree of the Senate.
(2) A father consented for his son to be appointed decurion. The government should sue the son personally rather than that the father should have an action brought against him as security for his son; for it does not make any difference whether the son had a castrense peculium before he served in the army or afterwards.
(3) The prescription of time required in order again to seek office, or to obtain other public employment, applies to some municipalities, but not to others.
(4) Public employments cannot be administered by the same person at the same time in two different cities. Therefore, where two offices are tendered at the same time, the place of one's birth should be preferred.
(5) The sole ground of possession is not sufficient to impose civil duties upon the possessor, unless this privilege was especially granted to the city.
(6) Persons who have returned to their country under the right of postliminium are obliged to accept public employment, even though they reside in another town.
(7) The collection of taxes is not included among base employments, and it is therefore committed to decurions.
(8) He who has been manumitted under the terms of a trust, in the matter of civil employments, follows the origin of the person who manumitted him, and not that of him who left him his freedom.
(9) It was decided by the Divine Pius that a child born in an adopted family followed the origin of his natural grandfather in the discharge of civil employments; just as where a son was given in adoption, unless there was some suspicion of fraud attaching to the proceeding.
(10) The mistake of him who, thinking that he is a citizen of a town, or the inhabitant of a colony, agrees to accept civil employment, does not exclude him from making a legal defence.
(11) The removal of the domicile of a father to another town does not compel his son to accept public employment in that town, when the cause for the change of the father's domicile is temporary.
(12) Where accusations of a capital crime are brought against persons nominated for office, they cannot be admitted to any new employments before their cases have been disposed of, but, in the meantime, they will retain their former rank.
(13) The mere possession of a house in another town does not create a domicile.
(14) The responsibility entailed by the nomination of a successor does not bind the surety of the person who makes it.
(15) Sureties who have become responsible for public property, and who nominate magistrates at their own risk, are not liable to any penal actions which may be brought against those for whom they have become bound; for it is enough that they should have promised to make good any damage sustained by the government.
18. Paulus, Questions, Book I.
The Divine Severus stated in a Rescript that the intervals of time prescribed with reference to continuance in office, are granted to such as are unwilling, but not to those who desire to remain, for no one should remain constantly in office.
19. Scaevola, Questions, Book I.
What is done by the majority of an assembly is considered to be the same as if it had been done by all.
20. Paulus, Questions, Book XXIV.
A domicile is transferred when this is actually done, and not when a mere statement to that effect is made, as is required in the case of those who deny that they, as inhabitants, can be summoned to discharge public duties.
21. The Same, Opinions, Book I.
Lucius Titius, while under the control of his father, was appointed by the magistrates, along with certain others, a curator for the purchase of grain, against the consent of his father. Lucius Titius did not agree to accept the office, and did not receive any money on this acount, nor did he, in any way, take part with the other officials in making the purchase; and, after the death of his father, he was called to account for a balance due from his colleagues. The question arose, could he be held liable on this account? Paulus answered that, although he refused to accept the office to which he had been appointed by the magistrates, he could be sued on account of the damage sustained by the State, even if at the time when he was appointed he was subject to the authority of another.
(1) Paulus gave it as his opinion that those against whom an action is brought, not by reason of a contract but on account of some public employment which they have discharged for others, are usually liable for loss of any of the principal, but are not liable for interest.
(2) He also held that the heirs of a father cannot legally be sued on account of an office which his son accepted after the death of his father. This opinion has reference to one who was appointed decurion by his father, and after the death of the latter continued to perform the duties of the office.
(3) He also gave it as his opinion that one who had adopted a decurion was considered to have assumed all the responsibilities of the decurionate, as in the case of a father whose son was appointed decurion with his consent.
(4) He also gave it as his opinion that a dowry was included in the property of the husband during the marriage. If, however, he should be called to undertake municipal duties, in proportion to his means, the dowry should not be considered part of his property.
(5) He also gave it as his opinion that if the accuser of a capital offence was not to blame because the charge was not prosecuted within the time prescribed by law, the defendant should not, in the meantime, solicit any public employment.
(6) "The Emperors Severus and Antoninus, to Septimius Zeno. While you have consented for your son, who is still under legal age, to become a decurion, and although you have afterwards pledged your faith for him, still, in the meantime, you cannot be compelled to assume any responsibility, as you do not appear to have given your consent to an appointment which can legally be made."
(7) He also gave it as his opinion that if a State did not enjoy any special privilege with reference to receiving additions to its territory, it could not withdraw from a lease or a sale of public lands which already had been perfected; for the time regulating such additions is prescribed by the Treasury.
22. The Same, Sentences, Book I.
The children of freedmen and freedwomen follow either the domicile or the origin of their paternal ancestors, and of their patrons who manumitted them.
(1) A widow retains the domicile of her deceased husband, as in the case of a woman rendered illustrious by her husband, but it will be changed if she should contract a second marriage.
(2) Freedmen become citizens of the place where they have voluntarily fixed their domicile; but, by doing so, they do not prejudice the birthright of their patron, and are required to discharge public employments in both places.
(3) He who was relegated to a certain locality, in the meantime, necessarily has his domicile in the place to which he was relegated.
(4) A Senator deprived of his rank is not restored to his original country, unless he obtains this as a special favor.
(5) Senators, with their sons and daughters born while their father held the office, as well as their grandsons, great-grandsons, and great-granddaughters by their sons, are deprived of the benefit of their birthright, although they still retain the municipal dignity.
(6) Senators who have obtained free leave of absence, that is, the power of residing where they please, retain their domicile in the City of Rome.
(7) Those who lend money at interest should discharge all liabilities attaching to their patrimony, even though they may not have possession.
23. Hermogenianus, Epitomes of Law, Book I.
Anyone who has attained to the Senatorial dignity ceases to be a citizen, so far as holding other public employment is concerned; but he is understood to retain his birthright with reference to municipal honors. Hence slaves who have been manumitted by him become citizens of the town in which he was born.
(1) A soldier has his domicile in the place where he serves if he has no property in his own country.
24. Scaevola, Digest, Book II.
It is set forth in the Imperial Constitutions that money which is paid to the detriment of anyone, does not bear interest. This was stated by the Emperors Antoninus and Verus in a Rescript as follows: "It is no more than equitable that interest should not be required on a balance due at the end of the term of an office, which the incumbent did not himself administer, nor should it be exacted from his surety, and "still less ought it to be collected from magistrates who have received security." The result of which is that this rule should not be departed from in the future.
25. Ulpianus, On the Edict of the Praetor, Book I.
When two municipal magistrates discharge the duties of a single office, they are regarded as only a single individual, and this privilege is generally granted them by municipal law; but even if it is not, it is customary for this rule to be observed, provided there is no enactment to the contrary.
26. Paulus, On the Edict, Book I.
A municipal magistrate cannot perform acts which rather belong to the Imperial jurisdiction than to his own.
(1) Municipal magistrates are not permitted to grant complete restitution, or to order the possession of property to be taken for the purpose of preserving it, or for the maintenance of a dowry intact, or to insure the safety of legacies.
27. Ulpianus, On the Edict, Book II.
Anyone who is manumitted becomes a citizen of the town to which the person who manumitted him belongs; still, he does not follow his domicile, but his country; and if his patron is a citizen of two different towns, by his manumission he will become the citizen of the same towns.
(1) Where anyone always conducts his business, not in a colony, but in a town, and sells, purchases, and makes contracts there, or uses the markets, or the baths, or attends exhibitions, and celebrates festivals there, and, in short, enjoys all the advantages of the town, and none of those of the colony, he is understood to have his domicile in the said town rather than where he sojourns for the purpose of cultivating land.
(2) Celsus, in the First Book of the Digest, discusses the point that, if anyone should furnish two houses alike, which are situated in two different places, and does not live in one any less than in the other, he must be considered to have his domicile where he himself thinks that it is. I doubt whether by changing his mind from one place to another anyone can be considerd to have his domicile in two places. Still, this may be true, although it is a difficult thing to decide, just as it is difficult to decide that anyone can be without a domicile. I think, however (and this can be maintained as correct), that if a man having left his domicile, takes a sea voyage, or travels by land, seeking some place to sojourn for a time, he will be without any domicile.
(3) He who has been relegated can have his domicile, as Marcellus says, in the place to which he has been restricted.
28. Paulus, On the Edict, Book I.
A matter of the greatest importance can be brought before municipal magistrates by consent of the parties interested.
29. Gaius, On the Provincial Edict, Book I.
A man must obey the magistrates of the town in which he lives, as well as those of the one of which he is a citizen; for not only is he subject to the municipal jurisdiction of both places, but he should also discharge the duties. of any public office in either of them.
30. Ulpianus, On the Edict, Book LXI.
Anyone born in a village which is a dependency of a city is understood to have his residence there, just as if it was in the city itself.
31. Marcellus, Digest, Book I.
There is nothing to prevent anyone from having his domicile wherever he wishes, for the reason that he is not forbidden to do so.
32. Modestinus, Differences, Book IV.
A woman who has been betrothed does not change her domicile before her marriage has been contracted.
33. The Same, On Manumissions.
Rome is our common country.
34. The Same, Rules, Book III.
A citizen who has already been appointed to a public employment cannot abandon his residence until he has discharged the duties of his office.
35. The Same, Excuses, Book I.
It must be remembered that when anyone continues to dwell upon a tract of land he is not considered to be the resident of a municipality; for he who does not enjoy the privileges of a town is not held to be a citizen of it.
36. The Same, Opinions, Book II.
While Titius was at Rome for the purpose of pursuing his studies, a letter was despatched to him by the magistrates of his native village, in order that he might deliver to the Emperor an ordinance of the said village which was transmitted along with the letter. But the person who had undertaken to deliver the letter, through collusion, delivered it to Lucius Titius, who himself was residing at Rome, for the same reason as Titius. After having erased the name of Titius, to whom the ordinance was directed, he inserted his own name, and then delivered it to the Emperor, according to the order of the municipality. I ask whether the messenger could demand his travelling expenses, and what offence he should be considered to have committed in not delivering the letter to the person to whom he had undertaken to give it, as well as what he was guilty of, who, having erased the name of another, and written in his own, delivered the ordinance to the Emperor, just as if he had been ordered to do so by his native town? Herennius Modestinus answered that Titius could not demand the travelling expenses, but that he could have recourse to the person who made the substitution in his own name.
(1) Titius accepted a pledge for public money which he himself had lent, and made an agreement with the debtor that, if the debt should not be paid, the pledge should be sold without any guarantee. The magistrates who succeeded to the place of Titius approved the claim as well as the pledge, as far as Maevius. Enough money was not realized by the sale of the pledge to pay the debt, on account of the guarantee made by the magistrate to the purchasers with reference to the amount of the land. The question arose, who was responsible to the municipality? Herrenius Modestinus answered that Titius was not liable on this account, as his successors had assumed responsibility for the debt, nor would the magistrates who made the sale, as they sold it as containing more than was shown by actual measurement of the land; and for the reason that they sold it for more, they should be ordered to make up the deficiency. Therefore, he who was the last to approve the claim should indemnify the municipality for the loss, if the claim should not be proved to have been transferred to a solvent successor.
37. Callistratus, On Judicial Inquiries, Book I.
The Governors of provinces have jurisdiction over all the inhabitants which any towns claim as their own; but still, where anyone denies that he is a resident, he must bring suit before the Governor of the province in whose jurisdiction the town, by which he is called to discharge a public employment, is situated, and not before the Governor of the one where he himself alleges that he was born. This the Divine Hadrian stated in a Rescript with reference to a woman who married in another place than the one in which she was born.
(1) It has been decided that freedmen can hold public office where their patron is, or where they themselves have their domicile.
(2) It should be remembered that women who form an illegal connection with men can only discharge public duties where they themselves have been born, and not where their husbands are. This the Divine Brothers stated in a Rescript.
38. Papirius Justus, On The Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript that a man should be released from his oath who swore that he would not again be present at the meetings of his order, in case he should afterwards be created a duumvir.
(1) They also stated in a Rescript that the tenants of land belonging to the Treasury must discharge municipal duties without any loss to the Treasury. The Governor, with the assistance of the Procurator of the Treasury, should see to this.
(2) The Emperors Antoninus and Verus stated in a Rescript that it was the duty of magistrates to collect legacies belonging to their towns, and if they failed to do so, that they, or their heirs, could be sued; and if they were not solvent, their sureties would become responsible for them.
(3) They also stated in a Rescript that a woman, while married, is a resident of the same town as her husband, and that she could not be compelled to perform any public duties in the place where she was born.
(4) They also stated in a Rescript that the property of a father who had deliberately emancipated his son in order to avoid being responsible for him as a magistrate would be liable, just as if he had become surety for him.
(5) They also stated in a Rescript, that when inquiry was made whether someone was a citizen of a certain town, evidence should first be obtained as to any property which he might have there; for the mere resemblance of a name is not sufficient to establish anyone's birthplace.
(6) The Emperors Antoninus and Verus stated in a Rescript that those who perform the duties of magistrates under compulsion should give adequate security, just as one who voluntarily accepted the office.
Tit. 2. Concerning decurions and their sons.
1. Ulpianus, Opinions, Book II.
It is established that decurions who have left the towns to which they belonged, and gone to other places, can be recalled to their country by the Governor of the province; and he must take care that they are given suitable employments.
2. The Same, Disputations, Book I.
A decurion who is relegated for a certain time ceases to be one. When he returns, he will not obtain his former position, but he will not always be prohibited from becoming a decurion. He will not be restored to his former position, but another can be chosen in his place; and if the number of his order is complete, he must wait until a vacancy occurs. The case is different with one who is temporarily removed from his order, for he becomes a decurion as soon as the time has expired; still, another can be elected in his place. If he finds that it is occupied, he must wait until there is a vacancy.
(1) But when he has been restored to his order, the question may arise whether he will have the place which he first had, or the one which he has now obtained, if the duty of rendering decisions as a presiding officer is involved. I think he will have the same position which he formerly occupied. The same rule does not apply to one who was relegated for a certain time, for he enters as the last one in order.
(2) The question arises as to the children of decurions, whether he only is considered to be the son of a decurion who was conceived and born while his father held the.office, or whether he also is to be considered a son who was born before his father became a decurion. And, indeed, so far as the latter is concerned, he cannot be whipped with rods, or sentenced to the mines; nor will he be prejudiced because he was born of a plebeian father, if the honor of the decurionate should afterwards be obtained by the latter. Papinianus rendered the same opinion with reference to a grandfather, and held that a son was not affected if his father was branded with infamy.
(3) Where, however, a father is expelled from the Order of Decurions, and this was done before the conception of the child, I think that the latter should be considered as the son of a plebeian, so far as any honors are concerned. But if the father should lose his rank after the conception of the child, it would be more indulgent to hold that he should be regarded as the son of the decurion.
(4) Hence, he who was born after the relegation of his father, provided he was conceived before this took place, is considered to resemble the son of a Senator; however, if it occurred afterwards, the relegation will prejudice him.
(5) Where the child was born while his father was temporarily excluded from his order, and it had been both conceived and brought forth in the meantime; would he be born the son of a decurion, even though his father should die before being restored to his rank? The benevolent construction is that this would be the case.
(6) Moreover, if a child was conceived by a plebeian, and afterwards, before its birth, the father obtained the office of decurion, but lost it before the child came into the world, it would be more generous to hold that the intermediate time will be an advantage to him, and that he will be considered as having already been born.
(7) No crime committed by a father can bring punishment upon an innocent child, and therefore a son will not, for this reason, be excluded from the Order of Decurions, or from any other honor.
(8) Persons over twenty-five years of age are forbidden by the Imperial Constitutions to be called to the decurionate, without their consent; but if they do consent, they should perform the duties of the office, even if they are more than seventy; although in this instance they cannot be compelled to discharge public employments.
3. The Same, On the Duties of Proconsul, Book III.
Generally speaking, it should be maintained that where a decurion, having received a lighter sentence than he deserved, has been relegated for a certain time, he should, in accordance with the dictates of humanity, be permitted to retain his property, but he cannot afterwards obtain the office of decurion.
(1) If, however, a decurion, either on account of some crime involving deceit, or one which is even more serious, has not been relegated for a certain time, but has temporarily been excluded from his order, he is in such a position that he can be reinstated. For the Emperor Antoninus decided by an Edict that when anyone had, for any cause whatsoever, been excluded from his order, or forbidden to be present at its meetings, or to comply with any other of its requirements, for a certain time, after the time had expired, he could still resume the discharge of his official functions or duties. And this is no more than just, for the sentence which merely imposed a certain prohibition should not be increased.
(2) There is no doubt that illegitimate children can be chosen decurions, but the Divine Brothers stated in a Rescript to Lollianus Avitus, Governor of Bithynia, that if such a son had a competitor who was legitimate, the latter must have the preference. Still, if the legitimate children should neglect to perform their duties, those who are illegitimate ought to be admitted to the office of decurion, after it has been ascertained that their conduct and life are honorable; because, as it is for the public welfare that the Order of Decurions should always be full, ignoble persons should not be admitted to it.
(3) The Divine Sever us and Antoninus permitted those who adhered to the Jewish superstition to obtain civil honors, but they imposed upon them the requirement not to violate the precepts of their religion.
4. Marcianus, On Public Prosecutions, Book I.
A decurion is forbidden to lease any property; if, however, he should succeed to a lease by inheritance, he can retain possession of it; and this rule should be observed in all similar cases.
5. Papinianus, Questions, Book II.
It has been decided that those who temporarily have been removed from the Order of Decurions, for a crime which implies ignominy, are perpetually excluded. Those, however, who have been temporarily exiled for some trifling offence, as, for instance, one which grew out of some business transaction, should not be considered infamous.
6. The Same, Opinions, Book I.
Illegitimate children, as well as those sprung from incestuous marriages, can become decurions; for he should not be excluded from office who has committed no crime.
(1) Minors under the age of twenty-five years, who have been created decurions, receive the salary attached to the office, but they cannot vote with the others.
(2) A decurion is forbidden to hold the office of farmer of the revenue, even in his own city.
(3) Those who abandon a public prosecution, without obtaining permission to do so, cannot be decorated with the honor of decurion; for, in accordance with the Turpillian Decree of the Senate, they are branded with infamy as persons who have been convicted of malicious prosecution in a criminal case.
(4) A son, having been created decurion, his father appealed, and although his appeal was dismissed because it had not been filed within the prescribed time, if the son assumed the office, and the father did not ratify his acts, he would not be liable for his son.
(5) When other questions relating to privilege are to be decided, those who have obtained the most votes at the same time for the office of decurion shall be entitled to the preference; but he who has the largest number of children shall be first asked for his opinion in the assembly, and precede the others in point of honor.
7. Paulus, Opinions, Book I.
Honors and offices have no reference to the order of election, but should be conferred upon those who are more worthy.
(1) A deaf person, who cannot hear at all, and one who is dumb and cannot speak, are excused from municipal offices but not from other public duties.
(2) He who is not a decurion cannot discharge the functions of a duumvir, or those pertaining to other offices, for the reason that plebeians are forbidden to perform the duties of decurions.
(3) A father is not considered to have consented to his son being made decurion, if he manifests opposition in the presence of the Governor, or before the Order itself, or in any other way.
8. Hermogenianus, Epitomes, Book I.
It is permitted to furnish provisions to decurions who have lost their property; especially if they have exhausted their patrimony through generosity to their country.
9. Paulus, Decrees, Book I.
The Emperor Severus said: "Even if Titius should be proved to have been born to a father who was in slavery, but of a mother who was free, he is not thereby prevented from becoming a decurion in the city of his birth."
(1) There is no doubt that sailors cannot become decurions.
10. Modestinus, Opinions, Book I.
Herennius Modestinus gave it as his opinion that a man did not become a decurion merely by an order for the payment of his salary, when he not been legally created.
11. Callistratus, Judicial Inquiries, Book I.
Not only those who are of tender years but also aged persons are forbidden to become decurions. The former are, as it were, unable to protect the interests of the State, and are temporarily excused, but the latter are perpetually excluded; still, persons of advanced age should not be excused except for good reasons, lest those who are younger, through their elders not having been chosen, will be left alone to sustain all the public responsibilities of government; for minors under twenty-five years of age cannot be created decurions unless for some good cause, nor are those eligible who have passed their fifty-fifth year. Sometimes, long-established custom should be considered in this matter; for our Emperors, having been consulted by the people of Nicomedia as to whether persons of that age could be elected to the order, stated in a Rescript that this could be done.
12. The Same, Judicial Inquiries, Book VI.
Those who trade in and sell the necessaries of life should not be despised as degraded persons, although they are subject to chastisement by the Aediles. For men of this kind are not prohibited from seeking the office of decurion, or any other honor in their own country, as they are not infamous; and they are not excluded from public employments, even after they have been scourged by the Aediles, who are only discharging their lawful duty in doing so. I do not, however, think that it is honorable to receive persons of this kind, who have been subjected to blows with a scourge, into the order; and especially in towns which contain a number of honest men, but the scarcity of those who should discharge the duties of a public office necessarily calls such persons to municipal honors, if they possess the requisite qualifications.
13. Papirius Justus, On the Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript that persons who have been relegated for a time, and have returned, can not be reinstated in the Order of Decurions without the consent of the Emperor.
(1) They also stated in a Rescript that those who had been relegated after their time had expired could not be restored to their rank as decurions, unless they were of such an age that they could be created decurions, and their position afforded them the hope of obtaining the honor, or gave them the assurance that the Emperor would show them special indulgence.
(2) They also stated in a Rescript that a son who was born during relegation is not prohibited from discharging the duties of a decurion.
(3) They also stated in a Rescript that anyone who had consented to the appointment of another as decurion should not afterwards oppose the appointment on the ground that the party was not legally created a decurion, as he ought to have objected in the beginning.
14. Paulus, Questions, Book I.
The Divine Pius stated in a Rescript that a decurion who had been convicted should not be subjected to torture. Wherefore, when anyone ceases to be a decurion, and afterwards is convicted, it is decided that he must not be tortured, on account of the memory of his former dignity.
Tit. 3. Concerning the register of decurions.
1. Ulpianus, On the Duties of Proconsul, Book III.
The names of decurions should be entered upon a register, as is prescribed by the municipal law. Where, however, there is no law on this point, the rank of each should be considered, so that they may be registered in the order in which each one of them enjoys the highest distinction in the city; as, for instance, those who have held the office of duumvir, if this is the highest, and among the duumvirs, the one who first held office, shall take precedence; and after him those who have performed the duties of duumvirs in the municipal government; and, after them, those who come third, and the others in succession, and then those who previously have held no office shall be registered, so that each one shall appear in his proper place.
(1) In casting their votes, the same order shall be considered which we have stated should be observed in registering their names.
2. The Same, Opinions, Book II.
The names of the recipients of honors at the hands of the Emperor should first be entered upon the register of the decurions in a city; and afterwards the names of those who only have discharged the duties of municipal offices.
Tit. 4. Concerning public employments and honors.
1. Hermogenianus, Epitomes, Book I.
Some municipal employments are derived from estates, and others from persons.
(1) Employments derived from estates refer to transportation of goods by sea or land, and engage the attention of the first in rank among the decurions, for he is responsible for any collections made by him in the performance of his official duties.
(2) Personal employments are such as relate to the defence of a city, that is to say, such as may be made by the civil magistrate, for example, the collection of taxes, or as has been stated with reference to patrimonial employments, supervision of beasts of burden with a view to the supply of provisions and other things of this kind; as well as care of the public lands, aqueducts, horses, and chariot-races; repairs of highways and warehouses; the heating of baths, the distribution of food, and all duties of this description. For from what we have stated, any other matters which, by long-continued custom, have been established in the different cities, can be readily understood.
(3) A personal employment is generally understood to be one which is accompanied with manual labor, care, and diligence. A patrimonial employment, however, is one in which expense is especially requisite.
(4) Among personal employments are included the guardianship and curatorship of a minor or an insane person, as well as that of a spendthrift, one who is dumb, and an unborn child, to whom it is also necessary to furnish food, drink, lodging, and other things of this kind. With reference, however, to the property of the minor or the insane person, care must be taken by the person charged with the duty that it shall not be acquired by usucaption, or any debtors be released from liability. Likewise, where possession of property is demanded under the terms of the Carbonian Edict, if security is not furnished, the curator who has been appointed discharges a personal employment in taking care of the property. The same rule applies to curators who have been appointed to take charge of the property of persons who have been captured by the enemy, and expect to return. Again, curators are appointed for an estate left to one who cannot yet succeed to it by either Civil or Praetorian Law.
2. Ulpianus, On Sabinus, Book XXI.
If a son who is under the control of his father should himself have a son, he will be considered to be under his control, so far as municipal honors are concerned.
3. The Same, Opinions, Book II.
Persons who were born in the City of Rome, and who have established their domicile elsewhere, must accept public employment at Rome.
(1) No municipal employment can be imposed upon soldiers who are serving in camp. Other private persons, however, even though they are the relatives of soldiers, must obey the laws of their country and their province.
(2) When anyone is sentenced to the mines, and afterwards obtains complete restitution, he may be called to public employments and honors just as if he had never been convicted; and his misfortune and sad experience cannot be advanced to show that he is not a good citizen of his country.
(3) Their sex denies to women corporeal employments, and prevents them from obtaining municipal honors or offices.
(4) A father has no right to prevent a son, who is under his control, from obtaining municipal honors, if he has no good excuse for doing so.
(5) A father is not required to undertake the defence of his son, if he does not consent for him to obtain municipal honors, or employments, for fear his estate may be subjected to a burden; but he can not prevent him from being liable to his country to the extent of his means.
(6) Although anyone who is over seventy years of age, or has five children living, is, for either of these reasons, excused from holding civil employments; still, his sons ought to accept offices for which they are qualified, for the immunity granted to fathers on account of their children they themselves do not enjoy.
(7) A stepfather can, by no rule of law, be compelled to undertake the burdens of civil employment, in the name of his stepson.
(8) Freedmen should discharge the duties of public employment at the birthplace of their patron, if their pecuniary resources are sufficient to enable them to do so; as the property of their patrons is not liable on account of offices administered by their freedmen.
