No More Learning

Justin, in consequence of his nephew Justinian's marriage with Theodora,
removed this prohibition, if the woman had ceased to practise her
profession, and gave to his law retrospective effect from his accession.
Justinian relaxed the rule still further, and eventually (542) enabled all
persons to marry any free woman, but in the case of dignitaries only by
regular marriage settlement: others could marry either by settlement or
by marital affection without settlement.
Forbidden marriages were declared to be no marriages, dowry and
marriage gift were forfeited to the Crown, the children were not even to
be deemed natural children; the parties were incapable of giving by
will to any outsiders or to each other. Incestuous marriage, by
Justinian's latest law (535), was punished by exile and forfeiture of all
property, and in the case of persons of low rank by personal chastisement.
Any children by a previous lawful marriage became independent, took
their father's property and had to support him.
Dowry. A woman's dowry was a contribution from herself or her
relatives or others to the expenses of the married life, placed under the
charge and at the disposal of the husband, and, although theoretically his
property, to be accounted for by him on the dissolution of the marriage
to the donor or the wife. It presumed a lawful marriage: it could be
given either before or after, but if given before it took effect only on
marriage. It was governed by customary rules and often by special
agreements consistent with its general principles. From the time of
Constantine a betrothed husband's or wife's gift made in view of an
intended marriage was revocable by the donor, if the donee or the wife's
father was the cause of the marriage not taking place. And a gift from


## p. 73 (#105) #############################################

Marriage settlements 73
the husband, which was now a usual incident, was treated as balancing
the dowry and gradually subjected to like treatment (468). As the
dowry could be increased by the wife or others during the marriage
(notwithstanding the rule against gifts between husband and wife), so
also could the husband's antenuptial gift, and, if none such had been
made, he was allowed to make one not exceeding the value of the dowry,
and any agreements which had been made for a marriage settlement
could be modified accordingly. The amount of the settlement could be
reduced by mutual consent, unless there were children of the marriage,
for which the settlement was made (527). Justinian enacted (529) that
all agreements for the share to be taken by the wife in her husband's gift
after his death were to apply to the share to be taken by the husband
in the wife's dowry on her death, the larger share to be reduced
to the smaller, and altered the phrase ante nuptias donatio to propter
nuptias donatio, that it might fit the extended character (531). In
539 he enacted that the dowry and the marriage gift should be equal,
and that in all cases of dissolution of the marriage, whether either party
married again or not, the amount coming to him or her from the settle-
ments of the marriage or former marriage should pass as property to the
children of the marriage and only the usufruct to the parent; and that
was to be subject to the support of the children. In 548 he enacted
that either party abstaining from a second marriage should as a reward
share with the children in the property of the dowry or nuptial gift,
besides enjoying the usufruct of the whole: and further he required
that the husband or his friends should (as in other cases of gift)
record in court the amount of his marriage gift if over 500 solidi
(about equal to i? 500) under penalty for omission of losing all share
in the dowry.
A woman's claim for her dowry had since 529 (and still more since
539) precedence of almost all other claims on her husband's property;
and if her husband was insolvent she could maintain her claim on the
settled property even during his life against his creditors, and against her
father or mother or other donor unless they had expressly stipulated
for its return.
Any money or securities or other property which the wife had beside
her dowry (parapherna) were not touched by any of these agreements
or statutes, but remained entirely the property of the wife and subject
to her claim and disposition. The fact was sometimes mentioned in the
dowry deed, and the husband and his property were answerable for the
parapherna so far as they were under his care. Justinian (530) allowed
him to sue for them on his wife's behalf, and to use the interest for
their joint purposes, but the capital he was to deal with according to
her wish.
Second maeriac. es were the subject of much change of opinion, in
the minds of the Emperors at least, between Augustus and Justinian.


## p. 74 (#106) #############################################

74 Second marriages
Under the former celibacy was not merely discouraged, but visited with
the penalty of incapacity to take an inheritance or legacy, if the man
was under sixty or the woman under fifty years of age. Constantine
appears to have been the first to modify this legislation. No doubt the
declension of the Roman population had ceased to have the importance
which led to Augustus' stringent enactments, now that the Empire
contained a wider field for supplying recruits for the army. And the
Christian Church, coming by the fourth century to count the single life
nobler than the married, and encouraging anchorite and monastic
asceticism, looked on second marriages with increasing dislike and
reprobation. The Emperors in the fourth century, though requiring
the father's consent to the re-marriage of a woman under twenty-five
years of age, and severe in condemnation and punishment of any woman
who married again within ten months (in 881 extended to one year) from
the death of her husband, in other cases interfered only to secure the
interest of the children of the former marriage. Justinian dealt with
the subject in 536 and 539. As regards any property derived from the
former husband or wife the party marrying again, as already mentioned,
retained only the usufruct, the children of the former marriage being
entitled to the property in equal shares. As regards property not
derived from the former partner, the party re-marrying was disabled
from giving by dowry or otherwise or leaving to the second wife or
husband more than the smallest share of it which any child of the former
marriage would get. Under the law any excess was to be divided
equally between the said children if not "ungrateful. "
If property was left to a person on condition of his or her not
marrying again, it used to be the practice to require an oath for the
observance of the condition before the property was transferred.
Justinian, in order to prevent frequent perjury and secure the execution
of testator's intention, allowed the legatee, after a year for reflexion, to
have a transfer of the bequest, or, if it be money, the payment of interest
on it. Security had to be given, or at least an oath to be taken, by the
recipient that he would, if the condition were broken, restore the property
transferred with the profits or interest. His or her own property was
tacitly pledged by the statute (536).
By second marriage a mother lost the right, which the law usually
gave her, of educating her former children, and the guardianship, if she
had it, and lost all dignities and privileges derived from her former
husband.
Divorce. Until the year 542 marriage could be dissolved in the
life of the parties by mutual consent without special cause and with only
such consequences as were agreed between them. In that year Justinian
forbad any such divorce except in order to lead a life of chastity. For
breach of this law he enacted in 556 that both parties were to be sent
into a monastery for the rest of their lives; of their property one-third


