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.
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.
Cambridge Medieval History - v2 - Rise of the Saracens and Foundation of the Western Empire
On this analogy Constantine (326) granted the like privilege
to the court officials (palatini), and later Emperors extended it to
provincial governors, judicial assessors, advocates and others in the
imperial service (which was often called militia); and eventually (472)
to bishops, presbyters and deacons of the orthodox faith. Wills
disposing of such castrense, or quasi-castrense peculium, were specially
exempted from challenge by children or parents on the ground of failure
in due regard. In case of intestacy, before Justinian altered the law in
548, the intestate's c&mp-peculium passed to the father as if, like any
other peculium, it had been his all along.
As regards the persons of (free) children the father had the power
and duty of correction and in early times presumably could sell or kill
them, as he could slaves. But this right was rarely exercised, at least in
historical times, though not until Constantine (319) was killing a son
formally forbidden and ranked as parricide. Sale (with a right how-
ever of redemption) was possible only in case of a newly-born child,
under pressure of extreme poverty. Exposure of a child, at least after
the second century, made the parent liable to punishment. Exposed
children of whatever class could not be brought up as slaves or serfs or
freed, but were to be deemed freeborn and independent (529). Previously
to this law of Justinian it was left to the bringer-up to make them slave
or free at his choice.
ch, i'i. 5—2
## p. 68 (#100) #############################################
68 Adoption. Guardianship
The dissolution of the natural father's power over his children,
whether in order to make the child independent (mi juris), or to give
him by adoption into another's power, was in old times effected by a.
complicated ceremonial. This was abolished by Justinian (531), who
substituted in the case of adoption a declaration before a competent
magistrate, both parties being present, and, in the case of emancipation,
either the like simple declaration, or, according to a law of Anastasius
(502), if the son or daughter were of age and not present in court, a
declaration, supported by a petition to the Emperor, with his grant of the
prayer and the consent of the child, if not an infant.
By adoption in older times a person passed under the fatherly power
of one who was not his natural father. If he was not independent, he
passed entirely from one family to another: his natural father no longer
controlled him or was responsible for him, the son's acquisitions did not
pass to him, nor had the son any right to his inheritance. The adoptive
father stood in the natural father's place, and could retain or emancipate
him. Justinian (530) altered this in all cases where the adopter was an
outsider. The adopted person retained all his rights and position in
his natural father's family, and simply acquired a right of succession to
the adopter if he died intestate. But if the adopter was the grandfather
or other ascendant either on the father's or mother's side, the effect of
adoption remained as of old.
Adoption of a person who was mi juris was often called adrogation,
and required a rescript from the Emperor. If the person to be adopted
was under age (impubes), inquiry was made whether it was for his
advantage, and the adopter had to give security to a public officer for
restoration of all the adopted's property to his right heirs, if he died
under age. If he emancipated him without lawful cause, or died, he was
bound by a law of Antoninus Pius to leave him one-fourth part of his
property, besides all that belonged to the adopted person himself. If a
person adrogated had children, they passed with him under the power
of the adopter. In all cases it was required that the adopter should be
at least eighteen years older than the adopted.
Guaudianship. In the old law guardians (tutores) were required not
only for young persons for a time, but for women throughout their life,
though the authority they exercised was often nominal. Guardianship
for women was criticised by Gaius as irrational, and it ceased probably
before Constantine. By Justinian's time, guardianship affected only
impuberes. He fixed the age for puberes at fourteen for males, twelve
for females. Up to that age, if their father or other head of the family
was dead, or if they were freed from his power, they required a guardian
to authorise any legal act which was to bind them. Without such
authority they could bind others but not themselves, the rule being that
they could improve but could not impair their estate. After the age of
puberty the law regarded them as capable of taking the responsibility
## p. 69 (#101) #############################################
Guardians and Curators 69
of their own acts, but practically they had not the requisite knowledge
and discretion. No one could deal safely with them, because of the risk
of the contract or other business being rescinded, if the praetor found
that it was equitable to do so. To meet this difficulty a curator was
often appointed to guide young persons in the conclusion of particular
business, and eventually was appointed to act regularly in matters of
business until the ward became 25 years old. It was the analogy of
madmen, etc. (mentioned below), which probably suggested this course.