(9) When a father has been guilty of some crime, this should be no impediment to the acquisition of municipal honors by his sons.
(10) It has long since been settled that minors under twenty-five years of age can become decurions; not, however, when they are in military service, because this burden is considered as rather attaching to a patrimonial employment.
(11) The collection of taxes is considered to be a patrimonial employment.
(12) The duty of collecting provisions is a personal employment, and the age of seventy years, or the number of five living children, exempts a person from it.
(13) Persons who are obliged to furnish lodgings to soldiers coming to a city should discharge this duty by turns.
(14) The duty of furnishing lodgings to soldiers is not a personal, but a patrimonial one.
(15) The Governor of a province should see that employments and honors are equally distributed among the citizens in turn, according to their age and rank; so that the order of the various degrees of said employments and honors, which have been established of old, shall be followed, to prevent the same person from being indiscriminately and frequently oppressed by their imposition, and the State from being deprived at the same time of men and of power.
(16) Where there are two sons under the control of their father, he cannot be compelled to be responsible for the employment of both of them at the same time.
(17) If a man, who left two sons, did not, by his last will, provide out of their common patrimony, for the discharge of the duties of public office by one of them, the latter should not, at his own expense, assume responsibility for any duties or honors which may be enjoined upon him, although the father, while living, might have assumed liability of this kind for one of his sons.
4. The Same, Opinions, Book III.
The care of the construction or repair of public buildings in a city is a public employment from which a father who has five living children is exempt; but if he should be compelled by force to discharge such an employment, this will not deprive him of any excuse which he may have for not accepting others.
(1) The excuse of a want of means for not accepting municipal employments or duties which persons are required to undertake is not perpetual but temporary; for, where anyone's patrimony has been increased by honorable means this will be taken into consideration, when inquiry as to his solvency at the time when he was appointed to the office is made.
(2) Persons who are poor cannot, through destitution, be compelled to accept patrimonial employments, but they are forced to discharge the duties of corporeal ones to which they have been appointed.
(3) Anyone who is obliged to discharge a public employment in his city, and represents himself as a soldier for the purpose of avoiding a municipal burden, cannot render the condition of the municipality any worse.
5. Scaevola, Rules, Book I.
Masters of vessels and oil merchants, who have invested the greater part of their patrimony in occupations of this kind, are entitled to exemption from public office for the term of five years.
6. Ulpianus, On the Duties of Proconsul, Book IV.
The following was stated in a Rescript of the Divine Brothers addressed to Rutilius Luppus: "The Constitution by which it is provided that anyone who has been created a decurion can obtain the office of magistrate should be observed, whenever the parties concerned are solvent and properly qualified. Where, however, they are of such inferior rank and slender resources that they are not only unsuited to the enjoyment of public honors, but are also scarcely able to support themselves, it is both useless and dishonorable for such persons to be charged with the office of magistrate, especially when there are others who can be appointed, and who, by their fortunes and their rank, are suited to the position. Therefore, let all who are wealthy know that they should not avail themselves of this provision of the law, and that when anyone is to be chosen in an assembly, inquiry should be made among those who are present for persons who, by reason of their means, are capable of assuming the dignity of the office."
(1) It is certain that public debtors cannot be raised to municipal honors, unless they first pay what they owe to the city. We should understand such debtors to be those in whose hands a balance remains from the administration of public business. When, however, they are not debtors of this description, but have borrowed money from the city they are not in a position to be excluded from municipal honors. It is evident that it will be sufficient if, instead of payment, they make provision for it by means of pledges or solvent sureties. This was stated by the Divine Brothers in a Rescript addressed to Aufidius Herennianus. Where they are indebted merely under a promise which cannot be refused, they are in such a position that they must be excluded from municipal honors.
(2) Where anyone, though guilty of an offence, has not been accused, he should not be excluded from public office any more than if he had an accuser who withdrew from the prosecution; for Our Emperor with his Divine Father stated this in a Rescript.
(3) It must be noted that certain employments are either personal or patrimonial, just as certain honors are.
(4) Employments which have reference to patrimonies, or the payment of taxes, are of such a nature that neither age nor the number of children, nor any other privilege which usually exempts persons from personal employments, will be a valid excuse for declining them.
(5) These employments which have reference to patrimonies are of a double nature, for some of them are enjoined upon possessors, whether they are citizens or not; and others are enjoined upon the residents or citizens of a town. Taxes imposed upon lands or buildings have reference to the possessors of the same, but patrimonial employments only concern municipalities or their inhabitants.
7. Marcianus, Public Prosecutions, Book II.
A person who has been accused of crime is forbidden by the Imperial Constitutions to aspire to municipal honors before his case has been decided. It makes no difference whether he is a plebeian or a decurion. He cannot, however, be prevented from accepting such an office after a year has elapsed from the time when he was accused, unless he is to blame for the case not having been heard during the year. The Divine Severus stated in a Rescript that when a man is elected a magistrate, and his opponent appeals, and while the appeal is pending he takes possession of the office, he should be punished. Therefore, if anyone who is prevented by a decision from obtaining municipal honors takes an appeal, he should, in the meantime, refrain from demanding the office.
8. Ulpianus, On the Edict, Book XI.
Minors should not be admitted to the administration of public affairs, either in such employments as are not patrimonial, or in such as are magisterial, before reaching their twenty-fifth year; nor should they be made decurions, for, if they are, they cannot cast their votes in the assembly. After the beginning of their twenty-fifth year, however, it is held as having elapsed, for it has been decided as a matter of favor in cases of this kind, that we must consider what has been begun as completed; but the administration of no public office shall be entrusted to them, lest some damage may be committed against the government, or some injury caused to the minor himself.
9. The Same, On the Duties of Consul, Book III.
When anyone who has been created a municipal magistrate refuses to perform the duties of his office, he can be compelled to do so by the Governor in the same manner as guardians can be forced to discharge the duties of the trust imposed upon them.
10. Modestinus, Differences, Book V.
An additional employment cannot be imposed upon a magistrate; but the office of magistrate can be conferred upon one who already has another public employment.
11. The Same, Pandects, Book XI.
Under the Praetorian Edict, offices should be conferred by degrees, and, as is stated by a letter of the Divine Pius to Titianus, this should be done from the less important to the more important ones.
(1) Although it is provided by the municipal law, that men of a certain condition should be preferred in making appointments to the magistracy, still it must be remembered that this rule ought only to be observed when the candidates are solvent. This is set forth in a Rescript of the Divine Marcus.
(2) The Divine Brothers stated in a Rescript that whenever there is a scarcity of citizens eligible to the magistracy, immunity can be, to some extent, infringed.
(3) The Divine Antoninus and his Father stated in a Rescript that although a physician may already have been approved, he can be rejected by the municipality.
(4) The Divine Antoninus stated in a Rescript that those who instructed children in the rudiments of learning were not exempt from the duties of public office.
12. Javolenus, On Cassius, Book VI.
Anyone who has been granted exemption from the performance of municipal duties is not excused from becoming a magistrate, because the functions of the latter are more honorable than those attaching to other public employments; but all other extraordinary duties required from anyone temporarily, as, for instance, the repair of highways, should not be demanded of a person of this kind.
13. The Same, On Cassius, Book XV.
Exemption and immunity from public employments conceded to the children and descendants of anyone only have reference to persons belonging to his family.
14. Callistratus, Judicial Inquiries, Book I.
Municipal honor is the administration of public affairs, with the title of the office, whether the payment of expenses is required or not.
(1) An employment is either public or private. A public employment is one in which we undertake to administer public affairs, with the payment of expenses, and without the title of dignity.
(2) The collection of expenses for repairing the highways and of taxes on land are not personal, but local employments.
(3) When a question arises with reference to municipal honors and the administration of public employments, the person upon whom the honor or the employment is conferred must be taken into consideration, together with the origin of his birth, and whether his means are sufficient to enable him to administer the employment entrusted to him; and also the law, in accordance with which every one should discharge his official duties.
(4) A plebeian son under paternal control holds his office at the risk of the person who nominated him. Our Emperor, Severus, stated the following on this point in a Rescript: "If your son is a plebeian, you should not be compelled, against your will, to be responsible for his administration of the magistracy, because you cannot exercise your right of paternal authority to resist his appointment, but his administration will be at the risk of him who nominated him."
(5) The power of administering a public office is not a promiscuous one, but a certain order should be observed; for no one can discharge the higher functions of the magistracy before having discharged those of a lower degree, nor can anyone continue to perform the duties of a public office at any age.
(6) It is provided by many Imperial Constitutions that, where there are no others to hold the office, those who had it previously can be compelled to continue to administer it. The Divine Hadrian stated in a Rescript with reference to continuance in office: "If there are no others who are competent to perform the duties of the office, I consent that they shall be chosen from those who already have performed them."
15. Papinianus, Opinions, Book V.
If a father consents for his son to become a decurion, and after his death his son obtains the office, his co-heirs cannot be held responsible for his maladministration, if the father left his son, the decurion, sufficient means to discharge his liabilities.
16. Paulus, Sentences, Book I.
Those who offer a sum of money in order to obtain exemption from the administration of a municipal office or employment should not be heard.
(1) Anyone who promises a sum of money for a municipal honor, and has begun to pay it shall be compelled to pay the entire amount, just as in the case of an unfinished public work.
(2) A son cannot, against his will, be compelled to become responsible for any public employment administered by his father.
(3) No one can be forced to undertake the defence of a municipality more than once, unless necessity requires this to be done.
17. Hermogenianus, Epitomes, Book I.
No one is prohibited from voluntarily repeating the performance of the sacerdotal ceremonies of a province.
(1) When a father who is exempt from the civil employments and duties of the magistracy consents to have his son, who is under his control, created decurion, he will be compelled to assume responsibility for the proper discharge of all the functions and obligations undertaken by his son.
18. Arcadius Charisius, On Civil Employments.
There are three kinds of civil employments, for some are called personal, others are styled patrimonial, and others are mixed.
(1) Personal employments are those which are carried on by the application of the mind, and the exertion of corporeal labor, without resulting in any detriment to the person who administers them; as, for instance, guardianship or curatorship.
(2) The keeping of accounts and the collection of money in any town is not considered an honorable employment but a personal one.
(3) The conducting of recruits, or horses, or any other animals necessary for the transportation or pursuit of public property, or of money belonging to the Treasury, or of provisions or clothing, is a personal employment.
(4) The supervision of posts and couriers is a personal employment.
(5) The care of purchasing grain and oil (as it is customary to appoint persons for duties of this kind, who are called purveyors of grain and oil), is, in some towns, included among personal employments, as well as the duty of heating the public baths, when the money provided by the official in charge is obtained from the revenues of any municipality.
(6) The preservation of aqueducts is included in personal employments.
(7) Irenarchs are officials who are appointed to maintain public discipline and the preservation of morals. Those who are selected for the construction of highways, when they can contribute nothing out of their own property for this purpose, along with those who are appointed to supervise the sale of bread and other provisions necessary to the daily sustenance of the people of towns, administer personal employments.
(8) Persons who have charge of either the collection or distribution of public provisions, and collectors of individual taxes administer personal employments.
(9) Officials who are usually chosen for the collection of the public revenues of towns exercise a personal employment.
(10) Those also who are the guardians of temples, or who have charge of the archives; writers of orations and book-keepers; those who furnish entertainment to strangers, as in certain cities; those who have superintendence of harbors; officials charged with the construction or repair of public buildings, whether palaces, or naval arsenals, or such as are destined for military quarters, who expend the public money in the erection of buildings, or for the construction or repair of ships, when this is necessary, administer personal employments.
(11) The driving of camels is also a personal employment, for a certain amount should be given to the camel-drivers for the support of themselves and their camels, and an account kept of the same, so that they will only be compelled to furnish manual labor. These should be called according to the order in which they are registered, and should not be released by any excuse, unless it is expressly shown that they are suffering from some corporeal injury, or weakness.
(12) Messengers who are despatched to the Emperor sometimes receive their necessary travelling expenses, but the officers of the night-watch and the superintendents of mills administer personal employments.
(13) The defenders also, whom the Greeks call syndics, and who are selected for the prosecution or defence of some case, exercise personal employment.
(14) The duty of rendering decisions is also classed among personal employments.
(15) When anyone is chosen to compel persons to construct pavements in front of the public highways, this employment is personal.
(16) In like manner, those who are appointed for the collection of taxes perform the functions relating to a personal employment.
(17) The officials who accompany the contestants in games, and the clerks of magistrates, also discharge the functions of personal employments.
(18) Patrimonial employments are those which are administered at the expense of the estate, and to the loss of the person who exercises them.
(19) Among the people of Alexandria, officials who purchase oil and vegetables are considered to exercise a patrimonial employment.
(20) Those who collect wine throughout the province of Africa administer a patrimonial employment.
(21) Again, patrimonial employments are of a twofold, nature, for some of them have reference to either possession or to patrimonies, for instance, those who furnish horses, or mules for the transporation of military supplies, or for the post.
(22) Therefore, persons who are neither citizens nor inhabitants of municipal towns are required to perform services of this description.
(23) It has been stated in a Rescript that those who lend money at interest, even if they are veterans, must pay taxes for the privilege of doing so.
(24) Neither veterans, nor soldiers, nor any other persons, no matter what privileges they may enjoy, and not even the pontiff himself, is exempt from employments of this kind.
(25) Moreover, some towns have the privilege of permitting those who own land within their territory to furnish each year a certain amount of corn, in proportion to the real property which they possess; which contribution is an employment attaching to possession.
(26) Mixed employments are those in which personal and patrimonial ones are combined, as Herennius Modestinus, with the best of reasons, stated in his notes and arguments; for collectors of taxes and grain, who also perform manual labor, exercise personal employments, and make good Treasury losses from the property of deceased persons ; so that there is good reason for considering this employment as being mixed in its character.
(27) We have, however, stated above that those who exercise personal employments, according to the laws or customs of their city, are also obliged to pay the expenses out of their own property; or if those who collect provisions should sustain any loss on account of land which remains uncultivated, these employments will also be included under the denomination of mixed.
(28) All these employments, which we have divided into three classes, are included under a single signification; for personal, patrimonial, and mixed employments are designated as civil or public.
(29) Where, however, exemption from merely personal or civil employments is granted to anyone, they cannot be excused from those relating to provisions, posts, couriers, the furnishing of lodgings, the construction of ships, or the collection of personal taxes, with the exception of soldiers and veterans.
(30) The Divine Vespasian and the Divine Hadrian stated in a Rescript that exemption from furnishing lodgings was granted by the Emperor to teachers who were not liable to civil employment, as well as to grammarians, instructors in rhetoric, and philosophers.
Tit. 5. Concerning exemption and excuses from employments.
1. Ulpianus, Opinions, Book II.
Every excuse should be based upon justice. But if confidence should be placed in persons claiming exemption, without a hearing in court, or indiscriminately, without any limitation of time, as each one may choose, and if each one should be permitted to excuse himself, there would not be enough persons to discharge the duties of public office. Therefore, when any persons claim exemption from a public office on account of the number of their children, they should take an appeal, and those who do not observe the time prescribed for the prosecution of an appeal of this kind are with good reason excluded from the benefit of an exception.
(1) Those who avail themselves of an excuse, and are discharged in consequence, must appeal every time that they are appointed afterwards. When, however, this adversary is proved to have acted through malice, and for the purpose of subjecting them to frequent annoyance, although he is aware that they are entitled to perpetual exemption, the Governor shall order him who is responsible for this annoyance to pay the expenses of litigation, as in the case of the Imperial Decrees.
(2) Persons eligible to the highest honors, and included among the citizens of a town who, with the design of defrauding their order, betake themselves to the country for the purpose of avoiding the responsibilities of the higher offices, and still remain liable to those attaching to inferior ones, cannot avail themselves of this excuse.
(3) Although a man may be sixty-five years of age, and have three living children, he cannot, for these reasons, be released from performing the duties of civil employment.
2. The Same, Opinions, Book III.
A minor of sixteen years of age cannot be charged with the duty of the purchase of grain, if this is not customary in the place of his birth. The same rule applies to minors under twenty-five years of age, if they are appointed to municipal employments or honors.
(1) Neither the number of children, nor the age of seventy years, is a good excuse where honors or offices are united, but only exempts a person from civil employments.
(2) Adopted children are not included in the number of those who ordinarily excuse fathers from public duties.
(3) Those who are called to perform the functions of public officials must prove that they have the prescribed number of children at the time when they wish to be excused on this account; for if the number of children should afterwards be completed, it will not release them, if they have previously undertaken the employment.
(4) Where patrimonial employments exist, the number of children is no excuse.
(5) Children, even if they have ceased to be under the control of their father, afford a valid excuse for exemption from civil employments.
(6) A person who hears with difficulty is not entitled to exemption from civil employments.
(7) When the Governor of a province perceives that anyone is oppressed with age and bodily infirmity, or has not sufficient money to administer the office, he can discharge him and appoint another. Infirmity of body is a valid excuse from public employment, where only corporeal labor is concerned. Those, however, who can assist with their advice as well-informed men, or who are competent to discharge the duties of the office, should not be excused, except for good and sufficient reasons.
(8) Those who teach children the first rudiments of learning are not entitled to exemption from civil employments. It is, however, a part of the duty of a Governor to see that an office is not assigned to anyone which is beyond his capacity, whether such a person is teaching the primary branches of knowledge in a city or in a village.
3. Scaevola, Rules, Book III.
Exemption from public employments is granted to those who have constructed ships destined for the transport of provisions for the Roman people, which have a capacity of not less than fifty thousand measures of grain, or several, each of which has a capacity of not less than ten thousand measures, as long as the said ships are suitable for navigation, or where they provide others in their stead. Senators, however, are not entitled to this exemption. According to the Julian Law on Extortions, they have no right to have ships.
4. Neratius, Parchments, Book I.
The term of exemption which is conceded to those who are absent on business for the State should not be calculated from the day on which the person ceased to be absent, but some time should be allowed him to rest after his journey; and he is still understood to be absent in the public service if he transacts any business either while going or returning. But if anyone delays longer than is proper while on his way, or in any place, in this instance, the time of exemption should be understood to begin from the date when he could have conveniently concluded his journey.
5. Macer, On the Duties of Governor, Book II.
Ulpianus gave it as his opinion that no exemption should be granted to any other office while anyone was called to it from the decurionate.
6. Papinianus, Questions, Book II.
He who is entitled to exemption from public employments cannot be compelled to assume the duties of one which is extraordinary, and which he has been commanded to exercise.
7. The Same, Questions, Book XXXVI.
According to the Decrees of our most Excellent Emperor Severus, veterans are excused for life from the exercise of public employments which are not imposed as patrimonial.
8. The Same, Opinions, Book I.
When a person is appointed to municipal honors, neither the age of seventy years, nor the fact that he is the father of five children, can be advanced as an excuse. Our Great Emperor Severus decreed that in Asia, men who had five children could not be compelled to assume the sacerdotal duties of the province, and he afterwards decided that this rule should be observed in the other provinces.
(1) It is settled that no other farmers of the revenue except those who are engaged in that occupation at the time can be excused from civil employments and guardianships.
(2) The privileges of exemption do not apply to the children of veterans.
(3) Those who have obtained exemption from public employments are not compelled to pay contributions unexpectedly imposed upon them by magistrates, but they cannot avoid paying those which are imposed by law.
(4) It has been decided that philosophers, who frequently and usefully employ their time for the benefit of those who are pursuing the studies of their school, are excused from guardianships and other employments requiring corporeal exertion, but they are not excused from those which involve the payment of expenses; for true philosophers despise money, and expose the false statements of the philosophical impostors who are desirous of having it.
(5) Anyone who has appealed to the Emperor, and goes to Rome with the intention of conducting his own lawsuit, is excused from municipal honors and employments until his case has been decided.
9. Paulus, Opinions, Book I.
Those who teach at Rome must be excused from public employments in their own country, just as if they taught there.
(1) Paulus gave it as his opinion that where a privilege was granted to persons dealing in grain, it would also avail to excuse them from public office.
10. The Same, Sentences, Book I.
No privilege is available as an excuse to exempt persons from those employments which arise from possession, or which are patrimonial.
(1) Those who are charged with the measurement of grain, with a view to supplying the City of Rome, are entitled to exemption; but the same rule does not apply to the provinces.
(2) The furnishing of horses for posts, and the necessity of receiving strangers as guests, are requirements not imposed upon soldiers and professors of the liberal arts.
(3) The excuse of poverty cannot be alleged by anyone after an appeal, if, in the meantime, his property has increased in value.
(4) Public defenders are entitled to exemption from offices and employments for the same length of time.
11. Hermogenianus, Epitomes of Law, Book I.
There are public duties which attach to property, and with reference to which neither children, slaves, the merits of military service, nor any other privilege affords a legal excuse. As, for instance, those relating to the contribution of land, the paving of highways, the provision of horses and vehicles for posts, and the requirement to contribute to the lodging of strangers; for no one has a right to an excuse of this kind except those to whom it has been especially conceded by the favor of the Emperor; and this applies to any other exemptions of this kind.
12. Paulus, Sentences, Book I.
The defence in the same case cannot, a second time, be committed to the representative of the government who previously appeared, before the prescribed time of exemption has elapsed.
(1) The attendants of Governors, Proconsuls, and agents of the Emperor are excused from offices or honors, and guardianships.
13. Ulpianus, On the Edict, Book XXII.
When the Praetor ascertains that anyone is unable to act as judge, he promises to excuse him; for instance, where he cannot serve on account of bad health, and it is certain that he is incapable of discharging the duties appertaining to a civil office; or when he is suffering under some disease which prevents him from transacting his own business; or if he is performing sacerdotal duties, and cannot conscientiously relinquish them; for such persons are excused for life.
(1) There are two ways of granting exemption from public employment: one, which is permanent, such as is granted to a soldier; another, which is for a short time, as when anyone obtains the mere exemption from an employment.
(2) Moreover, anyone who has no excuse can even be compelled to act as judge against his will.
(3) If a judge desires to excuse himself on account of the privilege to which he was entitled before he accepted the office, and this is done after he has begun to take cognizance of a case, he should not be heard; for by once accepting the office he renounces all right to an excuse. If, however, some just cause should afterwards arise so that he can temporarily be excused, the case should not be submitted to another magistrate, if there is any danger of either of the parties suffering injustice; for it is sometimes better to wait until the judge who has once taken cognizance of the case can return than to commit it to another to be decided.
14. Modestinus, Rules, Book VII.
The death of a son is no advantage to his father as an excuse from public employment, unless he was killed in battle.
(1) The same person shall not supervise the construction of two public works at the same time.
Tit. 6. On the right of immunity.
1. Ulpianus, Opinions, Book III.
Those who are only on board ships for the purpose of navigating them are not entitled to immunity from civil employments, by the terms of any Imperial Constitution.
(1) Immunity granted to anyone does not descend to his heirs.
(2) Where it is given to and acquired by a family and its descendants, it does not pass to those born of the women of this family.
2. The Same, On the Duties of Proconsul, Book IV.
Where persons are obliged to discharge the duties of public employment or office, under a certain condition, when they could not otherwise be compelled to do so against their consent, good faith must be observed by them, and the condition under which they agreed to devote themselves to the exercise of the said employments or office must be complied with. It was stated in a Rescript addressed to Benidius Rufus, Governor of Cilicia, that minors under the age of puberty should not be admitted to hold office, even if the scarcity of eligible persons appeared to render this necessary.
3. The Same, Book V.
Men over seventy years of age are exempt from guardianships and personal employments. Anyone, however, who has entered his seventieth year, but not yet completed it, cannot avail himself of this excuse, because he who is in his seventieth year is not considered to be over seventy years of age.
4. Modestinus, Rules, Book VI.
Immunities, generally speaking, are granted to a person in such a way that they can be transmitted to his descendants, and are perpetual, so far as his male successors are concerned.
5. Callistratus, On Judicial Inquiries, Book I.
Old age has always been greatly venerated in our City. For our ancestors treated old men with almost the same reverence as magistrates, and the same honor was granted to old age with reference to municipal obligations which were required to be performed. Anyone, however, who became rich in his old age, and had not previously exercised the functions of any public employment, cannot be said to be exempt from such a charge by the privilege of his years, and especially if the administration of the office imposed upon him does not require corporeal exertion as much as the payment of money, because it is not easy to find men enough properly qualified in the City to discharge public duties.
(1) It is also necessary to take into consideration the custom of every place, and see whether any immunities are expressly granted, and also whether anything is mentioned with reference to the number of years required to obtain them. This can also be ascertained from the Rescripts of the Divine Pius, which he sent to Ennius, Proconsul of the Province of Africa.
(2) It is clearly and plainly stated, according to Rescripts of the Divine Aelius Pertinax, that the number of children affords a valid excuse from municipal employments; for he stated the following in a Rescript addressed to Julius Candidus: "Although the number of children does not exempt a father from all public employments, still because you have notified me in your petition that you have sixteen, it is not unreasonable for us to grant you exemption from public office, to enable you to bring up your children."
(3) Traders, who assist in furnishing provisions to a city, as well as sailors who also provide for its necessities, will obtain exemption from public office, as long as they continue to do this; for it very properly has been decided that the risks which they incur should be suitably recompensed, so that those who perform such public duties outside of their own country with risk and labor should be exempt from annoyances and expenses at home; as it may not incorrectly be said that even they are absent on business for the government when they are employed in collecting provisions for a city.
(4) A certain specific character is given to the immunity bestowed upon the owners of vessels, which immunity they alone are entitled to; for it is not conferred either upon their children or their freedmen. This is set forth in the Imperial Constitutions.
(5) The Divine Hadrian stated in a Rescript that only those ship owners should be entitled to immunity who provided subsistence for the City.
(6) Although anyone may belong to the association of ship owners, if he has neither a ship nor vessels, nor anything else which is provided for by the Imperial Constitutions, he cannot avail himself of the privilege granted to ship owners; and the Divine Brothers stated the following in a Rescript: "Where there are any persons who claim that they are immune from public employments, under the pretext of transporting grain and oil by sea, for the benefit of the Roman people, and they are not engaged in maritime traffic, and have not the greater portion of their property invested in maritime business and commodities, they shall be deprived of the immunity which they enjoy."