## p. 75 (#107) #############################################

Divorce. Repudium 75
was to be given to the monastery and two-thirds to their children: if
there were no children, two-thirds to the monastery and one-third to
their parents; if they had no ascendants alive, all to the monastery. If
however husband and wife agreed to come together again, the penalties
were not enforced: if one only was willing, he or she was freed.
Justinian's son, Justin, in 566 yielded to persistent complaints and
restored the old law permitting divorce by mutual consent.
Divorce at the instance of one party only, called repudium, in old
times was subject to no restraint, but in Augustus1 time required seven
witnesses to the declaration, which was made orally or in writing and
delivered to the other party by declarant's freedman. Under the
Emperors a dissolution of marriage without good ground was visited
with penalties. Good ground was either incapacity on the part of the
husband for a period of three years from marriage, or desire to lead a
life of chastity, or captivity, combined with the other's ignorance for
five years of the captive's being alive. In these cases, called by Justinian
divortium bona gratia, the dowry is given back to the wife and the
marriage gift to the husband, but no penalty is incurred. On the other
hand for grave crime or offence either party may repudiate the other
and gain both dowry and marriage gift. The offences as specified by
Valentinian (449) were in the main the same in both cases, adultery,
murder, enchantments, treason, sacrilege, grave-robbery, kidnapping,
forgery, attacks on the other's life, or blows: also in the case of the
man, cattle-lifting, brigandage or brigand-harbouring, associating with
immodest women in presence of his wife: in the case of the woman,
revelling with other men not belonging to her, without her husband's
knowledge or consent, or against his will going to theatres or amphi-
theatres or horse races, or without good cause absenting herself from
his bed. Justinian (535) added to the wife's offences wilful abortion,
bathing with other men, and arranging a future marriage while still
married.
By a later law (542) Justinian reduced the number of offences which
would justify repudiation to six on the part of the wife, viz. , conspiracy
against the Empire or concealing such from her husband, proved
adultery, attempt on the husband's life, banqueting or bathing with
strange men without his consent, staying out of her own house except at
her parents' house or with her husband's consent, visiting circus shows or
theatres or amphitheatres without his knowledge and approval. On the
part of the husband five offences only are to count: conspiracy against
the Empire, attempt on his wife's life or neglect to avenge her, conniving
at others' attempts on her chastity, charging her with adultery and
failing to prove it, associating with other women in the house where his
wife dwells or frequently consorting with another woman in the same
town and persisting after several admonitions by his wife's parents or
others. The regular penalty for the guilty person in such a case and


## p. 76 (#108) #############################################

76 Concubinage
for repudiation on other grounds than those sanctioned by the law was
forfeiture of all the settled property to the innocent person, if there
were no children, and if there were children, the innocent person was to
have the usufruct and the children the property in remainder. In graver
cases an additional amount from the other property of the delinquent
equal to one-third of the dowry or nuptial gift forfeited, was to be so
treated. Where the marriage was not accompanied by a settlement, the
guilty party was to forfeit one-fourth of his or her property to the other.
By the latest legislation (556) the penalty was to be as for dissolution
merely by mutual consent.
If a husband beat his wife with whip or stick, the marriage was not
dissoluble on that account, but he was to forfeit to her of his own
property as much as was equal to one-third of the marriage gift.
As regards persons in military or other imperial service, Justinian
eventually enacted (549) that death should not be presumed from
absence of news however long, but if the wife hear of her husband's
death she must inquire, and, if the authorities of the regiment swear to
his death, she must wait a year before marrying again. Otherwise both
husband and wife will be punished as adulterers.
Concubinage was a connexion not merely transitory or occasional but
continuous, for the gratification of passion, not for the founding of a
family of citizens. The children, if any, had no legal relation to their
father any more than their mother had. And thus, the economical
relations between the man and woman being in law those of independent
persons, gifts were not barred in concubinage as they were in marriage.
Such a connexion was a matter of social depreciation, but not subject to
moral disapprobation if the man was unmarried. Foreigners and soldiers
in the early Empire were rarely capable of contracting a regular Roman
marriage (matrimonium justum), and a looser connexion became almost
inevitable. By Romans in a higher class it was rarely formed except
with a woman of inferior position, a slave or a freedwoman, and in such
cases was thought more seemly than marriage. With freeborn women it
was unusual, unless they followed some ignoble trade or profession or
had otherwise lost esteem. Constantine and other Christian Emperors
viewed it with strong disfavour, and discouraged it by refusing legal
validity to all gifts and testamentary dispositions by the man in favour
of the children of the connexion. On the other hand the conversion of
concubinage into marriage and consequent legitimation of the children
was encouraged, at first under Constantine, only when there were no
legitimate children already and when the concubine was a freeborn
woman. Marriage settlements having been executed, the children born
before as well as any born after became legitimate, and (if they consented)
subject to their father's power and alike eligible to his succession. After
varied legislation eventually Justinian enacted in 539 that this should
apply to freedwomen also and apply whether there were children before,