From the third century allowance of age (venia aetatis) could be obtained
from the Emperor by youths of 20 years, women of 18, on evidence
of fitness. Justinian however (529) restrained them from all sale or
mortgage of land, unless specially authorised.
A guardian was appointed by the father's will. In default of such
appointment, the mother or grandmother had the first claim by Justinian's
latest legislation, and then the nearest male in order of succession to
the inheritance. If such were disqualified, the praetor at Rome,
the governors in the provinces, and if the estate was small, the town-
defenders, made the appointment of both guardians and curators.
Guardianship was regarded as a public office, and no one was excused
from undertaking it, except for approved cause. Guardians and curators
were liable for any loss caused by their act or neglect. They could
rot marry their wards, unless approved by the ward's father or by
his will.
Mothers had been allowed (since 390) to act in these capacities for
their own children, but by Justinian's final legislation, had to renounce
the right of re-marriage and the benefit of the Velleian Senate's decree
(see below). If they broke their promise, they incurred infamy and
became incapable of inheriting from any but near relatives, besides
losing part of their property.
Severus (195) prohibited all sale of a ward's land in the country or
suburbs unless authorised by the father's will or by the praetor. A
subsequent edict directed everything else to be sold and reduced into
money. Later Emperors (326 and after) reversed this direction, and
partly on the ground of probable attachment of the ward to the family
house, and the utility of old family slaves, and partly from the difficulty
of finding good investments, ordered all the property to be preserved,
unless land had to be purchased or loans made in order to supply the
ward's needs.
Madmen and spendthrifts, pronounced such by the praetor, were by
the XII Tables under the care of their agnates (relatives through males)
but in practice under a curator appointed by the praetor or provincial
governor. So also a curator was appointed, without limit of age in the
ward, for the demented, or deaf and dumb, or for persons incapacitated
for business by chronic disease. The practice of making contracts by
oral stipulation brought deaf and dumb into this category.
## p. 70 (#102) #############################################
70 Rescission of contracts. Postliminium
The protection of minors, mentioned above, was an interesting
feature of Roman Law but must often have been very embarrassing in
practice. Whatever business a minor had conducted, a sale, a purchase,
a loan, a pledge, acceptance of an inheritance, agreement to an arbitra-
tion, etc. , if it was shewn that he had been in any way deceived or
overreached or had suffered from want of due vigilance, application
might be made to the Court, to have the matter rescinded, provided he
had not acted fraudulently and there was no other remedy. The Court
heard the parties, and if it found the claim just, put the parties back,
so far as possible, into their old positions. This was called in integrum
restitutio. The application had to be made within (originally) one year
after the minor's completing his twenty-fifth year, and would be rejected
if after this age he had in any way approved his former act or default.
Justinian extended the period to four years.
A similar reinstatement was sometimes granted to persons of full age,
if it were shewn that they had suffered serious loss owing to absence on
the public service, or to captivity, or fraud, or intimidation. Or the
reverse might be the case: similar absence of others might have pre-
vented plaintiff from bringing a suit or serving a notice within the proper
time: reinstatement might then sometimes be obtained.
A person, who had been taken captive by the enemy and returned
home with the intention of remaining, was held to re-enter at once into
his old position, his affairs having been in the meantime in a state of
suspense. This was called the law of postliminium (reverter). His own
marriage was however dissolved by his captivity, as if he were dead,
though his relation to his children was only suspended till it was known
whether he would return.
Slaves and other chattels taken by the enemy, if brought back into
Roman territory, similarly reverted to their former owners subject to any
earlier claims which attached to them. Anyone who ransomed them
from the enemy had a lien for the amount of the ransom.
Marriage was often preceded by betrothal, that is by a solemn
mutual promise. The consent of the parties was required, but, if the
woman was under her father's power, she was presumed to agree to his
act unless she plainly dissented. The age of seven was deemed necessary
for consent. The restrictions on marriage applied to betrothal, and a
betrothed person was for some purposes treated in law as if married.