(7) It must be said with reference to the. following exemptions that where anyone was called to municipal employments before he engaged in commerce, and before he was admitted to an association formed by those engaged in the same pursuit (for the reason that he obtained immunity), whether before he became seventy years of age and publicly stated the fact, or had the requisite number of children, he should be compelled to assume the duties of the office to which he was appointed.
(8) Maritime commerce is prosecuted for the purpose of increasing one's property, otherwise, if anyone should carry it on with the greater part of his money, and he, having become still more wealthy, should continue to transact the same volume of business, he will be liable to public service, just as wealthy persons who having purchased ships for a small sum attempt to evade the duties of municipal office. It is stated in a Rescript of the Divine Hadrian that this rule should be observed.
(9) The Divine Pius stated in a Rescript that, whenever a question arose as to whether anyone belonged to the association of ship owners, it should be ascertained whether he had assumed the character of one for the purpose of avoiding public employment.
(10) Farmers of the revenue, also, are not reduced to the necessity of exercising municipal employments. The Divine Brothers stated in a Rescript that this rule should be observed. From this Imperial Rescript it can be understood that it is not granted as a privilege to farmers of the revenue, that they should not be compelled to exercise municipal employments; but to prevent their property, which is already bound to the Treasury, from being subjected to further liability. Wherefore, it may be doubted if they should voluntarily offer to accept public office, whether they should be prevented from doing so by the Governor of the province, or by the Manager of the Imperial Revenues. The latter opinion is the more easy to maintain, unless they are said to be ready to settle their accounts with the Treasury.
(11) Farmers of the Imperial demesnes are exempt from municipal employments in order that they may be better adapted to the cultivation of the land belonging to the Treasury.
(12) Immunity is conceded to certain associations or corporate bodies, to which the right of assembly has been granted by law; that is to say, to associations or corporate bodies to which each person is admitted on account of his occupation, as, for instance, the Society of Artisans, provided they have the same origin; for instance, if they have been organized in order to perform labor necessary for the public welfare. Immunity is not indiscriminately granted to all those who are admitted to these associations, but only to artisans, for it was decided by the Divine Pius that persons of every age could not be chosen; and he disapproved of the admission of those of an advanced or decrepit age. And, in order that individuals who had become wealthy might not avoid the responsibility attaching to civil office, it was decided in many places that persons could avail themselves of the privileges which had been granted by such associations to anyone in reduced circumstances.
(13) I have been informed that when persons who have been elected to membership in corporate bodies, which afford immunity to their members, as, for instance, that of ship owners, obtain the honor of the decurionate, they should be compelled to exercise public employments. This seems to be confirmed by a Rescript of the Divine Pertinax.
6. Taruntenus Paternus, Military Affairs, Book I.
The condition of certain persons affords them exemption from more onerous employments, as, for instance, measurers of grain and their assistants, chronic invalids, physicians, slaves who carry the books of scholars, artisans, laborers who dig ditches, veterinaries, architects, pilots, ship carpenters, makers of ballistas, makers of glass, mechanics, manufacturers of arrows, workers in bronze, chariot-builders, tile-makers, gladiators, makers of pipes, trumpet makers, makers of musical instruments, makers of bows, workers in lead and iron, lapidaries, burners of lime, wood cutters and charcoal burners. Under the same category are also included butchers, hunters, those who deal in animals for sacrifice, the assistants of factory superintendents, those who attend the sick, weighers, not only those in warehouses and depositories, but also such as are charged with the distribution of supplies to the army, aids of military tribunes, couriers, the guards of arms, common criers, and trumpeters. All these persons are considered to be exempt from public office.
Tit. 7. Concerning embassies.
1. Ulpianus, On Massurius Sabinus, Book VIII.
When a municipal envoy abandons his office, he is generally subjected to an ordinary penalty, and dismissed from his order.
2. The Same, Opinions, Book II.
An envoy appointed to proceed against a municipality can present his claim to the Emperor through another.
(1) When an envoy abandons his charge, or delays results for some good reason, he must prove this fact before the Order of the town where he resides.
(2) The neglect of an envoy to perform his duty does not prejudice his colleague.
(3) Salaries, in proportion to their rank, are paid to envoys who do not undertake their mission gratuitously.
3. Africanus, Questions, Book III.
When the question is asked whether an action should be granted against a person who is the member of a embassy, it is not so important to ascertain where the claimant either lent him money, or stipulated that something should be given, as to know where suit can be brought, so that payment may be made during the time of his mission.
4. Marcianus, Institutes, Book XII.
It should be noted that a debtor to the government cannot perform the duties devolving on an embassy. This the Divine Pius stated in a Rescript addressed to Claudius Saturninus and Faustinus.
(1) Persons who have not the right to prosecute cannot exercise the function of an envoy; and the Divine Severus and Antoninus stated in a Rescript that anyone who had been appointed to contend in the arena could not legally be one.
(2) Debtors of the Treasury, however, are not forbidden to perform the duties of an envoy.
(3) Where a charge has been publicly brought against anyone the accuser should not be compelled to undertake the duties of an envoy to one who alleges that he is a friend, or belongs to the family of the accused party. This was stated by the Divine Brothers in a Rescript to Aemilius Rufus.
(4) Envoys cannot appoint others their substitutes, with the exception of their sons.
(5) Everyone is compelled to perform the functions of an envoy in his turn, but is not obliged to do so until those who have been chosen before him in an assembly have performed theirs. If, however, the embassy requires men of the first rank, and those who are called in their order are of inferior degree, the regular order should not be observed, as the Divine Hadrian stated in a Rescript addressed to the Clazomenians.
(6) It is provided by an Edict of the Divine Vespasian addressed to all cities that one municipality shall not send more than three envoys.
5. Scaevola, Rules, Book I.
The time which may profit an envoy dates from his appointment, and not from the day when he arrives at Rome.
(1) But if it is not satisfactorily established whether he is an envoy or not, the Praetor of Rome shall investigate the matter.
6. Ulpianus, On the Duties of Proconsul, Book IV.
Exemption from serving as an envoy is not granted to a son on account of the service of his father as one, as our Emperor, with his Father, stated to Claudius Callistus, as follows: "You petition to be exempted from acting as an envoy on account of the service of your father, but this can properly take place only so far as an office which requires the payment of expense is concerned; the rule, however, is different with reference to the expenses of an embassy which demands the service of a single person."
7. Papinianus, Opinions, Book I.
A son, who was a decurion, assumed the duties of a envoy in behalf of his father. This will not excuse him from another embassy, unless he has already departed; the father, however, can claim exemption for two years, for the reason that he is considered to have discharged the duties of his mission by his son.
8. Paulus, Rules, Book I.
Paulus gave it as his opinion that when anyone has once performed the duties of an envoy he cannot, during the time prescribed for exemption, be compelled to again undertake the defence of any public case, even if the same question was in controversy.
(1) "The Emperors Antoninus and Severus to Germanus Silvanus: An exemption for the term of two years is granted to persons who have discharged the duties of envoy, and it makes no difference whether the embassy was despatched to us at Rome or in a province."
(2) Paulus held that anyone who performed the functions of an envoy should not attend to his own affairs nor to those of others; but anyone who gratuitously gives his advice to a Praetor, who is his friend, is not considered in this instance to violate this rule.
9. The Same, Opinions, Book III.
Paulus gave it as his opinion that where an envoy sustained any damage during the term of his service he could, even during that time, bring an action.
10. The Same, Sentences, Book I.
An envoy cannot bring an action relating to his own property before he has performed his official duties, except in those cases which relate to the reparation of injury or the payment of damages.
(1) When anyone dies during his service as envoy, and before he returns to his home, the expenses which have been advanced to him at the time of his departure shall not be returned.
11. The Same, On the Right of Petition.
Where anyone is appointed an envoy during his absence, and voluntarily accepts the office, he can send another to discharge its duties in his place.
(1) Although anyone who performs the duties of an envoy cannot transact his own business, still, the Great Antoninus permitted him to prosecute and defend cases in the name of a female ward; although he had not yet attended to the affairs of the embassy which he had undertaken, and especially when he alleged that the guardian for whom he acted was absent.
12. Scaevola, Digest, Book I.
An envoy who was appointed by his native town, having accepted the office, came to Rome; and, before he had discharged his duties, purchased a house in Nicopolis, his own city. The question arose whether he was liable to the Decree of the Senate by which an envoy is prohibited from attending to his private business or affairs before the duties of his office have been performed. The answer was that he did not appear to be liable.
13. Papinianus, Opinions, Book I.
A substitute, appointed with his own consent to discharge the duties of another, is not entitled to the privilege of exemption for two years, and is compelled to accept the office of envoy.
14. Ulpianus, On the Edict of the Praetor, Book LXXIV.
Anyone who is still absent, after having exercised the functions of an envoy, and been discharged, is not considered to be away on business for the State, for he is not absent for the public benefit, but for his own.
15. Modestinus, Rules, Book VII.
Anyone who performs the duties of an envoy cannot present a petition relating to his own affairs, or those of others, without permission of the Emperor.
16. The Same, Rules, Book VIII.
The same person is not forbidden to undertake several embassies; above all, where he pays his travelling expenses himself.
(1) Where suit has been brought against anyone before he assumed the duties of an envoy, he ought to defend it, even if he is absent, but where he has once undertaken such duties, he is not required to do so, unless in the performance of his official functions.
17. Pomponius, On Quintus,Mucius, Book XXXVII.
When anyone strikes the envoy of our enemy, he is considered to be guilty of an act against the Law of Nations, because envoys are considered sacred. Therefore, if any ambassadors of a nation with whom we are at war are with us, it has been established that they are free to remain; for this is in conformity with the Law of Nations. Hence, Quintus Mucius held that anyone who struck an ambassador is usually surrendered to the enemy of whom he was the representative. The question arose, if the enemy did not receive the offender when he was sent to them, whether he would remain a Roman citizen. Some authorities think that he would remain such, and others are of the contrary opinion, because where a people have once ordered anyone to be surrendered he is considered to have been deprived of citizenship, just as is the case where anyone is forbidden fire and water. It seems that Publius Mucius was also of this opinion. This question was thoroughly discussed in the case of Hostilius Mancinus, whom the Numantians would not receive when he was surrendered to them; and, on this account, a law was subsequently enacted to enable him to remain a Roman citizen, and he is said to have even held the office of Praetor.
Tit. 8. Concerning the administration of property belonging to cities.
1. Ulpianus, Disputations, Book X.
Anything which has been left to a city for a special purpose cannot be converted to other uses.
2. The Same, Opinions, Book III.
Conditions imposed in former leases cannot be considered to apply to subsequent ones.
(1) What anyone is forbidden to do in his own name he should not do through the agency of anyone else. Therefore, if a decurion rents public land (which decurions are not permitted.to do), by substituting the names of others, his act shall be revoked, as being in violation of law.
(2) Where anyone converts money intended for the purchase of grain to some other use, he will be required to refund the amount with interest; and a judgment rendered against him will be valid, even if he is absent; but in this case it is presumed that he has given security to render an account of his administration.
(3) Anyone who owes a sum of money intended for the purchase of grain must pay it at once. For, in all matters relating to the public purchase of grain, which is necessary, the payment of the money does not admit of delay; and all persons who are indebted under such circumstances can be compelled to pay by the Governor of the province.
(4) Funds given for the purchase of grain must be returned to the city, and cannot be expended for other purposes. If, however, money destined for the purchase of grain is converted to some other use, as, for instance, to work upon the public baths, even though it may be proved that it has been expended in good faith, still, as it can only be disbursed for the purchase of grain, he who has charge of it shall be ordered to refund it to the city.
(5) If money intended for the purchase of grain should be refunded to the city with interest, an unreasonable and an unlawful rate of interest ought not to be exacted, that is to say, compound interest should not be paid.
(6) Where, after the purchase of grain, for which the price has been paid and entered upon the public registers, it is unjustly taken from the purchaser; the Governor of the province can order the amount to be refunded to him who purchased it.
(7) When a man who was solvent at the time when he was appointed to office afterwards becomes insolvent, any loss sustained must be borne by the State; for no human prudence can provide against accidents, and the person who appointed him should not be liable for anything on this account.
(8) The rights of a city cannot be changed by an agreement entered into by magistrates and their colleagues to prevent themselves from being sued by one another, with reference to matters in which this is permitted to be done by law.
(9) The action, however, which can be brought against one of them for maladministration will, in accordance with equity, lie in favor of another who has become responsible for him.
(10) What is proved to have been expended in behalf of a colleague holding the office of magistrate, the Governor of a province shall order to be paid by the party in question, or his heirs.
(11) The Same in the Same Book. Where anyone has been punished for fraud in the construction of some work, and the surety who was responsible for him contracted with another for the construction of the same work, and it still was not done, the heir of the surety cannot refuse the payment of interest; as, in the first place, the contract bound the surety in good faith for the entire amount, and under the subsequent contract, because he acknowledged his responsibility, he will be liable for the payment of any loss which may be sustained by the city.
(12) Persons who have become sureties for the entire amount for which a farmer of the revenue may become liable can legally be sued for the interest as well as the principal, unless something to the contrary with reference to them is set forth in the terms of the obligation.
(13) But where, in the leasing of lands, it was agreed that if on account of an unfavorable season, the rent need not be paid for any year during which, according to the judgment of a reliable citizen, this might be considered a proper excuse, good faith must be observed in complying with the condition of the lease.
3. Papinianus, Opinions, Book I.
Where certain officials, who held office together, divided money among themselves which had been paid to them all in a single sum, it was decided that they could not be released from responsibility by paying the amount which each had respectively received. Ulpianus, however, who transacted the business, should be first sued, as in the case of guardians.
(1) In the Same Book. The magistrate of a city leased public land for five years without requiring good security. The tenant, having remained a longer time than the five years, left a balance due to the Treasury, and as the proceeds of the crops of the land could not be obtained, the successor of the person who leased the land was held responsible. The same rule was long since decided not to apply to taxes, as those who farm them are only liable during their term of office.
(2) An action should not be refused against anyone after his retirement from office who, during his term, became responsible through novation to the creditors of the State. The case of one who agreed to pay is, however, different, for he is considered to resemble a person who either publicly sold or leased property.
(3) A son cannot be required to be responsible for his father, who has been created a magistrate, even if his father emancipated him before he was appointed to office, or where he has transferred to him a portion of his property as a donation.
(4) When a surety who appeared for a magistrate has also given pledges, the pledges are considered to have been furnished in order that suit may properly be brought; that is to say, after nothing can be recovered from him for whom he became liable.
4. Valens, Trusts, Book II.
Where a bequest has been left to a town, it cannot be converted to any other use than that intended by the deceased, without the authority of the Emperor; and therefore, if the deceased directed a work to be constructed with it, which cannot be done after the reservation of the fourth authorized by the Falcidian Law, it is permitted for the sum of money to be employed for whatever may appear most necessary for the benefit of the town. The rule is the same where several sums of money are bequeathed for the construction of several works, and, after the deduction under the Falcidian Law, the remainder is not sufficient for the construction of them all, for the money is allowed to be expended for any single work which the State may wish to have constructed. Where, however, money was bequeathed in order that its income may be used for hunting, or for exhibitions, the Senate forbade it to be used for such purposes, and permitted the legacy to be expended upon what was most needed by the city, and to recognize the munificence of the person who made the bequest, authorized that the fact should be commemorated by an inscription.
5. Paulus, Sentences, Book I.
Decurions are not compelled to furnish grain to their city at a lower price than that which it is sold at the time,
(1) Unless the money was expressly bequeathed for the construction of a new work, or the repair of an old one.
6. Ulpianus, On the Edict of the Praetor, Book I.
The magistrates of a city are not only liable for fraud, but also for gross negligence; and this is especially the case where diligence is required.
7. Paulus, On the Edict of the Praetor, Book I.
When a son under paternal control administers the office of magistrate, with the consent of his father, Julianus held that the latter would be liable in full for whatever was lost by the city under his son's administration.
8. Modestinus, Rules, Book VIII.
The correction of an error in calculation can be made even after ten or twenty years.
(1) When, however, accounts are proved to have been examined and accepted, mistakes in them cannot be corrected.
9. Papirius Justus, On the Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript that interest should be collected on money remaining in the hands of public officials; but that it could not be collected from contractors of public works, and that when the latter were not solvent, officials would only be liable for the principal.
(1) They also stated in a Rescript that even the heirs of public officials were responsible for any loss sustained with reference to public works.
(2) They also stated in a Rescript that it was the duty of the magistrate of a city to recover lands belonging to it, even though they were in the possession of bona fide purchasers; above all, when the latter could have recourse to the persons from whom they had obtained them.
(3) The Same in the Same Book. The Emperors Antoninus and Verus stated in a Rescript that contracts for the construction of public works should not be made without security being furnished.
(4) They also stated in a Rescript that if public officials were negligent in the sale of property, they would be liable for simple damages, but if they had been guilty of fraud, they would be liable for double damages; and that no penalty would pass to their heirs.
(5) They also stated in a Rescript that a magistrate, after property had been sold, should collect money intended for the purchase of provisions for the people.
(6) They also stated in a Rescript that officers charged with the purchase of grain would, according to an Epistle of Hadrian, be exempt from liability where they had properly discharged the duties of their office.
(7) They also stated in a Rescript that security should not be required of the official having charge of the accounts of a municipality, as he had been selected by the Governor after investigation.
(8) They also stated in. a Rescript that a magistrate will be liable on account of his colleague, if he could have prevented him from acts of maladministration and did not do so.
(9) They also stated in a Rescript that a magistrate would be liable when the indebtedness of his city was increased during the time of his administration. But if, before he obtained his office, the city was not able to pay its debts, it seems to be just that no responsibility should attach to him.
(10) The Same in the Same Book. The Emperors Antoninus and Verus stated in a Rescript that a magistrate who, during his term of office, and for a long time afterwards, had retained any of the public money in his possession, would be obliged to refund it with the interest, unless he could allege some good reason for not doing so.
Tit. 9. Concerning decrees which should be rendered by the order of decurions.
1. Ulpianus, Opinions, Book III.
It is not in the discretion of the Governor of a province to determine the number of physicians to be appointed for each town, but this is the duty of the Order of Decurions and those who possess property therein, in order that, in cases of bodily illness, they may commit themselves and their children to the care of persons selected by themselves, and of whose probity and skill in their profession they are assured.
2. Marcianus, Public Prosecutions, Book I.
Decrees that are enacted without the lawful number of decurions being present are not valid.
3. Ulpianus, On Appeals, Book III.
It is provided by municipal law that the Order of Decurions shall not be considered to have assembled, unless two-thirds of the members are present.
4. The Same, On the Duties of the Principal Magistrate of the City.
The decrees of decurions granted for the sake of popularity should be set aside, whether they have discharged debtors, or have authorized donations.
(1) Hence if, as is customary, they have disposed of any lands, houses, or sums of money belonging to the public in this way, such a decree will be void. But if the decurions have ordered money to be paid to anyone by way of compensation, the decree will not always be of no force or effect; as, for example, where a grant has been made on account of some of the liberal arts, or for medicine, as appropriations can legally be made for this purpose.
5. Callistratus, On Judicial Inquiries, Book II.
The Divine Hadrian stated in a Rescript addressed to the people of Nicomedia that where the Order of Decurions had once issued a decree it should not be rescinded, except for some good reason; that is to say, where the annulment of the decree had reference to the public welfare.
6. Scaevola, Digest, Book I.
The following was provided by municipal law: "When anyone renders judgment outside of the council, he shall be expelled from the council, or order, and shall pay a thousand drachmas." The question arose whether he should be subjected to the penalty if he was ignorant that he had violated the law. The answer was that penalties of this kind were only intended for those who knew that they were acting illegally.
Tit. 10. Concerning public works.
1. Ulpianus, Opinions, Book II.
A certain man, having been appointed supervisor of public works, and desiring to be excused, did not succeed, but remained in office until he died. He left his heirs liable, but imposed no responsibility upon them from the time when his death occurred.
(1) A person who was already exercising the functions of a public office afterwards undertook the construction of an aqueduct. It seemed to be absurd for him to ask to be released from his former employment, when he was already charged with both; because if he had only intended to assume responsibility for one, it is more probable that he would have obtained exemption from the other, on account of that in which he was already engaged.
2. The Same, Opinions, Book III.
Anyone who, through liberality and not because of indebtedness, has devoted his income for a time to the purpose of completing public works, is not forbidden to obtain the reward of his generosity by having his name inscribed upon them.
(1) The supervisors of public works transact business with the contractors, but the State is only concerned with those appointed for that purpose. Therefore, the Governor of the province will repose confidence in the person who has charge of the work, as well as in the contractor who is liable to him.
(2) The Governor of a province should interpose his authority to prevent the name of him through whose generosity a public work has been constructed from being erased, and the names of others inscribed in its place; and also see that the evidence of similar liberalities bestowed by citizens upon their country shall not be removed.
3. Macer, On the Duties of Governor, Book II.
A private individual can construct a new work even without the authority of the Emperor, unless this is done through rivalry with another city, or may furnish material for sedition, or is a circus, a theatre, or an amphitheatre.
(1) It is stated by the Imperial Constitutions that it is not lawful for a new work to be constructed at the public expense without the authority of the Emperor.
(2) It is not lawful for any other name than that of the Emperor, or of him by whose money it was constructed, to be inscribed upon any public work.
4. Modestinus, Pandects, Book XI.
It is not lawful to inscribe even the name of the Governor upon a public work.
5. Ulpianus, On the Duties of the Principal Magistrate of a City.
When anyone bequeaths a legacy or property in trust for the construction of a public work, the interest on the same and the time when it begins to run are established by a Rescript of the Divine Pius in the following terms: "If the person leaving the legacy does not state the time when the statues or images shall be placed in position, it should be fixed by the Governor of the province; and if the heirs of the deceased do not do this within the prescribed time, they will, in six months, be liable to the payment of moderate interest, but if the said statues and images are not placed in position by that date they must pay interest at the rate of six per cent to the State. "When, however, a time was appointed, they must pay the money within that time; or, if they should allege that they have not found the statues, or cause any dispute to arise with reference to the place, they must immediately begin to pay interest at the rate of six per cent."
(1) The boundaries of public lands must not be retained by private individuals. Therefore, the Governor of the province shall see that public lands are separated from those belonging to private persons, and endeavor to increase the public revenues. If he finds that any public places or buildings are occupied by private persons, he must estimate whether they should be demanded for the benefit of the public, or whether it would be better to lease them for a sufficient rent; and he must always pursue the course which he thinks will be of the greatest advantage to the State.
6. Modestinus, Pandects, Book XI.
The Divine Marcus stated in a Rescript that the Governor of a province should consult the Emperor with reference to works which have been constructed on the walls or gates of cities, or other public property, and also where walls have been built.
7. Callistratus, On Judicial Inquiries, Book II.
The Divine Pius stated in a Rescript that where money had been bequeathed for the construction of a new work, it was better for it to be employed for the preservation of works already existing than to be expended in the construction of new ones; that is to say, if the city had enough public works, and money was not easily obtained for their repair.
(1) When anyone wishes to adorn with marble, or in any other manner a work constructed by another, and he promises to do so according to the will of the people, the Senate decreed that this could be done if he inscribed his own name upon the work, but that he should allow the name of the person who built it in the first place to remain. Where, however, private individuals expend a sum of money of their own to the embellishment of a work already constructed with the public funds, it is provided by the same Imperial Mandates that they can have their names inscribed upon the work and state the amount of money which they had contributed to it.
Tit. 11. Concerning markets.
1. Modestinus, Rules, Book III.
Where permission to hold a market has been obtained from the Emperor, and the person accorded the privilege does not make use of it for ten years, he will lose it.
2. Callistratus, Judicial Inquiries, Book III.
When anyone orders the cultivators of land and fishermen to bring provisions into a city, in order that they themselves may dispose of them, for the reason that the supply of provisions will be diminished when the farmers are called away from their work, those who bring in the merchandise must deliver it immediately after doing so, and return to their labors. Hence, Plato displayed the highest wisdom and authority who while he was teaching among the Greeks, stated that in order for a city to be prosperous, and its people to be happy, it must, in the first place, attract all such merchants as were necessary; for, in the First Book on Civil Intercourse, he said: "A city is in need of many farmers, and other laborers and artisans, as well as of those who bring in and carry away articles of commerce, for these are traders. Where, however, a farmer brings to market anything which he produced, or any other laborer does so, and he does not immediately encounter someone who desires to exchange wares with him, will it be necessary for him to remain sitting in his place in the market until he disposes of his commodities? By no means, for there are those who, seeing this, may offer their services for the disposal of the merchandise."
Tit. 12. Concerning promises.
1. Ulpianus, On the Duties of the Chief Magistrate of a City.
If anyone should promise to construct a public work, or donate money for that purpose, he cannot be sued for interest. If, however, he delays, interest will accrue, as our Emperor with his Divine Father stated in a Rescript.
(1) It must be noted that anyone who makes a promise is not always obliged to carry it into effect. Where, however, he promises in consideration of an honor already granted to him by a decree, or which is to be granted hereafter, or for some other good reason, he will be bound by his promise. But if he made the promise without any cause, he will not be liable, as is stated in many Constitutions both old and new.
(2) Likewise, when anyone makes a promise without any consideration, and begins to carry it out, he will be liable.
(3) We understand a person to begin to carry out his promise in the case of the construction of a building, where he lays the foundation, or clears the ground. Where, however, the land has been transferred to him for this purpose at his request, the better opinion is that he should be held to have begun the work. The same rule will apply if he has made preparations, or spent money in a public place.
(4) If, however, he himself did not begin the work, but promised a certain sum of money for its construction, he commences the undertaking by the payment of the money, and he will be liable just as if the work had been begun.
(5) Finally, when anyone promises columns for a public work, our Emperor, with his Divine Father, made the following statement in a Rescript: "Anyone who promises a sum of money to the State without any reason is not compelled to perfect his liberality. Where, however, you promised some columns to the people of Citium, and on this account, the work was begun at the expense of the city, or of private persons, what has been done cannot be abandoned."
(6) Our Emperor stated in a Rescript that when anyone entrusts another to complete a work, and any damage then results to it through accident, the person who constructed it will be responsible.
