THE OPINIONS OF JULIUS PAULUS.
CONCERNING PROPERTY LOANED, AND OATHS.
(1) In pecuniary cases, if either of the litigants tenders the oath, he should be heard; for this is provided in order to shorten litigation, and is in accordance with the rules of equity.
(2) The plaintiff has the first right to tender the oath, but the defendant, on the other hand, can require him to swear that he did not bring the action for the purpose of causing annoyance.
(3) If when the defendant consents to take the oath, the plaintiff releases him from the necessity of doing so, and this is clearly apparent, the action shall not be granted him.
(4) He cannot tender the oath to the heir of the party with whom he made the contract, as the latter may be ignorant that the contract was made.
(5) If the debtor is shown to have admitted the existence of the debt, in any way whatsoever, an action shall not be granted to the creditor in the case to collect the claim, but the debtor shall be required to make payment.
CONCERNING PREEXISTING PECUNIARY DEBTS.
(1) If you agree to pay what Lucius Titius owes me, you will be liable in an action for money already loaned.
(1) A stipulation is a form of words to which a party, after having been properly interrogated answers, as for instance: "Do you solemnly promise?" "I do solemnly promise." "Will you pay ?" "I will pay." "Do you bind yourself?" "I do bind myself." "Do you pledge your faith?" "I do pledge my faith." Statements of this kind can be made absolutely as well as conditionally.
CONCERNING LOANS FOR USE AND DEPOSIT, AND ALSO PLEDGES AND TRUSTS.
(1) Whenever anything is lent for use, and expense is incurred either on account of disease, or for any other reason, it can be recovered from the owner.
(2) If the property lent should be lost either through fire, the ruin of a house, shipwreck, or any other accident of this kind, the party to whom the property was lent will not be liable on this account, unless when he could have saved it he gave his own the preference.
(3) Where a slave, or a horse lent to another is killed by robbers, or in war, an action of loan is granted, as care and diligence must be exercised with reference to property lent.
(4) If I pay you the value of the property, so that if it is sold you may refund me the purchase money, and it is lost; if I requested you to sell it, it will be at my risk, but if you asked me for permission to do so, the risk will be yours.
(1) If a creditor merely desires to sell a pledge which has been deposited with him, he should notify the debtor three times, in order that he may release the pledge, and avoid its being sold.1
(2) When the debtor has the use of money lent without interest, the creditor can retain for himself the profits of the property pledged, at the legal rate of interest; but the issue or offspring of the property pledged cannot be retained by the law of pledge, unless this was agreed upon by the contracting parties.
(3) Set-off of a debt of the same kind but of a different amount is permitted; for instance, if I owe you money and you owe me money, grain, or anything else of this kind, although under a different contract, you should either avail yourself of the set-off, or produce the article; and if you demand the entire amount and claim more than you are entitled to, you cannot collect anything.
1 This notification was necessary when an agreement had been entered into between the debtor and creditor that the property pledged should not be sold. It was substantially a demand for payment, and the creditor could not sell the property to which it had reference until two years had elapsed from the time when the last notice had been given. If he failed to comply with these rules he could be prosecuted for theft.
The general principles governing pledges at Civil Law were, in some respects, different from those recognized by Anglo-Saxon jurisprudence. Under the Roman system, any kind of corporeal property, including real-estate, could be pledged. Pledge implied possession by the creditor as security for a debt; where hypothecation took place, it was understood that while a lien existed in favor of the creditor, the debtor was entitled to retain possession of the article either by special agreement, operation of law, or testamentary provision. Generally speaking, the legal presumption was that the creditor could always sell the pledge if the debt was not paid when due.
The debtor was, however, still considered, to a certain extent, the owner; he could sell the property, tender the amount of the debt, recover the pledge, and deliver it to the purchaser. If he secured possession of it without the knowledge or consent of the creditor he could not be convicted of theft; and he might again acquire complete ownership by usucaption.
The creditor was liable for slight negligence, culpa levis, and could not use the profits of the property, or apply them in payment of interest in the absence of a special agreement, designated pactum antichresis, authorizing him to do so. In case a slave was pledged, any profit derived from his earnings was required to be credited on the debt. The creditor, on account of his quasi ownership, could not himself purchase the pledge, and if it was sold for more than the amount of his claim was obliged to immediately pay over the surplus to the debtor.
Property might be pledged to many creditors, one after the other, their liens being marshalled in the order of their priority. This principle, however, did not apply where a later creditor advanced funds to repair, or preserve the pledge from depreciation in value or loss, as he was entitled to preference on this account. It was not necessary to obtain an order of court to sell the article pledged, this power being ordinarily regulated by an agreement between the parties interested.
Encumbrance by implied hypothecation, had, at Civil Law, under certain conditions, a much broader application than under our legal system. A landlord had a lien for the rent upon the furniture or other personal effects brought into his house by a tenant; a rule still in force in many European countries, and in Louisiana. If anyone was indebted to the Public Treasury, his entire possessions were considered as tacitly hypothecated to secure payment. This was also the case where money was loaned to repair property, the creditor having a lien for the amount advanced.