Betrothal was usually accompanied by gifts, as earnest from or on behalf
of each party to the other. If the receiver died, the giver had a right
to its return, unless a kiss had passed between them, when the half only
could be recovered (336). Breach of the contract without good cause,
such as lewd conduct, diversity of religion, etc. , previously unknown to
the other, at one time involved a penalty of fourfold (i. e. , the earnest
## p. 71 (#103) #############################################
Betrothal. Marriage 71
and threefold its value), but in the fourth century this was remitted
altogether, if the father or other ascendant of a girl, betrothed before
she was ten years old, renounced the marriage, and in the fifth century
(472) it was reduced generally to twofold. Delay for two years to fulfil
the promise was a sufficient justification for the girl's marrying another.
Marriage in Roman Law is the union of life of man and woman
for the purpose of having children as members of a family in the Roman
Commonwealth. Both must be citizens of Rome or of a nation recognised
for this status by the Romans; they must be of the age of puberty; if
independent, must give their own consent, if not, their father must
consent. Nuptias non coneubitus sed consensus factt was the dominant
rule of Roman Law. It was the avowed purpose of such a union and
public recognition that distinguished marriage from concubinage. In
earlier times the woman passed by one of several forms with all her
property into the power (manus) of her husband and occupied the
position of a daughter. Gradually a freer marriage was developed, by
which the woman did not become part of her husband's family, but
remained either under her father's power, or independent, and controlled,
with the aid of a guardian for a time, her own property, except so far as
she had given part as dowry. The ceremonials, which accompanied the
old forms of marriage, gradually went out of use and had apparently
ceased in or by the third century. The only external mark of marriage
was then the woman's being led into her husband's house, and thus the
paradoxical statement could be made that a woman could be married in
the absence of her husband, but a husband could not be married in the
absence of his wife. The settlement of a dowry grew to be, and was
made by Justinian, a decisive characteristic of marriage, though its
absence did not prevent a union otherwise legal and formed with the
affection and intention of marriage from being such in the eye of the law.
Marriage, and of course also betrothal, could take place only between
free persons, not of the same family, and not otherwise closely connected.
The old law was reaffirmed by a constitution of Diocletian (295), which
expressly forbad marriage of a man with his ascendants or descendants
or aunt or sister or their descendants or with step-daughter, step-mother,
daughter-in-law, mother-in-law or others forbidden by the law of old.
A woman was forbidden to marry the corresponding relatives. Such
marriages were incestuous. Relationship formed when one or both
parties were slaves was equally a bar. Constantius (342) also forbad
marriage with brother's daughter or grand-daughter and (in 855)
marriage with brother's widow or wife's sister—a prohibition repeated
in 415. The marriage of first cousins, forbidden with the approval of
St Ambrose by Theodosius about 385, was relieved from extreme penalty
(of fine) by his sons in 396, and expressly permitted in 405. Justinian
(530) forbad marriage with a god-daughter. No change was made
in the old law which permitted a step-son of one parent to marry a
## p. 72 (#104) #############################################
72 Prohibited marriages. Doxvry
step-daughter of the other, and forbad the marriage of brothers and
sisters by adoption so long only as they remained in the same family.
Marriage with the daughter of a sister by adoption was legal.
Other prohibitions were based on considerations outside of the
family tie. A guardian or curator was prohibited by Severus and later
Emperors from marrying his ward, if under twenty-six years of age, either
to himself or his son, unless special permission was obtained. Provincials
were forbidden by Valentinian (c. 873) to marry barbarians under
threat of capital punishment. Jews and Christians were forbidden by
Theodosius (388) to intermarry, the act being punished as adultery.
Justinian (530) " following the sacred canon " forbad presbyters, deacons,
and sub-deacons to marry at all; if they did, their children were to
be treated as born of incestuous connexion.
Senators and their descendants were forbidden by Augustus and by
Marcus Aurelius to marry freed persons or actors or actresses or their
children. Constantine (336) forbad any person of high rank or official
position in towns to marry, whether after concubinage or not, freed
women or actresses or stall-keepers or their daughters or others of low
condition, mere poverty not being regarded as such (Valentinian 454).