## p. 77 (#109) #############################################

Legitimation of natural children 77
legitimate or not, and whether others were born after or not. In the
previous year he had provided that, where by the death of the mother or
for other cause marriage was not feasible, the children might be legitimated
on the father's application or in accordance with his will; and that a
woman who, trusting to a man's oath on the Gospels or in church that
he would regard her as his wife, had lived long with him and perhaps
had children, could on proving the fact maintain her position against
him and be entitled to the usufruct of a fourth of his estate, the children
having the property; if there were three children she had the usufruct of a
child's share. In 542 he provided that if a man in a public deed, or his
own writing duly witnessed, or in his will called a child by a free woman
his son without adding the epithet "natural," this sufficed to make him
and his brothers legitimate and their mother a legitimate wife without
further evidence.
As regards connexions with slave women Justinian in 539 enacted
that they might be legitimatised by enfranchisement and marriage
settlement, and the children of the connexion though born in slavery
would thereby become free and legitimate. He had already in 531
provided that if a man having no wife has formed such a connexion
and maintained it till his death, the woman and her children should
become free after his death, if he did not make other disposition
by his will.
Theodosius in 443 had introduced another mode of improving the
condition of natural children. He authorised a father either in his life
or by his will to present one or more of his natural children to the
municipal council of his town to become a member of their body, and
further authorised him to give or leave such children any amount of his
property to support their rank and position; and similarly to give his
natural daughters in marriage to members of the council. Those so
presented were not allowed to decline the position, burdensome though
it was. They succeeded to their father's intestate inheritance just as
if they were legitimate, but had no claim to the inheritance of their
father's relatives. Theodosius restricted this right to a father who had
no legitimate children. Justinian (539) in confirming the law removed
this restriction but limited such a natural son's share of the inheritance
to the smallest amount which fell to any legitimate son.
The jus liberorum exempting from the disabilities imposed by the
Papian law was acquired by natural as well as by legitimate children,
and so also the reciprocal rights between mother and children of intestate
inheritance given by the Tertullian and Orfitian Senates' decrees. The
Papian law was abolished by Constantine (320).
Incestuous connexion was not tolerated as concubinage any more
than as marriage. Children of such or other prohibited connexion
were not capable of legitimation or of any claim on their parents, even
for aliment.


## p. 78 (#110) #############################################

78 Will-making
Wills. A will in Roman law was not a mere distribution of
testator's property: it was the formal nomination of one or more persons
to continue as it were his personality and succeed to the whole of his
rights and obligations to men and gods. In early times the heir1 had
to perform the sacred rites of the family and to pay the debts, and if
testator's property was not sufficient, he was still liable himself in full.
The power of making a will belonged to all free persons who were
mi juris (i. e. , not under the power of their father or other ascendant), of
the age of puberty, not mad at the time and not naturally quite deaf and
dumb. Spendthrifts and persons in the enemy's power could not make
a will, but a will made before interdiction or capture was good.
The procedure was simplified by Justinian, partly indeed by previous
Emperors. Seven witnesses were required, all present at the same time
and subscribing and sealing the written document containing the will.
Neither woman nor child nor anyone in the power of testator nor slave
nor deaf nor dumb nor mad nor spendthrift nor the heir named nor
anyone in the heir's power nor one in whose power the heir was, is a good
witness. There was no objection to legatees as witnesses. The testator
must sign the will and acknowledge it as his will to the witnesses, but
need not disclose its contents. If he cannot write, an eighth person
must subscribe for him. If he is blind, there must be a notary (tabel-
larius) to write and subscribe the will, or at least an additional witness.
If the will be written entirely by testator and he states this fact in the
document, five witnesses suffice. Valentinian III (446) had allowed a
holographic will to be valid even without witnesses. The will might be
written on boards or paper or parchment: the material was unimportant.
Nor need the will be written at all. An oral declaration by the testator
of his will in the presence of seven witnesses was enough without further
formality.
Justinian made a concession to country people in places where
literates (i. e. persons able to read and write) were scarce. There must
be at least five witnesses, literates if possible, one or two of whom if
necessary might subscribe for the rest. In such wills the witnesses must
however be informed who are appointed heirs, and must depose this on
oath after testator's death.
Soldiers although in the power of their fathers were competent to
make a will dealing with their separate estate (castrense peculium). If
they were in actual service in camp or had not retired more than a year,
their will was exempted from all formalities. This concession was begun
by Julius Caesar and made permanent by Trajan in the most general
terms: "Let my fellow soldiers make their testaments as they will and as
they can, and let the bare will of the testator suffice for the division of
1 The heir (heret) is concerned with both personalty and realty (Roman law
drawing no such distinction), and (except for that) is fairly represented by the
earliest form of English executor, who was entitled to take the residue.


## p. 79 (#111) #############################################

Codicils 79
his goods. " It must however be definitely made and understood as a
will and not be a mere casual remark in conversation. Such a will
ceased to be valid after testator had left the service for a year; he must
then make his will in the ordinary form. Words written on his shield
or scabbard with his blood or scratched in the dust with his sword at
the time of death in battle were allowed by Constantine as a soldier's will.
A will might be revoked not only by a second will duly made, but by
cutting the threads which fastened the tablets or breaking the seals with
that intention. If ten years have elapsed, a verbal declaration of
revocation proved by three witnesses or made in court is enough. If a
second will not duly made gave the inheritance to the persons who would
be entitled on intestacy and the first will gave it to others not so
entitled, the second will, if witnessed by five persons on oath, is to
prevail (439).
Codicils. An informal disposition of property was sometimes made
by a testator's writing his desire in a note-book (codicilli). The practice
was introduced with Augustus' approval and was confirmed by the great
lawyer Labeo, in that he followed it himself. It was originally connected
with jideicommissa. Codicils presupposed a will appointing an heir, and
might be made more than once, before or after the will, but should be
confirmed expressly or impliedly by the will, subsequently or by antici-
patory clause. Even if no will followed, codicils were held good, if
there was evidence of testator's not having retracted his intention,
testator in such a case being deemed to have addressed his request to the
heir ab intestato. Only by way of trust could an heir be appointed
in codicils. Codicils required five witnesses who should subscribe the
written document. Testator's subscription was not necessary if he had
written the codicils himself. Oral codicils are mentioned.
It became a practice for a testator in making a formal will to insert
a clause declaring that if for any cause the will should be found invalid
as a will, e. g. by the heir's non-acceptance, he desired that it should pass
as codicils. Any person claiming under the will had to elect whether he
claimed as under a will or under codicils, and to declare his intention at
the first. Parents however and children within the fourth degree were
allowed after suing on it as a will and being unsuccessful to apply as for
a trust, for they are regarded as claiming what is due, whereas outsiders
are trying to secure a gain (424).
A testator could appoint as many heirs as he pleased. If no shares
are mentioned, all take equally. If some heirs accept and others do not,
those who accept take the whole among them, the shares being in the
original proportions to each other. A testator may also provide for the
contingency of the heir or heirs named not accepting, or dying, or
otherwise failing to take, and substitute another or others on this con-
tingency. And he could also appoint a substitute for a child in his
power becoming heir but dying before he came of age (puberty). In