2. The Same, Disputations, Book I.
Where a person vows anything, he is bound by his vow, but the obligation attaches to him who makes the vow, and not to the property; for where anything is vowed and delivered, it releases the person, but the property does not become sacred.
(1) Sons who have arrived at puberty, and are their own masters, are bound by the vows of their father, for a son under paternal control or a slave cannot bind himself by a vow, without the authority of his father or his master.
(2) If anyone should vow the tenth of his property, the tenth will not cease to belong to his estate until it has been separated from it; and if the person who vowed the tenth should die before the separation takes place, his heir will be liable for the tenth in the name of the estate. For it is established that an obligation of this kind passes to the heir.
3. The Same, Disputations, Book IV.
An agreement arises from the consent of two persons, in the same manner as a contract. A promise, however, only requires the consent of the individual making the offer; and therefore it has been established that if a promise is made in consideration of some honor to be conferred, it can be collected as a debt. When, however, the work has been begun, it has been decided that the promisor will be compelled to complete it, even if he did not promise it in consideration of some honor to be conferred.
(1) If anyone who has delivered property to a city in compliance with his promise desires to reclaim it, his request should be barred; for it is perfectly just that voluntary gifts of this kind bestowed upon cities should not be revoked by merely changing one's mind. Where, however, a municipality has ceased to possess property obtained under such circumstances, an action should be granted to it.
4. Marcianus, Institutes, Book III.
If anyone should make a promise on account of loss by fire, or an earthquake, or any other damage sustained by a city, he will be liable.
5. Ulpianus, Opinions, Book I.
Answered Charidemus as follows: "Anyone who, while absent, promises by letter that something shall be done for a city, will be compelled to comply with his promise."
6. The Same, On the Duties of Proconsul, Book V.
Whenever the value of a promise is diminished on account of an heir, this can only occur where it was not made in consideration of an honor to be bestowed. Where, however, it is made in consideration of some honor, it is deemed to be a debt, and is not diminished, so far as the heir, personally, is concerned.
(1) If anyone promises a sum of money in consideration of the bestowal of an honor, and begins to pay it, Our Emperor Antoninus stated in a Rescript that he owed the entire amount just as if the work had been begun.
(2) It must be remembered that not only males, but also females, must fulfill their promises when they agree to give or do anything in consideration of honors to be conferred. This is included in the Rescript of Our Emperor and his Divine Father.
(3) If the City should require anyone who has not promised to do so to erect statues of the Emperor in some public place, he will not be compelled to obey, as is stated in a Rescript of Our Emperor and his Divine Father.
7. Paulus, On the Duties of Proconsul, Book I.
Where anyone has promised to do something for a city on account of some accident which has happened to it, the Divine Severus stated in a Rescript to Dio that even if he did not begin it, he would still be liable.
8. The Same, On the Duties of Proconsul, Book III.
The Divine Brothers made the following statement in a Rescript with reference to promises made to cities of which judges should take cognizance: "Statius Rufinus promised that he would finish a theatre in the City of Gabinia, which he already had begun. For although he had suffered misfortune, and had been relegated by the Urban Prefect for the term of three years; still he should not diminish the favor of the gift which he had voluntarily offered, as, even though he was absent, the work could be completed by a friend. If, however, he should fail to do so, the regular authorities who had the legal right to act in behalf of the city could bring suit against him in its name. The judges must examine the case as soon as possible, before Statius Rufinus went into exile, and if they should determine that the work ought to be completed by him, they shall order him to fulfil the promise made to the city, or forbid the land which he has in the territory of the City of Gabinia to be sold."
9. Modestinus, Differences, Book IV.
When anyone has made a promise to a city, in consideration of some honor to be conferred upon him, he will be liable under all circumstances for the entire amount, and his heir as well, on account of the promise which was made. This, indeed, applies to a work begun on account of a promise, and where the property of the party in question was not sufficient to comply with it, the Divine Severus and Antoninus stated in a Rescript that, in this instance, a foreign heir would be liable to a fifth part of the estate of the deceased, or his children to one-tenth. The Divine Pius, however, decided that where the donor was impoverished by the promise which he had made, and the work had been begun, a fifth part of his property would be liable.
10. The Same, Opinions, Book I.
Septicia promised a certain sum of money to her native city for the celebration of public games, under the condition that the principal should remain in her hands, and that she herself should give half of the interest as reward to the contestants, in the following terms: "I give and set apart thirty thousand aurei as principal to be devoted to the games every four years, I myself retaining the said amount in my hands, and furnishing security to the decurions to pay the interest, at the ordinary rate, on said principal of thirty thousand aurei; under the condition that the games shall be presided over by my future husband and the children who may be born to me. The said interest shall be expended in prizes to be awarded to the competitors whom the judges may decide to have excelled in each contest." I ask whether the children of Septicia would suffer any injustice if they should not preside at these contests, in accordance with the terms and the condition of the promise. Herennius Modestinus answered that in case the institution of the public games was permitted, the condition imposed by the promise must be complied with.
11. The Same, Pandects, Book IX.
When anyone promises a sum of money in consideration of obtaining a magisterial honor or a sacerdotal office, and, before he obtains the honor or enters upon the duties of the office, he dies, his heirs should not be sued for the money which he promised in consideration of the said honor or magistracy. This was provided by the Imperial Constitutions, unless, during his lifetime, the work had been begun either by the person himself, or by the city.
12. The $ame, Pandects, Book XI.
It is stated in a Rescript of the Divine Severus that we cannot erect statues to others upon public works constructed by private individuals, against the consent of the latter.
(1) The Divine Antoninus stated in a Rescript that where anyone has promised a work in order to avoid performing the duties of an office, he can be compelled to perform its duties instead of constructing the work.
13. Papirius Justus, On the Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript that those who had promised to construct public works in consideration of honors to be conferred could be compelled to construct them, but not to furnish the money for that purpose.
(1) They also stated in a Rescript that conditions imposed upon donations to be made to a city, should only be complied with when the public welfare demanded it, and that they should not be observed if they were injurious. Therefore, where a deceased person bequeathed a certain sum of money, and, in doing so, forbade the levy of a certain tax, this condition should not be observed, for what ancient custom has established is preferable.
14. Pomponius, Epistles and Various Passages, Book VI.
When anyone, in consideration of an honor to be conferred upon him, or upon someone else, promises that he will construct a public work in a certain city, he, as well as his heir, will be bound by a Constitution of the Divine Trajan to complete it. If anyone, in consideration of an honor to be conferred, should promise that he will construct some work, and begins it and dies before completing it, and leaves a foreign heir, the latter will either be compelled to complete the work, or, if he prefers to do so, he can set aside the fifth part of the estate which was left to him, for the purpose of furnishing it, and transfer it to the city in which the work has been begun. Where, however, the heir is one of the children, he will be required to contribute, not the fifth, but the tenth part of the estate. This was decided by the Divine Antoninus.
15. Ulpianus, On the Duties of the Chief Magistrate of a City.
The Divine Pius stated in a Rescript that a grandson by a daughter of the testator was also included among his children.
Tit. 13. Concerning extraordinary judicial inquiries, and where a judge is alleged to have rendered a case his own.
1. Ulpianus, On All Tribunals, Book VIII.
The Governor of a province usually decided with reference to salaries, but only concerning those to which instructors in liberal studies are entitled. We understand liberal studies to be those which the Greeks designate eleuveria, and they include such as are taught by professors of rhetoric, grammar, and geometry.
(1) For the same reason, nothing is more just than also to include professors of medicine, for the latter give their attention to the health of men, and the former to their studies; and therefore with reference to them also, the Governor of the province should expound the law arbitrarily.
(2) Governors hear midwives, who are also considered to practice medicine.
(3) Anyone understands a physician to be one who promises a cure for any part of the body, or relief from pain, as, for example, an affection of the ear, a fistula, or a toothache; provided he does not employ incantations, imprecations, or exorcisms (to make use of the ordinary term applied to charlatans), for such things as this do not properly belong to the practice of medicine, although there are persons who commend such expedients, and affirm that they have been benefited by them.
(4) Are philosophers to be included in the number of professors? 1 do not think that they are, not because philosophy is irreligious, but because those who practice it should, first of all, scorn any mercenary labor.
(5) Hence, the Governor of a province does not decide with reference to the remuneration of professors of the Civil Law, for their wisdom is considered to be something extremely sacred; but it should not be estimated by its value in money, or be dishonored where compensation is claimed by a person who ought to promise under oath to dispense instruction gratuitously. Still, contributions when tendered may honorably be accepted, which, however, would be dishonorable if demanded.
(6) Governors of provinces have also assumed the right to decide with reference to school teachers, although they are not classed as professors, as well as in the case of copyists, makers of notes, accountants, and notaries.
(7) The Governor should, by no means, arbitrarily decide with reference to the master-workmen of other arts, or artisans who are not included in the literary professions, or are not mentioned above.
(8) When assistants demand their salaries, it has been decided that the same rule applies as in the case of professors.
(9) The Governor should take cognizance of all claims against these persons, for the Divine Brothers stated in a Rescript that this could even be done against advocates.
(10) With reference to the fees of advocates, the judge should decide according to the importance of the case, the skill of the advocate, and the custom of the bar, and should make an estimate of the fees to which the advocate was entitled, provided the amount does not exceed the compensation fixed by law; for this was set forth in a Rescript of Our Emperor and his Father in the following terms: "If Julius Maternus, who has wished you to appear in his case, is ready to pay you what he agreed to do, you can only claim an amount which does not exceed that prescribed by law."
(11) We should understand advocates to be all those who devote their energies to the purpose of conducting litigation. Those, however, are not included in the number of advocates who ordinarily appear in court to conduct cases in behalf of parties who are absent.
(12) If a fee has been agreed upon with an advocate, or if anyone has made a contract with him, having reference to the conduct of a case, let us see whether he can demand it. And, indeed, the following was stated by our Emperor and his Divine Father with reference to agreements of this kind, namely: "It is the observance of a bad custom where you exact from your client a promise for the payment of money for conducting his case. It is the law that if, while the case is pending, an agreement is made for future remuneration it will be void; but if it is made after the case has been tried, the sum promised as a fee can be collected up to a reasonable amount, even though the agreement was made with reference to what might be recovered, provided what has been paid shall be reckoned with what is due, and the entire amount does not exceed the legal fee." The proper fee is understood to be no more than a hundred aurei in any one case.
(13) The Divine Severus prohibited a fee from being recovered from the heirs of an advocate after his death, because it was not his fault that he did not conduct the suit.
(14) It is also the duty of a Governor or a Praetor to take cognizance of the claims of nurses for the support of children to which they are entitled, when brought before their magistrates. Such claims, however, should only be considered where infants are nourished by the breast, but when this is not the case, neither the Praetor nor the Governor will have jurisdiction.
(15) If all these things should be demanded before the Governors of provinces, let us see whether they can have jurisdiction of reciprocal claims. I think that they should be permitted to do so.
2. The Same, Opinions, Book I.
It has been decided that the Governor of a province has jurisdiction of disputes arising with reference to the use of water distributed by new conduits, constructed contrary to law; as well as of those relating to horses possessed by persons who know that they belong to others, as well as to their increase; and to injuries caused by parties, placed in possession of the land of others, when the said land should be divided among several individuals; provided this has been done by the authority of someone who had no right to order it; so that the Governor may render his decision in these cases according to justice and his right of jurisdiction, and place matters in a suitable condition.
3. The Same, Opinions, Book V.
When a physician, who has been entrusted with the treatment of anyone's eyes, administers drugs which may cause him to lose his eyesight, in order by doing so to force him to sell him his property, while he is ill, contrary to good faith, the Governor of the province must punish the unlawful act, and order the property to be restored.
4. Paulus, On.Plautius, Book IV.
The Divine Antoninus Pius stated in a Rescript that persons learned in the law, who demanded their fees, could collect them.
5. Callistratus, On Judicial Inquiries, Book I.
The number of judicial inquiries is derived from various sources, and cannot easily be divided into different kinds, unless this is done cursorily. Hence the number of judicial inquiries is generally divided into four kinds; for they usually have reference to the administration of offices or employments; or to disputes concerning pecuniary matters ; or inquiry is made concerning someone's reputation; or a capital crime is investigated.
(1) Reputation is the condition of unimpaired dignity approved by law and custom, which is either diminished or destroyed by legal authority on account of some offence which we have committed.
(2) Reputation is impaired whenever we, while retaining our liberty, are punished by a penalty affecting our status; as, for instance, when anyone is relegated or dismissed from his order; or when he is forbidden to discharge the duties of a public office; or when a plebeian is whipped, or sentenced to the public works; or when anyone is in such a condition as to be considered infamous under the terms of the Perpetual Edict.
(3) Reputation is entirely lost when a great change of civil condition takes place, that is to say, when liberty is forfeited; for example, where anyone is prohibited the use of water and fire, which results when a person is deported, or when a plebeian is condemned to labor connected with the mines, or to the mines; for there is no difference between these two sentences, nor are the penalty of labor connected with the mines and sentence to the mines dissimilar, except that in the former the penalty of civil death is not inflicted, but in the second, the offender is liable to it.
6. Gaius, On Diurnal Occurrences or Golden Matters, Book III.
When a judge makes case his own, he is not, properly speaking, guilty of a criminal offence; but, for the reason that he is not bound by a contract, and certainly can be understood to be, to some extent, to blame, although this may have occurred through ignorance, he is considered to be liable to an action in faetum, as having committed an unlawful act, and he must submit to any penalty which may appear just to the court having jurisdiction of the case.
Tit. 14. Concerning brokers.
1. Ulpianus, On Sabinus, Book XLII.
Brokers have a right to demand their commissions.
2. The Same, On the Edict, Book XXXI.
If the services of a broker are employed for the purpose of making a note, as many persons are accustomed to do, let us see whether he will be liable as a mandator. I do not think that he will be liable, for although he may have praised the person for whom he acts, still, by doing so, he has reference rather to the debt to be contracted than to an act in the capacity of mandator. I hold that the same rule will be applicable, even if he has received something by way of compensation, and that an action on hiring and leasing will not lie. It is clear that if he deceives the creditor by means of fraud and cunning, he will be liable to an action on the ground of fraud.
3. The Same, On All Tribunals, Book VIII.
Governors are accustomed to take cognizance of the cases of brokers, and although it is considered a degrading occupation, still, in order to regulate the amount of their commissions and the business in which they are engaged, they, to some extent, supervise their calling. The Greeks designate their compensation by the term the "fee of an intermediary," and it can easily be collected by them where, for instance, anyone acts as an agent for the purpose of contracting a bond of friendship, or to obtain an assistant for a judge, or anything else of this kind. For such occupations are pursued by certain men in large cities. The term "broker" applies to those who give their services and make themselves useful by negotiating purchases, sales, commercial matters, and lawful contracts in a way which is not objectionable.
Tit. 15. Concerning taxes.
1. Ulpianus, On Taxes, Book I.
It should be remembered that there are certain colonies subject to the Italian Law, as, for example, the magnificent colony of Tyre, in Phoenician Syria (where I was born), the most noble of all, most ancient in point of time, warlike, and most constant in observance of the treaties which it made with the Romans. The Divine Severus and Our Emperor conferred upon it the privileges of an Italian city, on account of the extraordinary and distinguished fidelity which it always manifested in its intercourse with the Roman government.
(1) The colony of Berytus, in the same Province, through the favor of Augustus, bears the title of an Imperial colony (as the Divine Hadrian stated in a certain Address), and it also is subject to the Italian Law.
(2) The City of Heliopolis also received the title of an Italian colony from the Divine Severus, on account of services rendered during the Civil War.
(3) There is also the colony of Laodicea, in Caele Syria, to which also the Divine Severus granted the Italian Law on account of its services in the Civil War. The colony of Ptolomais, which is situated between Phoenicia and Palestine, has nothing but the name of a colony.
(4) Our Emperor bestowed upon Emessa, a city of Phoenicia, the title and the rights of an Italian colony.
(5) The city of Palmyra, situated in the Province of Phoenicia, and adjoining barbarous peoples and nations, enjoys the same right.
(6) In Palestine there are two colonies, those of Caesarea and Aelia Capitolina; but neither of these enjoy Italian privileges.
(7) The Divine Severus also conferred the title of Italian colony upon the city of Sebastena.
(8) The privileges of an Italian city were also conferred by the Divine Trajan upon the colony of Gyrene.
(9) The city of Zarmizegethusa, together with the towns of Napo, Apulia, and Padua also enjoy the same privileges bestowed by the Divine Severus.
(10) In Bithynia is the colony of Apameaa, and in Pontus, that of Sinope.
(11) The colonies of Seleucia and Trajanopolis are situated in Cilicia.
2. The Same, On Sabinus, Book XXVIII.
When there is any irregularity in the collection of taxes, this can be remedied by a new statement of the party interested.
3. The Same, On Taxes, Book II.
In making the assessment the ages of persons must be given, because in certain localities age prevents it; as, for instance, in Syria, males over fourteen, and females over twelve are liable to personal taxation until they are sixty-five years old. Age also must be taken into consideration at the time that the tax is imposed.
(1) It was very properly stated in a Rescript of Our Emperor, addressed to Pelignianus, that property to which exemption had been granted was not liable to taxation; because when such exemption is granted to persons it is extinguished at their death, but where it is granted to property, it is never extinguished.
4. The Same, On Taxes, Book III.
It is provided by the law of taxation that real property must be declared in such a way that the name of each tract shall be mentioned, and in what town or district it is situated; the names of the two nearest neighbors must be given, and how much land has been tilled or sowed in the last three years; how many each tract contains; the number of vines in a vineyard; the number of jugera in an olive orchard, as well as the number of trees; where there are meadows, the quantity of hay cut from them within the last ten years, and the number of jugera they contain, as well as the number devoted to pasturage; and the same rule is applicable to timber which has been cut. He who makes such a return must give an estimate of everything.
(1) The tax assessor must be as just as is consistent with his duty in relieving anyone who, for some reason or other, has not been able to enjoy a certain part of his property which is recorded in the Public Registers. Therefore, where a part of his land has been swallowed up by an earthquake, he should be relieved from taxation upon it by the assessor. If his vines have died, or his trees have dried up, it is unjust that, so far as they are concerned, he should be included among persons liable to taxation. If, however, he has cut down his trees and vines, this cannot benefit him in any respect when the tax had been assessed at the time; unless he gives a satisfactory reason to the assessor for having cut them down.
(2) He who has land in another country must declare it in the country in which it is situated, for he should pay the tax in the territory where he holds possession.
(3) Although the benefit of immunity from taxation granted to certain persons is extinguished with them; still, generally speaking, where immunity is granted in this way to places, or to cities, it is transmitted to their successors.
(4) If I, being in possession of a tract of land which belongs to another, declare it for taxation, and the owner of it does not, it is decided that he will still be entitled to an action to recover it.
(5) In making returns of slaves for taxation, it must be observed that their nationality, ages, services, and trades must be specifically stated.
(6) The owner of any lakes, fishponds, or reservoirs must return the same to the assessor.
(7) Where there are any salt-pits on the land, they also must be returned for taxation.
(8) If anyone does not make a return for a tenant or a farmer on his land, he will be liable for his taxes.
(9) Any slaves or animals which have been born, or any property which has been obtained immediately after the return was made for taxation, or which subsequently has been acquired, must also be declared.
(10) When anyone requests permission to correct his return, and, after he has obtained consent, ascertains that he should not have made the request, because the matter does not require correction, it has frequently been stated in Rescripts that he who has asked permission to correct his return shall not be at all prejudiced by having done so.
5. Papinianus, Opinions, Book XIX.
Where one of several possessors of a tract of land is sued for taxes, and, for the purpose of expediting matters, pays what is due, rights of action are assigned by the Treasury in favor of him who was sued against the others who also had possession, in order that all of them may pay the amount of the tax in proportion to their respective interests in the land. These rights of action are not uselessly granted, even though the Treasury may have recovered its money, because it is understood to have received the amount in the names of those who owned the property.
(1) Persons who have transferred land under the terms of a trust, where no account was rendered of the taxes, have, according to an Epistle of the Divine Pius Antoninus, a right of action against the beneficiary to compel reimbursement of the taxes paid.
(2) Where a tax imposed upon the land is not paid when it is due, the land can be sold by the right of pledge, in order to collect the tax; and if security is offered to obtain delay, it shall not be accepted; nor shall the legatee be heard if he objects on the ground that taxes for the past time remain unpaid, because the heir, as well as the person ...
6. Celsus, Digest, Book XXV.
The Colony of Philippi enjoys the privileges of an Italian province.
7. Gaius, On the Lex Julia et Papia, Book VI.
The following cities enjoy the privileges of those of Italy, namely Troy, Berytus, and Dyrrachium.
8. Paulus, On Taxation, Book II.
In Lusitania, the cities of Pax-Julia and Merida possess the privileges of those of Italy, Valencia, and Burgos also enjoy the same exemption.
(1) Lyons, and Vienna in Narbonnese Gaul, also have the privileges of Italian cities.
(2) In lower Germany, the people of Cologne enjoy the same rights.
(3) Laodicea in Syria, and Berytus in Phoenicia, together with the territory under their jurisdiction, also have the privileges of Italian cities.
(4) The same privileges were conferred by the Divine Severus and Antoninus upon the city of Tyre.
(5) The Divine Antoninus exempted the people of Antioch from the payment of taxes.
(6) Our Emperor Antoninus constituted the city of Emesa a colony entitled to the privileges of Italy.
(7) The Divine Vespasian constituted the people of Caesarea colonists, without conferring upon them the privileges of Italy, but released them from personal taxation. The Divine Titus, however, decided that their soil should also be exempt from taxation, for it was considered that they resembled the inhabitants of Aelia Capitolina.
(8) In the Province of Macedonia, the inhabitants of Dyrrachium, Cassandra, Philippi, Dien, and Stone are entitled to the privileges of Italy.
(9) In the Province of Asia, the two cities of Troy and Paros enjoy Italian privileges.
(10) In Pisidia, the colony of Antioch enjoys the same rights.
(11) In Africa, Carthage, Utica, and Leptis-Magna were granted the privileges of the cities of Italy by the Divine Severus and Antoninus.
Tit. 16. Concerning the signification of terms.
1. Ulpianus, On the Edict, Book I.
The following words, "If anyone," include males as well as females.
2. Paulus, On the Edict, Book I.
The term "city" includes all that is surrounded by its walls; but the city of Rome is terminated by its buildings, which extend still farther.
(1) The greater part of the day includes the first, not the last, seven hours.
3. Ulpianus, On the Edict, Book II.
When twenty thousand paces are traversed each day in making a journey, this must be understood to mean that, if, after this enumeration, less than twenty thousand remain, they are considered an entire day of travel; as, for example, where a person travels twenty-one thousand paces, this is counted as two days' journey. This enumeration, however, should only be made where nothing has been agreed upon as to what constitutes a day's journey.
(1) Anyone who dies in the hands of the enemy is not held to have left an estate, because he dies a slave.
4. Paulus, On the Edict, Book I.
Proculus says that by the term "obligation" property is meant.
5. The Same, On the Edict, Book II.
The word "property" has a broader signification than that of "money," because it also includes things which are not embraced in our patrimony; and the term "money" only has reference to what is included in a patrimonial estate.
(1) Labeo says that by the terms "hiring and leasing of services" only those services are meant which are called by the Greeks apotelesma, and not ergon, that is to say, something which has been perfected by labor performed.
6. Ulpianus, On the Edict, Book III.
The terms "claim" and "property" refer to all contracts and obligations.
(1) The expression, "According to the laws," must be understood to mean the spirit as well as the letter of the law.
7. Paulus, On the Edict, Book II.
By the word "engagement" is meant not only what a person agrees to after interrogation, but every stipulation and promise.
8. The Same, On the Edict, Book III.
The clause, "It will be necessary," applies to the present, as well as to the future time.
(1) Exception is not included in the term action.
9. Ulpianus, On the Edict, Book V.
Marcellus, in a note on Julianus, says that anything which has been torn, broken, or taken by force is included in the term "destroyed."
10. The Same, On the Edict, Book VI.
It is established that creditors should be understood to be those to whom something is due and collectible by any action or prosecution, or under the Civil Law, without the power of preventing its recovery either by pleading a perpetual exception, or by taking advantage of Praetorian Law, or of any extraordinary proceeding; whether the indebtedness is absolute, or is to be discharged within a certain time, or under some condition. When the debt is due under natural law, they do not, properly speaking, occupy the place of creditors. If, however, the claim should not be based upon money lent, but upon a contract, they are still understood to be creditors.
11. Gaius, On the Provincial Edict, Book I.
By the appellation of "creditors," not only those are understood who have loaned money, but all to whom anything is due for any reason whatsoever.
12. Ulpianus, On the Edict, Book VI.
For instance, where anything is due to a person on account of a purchase, a lease, or any other transaction, or even because of a crime, it seems to me that he can be held to be a creditor. When, however, the indebtedness arises from some public proceeding, he cannot be said to occupy the place of a creditor before issue has been joined, but he can afterwards.
(1) He who is in default pays less than he owes, for less is paid when the time of settlement is deferred.
13. The Same, On the Edict, Book VII.
A marriageable virgin is also included in the term "woman."
(1) Property is considered to have been lost (according to the opinion of Sabinus, which Pedius adopts), even if the substance of it remains, though the form is changed. Therefore, if property is returned spoiled or altered, it is considered to have been lost; as the workmanship is generally of more value than the article itself.
(2) Property which has been lost is considered to cease to be in that condition when it comes under our control in such a way that we cannot again lose possession of it.
(3) An example of this is where anything has long since been taken from us by theft. Property is also considered lost when it is no longer in existence.
14. Paulus, On the Edict, Book VII.
Labeo and Sabinus think that if clothing is returned torn, or any article is returned spoiled, as, for instance, a cup with the edge crushed, or a tablet with a painting erased, the property is said to be lost; because the value of such articles does not consist of the materials of which they are composed, but in the skill expended upon them. Likewise, if an owner ignorantly purchases property which has been stolen from him, it is very properly said to have been lost, even if he should afterwards ascertain the fact; because where the value of anything is lost, the thing itself is considered to be lost.