In the countries whose legislation is founded on the law of Rome, hypothecation, from which our mortgage is derived, is considered under a separate head from pledge, and as distinct from it. In France it has reference solely to real-estate. (Cod. Civ., Art. 2114.) The Spanish, Portuguese, and Italian Codes include incorporeal rights attaching to immovables, such as usufruct and emphyteusis. (Cod. Civ. de España, Art. 1874; Cod. Civ. Portuguêz, Art. 890; Cod. Civ. d'ltalia, Art. 1967.) The Japanese law uses the word pledge as applicable to both real and personal property. (Civ. Cod. of Japan, Chap. IX, Secs. 2, 3.) In the Louisiana Code, the term mortgage is substituted for hypothecation, and applies only to immovables. In former times, slaves could also be mortgaged like real estate, a doctrine probably derived from the law of Feudalism, which declared villains regardant, or the lowest order of serfs, to be attached to the glebe and inalienable without it. ED.
(1) If a son under paternal control has charge of a ship with his father's consent, he will bind his father for the entire amount of the cargo which he received in good condition.
ON THE LEX RHODIA.
(1) It is provided by the Lex Rhodia that if merchandise is thrown overboard for the purpose of lightening a ship, the loss is made good by the assessment of all which is made for the benefit of all.
(2) If after a ship has been lightened by throwing the merchandise overboard, it should be lost, and the merchandise of others should be recovered by divers, it has been settled that he who threw his property overboard for the purpose of saving the ship will be entitled to an account of the same.
(3) Where either the ship, or a mast is lost in a storm the passengers are not liable to contribution, unless the vessel was saved through the passengers themselves cutting down the mast to insure their own preservation.
(4) Where, for the purpose of lightening a ship, merchandise is thrown into a boat and lost, it is established that the loss shall be made good by the assessment of the property which remained safe in the ship. If, however, the ship should be lost, no account should be taken of the boat which was saved, or of the merchandise it may have contained. (5) Contribution by assessment should be made where property has been thrown into the sea, and the ship has been saved.1
1 The meager extracts set forth in this Title practically comprise all that survives of the maritime code of one of the most famous nations of antiquity, whose naval exploits are referred to by Homer as well known in his day, and whose wealth and power caused it to be feared and respected for a period of almost twelve hundred years. Its origin has, on plausible grounds, been attributed to the Phoenicians, who colonized so much territory belonging to the Mediterranean, and from that enterprising people, the commercial pioneers of the ancient world, no doubt came many of the rules of the sea which were accepted en masse by Augustus, in so far as they did not contravene the existing laws of the Empire.
It will be noticed that these provisions relate almost wholly to contribution, or what is now known as "general average". Two things were requisite to render this principle applicable, some portions of the vessel or the cargo must have been voluntarily thrown overboard in order to save the remainder, or the passengers; and this object must have been accomplished. Hence contribution could not be exacted if force was employed, or the vessel, despite the sacrifice made, was lost.
Everything was liable to contribution but provisions and articles of this description; even the personal effects of the passengers such as clothing, ornaments, and jewels were not exempt. The liability was estimated by using the ordinary market value of the property as a standard, and then making a comparison of what was saved with what was lost. Each person could only be assessed pro rata for his own share, except where one or more of the parties was insolvent, when his burden was assumed by the others. The rule also applied to the ransom of the ship from pirates. Nothing could be collected for the loss of life except in the case of a slave, as a freeman was not subject to appraisement; "corporum liberorum æstimationem nullam fieri potest".
In addition to contribution, the maritime law of Rhodes prescribed rules for the guidance of the officers and crews of vessels, and their passengers; penalties for misconduct of those in authority and their responsibility in case of negligence; and the forms of bills of lading, charter-parties, loans on bottomry and other contracts growing out of the prosecution of commercial transactions.
This equitable principle formulated by the greatest sailors and traders of antiquity; inherited by the Rhodians, a people scarcely inferior to them in maritime skill and enterprise; and transmitted to posterity by Roman authority and example survives in localities where one would least expect to encounter it. The Lex Rhodia de jactu, which the Romans borrowed from the Phoenicians, is now in great observance among the tribes of the Sahara as the customary mode of distributing the losses incurred by caravans crossing the desert between the company owning the camels, or what in railway language would be called the plant, and the passengers or owners of goods. The Khodja or scribe acts as a supercargo, and is said to be quite conversant with the distinction between general and special average. Whether the indigenous races of North Africa derived this custom from the Carthaginians and other Phoenician colonists directly, or whether it came to them indirectly through the Romans, is a point which it would probably be impossible to determine, and on which they themselves certainly could throw no light. (Lorimer, The Institutes of the Law of Nations, Vol. I, Page 30.) ED.
(1) As we derive advantages from the appointment of an agent so we should also suffer the inconvenience resulting therefrom; and therefore anyone who appoints a male or female slave, or a son or a daughter under paternal control, to transact his business, or to buy or sell merchandise, can be sued for the entire amount of any indebtedness contracted in his or her name.