## p. 80 (#112) #############################################

80 Heirs on condition. Slave heirs
such a case the substitute becomes heir to the father, if the son does not
become heir, and heir to the son, if the son has become heir but dies
before puberty. Nor was a testator bound to appoint his son heir; he
might disinherit him and yet appoint an heir to any property which
came to his son from inheritance or gift from others. Justinian allowed
a father to make a similar will for a son of full age who was demented.
If an heir is appointed on a condition, which at the time of testator's
death it is impossible to fulfil, the condition goes for nothing and the
appointment is absolute. But if the appointed heir is a son, the
appointment is treated as bad, and the son being thus passed over, the
will is null, and the son becomes heir on an intestacy. A condition
which could be fulfilled but involved an illegal or immoral action was
treated as impossible, Papinian laying down the principle that acts
should be deemed impossible which do violence to dutiful affection, to
fair repute, to respectful modesty, and generally which are opposed to
good conduct.
A testator could make one of his slaves heir, if he also gave him his
freedom. The slave then became heir of necessity, and this plan was
sometimes adopted by a testator who was insolvent, in order that the
disgrace of the estate being sold in bankruptcy might fall on him rather
than on the testator. As compensation for this misfortune, the creditors
were not allowed any right to be paid out of acquisitions made by him
since testator's death.
Madmen, dumb, infants, posthumous, children under power, others'
slaves, were capable of being heirs.
Inheritance. The position of an heir as a representative of the
deceased was in many cases attended with much uncertainty and serious
risk. His own estate was liable, if testator's was not sufficient, to pay
the creditors. If more than one person was appointed heir, each was
liable in proportion to his share as specified by testator, or, if no share
was named, then in equal shares. Testator might give away from his
heirs such parts of his property as he chose, and these legacies, unlike the
heirship, carried no unexpressed burden with them: a legatee was a mere
recipient of bounty, unless some condition was attached: he was a
successor to testator's rights in a particular thing only.
In such circumstances the appointed heir or heirs could not prudently
accept the inheritance until after careful inquiry into the solvency of the
estate, and even then the emergence of some previously undiscovered debt
might upset all his calculations and ruin him. Further, besides testator's
debts, the heir is liable also to pay the legacies, and cannot prevent the
loss to the estate of the slaves to whom testator may have given freedom
by his will. Hence there might be further ground for hesitation in
accepting the inheritance, and yet if no heir named accepts, the will
becomes a dead letter, intestacy results and the legacies and freedoms
fall to the ground.


## p. 81 (#113) #############################################

Benefit of inventory. Lex Falcidia 81
The first-named difficulty was met very imperfectly by testator's
fixing a period for the heir to make his decision (cretio); afterwards by
statute (529) allowing an heir a year for deliberation without his losing
the right, if he died before decision, of transmitting to his child or other
successor his claim to the inheritance. But a still more effective remedy
was enacted in 531. The heir was empowered, under suitable precau-
tions for accuracy and after inviting the presence of creditors and
legatees, to make an inventory and valuation of the assets of the
deceased, and was then not bound to discharge debts and legacies beyond
that total amount. He need not distribute the value of the estate pro
rata to the claimants, but (unless fully aware of the insufficiency of
the estate) could pay them in the order of their application. Then
creditors who had any right or priority could proceed against any
posterior to themselves who had received payment, or against holders
of any property specifically pledged to them, and all creditors not
satisfied could proceed against legatees who had been paid out of what
turned out to be insufficient to cover*the debts. This provision for
limiting the heir's liability was called "the benefit of an inventory," and
heirs were thus no longer prevented from promptly accepting an
inheritance which might turn out to be ruinous.
Further difficulty arose from legacies and freedoms left in the will.
Testator's estate might be able to meet the debts, but if there were
many or heavy charges for bequests, there might be nothing left to
make it worth while for the heir to accept the inheritance, and the will
might therefore be nullified. Several attempts to meet this difficulty
were made, but nothing effectual, until a Lex Falcidia was passed
c. B. C. 40. This law, as interpreted by the lawyers, allowed the heir or
heirs, if necessary, to reduce the amount of each legacy by so much as
would leave the heir or heirs collectively one-fourth of the inheritance in
value, the value being taken as at the time of death after deducting the
value of slaves freed, the debts, and funeral expenses. If any legacies
lapsed or other gain accrued to the heirs from the estate, this would be
counted towards the Falcidian fourth (as it was called). By this arrange-
ment the heir was sure of getting something, if he accepted a solvent
inheritance. And as, if he refused, the will would drop and the legacies
be lost, the legatees might be willing to accept possibly a further^ deduc-
tion to prevent intestacy. The application of the Falcidian law had
been so thoroughly worked out by the lawyers that Justinian seems to
have found little occasion for further enactment, except (535) to provide
for the presence of the legatees or their agents at taking the inventory,
with power to put the heir on his oath and to examine the slaves by
torture for the purpose of getting full information. An heir neglecting
to make an inventory was liable to creditors in full and could not
use the Falcidian against the legatees. In 544 Justinian directed that
the Falcidian should not apply to any immovable which testator had
C. MKIi. II. VOL. II. CH. III. 6