(1) A person is considered to have lost something when he cannot bring an action against anyone to recover it.
15. Ulpianus, On the Edict, Book X.
Property belonging to a city is improperly styled public, for only those things are public which belong to the Roman people.
16. Gaius, On the Provincial Edict, Book III.
We style him publican who leases the collection of the taxes of the Roman people. The term "public" has in many instances reference to the Roman people, for cities are in this respect considered as private individuals.
17. Ulpianus, On the Edict, Book X.
We include among public property not only such as is sacred and religious, and intended for the use of the people, but also that of towns, and the peculia of slaves belonging to the latter are undoubtedly considered public property.
(1) We must understand public taxes to mean those which the Treasury levies on certain articles, among which are the tax on merchandise in a harbor, or goods which are sold, as well as those on salt-pits, mines, and places where pitch is produced.
18. Paulus, On the Edict, Book IX.
The word munus is defined in three different ways: first, as a donation, and hence are derived the terms to bestow, or send gifts; second, a position which, when anyone is released from it, affords exemption from military service and civil employment, whence is derived the term "immunity;" third, an office, whence are derived military occupations, and certain soldiers are designated munifices. For this reason persons who assume civil employments are called municipal officials.
19. Ulpianus, On the Edict, Book XI.
Labeo, in the First Book On the Urban Praetor, defines the terms "to act," "to transact," and "to contract," as follows. He says that the word act has a general application, and refers to anything which is done verbally, or with reference to the thing itself; for example, in stipulation or enumeration. A contract, however, has a broader meaning than that of an obligation, which the Greeks style an agreement, as, for instance, purchase, sale, hiring, leasing, partnership. The term "to transact" signifies to do something without words.
20. The Same, On the Edict, Book XII.
The expressions, "they contracted," and "they transacted," do not refer to the right of making a will.
21. Paulus, On the Edict, Book XI.
When the Emperor grants the possession of property, he is also considered to grant any obligations attaching to it.
22. Gaius, On the Provincial Edict, Book IV.
There is more included in the term "restitution" than in that of production; for to produce means to bring forward corporeal property, and to restore is to place someone in possession, and surrender the profits. Many other things are also included in the term "restitution."
23. Ulpianus, On the Edict, Book XIV.
Under the term "property" are also included legal action and various rights.
24. Gaius, On the Provincial Edict, Book VI.
The term "inheritance" means nothing else than the right to succeed to everything which the deceased possessed.
25. Paulus, On the Edict, Book XXI.
We very properly say that a tract of land entirely belongs to us, even when another is entitled to the usufruct of the same; for the reason that the usufruct does not constitute a part of the ownership, but of a servitude, as, for instance, a right of way, or a right of passage. Nor is it incorrect to say that something is entirely mine, when no part of it can be said to belong to another. This was the opinion of Julianus, and it is correct.
(1) Quintus Mucius states that by the term "part" an undivided share in something is meant; for after property has been divided not a part, but all of it is ours. Servius very properly holds that the term "part" is applicable to both the above-mentioned cases.
26. Ulpianus, On the Edict, Book XVI.
Scaevola, in the Eleventh Book of Questions, says that the child of a slave who has been stolen is not a part of the stolen property.
27. The Same, On the Edict, Book XVII.
A field is land on which there is no building.
(1) The term "stipend" is derived from stips, that is to say, a copper coin of little value. Pomponius says that the word "tribute" is also derived from the same source; and, in fact, tribute comes from intributio; or because it is paid to soldiers.
28. Paulus, On the Edict, Book XXI.
The term "alienation" also includes usucaption, for it is difficult to understand that he who permits property to be acquired by usucaption should not be considered to have alienated it. He, also, is said to alienate who loses servitudes by failing to make use of them. Anyone who does not avail himself of the opportunity of acquiring property is not understood to alienate it; as, for instance, one who abandons an estate, or fails to make a choice within a certain prescribed time.
(1) A proposition which does not include either a conjunctive or a disjunctive particle should be determined according to the intention of the party making it.
29. The Same, On the Edict, Book VI.
Labeo says that a conjunction should sometimes be understood as a disjunctive particle; as, for instance, in the following stipulation, "For me and my heir," "You and your heir."
30. Gaius, On the Provincial Edict, Book VII.
Some authorities hold that timber fit for cutting is such as is set apart for that purpose. Servius says that this also applies to trees which have once been cut, but have grown again from sprouts or roots.
(1) Ungathered stalks are heads of grain thrown down during the reaping, and not afterwards gathered, which peasants collect after the harvest has been removed.
(2) New ground is that which, after having been cultivated, is left for a year, and which the Greeks style neasin.
(3) "Virgin soil" is that on which the owner has not yet placed cattle for the purpose of pasturage.
(4) "Fallen acorns" are such as have themselves dropped from the tree.
(5) "Forest pasture" is that destined for the grazing of cattle.
31. Ulpianus, On the Edict, Book XVIII.
A "meadow" is land for whose harvest nothing is required but a sickle; and it is so called because it is already prepared for the crop to be gathered.
32. Paulus, On the Edict, Book XXIV.
Less is understood to have been paid than is due, even when nothing at all has been paid.
33. Ulpianus, On the Edict, Book XXI.
The term "publicly" means in the presence of several persons.
34. Paulus, On the Edict, Book XXIV.
The recovery of property is also included in the term "action."
35. The Same, On the Edict, Book XVII.
He is understood to make restitution who surrenders the property in dispute to the plaintiff which the latter would have obtained if it had been delivered to him at the time judgment was rendered; that is to say, both the right of usucaption, and the profits.
36. Ulpianus, On the Edict, Book XXIII.
The term "litigation" signifies every kind of action, whether real or personal.
37. Paulus, On the Edict, Book XXVI.
The expression, "is necessary," has no reference to the authority of the judge, who can render a decision for a larger or a smaller amount, but relates to the truth.
38. Ulpianus, On the Edict, Book XXV.
Labeo defines the term "prodigy" to mean everything which is born or produced contrary to nature. There are, however, two kinds of prodigies; one where something is born contrary to nature, for instance with three hands or feet, or with some other part of the body deformed; another, where something is considered to be unusual, and which the Greeks designate fantasmata, that is to say, apparitions.
39. Paulus, On the Edict, Book LIII.
The word "signed" signifies what is subscribed by anyone, for the ancients were accustomed to use this word instead of signature.
(1) The property of anyone is understood to be what remains after his debts are paid.
(2) To call someone to witness is to notify a person who is absent.
(3) An uncertain possessor is one of whom we have no knowledge.
40. Ulpianus, Book LVI.
An adjuration is the serving of notice in the presence of witnesses.
(1) The term "slave" likewise applies to females.
(2) Children are also included in the expression, "body of slaves."
(3) A single slave is not included under the term "familia"; nor indeed do two slaves constitute a familia.
41. Gaius, On the Provincial Edict, Book XXI.
The word "arms" not only means shields, swords, and helmets, but also clubs and stones.
42. Ulpianus, On the Edict, Book LVII.
The terms "disgrace" and "infamy" have the same signification. Some things are disgraceful from their very nature, others are made so by the Civil Law, and, as it were, by national custom; for example, theft and adultery are by their nature dishonorable. To be condemned to administer a guardianship is not disgraceful by nature, but is so by the custom of the State, for that is not of itself disgraceful which may happen to a man of good repute.
43. The Same, On the Edict, Book LVIII.
Food, drink, the care of the body, and everything necessary to human life is embraced in the term "maintenance." Labeo says that maintenance also includes clothing.
44. Gaius, On the Provincial Edict, Book XXII.
Everything else which we make use of for the protection and care of our bodies is included in this term.
45. Ulpianus, On the Edict, Book LVIII.
Labeo says that under the term "covering," all clothing which anyone puts on is included; for there is no doubt that the term applies to cloaks and every kind of garments. Therefore, when we include clothing under the term "maintenance," we do not mean bedclothes used at night, but all articles intended for dress.
46. The Same, On the Edict, Book LIX.
The words "decreed" and "decided" have the same meaning, for we are accustomed to make use of them indiscriminately, when we allude to judges who have the right of jurisdiction.
(1) We should understand the expression, "mother of a family," to signify one who does not live unchastely, for the morals of the mother of a family distinguish and separate her from other women. Hence, it makes no difference whether she is married or a widow, freeborn or emancipated, as neither marriage nor birth, but good morals constitute the mother of a family.
47. Paulus, On the Edict, Book LVI.
The term "release" has the same force as payment.
48. Gaius, On the Edict of the Urban Praetor, Title, "Those who can neither be Summoned nor Brought into Court."
We do not understand a person to be released who, although his chains have been removed, is still held by the hands; just as we do not understand anyone to be released who is retained in custody without chains.
49. Ulpianus, On the Edict, Book LIX.
The term "property" has reference either to the natural or the Civil Law. Property naturally acquired is understood to be that which renders persons happy; for to make happy is to benefit. It must, however, be remembered that among our property should be reckoned not only that which is our own, but also any possessed by us in good faith, or which has reference to the surface and the soil. Whatever is acquired by legal actions, claims, and pursuit, is also included under the term "property," for all these things are considered as part of our possessions.
50. The Same, On the Edict, Book LXI.
The term "daughter-in-law" applies also to the wife of a grandson, and extends even farther.
51. Gaius, On the Provincial Edict, Book XXIII.
Under the term "parent" is not only included the father, but also the grandfather, the great-grandfather, and others in the male ascending line, as well as the mother, the grandmother, and the great-grandmother.
52. Ulpianus, On the Edict, Book LXI.
Patroness is also included under the term "patron."
53. Paulus, On the Edict, Book LIX.
It has often been stated that a conjunctive particle can be understood as a disjunctive one, and vice versa, and occasionally something which is separate from them both; for when the ancients said "agnates and cognates" this was understood to be disjunctive. When, however, it is stated, "His money or guardianship," it is evident that a guardian cannot be appointed without control of the property; and when we say, "Which I have given or donated," we include both. When, however, we say, "What he must either give or do," it is sufficient to prove one of these two things. When the Praetor says: "If he redeems the gift, the present, and the services due from him," and all these things have been prescribed, it is certain that all of them should be redeemed. Therefore, these particles are considered as conjunctive. Where some of these things are imposed, others cannot be exacted.
(1) Likewise, it may be doubted in what way the following words, "By aid and advice," should be understood; that is, whether they ought to be taken conjunctively or separately. The better opinion is, as Labeo says, that they should be understood separately, for the reason that it is one thing where anyone furnishes his aid in a theft, and another where he only gives his advice; and, indeed, according to the authority of the ancient jurists, the conclusion is arrived at that no one is considered to have aided in doing anything unless he gave bad advice; nor to have given bad advice, unless the illegal act was the result of it.
54. Ulpianus, On the Edict, Book LXII.
Conditional creditors are those who are not yet entitled to an action, but who will be entitled to it; or such as expect that an action will lie in their favor.
55. Paulus, On the Abridgment of the Edict, Book XVI.
A creditor is one who cannot be barred by a perpetual exception. He, however, who has reason to apprehend the pleading of a temporary exception, resembles a conditional creditor.
56. Ulpianus, On the Edict, Book LXII.
To scrutinize documents is to re-read and review them; to balance accounts is to compare the receipts and disbursements.
(1) Under the term "children" are included not only those who are under paternal control, but also all those who are their own masters, whether they are of the male or female sex, or descendants from females.
57. Paulus, On the Edict, Book LIX.
Those are called managers who have particular supervision of affairs, and are, more than others, required to manifest diligence and solicitude with reference to the business of which they have charge. And, indeed, the term "magistrate" is derived from master, and also instructors in any kind of learning are so called from the fact that they admonish or explain.
(1) Anyone who has received security is still considered to retain the right of recovery.
58. Gaius, On the Provincial Edict, Book XXIV.
Although there seems to be some subtle distinction between the transaction and the conduct of business, this, however, is incorrect, as no such distinction exists.
(1) We consider paternal freedmen to be properly called our freedmen; but we do not correctly designate the children of such freedmen our own freedmen.
59. Ulpianus, On the Edict, Book LXVIII.
An enclosed place into which merchandise is taken, and afterwards exported, is called a harbor. A place of this kind is not only enclosed, but also fortified: and therefore it is styled a by-way (angi-portus).
60. The Same, On the Edict, Book LXIX.
A site is not a tract of land, but a certain part of one. A tract of land includes everything which belongs to it, and we generally understand a site to mean land on which there is no building. It is, however, only our opinion and intention which distinguishes a site from a tract, for a small site can be called a tract, if we have the intention of considering it as such. It is not the size which makes the distinction between a site and a tract, but our intention, and any portion of a tract of land can be styled a tract, if we wish to call it such, and a tract can be considered a site, for if we add it to another body of land it will become a part of the latter.
(1) Labeo says that the term "site" not only applies to land in the country, but also to that in a city.
(2} A tract of land, however, has its limits, but those of a site cannot be ascertained until they have been determined and defined.
61. Paulus, On the Edict, Book LXV.
By the term "security" sometimes a mere promise is meant, by which the person who is entitled to protection remains satisfied.
62. Gaius, On the Provincial Edict, Book XXVI.
By the term "beam," according to the Law of the Twelve Tables, every kind of material of which buildings are constructed is meant.
63. Ulpianus, On the Edict, Book LXXI.
"In your possession" has a broader meaning than "In your hands," for what you have in your hands is whatever is held by you under any title whatsoever, but what is in your possession is, to a certain extent, retained by you as your own.
64. Paulus, On the Edict, Book LXVII.
A person who is intestate is not only one who did not make any will, but also one whose estate was not entered upon under the will.
65. Ulpianus, On the Edict, Book LXXVI.
The term "heir" not only has reference to the next heir, but to all others; for the heir of an heir, and so on in succession, is included in this appellation.
66. The Same, On the Edict, Book LXXIV.
The word "merchandise" only applies to movable property.
67. The Same, On the Edict, Book LXXVI.
Anything which still remains under the control of the vendor is not correctly held to have been alienated, but it still may properly be said to have been sold.
(1) The term "donation," generally speaking, is understood to include every kind of a gift, whether it was made mortis causa or not.
68. The Same, On the Edict, Book LXXVII.
The following clause, "To be done according to the judgment of Lucius Titius," refers to a person who has a right to act, and does not apply to a slave.
69. The Same, On the Edict, Book LXXVIII.
The following words, "There is not, and shall not be any fraud in this transaction," generally include every species of fraud which can be committed in the matter with reference to which the stipulation was entered into.
70. Paulus, On the Edict, Book LXXIII.
It must be remembered that, by the term "heir," several successors are understood. For the term "heir" only refers to the next heir in very few instances, for example, in a pupillary substitution made as follows, "Whoever shall be my heir, let him also be my son's heir," for in this case, the heir of the heir is not included, because he is uncertain. Likewise, according to the Lex Aelia Sentia, the son who is the next heir can accuse a paternal freedman of being ungrateful, but he could not do so if he was the heir of the heir. The same rule applies to the right to exact services from a freedman, as a son who is the heir can demand them, but not if he has been removed from the succession.
(1) The following words, "The person to whom the property belongs," are understood to refer to an heir who has succeeded to the entire ownership of the estate, either under the Civil or the Praetorian Law.
71. Ulpianus, On the Edict, Book LXX.
It is one thing to take property, and another to receive it. Anything is taken when it is acquired as the result of some act which has been performed. To receive something is for a person to obtain it, but not in order to hold it; and, therefore, no one is considered to take an article which he must surrender; as the expression "comes into his hands" is correctly said of property which will remain in his possession.
(1) The following words, "To legally indemnify me with reference to these matters," mean that the stipulator shall not be liable for any risk or damage resulting from the transaction.
72. Paulus, On the Edict, Book LXXVI.
A part is also included in the term "property."
73. Ulpianus, On the Edict, Book LXXX.
The following clause, "Do you promise to restore the property in good condition?" when inserted in a stipulation, includes the crops. The words, "in good condition," mean according to the judgment of reliable citizens.
74. Paulus, On the Edict of the Curule Aediles, Book II.
A signet ring is not embraced in the term "ornament."
75. The Same, On the Edict, Book L.
He is held to make restitution who restores that which the plaintiff would have had if no controversy had arisen with reference to it.
76. The Same, On the Edict, Book LI.
He is understood to have paid who has made an exchange or a set-off instead of giving the purchase money.
77. The Same, On the Edict, Book XLIX.
By the term "income" is understood not only the crop of grain and vegetables, but also whatever is obtained from vines, timber, chalk-pits, and quarries. Julianus says it is not true that by the term "income" is meant whatever a man uses for food; as the flesh of animals, birds or wild beasts, and the fruits of trees cannot be so-called income. Grain includes everything which is contained in ears, as Gallus has properly defined it. Beans, and other pulse, can more properly be called income, for the reason that they are not contained in ears, but in pods, which Servius, in his Treatise on Alfenus, thinks should be classed under the head of grain.
78. Paulus, On Plautius, Book III.
The term "possession" sometimes means property, as has been held in the case of one who bequeathed his possession.
79. The Same, On Plautius, Book VI.
Necessary expenses are those which must be incurred to prevent the destruction or deterioration of property.
(1) Fulcinius says that useful expenses are any that improve the condition of a dowry, and do not permit the deterioration of anything from which an income is obtained by the wife; as, for instance, by making a larger plantation of trees than was necessary. Likewise, a husband cannot provide for the instruction of slaves if, by so doing, the woman, being ignorant of the fact, or unwilling, may be put to expense, and be forced to lose either her land or her slaves. We generally include in expenses of this kind those incurred by a husband for the construction of a mill or a warehouse, to be added to the dotal property.
(2) Expenses incurred for pleasure are such as only adorn property, and do not increase its income; for example shrubbery, fountains, ornamented stucco-work, hangings, and paintings.
80. The Same, On Plautius, Book IX.
Generally speaking, according to the spirit of the Law of the Twelve Tables, in the repetition of legacies by a testator in a substitution, the grants of freedom are also included.
81. The Same, On Plautius, Book X.
When the Praetor says, "The work must be restored to its former condition," this means that the plaintiff can also recover any damages which he may have sustained; for under the term "restitution" all the interest of the plaintiff is included.
82. The Same, On Plautius, Book XIV.
The expression, "In addition," has even reference to one to whom nothing is due; as, on the other hand, is the case where anyone is considered to have paid less than he owed, when he has not paid anything, even if nothing could be collected from him.
83. Javolenus, On Plautius, Book V.
That can not correctly be called "property" which is productive of more inconvenience than benefit.
84. Paulus, On Vitellius, Book II.
By the term "sons" we understand all children to be meant.
85. Marcellus, Digest, Book I.
Neratius Priscus held that three constituted a corporate body; and this rule should be followed.
86. Celsus, Digest, Book V.
What else is meant by the rights attaching to land and its nature than the enjoyment of its fertility, its salubrity, and its extent?
87. Marcellus, Digest, Book XII.
Alfenus says the City of Rome includes all that is encircled by its walls; but Rome also consists of all the buildings which adjoin it, for it should not be considered to be merely bounded by its walls, for when we say that we are going to Rome, we do so according to the ordinary acceptation of these words, even if we live outside of the city itself.
88. Celsus, Digest, Book XVIII.
A man leaves only as much money as his estate is worth. Hence we say that the estate of anyone is worth a hundred aurei if he had that amount in land, or other property. The same rule does not apply to the devise of land belonging to another, although it may be bought with the money of the estate; for anyone who has only money is not considered to have what can be purchased with it.
89. Pomponius, On Sabinus, Book VI.
Oxen are rather classed as cattle than as beasts of burden.
(1) By the expression, "When she shall be married," the first nuptials are meant.
(2) There is a great deal of difference between paying a balance and rendering an account; as he who has been ordered to render an account is not obliged to pay the balance in his hands. A banker is considered to render his account, even if he does not pay any balance remaining in his hands.
90. Ulpianus, On Sabinus, Book XXVII.
He who delivers a house in the best condition possible does not mention that a servitude is due to it; but only that the house is free, and that no servitude is imposed upon it.
91. Paulus, Trusts, Book II.
In the terms, "My property," and "Your property," it must be said that rights of action are also included.
92. The Same, Questions, Book VII.
The "next of kin" is one whom no one precedes, and the most remote relative is one whom no one follows.
93. Celsus, Digest, Book XIX.
By the words "movable property" and "personal property" are meant the same thing, unless it appears that the deceased, by using the expression "movable" property, only intended to refer to animals because they moved themselves. This is correct.
94. The Same, Digest, Book XX.
The verb "to restore," although it means to return, has, nevertheless, itself the signification of "to give."
95. Marcellus, Digest, Book XIV.
The term "balance" means everything that remains due.
96. Celsus, Digest, Book XXV.
The shore of the sea is reckoned from the point reached by the greatest flow. It is said that Marcus Tullius was the first to establish this rule, when he served as arbiter in a certain case.
(1) When we say that land belongs to several persons, this does not merely mean that they hold it in common, but that part of it may be separately held by each one of them.
97. The Same, Digest, Book XXXII.
When we stipulate for "As much money as may come into your hands from the estate of Titius," we mean that the property itself which comes into your hands, and not its value, should be taken into consideration.
98. The Same, Digest, Book XXXIX.
When anyone is born on the kalends of a bissextile year, it makes no difference whether his birth takes place on the preceding or succeeding day, and his birthday is said to be the sixth of the kalends; for these two days are only considered as one, and it is the last day, and not the first, which is intercalated. Therefore, if he should be born on the sixth of the kalends, in a year which is not intercalated, and when the intercalary day falls on the kalends, the preceding day will be that of his birth.
(1) Cato held that an intercalary, month was an addition to the others; and Quintus Mucius added all its days from the time when it was computed to the last day of the month of February.
(2) It is, however, established that there are twenty-eight days in the intercalary month.
99. Ulpianus, On the Duties of Consul, Book I.
We understand the word "investigation" to signify the right of judicial inquiry and jurisdiction.
(1) We should understand the neighboring, contiguous provinces to mean those which are joined to Italy, as for instance, Gaul. We should, however, include the Province of Sicily among them, as it is only separated from Italy by a narrow arm of the sea.
(2) It would be extremely difficult to define everything included under the term "instrument." Instruments, properly speaking, are documents for whose production a delay should be granted; just as when time is asked for the production of someone who can conduct a case, for instance, a steward, although he may be in slavery, or of someone who has been appointed an agent, I think it may be held that a delay can be requested on account of the papers, in order to enable him to appear for the above-mentioned purpose.
100. The Same, On the Duties of Consul, Book II.
We should understand distinguished persons to mean those of both sexes who are illustrious, as well as those who are entitled to Senatorial honors.
101. Modestinus, Differences, Book VI.
Some authorities think that a distinction exists between fornication and adultery, because adultery is committed with a married woman, and fornication with a widow. The Julian Law on Adultery, however, uses this term indiscriminately.
(1) A divorce is said to take place between husband and wife, but repudiation is considered to apply only to the wife, because it not improperly has reference to her personally.
(2) It is true that a disease means a temporary weakness of the body, but a defect is a perpetual corporeal hindrance; as, for instance, where one is purblind, and therefore a one-eyed man is defective.
(3) Some legal authorities hold that when slaves are bequeathed, female slaves are also included, as the term is common to both sexes.
102. The Same, Rules, Book VII.
A law is either derogated or abrogated. It is derogated when a part of it is stricken out; it is abrogated when it is entirely repealed.
103. The Same, Rules, Book VIII.
Although the word "capital" may appear to all those who speak Latin to have reference to reputation; still, this term should be understood to apply only to death, or loss of citizenship.
104. The Same, Excuses, Book II.
The term "children" also extends to grandchildren.
105. The Same, Opinions, Book XI.
Modestinus is of the opinion that the freedmen of a freedwoman of the testator are not included in the words, "My freedmen and freedwomen."
106. The Same, On Prescriptions.
Letters of dismissal are those which are ordinarily styled letters of appeal. They are so called because by their means a case is sent to the court to which an appeal is made.
107. The Same, Pandects, Book III.
To "assign" a freedman is for a patron to declare to which of his children he desires his freedman to belong.
108. The Same, Pandects, Book IV.
A debtor is understood to be one from whom money can be collected against his will.
109. The Same, Pandects, Book V.
A purchaser in good faith is one who was not aware that the property which he bought belonged to another; or thought that he who sold it had the right to do so; as, for instance, that he was an agent, or a guardian.
110. The Same, Pandects, Book VI.
He is called an arbiter in whose hands several persons have deposited property which is in dispute, whether he has been appointed by a judge, to whom application had been made; or whether the property has been submitted to him for arbitration by those who claim it.
111. Javolenus, On Cassius, Book VI.
The expression, "To be of the opinion," means to determine and direct; hence, we are accustomed to say, "I am of the opinion that you should do this," and "The Senate directed that such-and-such a thing should be done." It is from this verb that the word "censor" is derived.
112. The Same, On Cassius, Book XI.
The shore of the sea is public as far as high-water mark. The same rule of law applies to a lake, unless it is all private property.
113. The Same, On Cassius, Book XIV.
A serious illness is one which interferes with every kind of business.
114. The Same, On Cassius, Book XV.
No one is understood to be solvent unless he can pay everything that he owes.
115. The Same, Epistles, Book IV.
There is a question as to what difference exists between the possession of a tract of land or of a field. A tract of land includes everything belonging to the soil; a field is a kind of a tract which is adapted to the use of man. Possession, in law, is distinct from the ownership of land; for we call possession everything which we hold, without the ownership of the property belonging to us, or where there is no possibility of its becoming ours. Therefore possession indicates use, and a field means the ownership of the property. A tract of land is the common name for both the things above mentioned; for a tract of land and possession are different forms of the same expression.
116. The Same, Epistles, Book VII.
Labeo says that the clause, "Let any son born to my son, be my heir," does not seem to include a daughter. Proculus is of the opposite opinion. Labeo appears to me to have followed the form of the words; Proculus the intention of the testator. I have no doubt that the opinion of Labeo is not correct.
117. The Same, Epistles, Book IX.
He is not considered to have paid less than he owed against whom an action for a larger sum will not lie.
118. Pomponius, On Quintus Mucius, Book II.
Those are enemies who declare war against us, or against whom we publicly declare war; others are robbers or brigands.