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.
to the court officials (palatini), and later Emperors extended it to
provincial governors, judicial assessors, advocates and others in the
imperial service (which was often called militia); and eventually (472)
to bishops, presbyters and deacons of the orthodox faith. Wills
disposing of such castrense, or quasi-castrense peculium, were specially
exempted from challenge by children or parents on the ground of failure
in due regard. In case of intestacy, before Justinian altered the law in
548, the intestate's c&mp-peculium passed to the father as if, like any
other peculium, it had been his all along.
As regards the persons of (free) children the father had the power
and duty of correction and in early times presumably could sell or kill
them, as he could slaves. But this right was rarely exercised, at least in
historical times, though not until Constantine (319) was killing a son
formally forbidden and ranked as parricide. Sale (with a right how-
ever of redemption) was possible only in case of a newly-born child,
under pressure of extreme poverty. Exposure of a child, at least after
the second century, made the parent liable to punishment. Exposed
children of whatever class could not be brought up as slaves or serfs or
freed, but were to be deemed freeborn and independent (529). Previously
to this law of Justinian it was left to the bringer-up to make them slave
or free at his choice.
ch, i'i. 5—2
## p. 68 (#100) #############################################
68 Adoption. Guardianship
The dissolution of the natural father's power over his children,
whether in order to make the child independent (mi juris), or to give
him by adoption into another's power, was in old times effected by a.
complicated ceremonial. This was abolished by Justinian (531), who
substituted in the case of adoption a declaration before a competent
magistrate, both parties being present, and, in the case of emancipation,
either the like simple declaration, or, according to a law of Anastasius
(502), if the son or daughter were of age and not present in court, a
declaration, supported by a petition to the Emperor, with his grant of the
prayer and the consent of the child, if not an infant.
By adoption in older times a person passed under the fatherly power
of one who was not his natural father. If he was not independent, he
passed entirely from one family to another: his natural father no longer
controlled him or was responsible for him, the son's acquisitions did not
pass to him, nor had the son any right to his inheritance. The adoptive
father stood in the natural father's place, and could retain or emancipate
him. Justinian (530) altered this in all cases where the adopter was an
outsider. The adopted person retained all his rights and position in
his natural father's family, and simply acquired a right of succession to
the adopter if he died intestate. But if the adopter was the grandfather
or other ascendant either on the father's or mother's side, the effect of
adoption remained as of old.
Adoption of a person who was mi juris was often called adrogation,
and required a rescript from the Emperor. If the person to be adopted
was under age (impubes), inquiry was made whether it was for his
advantage, and the adopter had to give security to a public officer for
restoration of all the adopted's property to his right heirs, if he died
under age. If he emancipated him without lawful cause, or died, he was
bound by a law of Antoninus Pius to leave him one-fourth part of his
property, besides all that belonged to the adopted person himself. If a
person adrogated had children, they passed with him under the power
of the adopter. In all cases it was required that the adopter should be
at least eighteen years older than the adopted.
Guaudianship. In the old law guardians (tutores) were required not
only for young persons for a time, but for women throughout their life,
though the authority they exercised was often nominal. Guardianship
for women was criticised by Gaius as irrational, and it ceased probably
before Constantine. By Justinian's time, guardianship affected only
impuberes. He fixed the age for puberes at fourteen for males, twelve
for females. Up to that age, if their father or other head of the family
was dead, or if they were freed from his power, they required a guardian
to authorise any legal act which was to bind them. Without such
authority they could bind others but not themselves, the rule being that
they could improve but could not impair their estate. After the age of
puberty the law regarded them as capable of taking the responsibility
## p. 69 (#101) #############################################
Guardians and Curators 69
of their own acts, but practically they had not the requisite knowledge
and discretion. No one could deal safely with them, because of the risk
of the contract or other business being rescinded, if the praetor found
that it was equitable to do so. To meet this difficulty a curator was
often appointed to guide young persons in the conclusion of particular
business, and eventually was appointed to act regularly in matters of
business until the ward became 25 years old. It was the analogy of
madmen, etc. (mentioned below), which probably suggested this course.