## p. 82 (#114) #############################################

82 Trusts. Fideicommissa
expressly desired should not be alienated from his family, otherwise it
might have now to be sold. In 535 he had directed the Falcidian not
to be used, if testator had expressly so willed.
Differences in the form of legacies led to many legal discussions which
Justinian settled by treating all the forms as having the same effect, and
giving the legatee both a direct claim to the thing bequeathed and also
a personal claim on the heir to transfer it. Trusts (Fideicommissa1)
were another subject of complication.
In or before the time of Augustus
attempts were made by testators to leave their estates, or a legacy,
to persons legally disqualified to take them (e. g. , foreigners, Latins,
unmarried persons, women in some cases). In a trust the heir was not
directed to transfer the estate or legacies but simply requested to do so.
There was no legal compulsion, the heir could fulfil the testator's desire
or not as he chose; if the property was transferred, it was as the act of
the living heir and not therefore hampered by restrictions which affected
gifts from the dead. Augustus, after much hesitation, treated such a
desire as obligatory on the heir. Gradually such appeals to the honour
and good faith of the heir became frequent and obtained full recognition
and use. Advantage was eagerly taken of this untechnical language to
get round many of the limitations of ordinary testamentary law; and if
only an heir was duly appointed and entered on the inheritance, almost
any dispositions, direct or contingent, present or future, might be made
of the estate or part of it through him as a channel. Thus testator
might secure the transfer of his estate or of a legacy in certain events
from the person first made heir or legatee to another person. Or he
might prevent his estate from being alienated from his family by
requesting the successive holders to pass it on at their deaths to other
members. And trusts might be imposed not only on named persons,
but on the heir or heirs by intestacy, in case the will should not have
regular validity. The Courts strove to give effect to the intentions of a
testator however mildly or informally expressed, and to protect the
trust against the heir. But the old difficulties then recurred: the heir
might as easily be overburdened with trusts as with legacies, and if he
did not think it worth while to enter on the inheritance, the will failed
and the trust with it. It was thus found necessary (c. a. d. 70) to ensure
1 The difference between an English trust and a Roman fideicommissum is rather
in the practical object and working than in the conception. In both one person
holds property under an obligation to give another the benefit of it, and ceases to
hold it on the obligation being completely fulfilled. But a trustee has usually, as
Morice points out, a continuous duty lasting some time according to the needs of the
cestui que trust. A fiduciary usually has no duty other than the transference of the
property to the fidei-commissary on the occurrence of a condition. Both can claim
to be put to no expense, but a trustee does not benefit as a rule even (at any rate
since the Intestates' Estate Act 1884) if the purpose cannot be executed. A
fiduciary retains the property in such a case for his own account. A fiduciary heir
could in any case claim under the Falcidian Law.


## p. 83 (#115) #############################################

Legitim. Children's rights 83
that any heir burdened with a trust should get some advantage out of it;
and accordingly he was empowered, if he entered and accepted the
liabilities, to retain one-fourth as by the Falcidian statute. Or if he
suspected the estate to be insolvent, he might restore, as the phrase
went, the inheritance altogether to the person favoured by the trust and
be free from both risk and advantage. Otherwise he might indeed take
his fourth, but would, as partial heir, be liable for his share of the heir's
obligations. If however testator had directed him to retain a certain
thing or a certain amount, which was equal in value at least to one-
fourth of the inheritance, and restore the rest, he was regarded as a
legatee and not in any way liable to the creditors of deceased's estate.
The risk and difficulty attending heirs did not arise where a trust was
imposed on a legatee; he was liable for no more than he received; and
as the validity of the will was not at stake, there was no necessity for the
law to bribe him to accept by a share of the gift.
Justinian swept away a mass of distinctions and perplexities by
putting trusts and legacies in other respects on the same footing,
giving legacies the flexibility of trusts and fortifying trusts with the
legal character and effective suits belonging to legacies. The phraseology
was held to be unimportant, the intention was to prevail. Not only
the trust but the will and legacies might now be written in Greek.
When an oral trust was added to a written will, or the will itself
was oral and contained a trust, and the regular number of witnesses had
not been present on the occasion, Justinian enacted that if the heir
denied the trust, the person claiming under it should, having first
sworn to his own good faith, put the heir on his oath whether he had
not heard the testator declare the trust: the heir's answer on oath was
then decisive.
Legitim. The Statute of the XII Tables authorised, according to
tradition, full effect to be given to a Roman's will for the disposal of his
estate at his death. But a paterfamilias was expected to shew in the
will that he had duly considered the claims of his children in his power,
and especially of his sons, they being his natural representatives. He
must either appoint them heirs or expressly disinherit them, whether
they were sons by birth or by adoption and even if posthumous. In
default of such express notice, the will was set aside. Others in his
family, whether daughters or grandchildren by his sons, had either to be
appointed heirs or to be disinherited, but general terms were sufficient,
e. g. ," all others are disinherited. " If no notice was taken of them, the will
was partly broken, for the daughters and grandchildren were admitted
to share with the appointed heirs. Justinian in 531 abolished the
distinction in these matters between sons and daughters and between
those in testator's power and those emancipated, and required express
notice for all. The praetor had already in practice made the like
amendments of the old civil law.
ch. in. 6—2