119. The Same, On Quintus Mucius, Book III.
The term "estate" undoubtedly includes one which may be onerous; for the name is the same in law as praetorian possession of property.
120. The Same, On Quintus Mucius, Book V.
By the following words of the Law of the Twelve Tables, "Let a man have a right to dispose of his property by will," the most extensive power is considered to have been granted to appoint heirs, to bequeath legacies and grants of freedom, as well as to establish guardianships. This privilege, however, has been limited either by the interpretation of the laws, or by the authority of jurists.
121. The Same, On Quintus Mucius, Book VI.
The interest on money which we collect is not included in the term "profits," because it is not derived from the property itself, but from another source, that is to say, from a new obligation.
122. The Same, On Quintus Mucius, Book VIII.
Servius says that if it was written in a will, "I appoint So-and-So guardians for my son, and for my sons," guardians are only appointed for the male children, as by alluding to his son in the singular number, and then using the plural, the testator is considered to have had reference to persons of the same sex which he had previously mentioned. This, however, is a question of fact, and not of law; for it might happen that he only thought of his own at first, and afterwards, when appointing a guardian, had in mind all his children. This seems to be the more reasonable opinion.
123. The Same, On Quintus Mucius, Book XXVI.
The words "shall be" sometimes indicate past as well as future time; which is necessary for us to know. When a codicil is confirmed by a will in the following terms, "Whatever shall be included in my codicil," do they refer to future, or to past time, if the testator had already drawn up a codicil? This must be determined by his intention; for as the word "is" relates not only to present, but to past time; so the words "shall be" not only indicate future, but sometimes, also, past time, for when we say "Lucius Titius is released from his obligation," we refer to both past and present time; just as when we say, "Lucius Titius is bound." The same rule applies when we say, "Troy is taken," for this expression has no reference to the present time, but to something that has already occurred.
124. Proculus, Epistles, Book II.
The following words, "So-and-So or So-and-So," are not only disjunctive, but subdisjunctive in their signification. They are disjunctive; for example, when we say, "It is either day or night," for having suggested one of two things, the other is necessarily impossible, since to suppose one disposes of the other. Therefore, by a similar form of words, an expression can be subdisjunctive. There are, however, two kinds of subdisjunctives; one where in a proposition both things cannot be true, and neither of them may be; as, for instance, when we say, "He is either sitting or walking," for as no one can do both these things at the same time, neither of them may be true, for example, if the person should be lying down. The other kind of disjunctive occurs in a statement where of two things neither may be true, but both of them can happen to be; for instance, when we say "Every animal either acts or suffers," for there is no animal which neither acts nor suffers, but an animal may act and suffer at the same time.
125. The Same, Epistles, Book V.
His grandson to his Uncle Proculus, Greeting. In the case of a person who promised a dowry as follows, "When it is convenient, I will give you a hundred aurei as my daughter's dowry," do you think that the dowry can be demanded immediately after the marriage takes place ? Where he made the promise in the following words, "I will give you the dowry when I am able to do so," if the last obligation is of any force, in what way do you interpret the words, "am able"? Do they mean after the debts have been paid, or before? Proculus: When anyone promises a dowry in the following terms, "I will pay you a hundred aurei, by way of dowry, when I am able to do so," I think that a suitable interpretation can be given to them. For when anyone makes use of ambiguous language, he says what he believes is meant by the words which he employs. I think, however, that it is better to hold that he intended to say that he would give the dowry if he could do so after his debts were paid. The meaning may also be, "If I can do so consistently with the maintenance of my honor," which interpretation is preferable. But if he had promised to do this, "When it will be convenient," this means when I can bestow the dowry without incommoding myself.
126. The Same, Epistles, Book VI.
If I transfer to you a tract of land and say, "It is in the very best possible condition," and then add, "It has not become any worse since I have acquired its ownership," I will not be liable for anything else; for although it is stated in the first clause, "in the best possible condition," this means that the land is free, and if the second part had not been added, I would be compelled to render it free; still, I think that I am sufficiently released by the second clause, because, so far as the rights attaching to the land are concerned, I am not obliged to guarantee anything more than that the title has not become any worse during my ownership.
127. Callistratus, Judicial Inquiries, Book IV.
By the term "clothing" is meant that ordinarily worn by both men and women, as well as theatrical costumes, whether used in a tragedy or comedy.
128. Ulpianus, On the Lex Julia et Papia, Book I.
The term "eunuch" is one of general application, and under it are included not only persons who are eunuchs by nature, but also those made such by crushing or pressure, as well as every other kind of eunuch whatsoever.
129. Paulus, On the Lex Julia et Papia, Book I.
Still-born infants are not considered either to have been born or begotten, because they have never been able to be called children.
130. Ulpianus, On the Lex Julia et Papia, Book II.
Anyone can very properly say that an estate which falls to a person as heir at law, or by will, legally belongs to him, because by the Law of the Twelve Tables testamentary estates are confirmed.
131. The Same, On the Lex Julia et Papia, Book III.
Fraud is one thing, and the penalty for it another; for fraud can exist without a penalty, but there cannot be a penalty for it without a fraud. A penalty is the punishment of an offence, a fraud is the offence itself and is, as it were, a kind of preparation for the penalty.
(1) A great difference exists between a fine and a penalty, for the term "penalty" is a general one, and means the punishment of all crimes; but a fine is imposed for some particular offence, whose punishment is, at present, a pecuniary one. A penalty, however, is not only pecuniary, but usually implies the loss of life and reputation. A fine is left to the discretion of the magistrate who passes sentence; a penalty is not inflicted unless it is expressly imposed by law, or by some other authority. And, indeed, a fine is inflicted where a special penalty has not been prescribed. Moreover, he can impose a penalty upon whom jurisdiction has been conferred. Magistrates and Governors of provinces alone are permitted by the Imperial Mandates to impose fines; anyone, however, who has a right to take judicial cognizance of a crime or a misdemeanor can inflict the penalty.
132. Paulus, On the Lex Julia et Papia, Book III.
A child dies at the age of a year who expires on the last day of the year; and the ordinary use of language shows this to be the case when it is stated "That it died before the tenth day of the kalends," or "after the tenth day of the kalends"; for in both instances eleven days are understood.
(1) It is improper to say that a woman has brought forth a child, from whom, while dead, a child was removed by the Caesarean operation.
133. Ulpianus, On the Lex Julia et Papia, Book IV.
Where anyone provides that something shall be done before his death, the very day on which he died is counted.
134. Paulus, On the Lex Julia et Papia, Book II.
A child is not considered a year old as soon as it is born, but is said to be of that age after three hundred and sixty-five days have elapsed, if the last day has begun, but is not completed; because, according to the Civil Law, we reckon the year, not by moments, but by days.
135. Ulpianus, On the Lex Julia et Papia, Book IV.
Where a woman brings forth a child that is deformed, or a monster, or defective, or which has something unusual in its appearance or its voice, and which has no resemblance to a human being, but seems to be rather an animal than a man, someone may ask, will it be any benefit to her to have brought such a creature into the world ? The better opinion is, that consideration must be had for its parents, for they ought not to be censured, as they have done their duty as far as they could, nor should the mother be prejudiced, because an unfortunate occurrence has taken place.
136. The Same, On the Lex Julia et Papia, Book V.
It is evident that, under the term "son-in-law" are included the husbands of granddaughters, and great-granddaughters, and their descendants; whether they are the offspring of a son or a daughter.
137. Paulus, On the Lex Julia et Papia, Book II.
A woman who has brought forth three children at a birth is considered to have had three parturitions.
138. The Same, On the Lex Julia et Papia, Book IV.
Praetorian possession of an estate is included in the term "inheritance."
139. Ulpianus, On the Lex Julia et Papia, Book VII.
Houses are considered to be built at Rome when they are erected contiguous to the city.
(1) He is considered to have finished a house who has completed it so that it can be occupied.
140. Paulus, On the Lex Julia et Papia, Book VI.
A man is understood to have acquired something, even though he may have acquired it for another.
141. Ulpianus, On the Lex Julia et Papia, Book VIII.
As a woman, when moribund, is considered to have had a child if it is taken from her by means of the Caesarean operation; so, under other circumstances, she can be held to have had a child whom she did not bring forth at the time of her death; for instance, one who returns from the hands of the enemy.
142. Paulus, On the Lex Julia et Papia, Book VI.
A joinder of heirs can take place in three different ways, for it can either be made by means of the property itself; or by means of the property and words contained in the will; or by the words alone. There is no doubt that those are joined who are connected by both their names and by the property; for example, "Let Titius and Maevius be heirs to half my estate;" or "Let Titius and Maevius be my heirs;" or "Let Titius, with Maevius, be heirs to half of my estate." Let us see, however, if we omit the particles "and" "and with," whether the parties can be considered to be joined, for instance: "Let Lucius Titius, Publius Maevius be heirs to half of my estate," or, "Let Publius Maevius, Lucius Titius, be my heirs; let Sempronius be the heir to half my estate." As Titius and Maevius are entitled to half of the estate, they are understood to be joined with reference to the property, and the terms of the will. "Let Lucius Titius be heir to half of my estate; let Seius be the heir to the same share to which I have appointed Lucius Titius; let Sempronius be the heir to half of my estate." Julianus says that a doubt may arise as to whether the estate was divided into three parts, or whether Titius was appointed heir to the same share as Gaius Seius. But, for the reason that Sempronius was also appointed an heir to half the estate, it is more probable that the two others were to share the same half and were made heirs conjointly.
143. Ulpianus, On the Lex Julia et Papia, Book IX.
Anyone is considered to have property if he is entitled to an action to recover it, for he has anything which he has a right to demand.
144. Paulus, On the Lex Julia et Papia, Book X.
Massurius stated in his Book on Memorials that a mistress was considered by the ancients to be a woman who lived with a man without being his wife, and who is now known by the name of friend, or by the slightly more honorable appellation, concubine. Granius Flaccus, in his Book on the Papirian Law, says that the word "mistress" means a woman who cohabits with a man who has a wife; and others hold one is meant who lives in his house, as his wife, without being married to him, and whom the Greeks call pallakyn.
145. Ulpianus, On the Lex Julia et Papia, Book X.
It must be said that by the term "individual share" the entire estate sometimes is meant.
146. Terentius Clemens, On the Lex Julia et Papia, Book III.
It is established that the grandfather and the grandmother of either a wife or a husband are included under the terms "father-in-law" and "mother-in-law."
147. The Same, On the Lex Julia et Papia, Book III.
Persons who are born in the suburbs of the City are understood to be born at Rome.
148. Gaius, On the Lex Julia et Papia, Book VIII.
A man who has only one son or one daughter is not without children ; for the expression, "He has children," or "he has not children," is always used in the plural number, just as writing tablets and codicils are.
149. The Same, On the Lex Julia et Papia, Book X.
For we cannot say of such a person that he is childless, and we must necessarily say that he has children.
150. The Same, On the Lex Julia et Papia, Book IX.
If I stipulate with you as follows: "Do you promise to pay me whatever I may fail to collect from Titius?" there is no doubt that if I should not collect anything from Titius you will be indebted to me for all that he owed me.
151. Terentius Clemens, On the Lex Julia et Papia, Book V.
An estate is understood to have been granted to anyone when he can acquire it by entering upon the same.
152. Gaius, On the Lex Julia et Papia, Book X.
There is no doubt that both males and females are included under the term "man."
153. Terentius Clemens, On the Lex Julia et Papia, Book XI.
When a child is in its mother's womb at the time of its father's death, it is understood to be legally in existence.
154. Macer, On the Law Relating to the Twentieth.
The thousand paces constituting a mile are not reckoned from the milestone of the City of Rome, but from the houses contiguous thereto.
155. Licinius Rufus, Rules, Book VII.
Where there is only one relative, he is included in the term "next of kin."
156. The Same, Rules, Book X.
Anyone is understood to have had possession of property for the greater part of the year, even if he has held it only two months, provided his adversary has had possession of it for a shorter time, or not at all.
157. Aelius Gallus, On the Meaning of Words Relating to the Law, Book I.
A wall is one which is built either with or without mortar.
(1) A road is either a path, or a highway.
158. Celsus, Digest, Book XXV.
Cascellius states that, in legal phraseology, we frequently make use of the singular number when we wish to indicate several things of the same kind; for we say many a man has arrived at Rome, and also that there are bad fish. Likewise, in making a stipulation, it is sufficient to refer to the heirs in the singular number, "If the case is decided in favor of me, or my heir," and again, "Whatever concerns you or your heir," as it is clear that if there are several heirs, they are included in a stipulation of this kind.
159. Ulpianus, On Sabinus, Book I.
We also use the term "money" to denote gold coins.
160. The Same, On Sabinus, Book II.
Everything is included in the terms, "the others," and, "the balance," as Marcellus says with reference to a man to whom the choice of a slave was bequeathed, the others being left to Sempronius; for he holds that if he should not make a choice, all the slaves will belong to Sempronius.
161. The Same, On Sabinus, Book VII.
An unborn child is not a minor.
162. Pomponius, On Sabinus, Book II.
An ordinary substitution, by which an heir is substituted "for him who may die last," is understood to have been made legally if there should be only one heir, in accordance with the Law of the Twelve Tables, by which, when there is only one heir, he is referred to as the next of kin.
(1) Where a testator makes the following provision in his will, "If anything should happen to my son, let my slave Damas be free," and the son should die, Damas will become free; for although an accident may also happen to the living, death is understood by this expression, according to the ordinary signification of the language.
163. Paulus, On Sabinus, Book II.
The following words, "The very best and greatest possible," may have reference to a single person. Likewise, the last will mentioned in the Edict of the Praetor has reference to the only will.
(1) Under the term "child" a girl also is included, for women who have recently brought forth children are called puerperse, and are generally styled by the Greeks.
164. Ulpianus, On Sabinus, Book XV.
There is no question that the word "daughters" includes posthumous children, while it is certain that the term "posthumous" is not applicable to a daughter who is already born.
(1) The word "share" does not always mean the half, but the part which is indicated by it; for anyone can be directed to have the largest share, or the twentieth, or the third, or as much as the testator pleases. If nothing is mentioned but the share, half of the estate will be due.
(2) The expressions "To have," and "To come into one's hands," should be understood to mean legal possession.
165. Pomponius, On Sabinus, Book V.
Nothing is understood to "come into the hands of the heir" unless all the debts of the estate have been paid.
166. The Same, On Sabinus, Book VI.
Urban and rustic slaves are not distinguished from one another by the place, but by the nature of their respective occupations. For a steward may not be included in the number of urban slaves, as, for instance, one who keeps the accounts of transactions in the country, where he lives, for he does not differ greatly from a farmer. A slave attached to a household in a city is included among urban slaves. It should, however, be considered whether the master himself employs anyone in their stead, which can be ascertained from the number of the slaves and their sub-slaves.
(1) He is understood to have spent the night outside of a city who passed no part of it therein; for the expression means the entire night.
167. Ulpianus, On Sabinus, Book XXV.
The material of which it is composed is not included in the term "charcoal," but is it included in that of "firewood"? Perhaps someone may say that it is not, for all wood is not firewood; but shall we include under the terms "firewood" or "charcoal" firebrands which have been extinguished, and other burnt wood which does not make any smoke, or shall we place it in a class of its own ? The better opinion is that it has a class of its own. Wood which has been treated with sulphur is included in the term "firewood." Wood which is prepared for torches does not come under the head of "firewood," unless it was specially intended that this should be done. The same rule applies to olive seeds, acorns, and any other seeds. When pine cones are entire, they are included in the term "firewood."
168. Paulus, On Sabinus, Book IV.
Poles and stakes are classed as building material, and therefore are not included under the term "firewood."
169. The Same, On Sabinus, Book V.
The following clause is not only inserted in contracts for the delivery of property, but also in purchases, stipulations, and wills, namely, "In the best condition possible," and means that land is guaranteed to be free from all encumbrances, but not that servitudes are due to it.
170. Ulpianus, On Sabinus, Book XXXIII.
It is held that all successors are meant by the word "heir," although this may not be expressly stated.
171. Pomponius, On Sabinus, Book XVI.
Anything is properly said to have come into your hands where it has passed to another through you, as was determined in the case of an estate acquired by a freedman through his patron, who was a son under paternal control, for the benefit of his adoptive father.
172. Ulpianus, On SoMnus, Book XXXVIII.
It is established that a freedwoman is also included under the term "freedman."
173. The Same, On Sabinus, Book XXXVIII.
Those are included under the term "colleagues" who possess the same authority.
(1) Anyone who is outside of the suburbs of a city is considered to be absent; but he is not considered to be absent while still within the suburbs.
174. The Same, On Sabinus, Book XLII.
It is one thing to allege that a slave is not a thief, and another to say that he will not be liable for theft or damage committed by him. For when a man says that a slave is not a thief, he has reference to his disposition; but when he says that he will not be liable for theft or damage committed by him, he states that he will not be responsible to anyone for his depredations.
175. Pomponius, On Sabinus, Book XXII.
In the term "To do" is also included that "To give."
176. Ulpianus, On Sabinus, Book XLV.
It has been established that every kind of satisfaction should be understood to be included in the term "payment." We say that he has paid who has done what he promised to do.
177. The Same, On Sabinus, Book XLVII.
The nature of the sophistry which the Greeks call a concise syllogism is disclosed where, by making slight changes in something which is absolutely true, a conclusion is arrived at which is evidently false.
178. The Same, On Sabinus, Book XLIX.
The term "money" not only includes coin, but all kinds of property, that is to say, everything which is corporeal; for there is no one who has any doubt that corporeal property is also included in the word "money."
(1) Inheritance is a legal term which has reference to both the increase and the diminution of an estate, as an inheritance is greatly increased by the profits.
(2) The term "action" is both special and general; for the same word is used whether a claim is made against the person or against the property. We are, however, for the most part, accustomed to call the former personal and the latter real. I think that extraordinary proceedings are included under the term "pursuit," as for instance, those arising from trusts, and any others which do not come within the scope of ordinary law.
(3) The expression, "He owes," is understood to include every action whatsoever which can be brought against anyone; whether it is civil or praetorian, or involves the execution of a trust.
179. The Same, On Sabinus, Book LI.
There is no difference between the expressions, "As much as a thing is worth," and "As much as a thing appears to be worth," for it has been established that in both instances a true valuation of the property must be made.
180. Pomponius, On Sabinus, Book XXX.
By the term "hut," every building erected for the purpose of protecting the crops on a farm, and not a house in town, is meant.
(1) Ofilius says that the word tugurium is derived from a roof, as a place is said to be covered with tiles; just as toga is so called because we use it as a covering.
181. The Same, On Sabinus, Book XXXV.
The verb, "To belong," has an extremely broad signification, for it not only applies to such things as are included in our ownership, but also to those which we possess under any title, even if they are not ours; and we say that articles belong to us to which we have no title at present, but to which we may subsequently acquire one.
182. Ulpianus, On the Edict, Book XXVII.
The head of a household who is free cannot have a peculium, just as a slave cannot have an estate.
183. The Same, On the Edict, Book XXVIII.
The term "shop" means every kind of building which is fit for a habitation; evidently for the reason that these are generally closed with boards (tabulae).
184. Paulus, On the Edict, Book XXX.
From it the words "tabernacle" and "contubernales" are derived.
185. Ulpianus, On the Edict, Book XXVIII.
We understand a furnished shop to be one in which the goods and the clerks are ready for business.
186. The Same, On the Edict, Book XXX.
To entrust something to anyone's care means nothing more than to deposit it with him.
187. The Same, On the Edict, Book XXXII.
The expression, "Money collected," relates not only to payment, but also to the delegation of the claim.
188. Paulus, On the Edict, Book XXXIII.
The verb, "To have," is understood in two different ways: in one, where the right of ownership exists; in the other, where property purchased by anyone cannot be obtained without a contest.
(1) Security means responsibility assumed either with reference to persons or things.
189. The Same, On the Edict, Book XXXIV.
The expression, "To be obliged to do," has the following signification ; namely, that a person will abstain from doing something which is contrary to an agreement, or will take care that it is not done.
190. Ulpianus, On the Edict, Book XXXIV.
We must understand provincials to be persons who have their domicile in a province, and not those who are born there.
191. Paulus, On the Edict, Book XXXV.
The following difference exists between divorce and repudiation: repudiation may take place even before marriage; but a woman who is betrothed cannot properly be said to be divorced, since divorce is so called because the parties who separate are free to go their different ways.
192. Ulpianus, On the Edict, Book XXXVII.
The expression, "Or more," does not include an unlimited sum of money, but a moderate one; just as the limiting clause, "Ten or more solidi," has reference to the smaller sum.
193. The Same, On the Edict, Book XXXVIII.
These words, "As much as the property appears to be worth," do not refer to the measure of damage, but to the estimated value of the property.
194. Ulpianus, On the Edict, Book XXXIII.
The same difference exists between a gift and a present as exists between genus and species; for Labeo says that a gift is a genus, and is derived from the verb "to give," and that a present is a species, for it is a gift bestowed for some reason, for instance, on account of a birth, or a marriage.
195. The Same, On the Edict, Book XLVI.
The term "masculine" frequently extends to both sexes.
(1) Let us see how the word "family" should be understood. And indeed, it is understood in various ways, for it has reference to both property and persons; to property, as in the Law of the Twelve Tables where it is said, "Let the next of kin on the father's side have the estate" (familia). The term "family" also has reference to persons, as where the same law referring to a patron and his freedman says, "From this family to that." In this instance, it is established that the law has reference to individuals.
(2) The term "family" has reference to every collection of persons which are connected by their own rights as individuals, or by the common bond of general relationship. We say that a family is connected by its own rights where several are either by nature or by law subjected to the authority of one; for example, the father of a family, the mother of a family, and a son and a daughter under paternal control, as well as their descendants; for instance, grandsons, granddaughters, and their successors. He is designated the father of a family who has authority over the household, and he is properly so called even if he has no son, for we do not merely consider his person, but also his right. Then we also style a minor the father of a family, when his father dies, and each of the persons who were under his control begins to have a separate household, and all obtain the title of father of a family. The same thing happens in the case of a son who is emancipated, for he also has his own family when he becomes independent. We say that the family of all the agnates is a common one, because even though the head of the household may be dead, and each of them has a separate family, still, all who were under the control of him alone are properly said to belong to the same family, as they have sprung from the same house and race.
(3) We are also accustomed to apply the term "family" to bodies of slaves, as we explained, according to the Edict of the Praetor, under the Title of Theft, where the Praetor mentions the family of farmers of the revenue. In this instance, all slaves are not meant, but only those are designated who were appointed for this purpose, that is to say, for the collection of taxes. In another part of the Edict all slaves are included; as in the case of unlawful assemblies, and property taken by force, and also where suit for the annulment of a contract can be brought, and the property is returned in a worse condition through the act of the purchaser or his family; and finally, in the case of the interdict Unde vi, the term family embraces not only all the slaves, but also the children.
(4) The word "family" also applies to all those persons, who are descended from the last father, as we say the Julian Family, referring, as it were, to persons derived from a certain origin within our memory.
(5) The wife is the beginning and the end of her family.
196. Gaius, On the Provincial Edict, Book XVI.
The head of the family himself is included in the term "family."
(1) It is clear that children do not belong to the family of the wife, because anyone who is born to a father does not follow the family of his mother.
197. Ulpianus, On the Edict, Book L.
"To inform" is to denounce, to impeach, to accuse, and to convict.
198. The Same, On All Tribunals, Book II.
We understand by the term "urban estates" not only all buildings which are situated in towns, but also inns, and such houses as are used for trade in the suburbs, and in villages, as well as palaces intended only for pleasure; but the materials, and not the location, are what constitute an urban estate. Hence, if there are any gardens attached to these buildings, it must be said that they are included under the term "urban estates." It is clear that if these gardens afford more revenue than they do pleasure, that is to say, if they contain vines or olive trees, they should not be designated "urban estates."
199. The Same, On All Tribunals, Book VIII.
We should consider a person to be absent who is not in the place where his presence is demanded; for we do not require that he be beyond seas, since he is absent if he happens to be outside the suburbs of the city; but if he is within the suburbs, he is not held to be absent if he does not conceal himself.
(1) Anyone who has been captured by the enemy is not considered to be absent, but he who is detained by robbers is.
200. Julianus, Digest, Book II.
The following stipulation, "To furnish a slave free from liability for damage committed," is not held to apply to such offences as call for public prosecution and punishment.
201. The Same, Digest, Book LXXXI.
According to a just interpretation it should be understood, as we have often said, that as a daughter under paternal control is included under the term "son," a grandson should likewise be included; and a grandfather also be understood to be designated by the term "father."
202. Alfenus Varus, Digest, Book II.
When it is stated in a will that the heir shall only expend a hundred aurei for funeral expenses, or for the erection of a monument, he cannot spend any less than that amount; but, if he desires to spend more, he can do so, and he will not be considered to have done anything contrary to the terms of the will.
203. The Same, Digest, Book VII.
It was stated in the law relating to the collection of duties in the harbors of Sicily: "That no one should pay any duty on slaves which he was taking to his own house for private use." The question arose if anyone should send slaves from Sicily to Rome, for the purpose of cultivating land, whether or not he would be compelled to pay duty on them. The answer was that in this law two points were involved: first, what did the words, "Take to his own house," mean; and second, what was the meaning of the expression, "For his private use"? Therefore, if the word "house" meant where someone lived, inquiry should be made whether this was in a province, or in Italy; or whether his house could only properly be said to be in his own country. On this point it was decided that anyone's house should be considered to be where he had his home, kept his accounts, and transacted his business. There is, however, great doubt as to the signification of the expression, "For his private use," and it was decided that this only had reference to what was prepared for his subsistence. For the same reason it might also be asked with reference to slaves who are alleged to be for the use of their master whether stewards, porters, farmers, overseers, weavers, and farm laborers, who are employed in the cultivation of the soil, from which the owner obtains his living and supports himself, are meant; or whether all the slaves which any person purchased and kept for his own use, as well as those whom he employed for other purposes, and were not bought to sell again, are included. It seems to me that only those destined for the use of the head of the family, who are appointed for his personal service and support, which class includes valets, domestic, servants, cooks, attendants, and all others devoted to employments of this kind are meant.