From the third century allowance of age (venia aetatis) could be obtained
from the Emperor by youths of 20 years, women of 18, on evidence
of fitness. Justinian however (529) restrained them from all sale or
mortgage of land, unless specially authorised.
A guardian was appointed by the father's will. In default of such
appointment, the mother or grandmother had the first claim by Justinian's
latest legislation, and then the nearest male in order of succession to
the inheritance. If such were disqualified, the praetor at Rome,
the governors in the provinces, and if the estate was small, the town-
defenders, made the appointment of both guardians and curators.
Guardianship was regarded as a public office, and no one was excused
from undertaking it, except for approved cause. Guardians and curators
were liable for any loss caused by their act or neglect. They could
rot marry their wards, unless approved by the ward's father or by
his will.
Mothers had been allowed (since 390) to act in these capacities for
their own children, but by Justinian's final legislation, had to renounce
the right of re-marriage and the benefit of the Velleian Senate's decree
(see below). If they broke their promise, they incurred infamy and
became incapable of inheriting from any but near relatives, besides
losing part of their property.
Severus (195) prohibited all sale of a ward's land in the country or
suburbs unless authorised by the father's will or by the praetor. A
subsequent edict directed everything else to be sold and reduced into
money. Later Emperors (326 and after) reversed this direction, and
partly on the ground of probable attachment of the ward to the family
house, and the utility of old family slaves, and partly from the difficulty
of finding good investments, ordered all the property to be preserved,
unless land had to be purchased or loans made in order to supply the
ward's needs.
Madmen and spendthrifts, pronounced such by the praetor, were by
the XII Tables under the care of their agnates (relatives through males)
but in practice under a curator appointed by the praetor or provincial
governor. So also a curator was appointed, without limit of age in the
ward, for the demented, or deaf and dumb, or for persons incapacitated
for business by chronic disease. The practice of making contracts by
oral stipulation brought deaf and dumb into this category.
## p. 70 (#102) #############################################
70 Rescission of contracts. Postliminium
The protection of minors, mentioned above, was an interesting
feature of Roman Law but must often have been very embarrassing in
practice. Whatever business a minor had conducted, a sale, a purchase,
a loan, a pledge, acceptance of an inheritance, agreement to an arbitra-
tion, etc. , if it was shewn that he had been in any way deceived or
overreached or had suffered from want of due vigilance, application
might be made to the Court, to have the matter rescinded, provided he
had not acted fraudulently and there was no other remedy. The Court
heard the parties, and if it found the claim just, put the parties back,
so far as possible, into their old positions. This was called in integrum
restitutio. The application had to be made within (originally) one year
after the minor's completing his twenty-fifth year, and would be rejected
if after this age he had in any way approved his former act or default.
Justinian extended the period to four years.
A similar reinstatement was sometimes granted to persons of full age,
if it were shewn that they had suffered serious loss owing to absence on
the public service, or to captivity, or fraud, or intimidation. Or the
reverse might be the case: similar absence of others might have pre-
vented plaintiff from bringing a suit or serving a notice within the proper
time: reinstatement might then sometimes be obtained.
A person, who had been taken captive by the enemy and returned
home with the intention of remaining, was held to re-enter at once into
his old position, his affairs having been in the meantime in a state of
suspense. This was called the law of postliminium (reverter). His own
marriage was however dissolved by his captivity, as if he were dead,
though his relation to his children was only suspended till it was known
whether he would return.
Slaves and other chattels taken by the enemy, if brought back into
Roman territory, similarly reverted to their former owners subject to any
earlier claims which attached to them. Anyone who ransomed them
from the enemy had a lien for the amount of the ransom.
Marriage was often preceded by betrothal, that is by a solemn
mutual promise. The consent of the parties was required, but, if the
woman was under her father's power, she was presumed to agree to his
act unless she plainly dissented. The age of seven was deemed necessary
for consent. The restrictions on marriage applied to betrothal, and a
betrothed person was for some purposes treated in law as if married.