## p. 84 (#116) #############################################

84 Plaint of unduteous will
But disinheritance, as well as disregard, of his children imperilled the
will. As next heirs on an intestacy they could complain to the Court
that the will failed in the due regard which a sane man would shew
to his children. This was the " plaint of an unduteous will" (querela
inqffkiosi testamenti). If complainant established his case, the will with
all its legacies and gifts of freedom drops and intestacy results. To
establish his case he has to prove three things: that his conduct did not
justify disinheritance, that he did not get under the will (e. g. , by legacy)
at least one-fourth of the share of the inheritance to which he would
have been entitled under an intestacy, and that he had not in any way
shewn an acceptance of the will as valid. Parents could in the same
way complain of their children's wills, and brothers and sisters of the
testator could complain of his will, if the heirs appointed were disreput-
able. An illegitimate child could complain of his mother's will. If
complainant had judgment given against him, he lost anything given
him by the will. An analogous complaint was allowed against excessive
donations which unfairly diminished a child's or parent's claim.
The value of the estate is taken for this purpose as for the Falcidian
fourth. Justinian in 528 enacted that if complainants had been left
something but not enough, the deficiency could be supplied without
otherwise upsetting the will, provided testator had not justly charged
them with ingratitude. In 586 Justinian raised the share of the
inheritance which would exclude the plaint to one-third, if there were
four or fewer children, and to one-half if there were more than four,
i. e. to one-third or one-half of what would be claimant's share on an
intestacy. Thus supposing two children, each would now be entitled to
one-sixth (instead of one-eighth) of the estate: if three children, to
one-ninth: if five, to one-tenth, and so on. Such share is called
"statutory portion" (portio legitvma) and could be made up either by an
adequate share of the inheritance, or by legacy, or through a trust, or
by gift intended for the purpose or by dowry or nuptial gift or
purchaseable office in the imperial service (militia), or a combination
of such. This statutory portion becomes in French law "legitim," in
German "Pflichttheil. "
In 542 Justinian put the matter on a new footing by requiring
children to be actually named as heirs in their father's or mother's or
other ascendant's will, unless the will alleged as the cause of disherison
"ingratitude" on one at least of certain grounds, and the heirs prove the
charge to be true. These grounds are: laying hands on parents, gravely
insulting them, accusation of crimes (other than crimes against the
Emperor or the State), associating with practisers of evil acts, attempting
parent's life by poison or otherwise, lying with step-mother or father's
concubine, informing against parents to their serious cost, refusing, if a
son, to be surety for an imprisoned parent, hindering his parents from
making a will, associating with gladiators or actors against his parent's


## p. 85 (#117) #############################################

Justinian s final legislation 85
wish (unless his parent was such himself), refusing (if a daughter under
twenty-five years of age) a marriage and dowry proposed by her parent,
and preferring a shameful life, neglecting to free a parent from captivity,
neglecting him if insane, refusing the Catholic faith. If ingratitude is
charged and established, the will is good: if it is not established, the
appointment of heirs made in the will is null, and all the children share
the inheritance equally (subject to bringing any marriage settlement into
hotchpotch), but legacies, trusts, freedoms and guardianships remain
valid (subject of course to the Falcidian deduction).
Those who have no children are required to name their parents
as heirs, unless on similar grounds (a reduced list is given) they can be
justly omitted.
Having left to children (or parents) the due amount, a testator or
testatrix can dispose of the residue at his or her pleasure, and a mother can
even exclude the father from any management of the property left to the
son, and, if the son is under age, appoint another manager. Justinian
further enacted that none but orthodox should take any part of an
inheritance, and that, if all entitled under a will or on intestacy were
heterodox, in the case of clerics the Church, in the case of laymen
the Crown, should inherit.
Members of a town council (decuriones) had since 535 been obliged,
if without any children, to leave three-fourths of their estate to the
council: if they had children, legitimate or illegitimate, three-fourths or
the whole according to circumstances were to go to such of them as were
or became members or wives of members of the council. The law
imposing disability for ingratitude applied here also.
A patron, if passed over in his freedman's will, could claim a third
(free from legacies and trusts) if there were no children except such as
were justly disinherited.
Succession to an intestate. In default of a will duly made and
duly accepted by the heirs named or one of them the law provided heirs.
The statutable heirs were testator's lawful children (mi herede. i), and
failing these (in old times), his agnates, failing these, the clan (gens).
Gradually by the praetor's action cognates were also admitted, eman-
cipated children and women other than sisters were no longer excluded,
other disabilities were removed and mother and children obtained by
statute reciprocal rights of inheritance. The husband or wife claimed
only after all blood-relations. This system is found in the Digest, Code,
and Institutes. But in 543 and 548 Justinian superseded this system
with its multifarious technicalities and ambiguities, and established (but
for the orthodox only) a simpler order of succession, which is the more
interesting because it largely supplied the frame for the English Statute
of Distributions for intestate personalty.
Justinian disregarded distinctions of sex, of inclusion in or eman-
cipation from the family, of agnates and cognates, and allowed in certain