204. Paulus, Epitomes of Alfenus, Book II.
The term "boy" has three significations: first, we call all slaves "boys" ; second, we speak of a boy in contradistinction to a girl; and third, we make use of the word to denote the age of childhood.
205. The Same, Epitomes of Alfenus, Book IV.
When anyone sells a tract of land, reserving the fruit, he is understood to reserve the nuts, figs, and grapes whose skins are hard and purple, and are of the kind which we do not use in making wine, and which the Greeks call suitable for eating purposes.
206. Julianus, On Minicius, Book VI.
It is held that the expression "wine-jars" is properly applied to jars used at the wine press; for casks and other vessels are only classed as such while they contain wine; for, when they cease to do so, they have not this appellation, as they can be put to other uses; for instance, where grain is placed in them. The same rule applies to other earthen jars, when they are used for wine, just as it does to the former, for when they are empty, they are not included in the number of receptacles for wine, because other things can be kept in them.
207. Africanus, Questions, Book III.
Mela says that slaves are not included in the term "merchandise," and for this reason those who sell them are not designated merchants, but dealers in slaves; and this is correct.
208. The Same, Questions, Book IV.
The terms "property" and "estate" apply to everything taken together, including the right of succession, but not to individual articles.
209. Florentinus, Institutes, Book X.
Where anyone is ordered to do something in the presence of Titius, he is not understood to have done it in his presence, unless Titius understands that this is the case; therefore, if he should be insane, or a child, or asleep, he is not considered to have performed the act in his presence. He must know that it is done, but it is not necessary that he should be willing, for what is ordered will be legally done, even against his consent.
210. Marcianus, Institutes, Book VII.
It has been decided that he who is born of urban slaves and is sent to the country to be brought up shall be classed as an urban slave.
211. Florentinus, Institutes, Book VIII.
By the term "real property" all buildings and all land are understood; in speaking of buildings in a city, however, we usually call them sedes, and in the country villas. A site without a building in a city is called area, and in the country ager, and the latter, when a house is erected upon it, is styled fundus.
212. Ulpianus, On Adultery, Book I.
We call those persons prevaricators who assist the cause of their adversaries, and while on the side of the plaintiff favor that of the defendant; for the term "prevaricator" is derived from the verb "varico," to straddle.
213. The Same, Rules, Book I.
The expression "cedere diem" means to begin to owe a sum of money: "venire diem" means the day has come when the money can be collected. When anyone makes an absolute stipulation, the money begins to be due, and the day of payment arrives immediately. When he agrees to pay it at a certain time, the indebtedness begins at once, but the time of payment does not; when he agrees to pay it under a condition, the indebtedness is not incurred, nor is the sum payable, while the condition is pending.
(1) "Ms alienum" means what we owe to others: "IBS suum" is what others owe us.
(2) Gross negligence is extreme negligence, that is to say, not to know what everybody else knows.
214. Marcianus, Public Prosecutions, Book I.
An "obligation," properly speaking, is something which we are obliged to do according to law, custom, or the command of someone who has the right to order it to be done. Gifts, however, are, correctly speaking, things which we voluntarily give without being compelled to do so by either law or our duty; and if they are not given, no one can be blamed, and if they are given, the donor is generally entitled to praise. In a word, it has been decided that the two terms are not interchangeable, but that a gift may properly give rise to an obligation.
215. Paulus, On the Lex Fufia Caninia.
The word "power" has several meanings: with reference to magistrates, it signifies jurisdiction; with reference to children, it signifies paternal control; with reference to slaves, it signifies the authority of a master. But when we bring suit for the surrender of a slave by way of reparation for damage committed by him, against his master who does not defend him, we mean the body of the slave and the authority over him. Sabinus and Cassius say that, under the Atinian Law, stolen property is considered to have come under the control of the master, if he should have the power to recover it.
216. Ulpianus, On the Lex Aelia Sentia, Book I.
It is true that when anyone is imprisoned, he is not held to be either chained or placed in chains unless they are attached to his body.
217. Javolenus, On the Last Works of Labeo, Book I.
There is a great difference between the conditions, "When he will be able to speak," and "After he shall have been able to speak," for it is established that the latter has a broader signification than the former, which only has reference to the time when the person can speak for the first time.
(1) Likewise, when a condition is stated as follows, "Do this in so many days," if nothing more should be added, the condition must be complied with within two days.
218. Papinianus, Questions, Book XXVII.
The words "to do," include everything which can be done; just as "to give," "to pay," "to count," "to judge," "to walk."
219. The Same, Opinions, Book II.
It has been established, that, in agreements, the intention of the contracting parties should rather be considered than the terms of the stipulation. Therefore, when municipal magistrates lease land belonging to their city, under the condition, "that the heir of the person who leases it shall enjoy it," the right of the heir can also be transferred to his legatee.
220. Callistratus, Questions, Book II.
By the term "children," grandchildren and great-grandchildren, and all their descendants are understood, for the Law of the Twelve Tables includes all these under the term "proper heirs." When the laws consider it necessary to use separate names for different relatives, for instance, sons, grandsons, great-grandsons, and their descendants, they do not mean that this shall extend to all who come after them. But when certain persons or degrees are not specified, but only those are mentioned who are descended from the same stock, they are included under the term "children."
(1) Papirius Fronto, however, in the Third Book of Opinions, says that where land, with a farmer and his wife and children, is devised, the grandchildren descended from the sons are also included, unless the intention of the testator was otherwise; for it has been frequently decided that in the term "children," grandchildren are also included.
(2) The Divine Marcus stated in a Rescript that anyone who left a grandson his heir was not considered to have died without issue.
(3) In addition to all this, Nature teaches us that affectionate fathers, who marry with the intention and desire to have children, inelude under the term all who are descended from them. For we cannot designate our grandchildren by a more loving name than that of children, since we have, and rear sons and daughters for the purpose of perpetuating our memory, for all time, by means of their offspring.
221. Paulus, Opinions, Book X.
Paulus says that he can properly be styled a false guardian who is not a guardian at all; or who is appointed for a minor who already has a guardian, or has none; just as is the case of a forged will, which is not a will at all, or a false measure, which in reality is not a measure.
222. Hermogenianus, Epitomes of Law, Book II.
By the term "money" not only coin is understood, but all kinds of property, whether it is attached to the soil, or is movable, and which is corporeal as well as incorporeal.
223. Paulus, Opinions, Book II.
The definition of gross negligence is not to know what all persons know.
(1) We should not call those persons friends with whom we have only a slight acquaintance; but those with whom our fathers have entertained honorable and familiar relations.
224. Venuleius, Stipulations, Book VII.
The term "chains" applies to both private or public restraint of liberty; "custody," however, only has reference to public imprisonment.
225. Tryphoninus, Disputations, Book I.
A fugitive slave is not one who has merely formed the design of escaping from his master, even though he may have boasted that he intends to do so, but one who actually has begun his flight; for, as anyone may call a person a thief, an adulterer, or a gambler, from certain indications solely arising from his intentions, although he has never stolen anything from the owner, or corrupted any woman, but has merely resolved to do so, when an opportunity offered, still, he cannot be understood to have committed the offence until his design has been executed, and therefore it is established that a slave shall not be considered a fugitive or a vagabond, merely because he has had the intention of becoming one, but only after he has committed the act.
226. The Same, Manuals, Book I.
Gross negligence is a fault: a great fault is a fraud.
227. The Same, Manuals, Book II.
Praetorian possession of an estate is not conceded to the heirs of the heir, by the following clause of the Edict: "I will grant possession to him who is the heir of the deceased." Again, in the following substitution, "Whosoever shall be my heir," only the next heir is meant, or the appointed heir, even if he is not the one next in succession.
228. The Same, On Judicial Inquiries.
By the term "fellow citizens" is meant those who are born in the same town.
229. The Same, On Implied Trusts.
We should understand by the expression "matters transacted or completed," not only such as are in dispute, but also those with reference to which no controversy exists.
230. The Same, On the Orphitian Decree of the Senate.
Among these are questions which have been judicially decided; are those with reference to which a compromise has been made; and those prescribed by lapse of time.
231. The Same, On the Tertullian Decree of the Senate.
When we say that a child, who is expected to be born, is considered as already in existence, this is only true where his rights are in question, but no advantage accrues to others unless they are actually born.
232. Gaius, On Verbal Obligations, Book I.
The statement, "Which are worth more than thirty aurei," has reference both to a sum of money, and the valuation of property.
233. The Same, On the Law of the Twelve Tables, Book I.
The following expressions, "If he deceives," "If he is in default," "If he frustrates," are the sources from which the term "calumniators" is derived because they annoy others with lawsuits through fraud and deceit.
(1) On the third day after the Kalends of January, prayers are offered for the preservation of the Emperor.
(2) Ordinarily speaking, whatever is discharged from a bow is called a dart; now, however, it means anything which is cast by the hand; and it follows that even a stone, or a piece of wood, or iron, are included in this term. It is so called because it is sent to a distance, and is what the Greeks designate something which is thrown to a distance. We can detect this meaning in the Greek word, for what we call a dart, they style which usually means something dispatched from a bow, but it also signifies anything projected by the hand. Xenophon informs us of this fact, for he says, "They carried darts, spears, arrows, slings, and also stones." What is sent from a bow is what the Greeks call toceuma, that is to say, an arrow, but by us it is designated by the common name of "dart."
234. The Same, On the Law of the Twelve Tables, Book II.
Those whom we style enemies the ancients called perduelles, indicating by this term that they were persons with whom they were at war.
(1) He is considered solvent who has sufficient property to satisfy any claim which may be brought against him by a creditor.
(2) Some authorities hold that the term "subsistence" has reference only to food; but Ofilius and Atticus say that under this term clothing and covering of every description are included, for without them no one can subsist.
235. The Same, On the Law of the Twelve Tables, Book III.
We properly apply the term "to carry," to what anyone conveys by means of his body; "to transport," to whatever one conveys by means of a beast of burden; and "to drive" has reference to animals.
(1) We call workers in wood not only those who polish lumber, but also all those who build houses.
236. The Same, On the Law of the Twelve Tables, Book IV.
Those who speak of poison, should add whether it is good or bad, for medicines are poisons, and they are so called because they change the natural disposition of those to whom they are administered. What we call poison the Greeks style farmakon; and among them noxious drugs as well as medicinal remedies are included under this term, for which reason they distinguish them by another name. Homer, the most distinguished of their poets, informs us of this, for he says: "There are many kinds of poisons, some of which are good, and some of which are bad."
(1) Javolenus says that fruit is whatever has a seed, as in the case of the Greeks who call all kinds of trees akrodrua.
237. The Same, On the Law of the Twelve Tables, Book V.
A law which contains two negative statements rather permits than forbids. This is also noted by Servius.
238. The Same, On the Law of the Twelve Tables, Book VI.
The term "plebeian" applies to all citizens except Senators.
(1) To "call to witness," is to give evidence.
(2) The word "pledge" is derived from the fist, because everything which is given by way of pledge is transferred by the hand. Wherefore some authorities hold, and it may be true, that a pledge, properly speaking, can only consist of movable property.
(3) All offences are embraced in the term "noxia."
239. Pomponius, Enchiridion.
A minor is one who has not yet reached the age of puberty, and has ceased to be under the control of his father, either by the death of the latter or his own mancipation.
(1) The term "slaves" is derived from the fact that the commanders of our armies formerly were accustomed to sell their captives, and preserved them for this purpose, in preference to putting them to death.
(2) An inhabitant is one who has his domicile in some country, and whom the Greeks call paroikon, that is, "adjoining." Those who dwell in cities are not called inhabitants, any more than those who have land near some town, and betake themselves to it, as to a resort.
(3) A public employment is an office conferred upon some private individual, by means of which extraordinary benefit results to the citizens individually and collectively, as well as to their property through his magisterial authority.
(4) A stranger is one whom the Greeks style apoikon, that is to say, one who has left his home to become a colonist.
(5) Certain authorities hold that decurions are so called for the reason that, in the beginning, when colonies were established, the tenth part of those who founded them, were usually formed into a body for the purpose of giving public counsel.
(6) The word "city" is derived from the verb urbo, which means to mark a boundary with a plow. Varus says that the curve of a plowshare, which is ordinarily used for tracing the boundaries of a city about to be built, is called urbum.
(7) The term "fortified town" (oppidum), is derived from ops, for the reason that its walls are constructed to provide for the safety of property.
(8) The word "territory" means all the land included within the limits of any city. Some authorities hold that it is so called, because the magistrates have a right to inspire fear within its boundaries, that is to say, the right to remove the people.
(9) It is doubtful whether the term "his" means the whole or a part; and therefore anyone who swears that something is not his should add that he has no joint-ownership in it with another.
240. Paulus, On the Six Books of Imperial Decrees having Reference to Judicial Inquiries, Book I.
The question arose whether the expression, "The dowry shall be returned in case the marriage is dissolved," refers not only to divorce, but also to death; that is to say, whether this was the intention of the contracting parties in the present instance; and several authorities think that it was the intention, while the contrary opinion is held by others. On this account, the Emperor decided that "the agreement was that, under no circumstances, the dowry should remain in the hands of the husband.
241. Quintus Mucius Scaevola, Definitions.
Movable property is such as is not attached to the soil, that is to say, everything which does not form part of a building or other structure.
242. Javolenus, On the Last Works of Labeo, Book II.
Labeo says that a mast forms part of a ship, but that small sails do not, because many ships would be useless without masts, and therefore they are considered as belonging to ships; sails, however, are held to be rather an addition to than parts of a vessel.
(1) Labeo says that a difference exists between what projects over, and what is inserted into anything as a projection, is put forward in such a way that it does not have a support, as for instance, balconies and roofs; and whatever is inserted into a building rests upon something, for example, joists and beams.
(2) Labeo says that where lead is used instead of tile to cover a house, it forms part of it; but that where it is used for the purpose of covering an open gallery it does not.
(3) Labeo says that a widow is not only a woman who has been married at some time, but also one who has not had a husband; for the term is also applied to a person who is idiotic or insane, and the word also means without the union of two persons.
(4) Labeo also says, that a building composed of boards erected for the purpose of protecting any place during the winter, and which is removed in the summer, is a house; as it is designed for perpetual use, although it is not attached to the soil, for the reason that it is removed for a part of the time.
243. Scaevola, Digest, Book XVIII.
Scaevola gave it as his opinion that it was generally accepted that those persons should be understood to be included in the term "freedmen" who have been manumitted under a first or a succeeding will, unless he by whom they were claimed could clearly show that this is contrary to the intention of the deceased.
244. Labeo, Epitomes of Probabilities by Paulus, Book IV.
A penalty is a fine, and a fine is a penalty. Paulus: Both of these statements are false; for the difference between these things is apparent from the fact that an appeal cannot be taken from a penalty, for where anyone is convicted of an offence, the penalty for it is fixed, and must be paid at once; but an appeal can be taken from a fine, for it is not due unless an appeal is not taken, or the appellant loses his case; and it is the same as if the judge had passed upon it who was authorized to do so. Hence, the difference between these things becomes apparent, because certain penalties are prescribed for certain illegal acts; but this is not the case with fines, as the judge has power to impose any fine he pleases, unless the amount which he may impose is fixed by law.
245. Pomponius, Epistles, Book X.
Statues attached to their pedestals, pictures hung by chains or fastened to the walls, and lamps similarly affixed, do not form part of a house; for they are rather placed there as ornaments than as constituting parts of buildings.
(1) Labeo also says that the wall usually placed in front of a house constitutes a part of it.
246. The Same, Letters, Book XVI.
It is stated in the "Probabilities" of Labeo that the expression "To produce" has reference to the exhibition in court of the property in dispute. For anyone who appears in person does not, for that reason, produce the property in dispute; and he who produces a person who is either dumb, insane, or an infant, is not considered to produce him at all; for no one of this kind can, under any circumstances, properly be said to be present.
(1) The term "restitution" has reference not only to the body of the thing itself, but also to every right and condition attaching to it; hence complete restitution is meant by the law.
Tit. 17. Concerning different rules of ancient law.
1. Paulus, On Plautius, Book XVI.
A rule is a statement, in a few words, of the course to be followed in the matter under discussion. The law, however, is not derived from the rule, but the rule is established by the law. Hence, a short decision of the point in question is made by the rule; or, as Sabinus says, a concise explanation of the case is given, which, however, in other instances to which it is not applicable loses its force.
2. Ulpianus, On Sabinus, Book I.
Women are excluded from all civil or public employments; therefore they cannot be judges, or perform the duties of magistrates, or bring suits in court, or become sureties for others, or act as attorneys.
(1) A minor, also, must abstain from all civil employments.
3. The Same, On Sabinus, Book III.
He who can consent openly can likewise do so by not refusing.
4. The Same, On Sabinus, Book VI.
He is not considered to give his full consent who obeys the command of his father or his master.
5. Paulus, On Sabinus, Book II.
In business transactions, the condition of an insane person is one thing, and that of a minor beyond the age of infancy is another, although neither may perfectly understand what is required of him, for an insane person cannot transact any business whatever, but a minor can attend to anything of this kind with the authority of his guardian.
6. Ulpianus, On Sabinus, Book VII.
A person does not wish to be an heir who is willing that an estate should be transferred to another.
7. Pomponius, On Sabinus, Book III.
Our law does not suffer anyone who is in civil life to die both testate and intestate, for there is a natural antagonism between the two terms.
8. The Same, On Sabinus, Book IV.
The rights of blood cannot be annulled by any Civil Law.
9. Ulpianus, On Sabinus, Book XV.
In matters which are obscure, we always follow the one which is the least ambiguous.
10. Paulus, On Sabinus, Book III.
It is in accordance with nature that he should enjoy the benefit of anything who pays the expenses attaching to it.
11. Pomponius, On Sabinus, Book V.
That which is ours cannot be transferred to another without our consent.
12. Paulus, On Sabinus, Book III.
In the interpretation of wills, the intention of the testator should be liberally construed.
13. Ulpianus, On Sabinus, Book XIX.
He is not considered to have acquired anything whose claim is barred by an exception.
14. Pomponius, On Sabinus, Book V.
In all obligations in which the time of payment is not inserted, the debt is due immediately.
15. Paulus, On Sabinus, Book IV.
Anyone who has a right of action to recover property is considered to have possession of the same.
16. Ulpianus, On Sabinus, Book XXI.
A sale is not fictitious when the price is agreed upon.
17. The Same, On Sabinus, Book XXIII.
When a time is prescribed by a will, it is considered to have been inserted for the benefit of the heir, unless the intention of the testator was otherwise; as in the case of stipulations, where time is granted in favor of the promisor.
18. Pomponius, On Sabinus, Book VI.
When legacies pass to our heirs after our death, they will benefit those under whose control we were at the time that we acquired them. The case is different where we make stipulations; for if we stipulate under a condition, we will acquire the property, for the same parties under all circumstances, even if the condition should be fulfilled after we have been released from the authority of a master. Paulus: When a son under paternal control stipulates under a condition, and is then emancipated, and the condition is afterwards fulfilled, an action will lie in favor of his father, because, in the case of stipulations, the time when we contract is taken into account.
19. Ulpianus, On Sabinus, Book XXIV.
Anyone who makes an agreement with another either is not ignorant or should not be ignorant of his condition; the heir, however, cannot be blamed under such circumstances, as he did not voluntarily contract with the legatees.
(1) An exception on the ground of fraud does not usually operate as a bar to those who are not excluded by the will of the testator.
20. Pomponius, On Sabinus, Book VII.
Whenever the meaning of a grant of freedom is doubtful, a decision must be rendered in favor of liberty.
21. Ulpianus, On Sabinus, Book XXVII.
He who is permitted to do more shall be allowed to do less.
22. The Same, On Sabinus, Book XXVIII.
No obligation will bind anyone of a servile condition.
(1) The rule is generally approved that, wherever, in bona fide agreements, a condition is left to the decision of the owner of the property, or his agent, this is understood to be done in accordance with the judgment of a good citizen.
23. The Same, On Sabinus, Book XXIX.
Certain contracts only involve fraud, others involve both fraud and negligence. Those which involve fraud are deposits and transfers under a precarious title; those which involve both fraud and negligence are mandate, loan for use, sale, pledge, hiring, and also the bestowal of dowry, guardianship, and the transaction of business. (The two last, however, demand extraordinary diligence.) Partnership and joint-ownership of property involve both fraud and negligence. This, however, is the case only where nothing has been expressly agreed upon for either more or less in the different contracts ; for what was agreed upon in the beginning must be observed, since the contract imposes a law; except where, as Celsus says, the contract would not be valid if it was agreed that no fraud should be committed, for this is contrary to the good faith attaching to contracts; and this is our present practice. No responsibility, however, is assumed in the case of accidents to animals, or their death, or to anything else that happens which is not due to negligence; or with reference to the flight of slaves whom it was not customary to guard, robbers, tumults, fires, inundations, and the attacks of thieves.
24. Paulus, On Sabinus, Book V.
Whenever the interest of anyone is concerned, it is a question of fact, and not one of law.
25. Pomponius, On Sabinus, Book XI.
Real is better than personal security.
26. Ulpianus, On Sabinus, Book XXX.
Anyone who has the right to alienate property against the consent of a person who is present has a much better right to do so when he is ignorant of the fact, and absent.
27. Pomponius, On Sabinus, Book XVI.
Nothing prescribed either by the Praetorian or the Civil law can be changed by the agreement of private individuals; although the basis of the obligation may be altered by mutual consent, by operation of the law itself, and by the pleading of an exception on the ground of an informal agreement; for the reason that the cause of an action conferred either by the law or by the Praetor is not annulled by the agreement of private individuals, unless it was made between them at the time when the suit was brought.
28. Ulpianus, On Sabinus, Book XXXVI.
The Divine Pius stated in a Rescript that those who were sued on account of a display of liberality could only have judgment rendered against them for an amount which they were able to pay.
29. Paulus, On Sabinus, Book VIII.
Anything which is void in the beginning cannot be remedied by lapse of time.
30. Ulpianus, On Sabinus, Book XXXVI.
Consent and not cohabitation constitutes marriage.
31. The Same, On Sabinus, Book XLII.
It is true that neither agreements nor stipulations can abrogate an act which has already been performed; for whatever is impossible cannot be included in an agreement or a stipulation in such a way as to render a praetorian action or agreement effective.
32. The Same, On Sabinus, Book XLIII.
So far as the Civil Law is concerned, slaves are not considered persons, but this is riot the case according to natural law, because natural law regards all men as equal.
33. Pomponius, On Sabinus, Book XXII.
Where either the plaintiff or the defendant attempts to prove a lucrative title, the case of the plaintiff is the more difficult to establish.
34. Ulpianus, On Sabinus, Book XLII.
In all stipulations and other contracts, we follow the intention of the parties; and if it is not apparent what their intention was, we observe the custom of the place where the transaction was concluded. But what rule should be adopted if the custom of the place did not settle anything, because it varied? In this instance, the smallest amount should be exacted.
35. The Same, On Sabinus, Book XLVIII.
Nothing is so natural as that an obligation should be abrogated in the same way in which it was contracted; therefore a verbal obligation is abrogated by words, and one based upon the mere consent of the parties is annulled by the dissent of both.
36. Pomponius, On Sabinus, Book XXVII.
It is culpable to interfere in something with which one has no concern.
37. Ulpianus, On Sabinus, Book LI.
Anyone who has the power to condemn has also the power to acquit.
38. Pomponius, On Sabinus, Book XXIX.
Just as an heir should not be liable to a penalty incurred by the deceased for a crime, so also he should not profit by anything which may come into his hands on account of the crime.
39. The Same, On Sabinus, Book XXXII.
In every instance, an act is considered as having been performed, where anyone is prevented from performing it by another.
40. The Same, On Sabinus, Book XXXIV.
An insane person, and one who is forbidden to manage his property, has no will.
41. Ulpianus, On the Edict, Book XXVI.
Anything which a plaintiff is not allowed to do is not permitted the defendant.
(1) Where the right to property is obscure, it is better to favor the party who attempts to recover it than he who is striving to obtain it for the first time.
42. Gaius, On the Provincial Edict, Book IX.
Those who succeed to another have good reason to plead ignorance as to whether what is demanded is due or not. Sureties, also, as well as heirs, can allege ignorance as an excuse. This, however, only applies to an heir when he is sued, and not when he brings the action; for it is clear that anyone who brings suit must be informed, for it is in his power to do so when he wishes, and he should, in the first place, carefully examine the claim, and then proceed to collect it.
43. Ulpianus, On the Edict, Book XXVIII.
No one who denies that he owes anything is prevented from making any other defence unless the law prohibits it.
(1) Whenever several actions can be brought for the same thing, one alone should be employed.
44. The Same, On the Edict, Book XXIX.
We grant an action against an heir for the amount by which he has profited through the fraud of the deceased, but this does not apply to any fraud of his own.
45. The Same, On the Edict, Book XXX.
Neither the pledge, nor the deposit, nor possession by a precarious title, nor the purchase, nor the hiring of one's own property, can stand.
(1) The agreement of private individuals does not affect public law.
46. Gaius, On the Provincial Edict, Book X.
No one is compelled to make restitution of anything which has been exacted by way of penalty.
47. Ulpianus, On the Edict, Book XXX.
No obligation is incurred by giving advice which is not fraudulent; if, however, it should be given with fraudulent and deceitful intent, an action for fraud will lie.
(1) The partner of my partner is not mine.
48. Paulus, On the Edict, Book XXXV.
Anything which is done or said in the heat of anger is not considered of any effect, unless the perseverance of the party in question discloses the condition of his or her mind. Therefore, when a wife returns after a short time, she is not considered to have been divorced.
49. Ulpianus, On the Edict, Book XXXV.
The cheating of one person does not afford ground to another for an action when he was not affected by it.
50. Paulus, On the Edict, Book XXXIX.
He is free from blame who is aware of a breach of the law being committed, but is unable to prevent it.
51. Gaius, On the Provincial Edict, Book XV.
No one is considered to acquire something which he is obliged to deliver to another.