Betrothal was usually accompanied by gifts, as earnest from or on behalf
of each party to the other. If the receiver died, the giver had a right
to its return, unless a kiss had passed between them, when the half only
could be recovered (336). Breach of the contract without good cause,
such as lewd conduct, diversity of religion, etc. , previously unknown to
the other, at one time involved a penalty of fourfold (i. e. , the earnest
## p. 71 (#103) #############################################
Betrothal. Marriage 71
and threefold its value), but in the fourth century this was remitted
altogether, if the father or other ascendant of a girl, betrothed before
she was ten years old, renounced the marriage, and in the fifth century
(472) it was reduced generally to twofold. Delay for two years to fulfil
the promise was a sufficient justification for the girl's marrying another.
Marriage in Roman Law is the union of life of man and woman
for the purpose of having children as members of a family in the Roman
Commonwealth. Both must be citizens of Rome or of a nation recognised
for this status by the Romans; they must be of the age of puberty; if
independent, must give their own consent, if not, their father must
consent. Nuptias non coneubitus sed consensus factt was the dominant
rule of Roman Law. It was the avowed purpose of such a union and
public recognition that distinguished marriage from concubinage. In
earlier times the woman passed by one of several forms with all her
property into the power (manus) of her husband and occupied the
position of a daughter. Gradually a freer marriage was developed, by
which the woman did not become part of her husband's family, but
remained either under her father's power, or independent, and controlled,
with the aid of a guardian for a time, her own property, except so far as
she had given part as dowry. The ceremonials, which accompanied the
old forms of marriage, gradually went out of use and had apparently
ceased in or by the third century. The only external mark of marriage
was then the woman's being led into her husband's house, and thus the
paradoxical statement could be made that a woman could be married in
the absence of her husband, but a husband could not be married in the
absence of his wife. The settlement of a dowry grew to be, and was
made by Justinian, a decisive characteristic of marriage, though its
absence did not prevent a union otherwise legal and formed with the
affection and intention of marriage from being such in the eye of the law.
Marriage, and of course also betrothal, could take place only between
free persons, not of the same family, and not otherwise closely connected.
The old law was reaffirmed by a constitution of Diocletian (295), which
expressly forbad marriage of a man with his ascendants or descendants
or aunt or sister or their descendants or with step-daughter, step-mother,
daughter-in-law, mother-in-law or others forbidden by the law of old.
A woman was forbidden to marry the corresponding relatives. Such
marriages were incestuous. Relationship formed when one or both
parties were slaves was equally a bar. Constantius (342) also forbad
marriage with brother's daughter or grand-daughter and (in 855)
marriage with brother's widow or wife's sister—a prohibition repeated
in 415. The marriage of first cousins, forbidden with the approval of
St Ambrose by Theodosius about 385, was relieved from extreme penalty
(of fine) by his sons in 396, and expressly permitted in 405. Justinian
(530) forbad marriage with a god-daughter. No change was made
in the old law which permitted a step-son of one parent to marry a
## p. 72 (#104) #############################################
72 Prohibited marriages. Doxvry
step-daughter of the other, and forbad the marriage of brothers and
sisters by adoption so long only as they remained in the same family.
Marriage with the daughter of a sister by adoption was legal.
Other prohibitions were based on considerations outside of the
family tie. A guardian or curator was prohibited by Severus and later
Emperors from marrying his ward, if under twenty-six years of age, either
to himself or his son, unless special permission was obtained. Provincials
were forbidden by Valentinian (c. 873) to marry barbarians under
threat of capital punishment. Jews and Christians were forbidden by
Theodosius (388) to intermarry, the act being punished as adultery.
Justinian (530) " following the sacred canon " forbad presbyters, deacons,
and sub-deacons to marry at all; if they did, their children were to
be treated as born of incestuous connexion.
Senators and their descendants were forbidden by Augustus and by
Marcus Aurelius to marry freed persons or actors or actresses or their
children. Constantine (336) forbad any person of high rank or official
position in towns to marry, whether after concubinage or not, freed
women or actresses or stall-keepers or their daughters or others of low
condition, mere poverty not being regarded as such (Valentinian 454).
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.