## p. 86 (#118) #############################################

86 Succession to an intestate
cases the share which would have fallen to a deceased person to be taken
by his children collectively.
The first claim to succeed was for descendants. Children (and, in
default of them, grandchildren) excluded all ascendants and collaterals
and took equal shares, whether they sprang from the same marriage
or more than one, and whether the marriage was formed by regular
settlements or not. A deceased child's children took his or her share
among them. Any child who had had from his or her parents dowry or
nuptial gift had to bring it into account as part of his or her share. If
a parent was alive and had a right of usufruct in the property or part of
it, that right remained.
In the next class, that is, when there is no living descendant, come the
father and mother and whole brothers and sisters of the deceased. In
this case the father does not retain any right of usufruct he may have.
If ascendants, not excluded by nearer ascendants, as well as brothers and
sisters of the whole blood are found, they all share alike (per capita). If
a brother or sister has predeceased the intestate, his or her children take
collectively his or her share. Of ascendants the nearer is preferred. If
there are only ascendants in the same degree, the estate is divided in
halves between those on the father's side and those on the mother's.
If there are neither descendants nor ascendants, brothers and sisters
are preferred, the whole blood excluding the half-blood, even though the
latter be nearer in degree; therefore a nephew or niece of the whole
blood excludes brothers and sisters of the half-blood. If there are no
brothers or sisters or children of such, either of the whole blood, or half-
blood, other relations succeed according to their degree, the nearer
excluding the remoter, and those of the same degree sharing per capita.
Degrees of relationship were reckoned by the number of births from
the one person to the common ancestor added to the number from him
to the other person. Thus a nephew or uncle is in the third degree of
relationship to me, a second cousin is in the sixth, there being three
births from my great-grandfather to me and three also from him to my
second cousin.
After all blood-relations are exhausted, the husband or wife would
presumably inherit as under the old law before Justinian. A poor
widow without dowry was entitled to a fourth of her husband's estate,
such fourth not exceeding 100 lbs. gold.
In the case of freedmen dying intestate, children and other descen-
dants have first claim: if there are none, then the patron and his
children (531).
If presbyters, deacons, monks, or nuns, die without making a will or
leaving relatives, their goods pass to the church or monastery to which
they are attached, unless they are freedmen or serfs or decurions, in
which cases they pass to the patron or lord or council respectively (434).
In default of any legal claimant the Crown took a deceased's estate.


## p. 87 (#119) #############################################

Gifts 87
Gifts were viewed by Roman Law with considerable suspicion, partly
as often made on the spur of the moment without due reflection, partly
as liable to exert an improper influence on the donee. In b. c. 204 a law
(Lex Cincia) was passed which forbad all gifts exceeding a certain value,
and required formal execution of gifts within that value, land to be
mancipated, goods to be delivered, investments duly transferred, etc.
Any gifts contravening the law were revocable by the donor during his
life or by will. Gifts between near relatives, either by blood or
marriage, were however excepted from the prohibition of the law.
Constantino appears to have repealed this law, and, leaving gifts
under 300 solidi free, required all gifts above that amount to be described
in a written document and recorded in court, and possession to be given
publicly before witnesses. In 529-531 Justinian further facilitated gifts.
A mere agreement was enough without any stipulation, the presence
of witnesses ceased to be necessary, and the fact of the gift was alone
required to be recorded in court and that only when its value exceeded
500 solidi. Delivery of the object given was, according to Justinian,
not so much a confirmation as a necessary consequence of the gift, and
was incumbent on the donor and his heirs, especially if it were a gift for
charitable purposes. A gift duly made could be revoked by the donor
only on clear proof of donee's ingratitude, such as is shewn by insults or
attacks on the person or property of the donor, or on non-fulfilment of
the conditions of the gift. Remuneration for a service rendered is not
a gift within the meaning of these rules.
Gifts between husband and wife, with trifling exceptions, were
absolutely void until a. d. 206, and the same rule applied to gifts to
either from anyone under the same fatherly power, or from those in
whose power they respectively were. But Caracalla by a decree of the
Senate made them only voidable. If the donor predeceased the donee and
did not repent of the gift, the donee became fully entitled. Gifts from
either to increase the marriage settlement were allowable (see above).
Gifts mortis causa are only to take effect if the donor die before the
donee, and are epigrammatically characterised as something which the
donor prefers himself to enjoy rather than the donee, and the donee
rather than his heir. Such gifts were valid if made in presence of
five witnesses orally or in writing, without any formality and with the
effect of a legacy. The Lex Falcidia was applied to such gifts by
Severus, if the heir had not had his due out of the rest of donor's estate.
Gifts for charitable purposes (piae causae) were encouraged by
Justinian who (c. 530 and 545) directed that the bishops, whether
requested or not or even forbidden by testator, should see that any
disposition by will for such purposes was duly carried into effect; the
erection of a church should be completed within three years from the
time when the inheritance or legacy was available, a house for strangers
within a year unless one was hired until the house was built. If


## p. 88 (#120) #############################################

88 Charitable gifts (Piae causae)
this was not done the bishops should take the matter in hand by
appointing administrators, the heirs or legatees after such default not
being allowed to interfere. The other charitable purposes specially
mentioned are houses for aged persons or infants, orphanages, poor-
hospitals, and redemption of captives. The bishops are to inspect and
if necessary discharge the administrators, bearing in mind the fear of
the great God and the fearful day of eternal judgment. All profits
from the endowment belong from the first to the charity. Delay after
admonition by the bishops made the heirs or legatees who were charged
with the charity, liable for double the endowment. Annuities for clergy,
monks, nuns, or other charitable bodies were not to be commuted for a
single sum, lest it should be spent and the claims of the future be
disregarded. The property of the testator was mortgaged for the
annuity, unless an agreement was made in writing and duly recorded for
setting aside an inalienable rent, larger than the annuity by at least
one-fourth and not subject to heavy public dues. If the bishops were
slack, possibly being corrupted by the heirs, or others, the metropolitan
or archbishop was authorised to interfere, or any citizen might bring an
action on the statute and demand the fulfilment of the charity.
If, in order to avoid the Falcidian Law, a testator leaving all his
property for the redemption of captives, appoints captives to be his
heirs, Justinian (581) directed such an appointment to be good and not
void for uncertainty. The bishop and church-manager (oeconomus) of
the testator's domicile had to take up the inheritance without any gain
for themselves or the Church. Similar appointments of poor as heirs
are valid, and fall, if left uncertain by testator, to the poor-house of the
place, or if there are several such to the poorest, or if there be none
such, the funds are to be distributed to poor beggars or others in the
place.
Property. The distinctions, which existed under the early Roman
Law between land in Italy and land in the provinces with a form of
conveyance (mancipatio)1 applicable to the former and not to the latter,
disappeared before Justinian. Under him full ownership in all land,
wherever situate, was conveyed by delivery actual or symbolical, in
accordance with agreement, or at least with the transferor's intention to
part with the property. And the same applied to all other corporal
objects. Such a distinction between real and personal property, between
1 Mancipation was thus: The parties meet in the presence of no less than five
witnesses, all Roman citizens of the age of puberty or upwards. An additional
witness called libripens, " balance-weigher," holds a bronze balance. The acquirer or
purchaser holds a piece of bronze as a symbol of the price, and seizing the thing to
be acquired, for instance, a slave, or clod (as symbol of land), asserts it to be his by
the law of the Quirites, strikes the balance with the bronze and hands it to the
other party or vendor.