52. Ulpianus, On the Edict, Book XLIV.
Not only he who conceals himself is considered not to defend a case, but also he who, being present, refuses to defend himself or is unwilling to proceed.
53. Paulus, On the Edict, Book XLII.
A person has a right to recover money which he has paid by mistake, but where he pays it designedly it is considered a donation.
54. Ulpianus, On the Edict, Book XLVI.
No one can transfer to another a right which he himself does not possess.
55. Gaius, On Wills Relating to the Urban Edict, Book II.
No one is considered to commit a fraud who does what he has a right to do.
56. The Same, On Legacies Relating to the Urban Edict, Book III.
In questions which are doubtful, the more benevolent opinion should always obtain the preference.
57. The Same, On the Principal Edict, Book XVIII.
Good faith does not permit the same debt to be collected twice.
58. Ulpianus, Disputations, Book II.
An action De peculia is not usually granted against a father in criminal cases.
59. The Same, Disputations, Book III.
It is decided that an heir has the same authority and rights that were enjoyed by the deceased.
60. The Same, Disputations, Book X.
He is always understood to direct something to be done who does not prevent another from intervening in his behalf. If, however, anyone who did not consent should ratify a transaction, he will be liable to an action on mandate.
61. The Same, Opinions, Book III.
Anyone has the right to repair his own house, provided he does not do so against the consent of another, on land to which he has no right.
62. Julianus, Digest, Book VI.
Inheritance is nothing more than succession to every right enjoyed by the deceased.
63. The Same, Digest, Book XVII.
Anyone who, without fraudulent intent, proceeds to trial, is not held to be in default of payment.
64. The Same, Digest, Book XXIX.
Anything which rarely occurs should not rashly be considered in the transaction of business.
65. The Same, Digest, Book LIV.
The species of sophistry which the Greeks designate a "concise syllogism" is where from premises which are evidently true, by means of trifling changes, conclusions are deduced which are clearly false.
66. The Same, Digest, Book LX.
Marcellus says that he ceases to be a debtor who obtains a legal exception, and one which is not contrary to natural equity.
67. The Same, Digest, Book LXXXVII.
Whenever a sentence has two meanings, that should be accepted which is the better adapted to the case.
68. Paulus, On the Recovery of a Dowry.
In every instance it should be observed that when the condition of a person affords ground for an advantage, and it is lacking, the advantage also disappears; but where the action requires it, anyone can prosecute it, and the ground for the advantage remains.
69. The Same, Concerning the Assignment of Freedmen.
A benefit is not conferred upon a person who is unwilling to accept it.
70. The Same, On the Duties of Proconsul, Book II.
No one upon whom has been conferred the right to sentence an offender to death, or to any other punishment, can transfer his authority to another.
71. The Same, On the Duties of Proconsul, Book II.
Everything which requires an investigation cannot be settled by means of a petition.
72. Javolenus, On the Last Works of Labeo, Book III.
The profits of any kind of property can be given in pledge.
73. Quintus Mucius Scaevola, Rules.
Guardianship is derived from the right of inheritance, except where there are female heirs.
(1) No one can appoint a guardian for anyone except for his proper heirs, or unless he had such heirs at the time of his death, or would have had them if he had lived.
(2) That is considered to be done with violence which anyone does after having been prohibited; and he acts clandestinely who proceeds without the knowledge of the other party, if he has a controversy with him, or thinks that he will have one.
(3) Anything which is stated in a will in such a way that it cannot be understood is just the same as if it had not been mentioned at all.
(4) No one can benefit another to the detriment of a third party, either by an agreement, by prescribing a condition, or by entering into a stipulation.
74. Papinianus, Questions, Book I.
An unjust condition should not be imposed by one person upon another.
75. Papinianus, Questions, Book III.
No one can change his mind to the injury of another.
76. The Same, Questions, Book XXIV.
No transactions which require the consent of the parties interested can be carried out, unless actual and positive proof of this exists.
77. The Same, Questions, Book XXVIII.
Lawful acts which are not dependent upon time or a condition, as, for instance, emancipation, release, the acceptance of an estate, the choice of a slave, the appointment of a guardian, are absolutely annulled by the addition of time, or a condition. Occasionally, however, the above-mentioned acts become tacitly operative under circumstances which, if openly stated, would render them void. For when anyone absolutely acknowledges the receipt of something which was promised him under a condition, his release will be considered valid if the condition of the obligation should be fulfilled; where, however, the condition of the release was expressly stated, the transaction will be of no force or effect.
78. The Same, Questions, Book XXXI.
Generally speaking, when any question arises with reference to a fraud, not what the plaintiff has in his hands, but what he might have had, if it had not been for his adversary, should be taken into consideration.
79. The Same, Questions, Book XXXII.
The establishment of the existence of fraud, according to the Civil Law, does not always depend upon the event, but whether there was an intention to commit it.
80. The Same, Questions, Book XXXIII.
In all legal matters, the species takes precedence of the genus, and whatever has reference to it is considered of the most importance.
81. The Same, Opinions, Book III.
Whatever is inserted in contracts for the purpose of removing ambiguity does not prejudice the Common Law.
82. The Same, Opinions, Book IX.
Anything is considered to be donated which is given without the compulsion of law.
83. The Same, Definitions, Book II.
No one is considered to have lost something if it did not belong to him.
84. The Same, Questions, Book V.
When more is paid than is due, and it is not possible to deduct the surplus, the entire debt is understood to be unpaid, and the former obligation will continue to exist.
(1) He in whose honesty we have confided owes by natural law what he owes by the Law of Nations.
85. The Same, Questions, Book VI.
When any doubt arises, it is better to decide in favor of the dowry.
(1) It is no new principle that whatever has once been decided to be valid, will stand; although a case may arise in which a beginning could not have been made.
(2) Whenever either natural reason, or doubt of the law is opposed by equity, moderation must be observed in rendering a decision.
86. The Same, Questions, Book VII.
The condition of those who engage in litigation is not usually made worse than if they had not undertaken it, but for the most part it is improved.
87. The Same, Questions, Book XIII.
No one, by attempting to recover his property, makes his case worse, but he improves it. Finally, after issue has been joined, the right passes to the heir, and the heir is also liable under all circumstances.
88. Scaevola, Questions, Book V.
No one is understood to be in default where the claim is void.
89. Paulus, Questions, Book X.
As long as a will is valid, the heir at law is not admitted to the succession.
90. The Same, Questions, Book XV.
In all matters, and especially in those relating to the law, equity must be considered.
91. The Same, Questions, Book XVII.
Whenever a succession belongs to anyone by a double right, if the more recent one should be rejected, the older one will remain.
92. Scaevola, Opinions, Book V.
If a copyist makes a mistake in transcribing a stipulation, this will not prevent the debtor and the surety from being liable.
93. Marcianus, Trusts, Book I.
A son under paternal control is considered neither to retain, to recover, nor to acquire possession of his peculium.
94. Ulpianus, Trusts, Book II.
It is not usual for superfluous matter to vitiate a document.
95. The Same, Trusts, Book VI.
No one doubts that he should be considered solvent who is defended.
96. Marcianus, Trusts, Book XII.
When an instrument is ambiguous, the intention of the party who produced it should be considered.
97. Hermogenianus, Epitomes of Law, Book III.
The sentence of deportation, alone, deprives a person of his property, which is confiscated by the Treasury.
98. The Same, Epitomes of Law, Book IV.
Whenever property is claimed by two persons under a lucrative title, he whose title to the same is the more ancient should have the preference.
99. Venuleius, Stipulations, Book XII.
No one can be considered dishonest who does not know how much he ought to pay.
100. Gaius, Rules, Book I.
Any obligation contracted under one law is annulled by a contrary law.
101. Paulus, On Judicial Inquiries.
When the law mentions the term of two months, and the party appears on the sixty-first day, he should be heard; for this the Emperor Antoninus and his Divine Father stated in a Rescript.
102. Ulpianus, On the Edict, Book I.
Anyone who commits an act against the order of the Praetor is properly said to have violated the Edict.
(1) He has the right to refuse an action, who can also grant it.
103. Paulus, On the Edict, Book I.
No one can be taken by force from his own house.
104. Ulpianus, On the Edict, Book II.
Where two actions are brought, in one of which a large sum is claimed as damages, and in the other an infamous charge is made, the one which affects the party's reputation is entitled to the preference. But where both actions are such that the sentences will brand the defendant with infamy, they should both be considered to be of the same importance, even though the amounts involved are unequal.
105. Paulus, On the Edict, Book I.
Whenever a judicial inquiry is demanded, recourse must be had to the Praetor.
106. The Same, On the Edict, Book II.
Liberty is a possession of inestimable value.
107. Gaius, On the Provincial Edict, Book I.
No action at law can be brought against a slave.
108. Paulus, On the Edict, Book IV.
In inflicting penalties, the age and inexperience of the guilty party must always be taken into account.
109. The Same, On the Edict, Book V.
He is not an accomplice in a crime who does not prevent it from being committed when he is unable to do so.
110. The Same, On the Edict, Book VI.
The less is always included in the greater.
(1) No one is considered to be legally responsible for another, unless he gives security.
(2) A minor is not considered to have consented to something to his injury.
(3) Where two sentences in a contract referring to the same thing are not connected, it is sufficient for one of them to be complied with.
(4) Relief should be granted to women for their protection, but not to enable them the more readily to impose upon others.
111. Gaius, On the Provincial Edict, Book II.
A minor who is near the age of puberty is capable of theft and the commission of injury.
(1) Penal actions growing out of breaches of the law do not pass against the heir, as, for instance, those of theft, wrongful damage, robbery with violence, and injury.
112. Paulus, On the Edict, Book VIII.
It makes no difference, so far as the result is concerned, whether anyone is not entitled to an action under the law, or whether he may be barred by an exception.
113. Gaius, On the Provincial Edict, Book III.
A part is included in the whole.
114. Paulus, On the Edict, Book IX.
When words are ambiguous, their most probable or ordinary signification should be adopted.
115. The Same, On the Edict, Book X.
Where anyone is released from an obligation, his creditor is presumed to have received his money.
(1) He cannot be considered to have obtained anything who, having made a stipulation, can be barred by an exception.
116. Ulpianus, On the Edict, Book XI.
Nothing is so opposed to consent, which is the basis of bona fide contracts, as force and fear; and to approve anything of this kind is contrary to good morals.
(1) He is not taken advantage of who conforms to the public law.
(2) Those who make mistakes are not considered to consent.
117. Paulus, On the Edict, Book XI.
The Praetor considers the possessor of an estate under the Edict as taking the place of the heir in every respect.
118. Ulpianus, On the Edict, Book XII.
Anyone who is in servitude cannot acquire property by usucaption; for even when he has possession, he is not considered to hold it legally.
119. The Same, On the Edict, Book XIII.
He does not alienate who merely fails to obtain possession.
120. Paulus, On the Edict, Book XII.
No one can leave to his heir any rights which he himself does not possess.
121. The Same, On the Edict, Book XIII.
He who does not do what he should is considered to have violated his duty; and he who does what he ought not to do is understood not to do what was enjoined upon him.
122. Gaius, On the Provincial Edict, Book V.
Liberty is favored above all things.
123. Ulpianus, On the Edict, Book XIV.
No one can legally bring suit in the name of another.
(1) A temporary change does not injuriously affect the rights of a province.
124. Paulus, On the Edict, Book XVI.
In transactions where not speech, but the presence of the party is required, a dumb person who has intelligence can be considered to answer. The same rule applies to one who is deaf, for he also can answer.
(1) Pomponius, in the First Book says: "An insane person occupies the same position as one who is absent."
125. Gaius, On the Provincial Edict, Book V.
Defendants are regarded with greater favor than plaintiffs.
126. Ulpianus, On the Edict, Book XV.
No one is a depredator who pays the price of what he obtains.
(1) He who acquires a freedman does not become any more wealthy on this account.
(2) When a question arises with reference to the claims of two persons, the position of the possessor is preferable.
127. Paulus, On the Edict, Book XX.
When the Praetor grants an action against an heir for the amount by which he has profited, it is sufficient if the computation be made from the time when the property obtained by the fraud of the deceased came into his hands.
128. The Same, On the Edict, Book XIX.
When two persons hold property by the same title, the possessor has the advantage.
(1) Those who succeed to the entire rights of anyone are considered to occupy the place of his heirs.
129. The Same, On the Edict, Book XXI.
A creditor is not guilty of fraud who receives that to which he is entitled.
(1) When the principal thing ceases to exist, its accessories also disappear.
130. Ulpianus, On the Edict, Book XVIII.
Actions, and especially penal ones, which have reference to the same subject, never abrogate one another.
131. Paulus, On the Edict, Book XXII.
Anyone who fraudulently relinquishes possession has judgment rendered against him as the possessor, because his fraud renders him liable as possessor.
132. Gaius, On the Provincial Edict, Book VII.
Ignorance is classed as negligence.
133. The Same, On the Provincial Edict, Book VIII.
Our condition can be improved by our slaves, but it cannot be rendered worse.
134. Ulpianus, On the Edict, Book XXI.
Creditors are not defrauded when nothing is acquired by their debtor, but only when his property is diminished.
(1) No one can improve his condition by means of a crime.
135. The Same, On the Edict, Book XXIII.
Property cannot be delivered which either does not exist or which is not considered as included in the contract.
136. Paulus, On the Edict, Book XVIII.
Good faith concedes as much to a possessor as he is really entitled to, whenever the law does not prevent this from being done.
137. Ulpianus, On the Edict, Book XXV.
He who obtains anything by the authority of a court is a bona fide possessor.
138. Paulus, On the Edict, Book XXVII.
Every estate, even though subsequently entered upon, is considered to have been accepted at the time of the death of the deceased.
(1) The gravity of an offence never increases on account of the time which has elapsed since it was committed.
139. Gaius, On the Edict of the Urban Praetor.
All rights of action which are extinguished by death or by lapse of time continue to exist when they have once been brought into court.
(1) Nothing is considered to absolutely belong to anyone of which he can be deprived by some event.
140. Ulpianus, On the Edict, Book LVI.
The absence of him who is away on business for the State should not prejudice him, or anyone else.
141. Paulus, On the Edict, Book LIV.
Anything which is established against a rule of law should not become a precedent.
(1) Two heirs of the same person cannot each become the heir to his entire estate.
142. The Same, On the Edict, Book LVI.
He who is silent does not always confess, still, it is true that he does not deny.
143. Ulpianus, On the Edict, Book LXII.
Anything which will bar persons who have entered into a contract will also bar their successors.
144. Paulus, On the Edict, Book LXII.
Everything which is permissible is not always honorable.
(1) In stipulations, the time when we contracted should be considered.
145. Ulpianus, On the Edict, Book LXVI.
No one is considered to defraud those who are aware of the facts, and give their consent.
146. Paulus, On the Edict, Book LXII.
Whatever anyone did while a slave cannot benefit him after he becomes free.
147. Gaius, On the Provincial Edict, Book XXIV.
Special matters are always included in general ones.
148. Paulus, On the Short Edict, Book XVI.
When the effect of anything benefits all the parties in interest, each of them should also bear his share of the expense.
149. Ulpianus, On the Edict, Book LXVII.
Anyone who profits by the acts of another should guarantee them.
150. The Same, On the Edict, Book LXVIII.
The legal position of him who has committed fraud in order to obtain possession of, or to hold property, and that of him who has committed it to avoid having possession of or holding property, is necessarily the same.
151. Paulus, On the Edict, Book LXIV.
No one commits a wrong against another unless he does something which he has no right to do.
152. Ulpianus, On the Edict, Book LXIX.
It is our practice to prosecute as a crime everything which is accomplished by either public or private violence.
(1) He who directs a person to be deprived of possession deprives him of it.
(2) The ratification of the commission of an offence resembles an order to commit it.
(3) In contracts involving fraud or good faith, the heir is liable in full.
153. Paulus, On the Edict, Book LXV.
We become liable in the same way as, on the other hand, we are released from contracts; for as we acquire property by certain methods, we also lose it by the same means. Therefore, as possession cannot be obtained except by intention and corporeal exertion, so,none can be lost, unless both these things exist.
154. Ulpianus, On the Edict, Book LXX.
When the parties to a suit are guilty of the same crime, the plaintiff labors under a disadvantage, and the position of the possessor is preferable; as is the case when an exception is filed on account of the fraud of the plaintiff, and a reply is not granted to the latter, even if the defendant committed fraud in the same transaction.
(1) He who himself is not guilty should be permitted to collect a penalty from the other party.
155. Paulus, On the Edict, Book LXV.
A person is responsible for his own act, and it should not prejudice his adversary.
(1) He is not considered to employ violence who avails himself of his own right, and brings an ordinary action at law.
(2) In penal cases, the most benevolent construction should be adopted.
156. Ulpianus, On the Edict, Book LXX.
No one can be compelled to defend another against his will.
(1) Anyone can say that the party to whom we grant actions has much more reason to plead an exception.
(2) When one person succeeds another, it is not just that whatever might have prejudiced the individual whom he succeeded should not also prejudice him.
(3) Generally speaking, a purchaser should have the same right to bring an action, or defend it, that the vendor has.
(4) What is granted to anyone for his own benefit is not bestowed upon him if he refuses to accept it.
157. The Same, On the Edict, Book LXXI.
Where a crime or an offence is not classed as atrocious, it will be pardoned in those who commit it, if, as slaves, they have obeyed their masters; or where the offenders have obeyed those who take the place of masters, as, for instance, guardians and curators.
(1) Anyone who commits a fraud for the purpose of relinquishing possession is considered to still retain possession.
(2) In contracts, the successors of those who have been guilty of fraud are not only liable for any profits which they may obtain, but also for the entire amount; that is to say, each one will be liable for his share as heir.
158. Gaius, On the Provincial Edict, Book XXVI.
A creditor who permits property which has been pledged to be sold loses his lien.
159. Paulus, On the Edict, Book VII.
We may be entitled to property by virtue of different obligations, but it cannot belong to us by different titles.
160. Ulpianus, On the Edict, Book LXXVI.
It is one thing to sell, and another to consent for the vendor to sell.
(1) Anything which is done publicly by a majority is considered to have been done by all the parties interested.
(2) It is absurd that a person to whom a tract of land has been devised should have a better title to the same than the heir, or the testator himself if he were living.
161. The Same, On the Edict, Book LXXVII.
It was a rule adopted by the Civil Law that whenever a party in interest prevents a condition from being complied with, it is considered the same as if it had been fulfilled. This applies to grants of freedom, legacies, and the appointment of heirs; and, under this rule, stipulations also become operative, when, through the act of the promisor, the stipulator is prevented from complying with the condition.
162. Paulus, On the Edict, Book LXX.
Any act performed through necessity should not be cited as a precedent.
163. Ulpianus, On the Edict, Book LV.
When a person has a right to give anything, he also has the right to sell and alienate it.
164. Paulus, On the Edict, Book LI.
Suits which involve a penalty, and have once been brought, can be transmitted against heirs.
165. Ulpianus, On the Edict, Book LIII.
He who can alienate property can also consent to its alienation. But where the right to donate it is not granted to a person, the rule should be adopted that his wishes must not be considered, even if he consents to its donation by another.
166. Paulus, On the Edict, Book XLVIII.
He who defends the case of another is never considered solvent.
167. The Same, On the Edict, Book XLIX.
Anything which, at the time it was given, does not become the property of him who receives it is not considered to have been given at all.
(1) A party who does something by order of a judge is not considered to have committed fraud, because he was obliged to obey.
168. The Same, On Plautius, Book I.
That course should be pursued which affords the prospect of the most equitable settlement.
(1) Any question which is doubtful ought to be interpreted according to the intention of the parties in interest.
169. The Same, On Plautius, Book II.
He commits a wrong who orders it to be committed. He, however, is not to blame who is compelled to obey.
(1) Anything which is in suspense is not considered to exist.
170. The Same, On Plautius, Book III.
Any act of a magistrate which has no reference to his judicial duties is void.
171. The Same, On Plautius, Book IV.
No one is liable for a debt on the ground that he can collect from another what he has paid for him.
172. The Same, On Plautius, Book V.
In a contract of sale, any sentence of doubtful signification is interpreted against the vendor.
(1) A claim which is ambiguous should be construed in such a way as to be favorable to the plaintiff.
173. The Same, On Plautius, Book VI.
When judgment is rendered against anyone to the extent of his means, everything which he had should not be extorted from him; but the rule of law should be observed which does not permit him to be reduced to poverty.
(1) When the expression, "You shall make restitution," is found in a law, the profits must also be restored, even if this is not specially provided for.
(2) Everyone is prejudiced by his own delay in making payment, which rule is observed where two debtors are jointly liable.
(3) He is guilty of fraud who demands something which he is obliged to return.
174. The Same, On Plautius, Book VIII.
He can act who already appears able to comply with the condition.
(1) Anything which a person cannot have, even if he wishes it, he cannot reject.
175. The Same, On Plautius, Book XI.
A slave cannot perform any duty which the laws require to be performed by persons who are free.
(1) I should not be in any better condition than the person from whom I derive my rights.
176. The Same, On Plautius, Book XIII.
No one is granted the privilege of doing for himself what can be publicly done through a magistrate; and this is prescribed in order to avoid opportunities for promoting disorder.
(1) The value of freedom and relationship is boundless.
177. The Same, On Plautius, Book XIV.
He who succeeds to the privileges or ownership of another should avail himself of his legal rights of his predecessor.
(1) No one should be accused of fraud who is ignorant of the reason why he should not bring an action.
178. The Same, On Plautius, Book XV.
When the principal thing is no longer in existence, its accessories, generally speaking, also cease to exist.
179. The Same, On Plautius, Book XVI.
When the intention of a person granting manumission is obscure, a decision should be rendered in favor of freedom.
180. The Same, On Plautius, Book XVII.
Anything which is paid by the order of a creditor is the same as if it had been paid to the latter himself.
181. The Same, On Vitellius, Book I.
If no one accepts an estate, the force of the will is entirely destroyed.
182. The Same, On Vitellius, Book III.
When the title to property cannot vest in anyone, no obligation can cause it to do so.
183. Marcellus, Digest, Book XIII.
Although the formalities required by law are not easily changed, still relief should be granted where equity clearly demands it.
184. Celsus, Digest, Book VII.
The excuse of an empty fear is not a legal one.
185. The Same, Digest, Book VIII.
No obligation is binding which is impossible.
186. The Same, Digest, Book XII.
Nothing can be demanded before the time when it can be delivered, according to the natural course of things; and when the date of payment is inserted into an obligation, it cannot be collected unless the time has elapsed.
187. The Same, Digest, Book XVI.
Where anyone leaves his wife pregnant, he is not considered to have died without children.
188. The Same, Digest, Book XVII.
Where two contradictory things are ordered in a will, neither of them will be valid.
(1) Whatever is prohibited by the nature of things cannot be confirmed by any law.
189. The Same, Digest, Book XIII.
A minor is not presumed to give his consent, or to refuse it, on account of his age; for the authority of his guardian is necessary in any matter requiring knowledge or judgment.
190. The Same, Digest, Book XXIV.
Anything which is evicted is not included in property.
191. The Same, Digest, Book XXXIII.
Neratius, having been consulted as to whether a privilege granted by the Emperor to a person whom he believed to be living, but who in fact was already dead, should be considered to take effect, answered that it did not seem to him that the Emperor would have bestowed it if he had known that the grantee was dead, but still that it should be ascertained from him himself, to what extent he intended the privilege to be applicable.
192. Marcellus, Digest, Book XXIX.
Property which cannot be divided will be due in its entirety from the heirs, as individuals.
(1) In matters which are ambiguous, it is not less just than safe to adopt the more benevolent interpretation.
193. Celsus, Digest, Book XXXVIII.
Almost all the rights of heirs are considered to be the same as if they had become such immediately after the death of the testator.
194. Modestinus, Differences, Book VI.
Those who become heirs through a distant degree of relationship to the deceased are considered to be none the less heirs than if they had been of the first degree.
195. The Same, Differences, Book VII.
Things clearly stated are prejudicial; others are not.
196. The Same, Rules, Book VIII.
Some privileges are real, and some are personal. The former are transmitted to the heir: those which are personal do not pass to him.
197. The Same, On the Rite of Marriage.
In matrimonial unions, not only what is lawful but also what is honorable should be considered.
198. Javolenus, On Cassius, Book XIII.
Fraud committed by a guardian, whether he is solvent or not, should not prejudice the rights of his ward in an interdict, or in any other legal proceeding.
199. The Same, Epistles, Book VI.
He cannot be considered to be free from fraud who refuses to obey the order of a magistrate.
200. The Same, Epistles, Book VII.
Whenever a decision cannot be rendered without causing injury, that course should be adopted which is productive of the least injustice.
201. The Same, Epistles, Book X.
Every provision contained in a will is not considered to have any effect, unless it was valid at the time it was made.
202. The Same, Epistles, Book XI.
Every definition in the Civil Law is subject to modification, for a slight discrepancy may render it inapplicable.
203. Pomponius, On Quintus Mucius, Book VIII.
He who sustains any damage through his own fault is not considered to have been injured.
204. The Same, On Quintus Mucius, Book XXVIII.
It is less advantageous to have a right of action than to have the property which is the subject of it.
205. The Same, On Quintus Mucius, Book XXXIX.
It frequently happens that property of which we can, under certain circumstances, be deprived, is in such a condition as to be incapable of being taken from us. Hence, if we have become liable to the Treasury by encumbering a tract of land, we can sometimes bring an action to recover it, alienate it, and impose a servitude upon it.
206. The Same, On Various Passages, Book IX.
It is but just, and in accordance with the Law of Nations that no one, by the commission of an injury, can be enriched at the expense of another.
207. Ulpianus, On the Lex Julia et Papia, Book I.
Where a matter has been decided, it is considered as true.
208. Paulus, On the Lex Julia et Papia, Book XIII.
No one can be considered to have lost something which he never had.
209. Ulpianus, On the Lex Julia et Papia, Book IV.
We, to a certain extent, compare slavery with death.
210. Licinius Rufinus, Rules, Book II.
When the appointment of an heir is void from the beginning it cannot be rendered valid by lapse of time.
211. Paulus, On the Edict, Book LXIX.
A slave cannot be absent on business for the State.