## p. 89 (#121) #############################################

Property. Servitudes. Emphyteusis 89
land and chattels, as is found in English law, never existed with the
Romans either as to transfer of ownership between the living or in
succession to the dead. A distinction between movables and immovables
is found in some matters, e. g. , a title to the former being secured by
acquisition on lawful grounds in good faith and uninterrupted possession
by the holder and his predecessor in title for three years, whereas title
to the latter required like acquisition and ten years'1 uninterrupted
possession if claimant lived in the same province as the possessor, or
twenty years when he lived in a different province. Further protection
in some cases was given by an additional twenty years' possession: and
claims of the Church were by a law of 535 good against one hundred
years'' adverse possession; but in 541 the period was reduced to forty years.
Rights in things, as distinguished from ownership, were called servi-
tudes and were of two classes, according as the benefit of them was
attached to persons or to immovables. The principal case of the former
was usufruct, i. e. , the right of use and enjoyment of profits, corresponding
in its main incidents to life tenure. A man might have a usufruct in
lands or houses or slaves or herds and even in consumables. Security
had to be given to the owner for reasonable treatment and restoration
in specie or equivalent at the expiry of the usufruct, which was lost not
only by death but also by loss of civic status: it could not be trans-
ferred to another person. Minor rights of similar character are bare
use and habitation.
The second class of servitudes corresponds to English "easements. '"
They were limited rights, appurtenant to certain praedia whether farms
in the country or houses in towns. They secured to the occupier a
limited control over neighbouring houses or lands, which was necessary
or at least suitable for the proper use of the dominant farm or house to
which they were servient. Rights of way, of leading water, of pasturing
cattle, are instances of country servitudes: rights of light and prospect
and carrying off water are instances of urban servitudes. They were
created usually by grant and were lost by non-user for a period of two
years, which was raised by Justinian to ten or twenty years.
Emphyteusis, i. e. , plantation. The practice grew up in imperial
times of tracts of country, in many cases waste land, being held by
tenants at a fixed rent (usually called canon, vectigal, pensio) on the
terms that so long as the rent was duly paid the tenant should not be
disturbed and could transmit the land to his heirs or sell or pledge it.
The owners were usually the State or the Emperor (who had a private
domain) or country towns in Italy or in the provinces. The lawyers
doubted whether to treat this contract as sale or lease. Zeno, about
480, decreed that it should be regarded as distinct from both, and rest
upon the written agreement between lord and tenant. By Justinian's
edicts the tenant had to pay without demand the public taxes and
produce the receipts and pay the canon to the lord, who for three (or in


## p. 90 (#122) #############################################

90 Obligations
the case of church land, two) years' default could eject him. If rent
and receipts were offered and not accepted, the tenant could seal them
up and deposit them with the public authority and so be safe against
eviction. If eventually the lord did not take them, the tenant could
keep them, and pay no more rent till the landlord demanded it, and
then be liable only for future rents. As regards improvements, in the
absence of express stipulations, the tenant could not sell them to outsiders,
until he had offered them to the lord at the price he could get from
another, and two months had passed without the lord's accepting. Nor
could he alienate the farm to any but suitable persons, i. e. , such as were
allowed generally to hold on this tenure. The lord had to give admission
to the transferee and certify it by letter in his own hand or by declaration
before the governor or other public authority, a fee of two per cent, of
the price being demandable for such consent.
Edicts of the Emperors were not uncommon, which granted secure
possession on some such terms to anyone who cultivated waste lands
and was thus in a position to pay the tax upon them. If the lands had
been deserted by the owner, he could claim them back only on paying
the cultivator his expenses: after two years his right was gone.
Obligations. Besides rights which are good against all the world,
such as ownership and other rights to particular things, rights good
only against particular persons form a most important and perhaps the
most notable part of Roman Law. Such are called obligations and
arise either from contract or from delict (in English usually called
"tort"). The detailed classification of these given in the Institutes
is in many respects artificial and is not found in the other books of
Justinian.
Contracts are voluntary agreements between two or more persons.
The Romans required for an agreement which should be enforceable by
law some clear basis or ground of obligation. There must be either a
transfer of some thing from one of the parties to the other, or a strict
form of words accompanying the agreement, or there must be agreed
services of one party, usually of both. As the Romans said, the contract
must be formed out re aut verbis aut consensu. Otherwise it was a bare
agreement (nudum pactum), and, though available for defence against a
claim, it was not enforceable by suit, except so far as it set forth the
details of one of the regular contracts and was concluded in close
connexion therewith, or it reaffirmed, by a definite engagement to pay,
an already existing debt of promiser's or another (pecunia constituta).
It may be convenient to treat first of the most general form. The
contract made verbis was called "stipulation" and was made by oral
procedure between the parties present at the same place. The matter
and details of the agreement being stated, the party intending to acquire


## p.