(2) If a slave is placed in charge of money to be lent, or a tract of land to be cultivated, and on which crops are to be planted and sold, the owner of the land or the money will be bound for the entire amount involved in the contract made by the agent; and it makes no difference whether he is a slave or a freeman.
(3) Where a contract is made with the employees of those who have charge of factories or shops, an action is granted for the entire amount of the indebtedness against the masters or agents of said shops.
CONCERNING PROPERTY EMPLOYED FOR THE BENEFIT OF ANOTHER.
(1) Where a slave, or a son under paternal control uses borrowed money for the benefit of the property of his owner or father, for instance, for the purpose of cultivating land, or for supporting a house, or for clothing slaves, or for the purchase of goods, or the payment of creditors, or to do anything of this description, he renders his father or his master liable for the entire amount expended for the benefit of his property; provided, however, that the money was furnished for this purpose.
CONCERNING THE MACEDONIAN DECREE OF THE SENATE.
(1) Anyone who lends money to a son under paternal control against the provisions of the Decree of the Senate, cannot, after the death of the father, bring an action to recover what he lent during the father's lifetime.
ON THE VELLEIAN DECREE OF THE SENATE.
(1) Women are forbidden to interfere in every kind of business matters and obligations, in behalf of males, as well as of females.
(2) A woman who, in her own behalf, promises indemnity to the guardians of her children, is not entitled to the benefit of the Decree of the Senate.
1 Original manuscript illegible.
(5) If I deposit a sealed bag or a package of silver, and the party with whom it was deposited should handle it without my consent, an action of deposit, as well as one of theft, will lie in my favor against him.
(7) In an action of deposit brought on account of delay, any profits which may accrue are included, and interest on the money deposited shall be paid.
(12) There is no ground for set-off in a case of deposit but the property itself must be returned.
1 Original manuscript illegible.
CONCERNING THE LEX COMMISSORIA.2
(1) Where hypothecated property is sold by a creditor, the debtor has an action against him to recover the surplus.
(2) Any hypothecated property which a creditor acquires through a slave diminishes the principal of the debt.
(3) A debtor cannot sell hypothecated property to a creditor, but if he wishes to sell it to others, he can do so, in order that he may tender the purchase money to the creditor, and deliver the redeemed property to the purchaser.
(4) If the creditor purchases the property pledged from the debtor, without his consent, through the intervention of a third party, the sale will be void; and therefore it can be set aside, as, the liability of the pledge or hypothecation cannot be released in this way.
(5) If an agreement is made between the creditor and the debtor that the property pledged shall not be sold, and the debtor should become insolvent, the creditor can formally notify him and sell the property, for an hypothecary action cannot arise from such an agreement.
(6) If the creditor should bequeath the hypothecated property either to one of his heirs, or to a stranger, an action for recovery will lie against all his heirs.
(7) If the creditor should improve the hypothecated property, he can hold the debtor liable in an action to recover the amount that he has expended upon it.
(8) The most recent creditor, if the money is tendered him, should satisfy the former creditor, to avoid having possession unjustly transferred to himself; the prior creditor, however, is not prevented from satisfying the second, although he himself has a better right to the property pledged.
(9) If a slave borrows money during the time of his servitude he cannot be sued on the obligation after he has been manumitted.
2 The Lex Commissoria was a provisional agreement by which the article pledged became the property of the creditor if the debt was not promptly paid at maturity. It also had reference to a contract of sale whereby the parties agreed that if the conditions were not complied with within a specified time it should be considered void; the purchase money be refunded; the profits, if any, be returned to the vendor; and everything connected with the transaction be placed, as far as practicable, in the same state in which it was before the agreement was entered into. This proceeding was abolished, as iniquitous, by Constantine, in 326. ED.
(1) If a mere agreement for the payment of interest is interposed, it is of no effect; for no cause of action arises among Roman citizens from a mere agreement.
(2) Interest above one per cent a month is applied on the principal, and when the principal is paid it can be recovered.
(3) Money lent on bottomry can bear any amount of interest as long as the vessel sails, on account of the risk assumed by the creditor.
(4) Interest in excess of twelve per cent per annum can be recovered as paid by mistake.
(5) If anyone removes the pledges of a debtor without authority of court he is guilty of the crime of violence.
(6) A guardian cannot be sued for interest if he lends the money of his ward without taking sufficient security; and the trial of a case of this kind must be conducted before the governor of the province.
(1) A mandate for the transaction of business can be refused on account of sudden illness, or a necessary journey, or enmity, or for the reason that there is no property, before anything has been done.
(2) If I purchase anything for you with my money under your direction, even if you afterwards should be unwilling to take the property, an action of mandate will lie against you in my favor, and I can not only recover what has been expended but also the interest on the same.
(3) If a person ordered to sell property for a certain price sells it for less, the entire sum can be recovered by an action of mandate, for it has been held that the sale cannot be set aside.
(1) Profits as well as losses are divided among partners, unless the loss has resulted either through the negligence or fraud of a partner.
CONCERNING PURCHASE AND SALE.
(1) If a person sells property of which he is not the owner, he will be liable on account of having received the purchase money, otherwise he cannot be held.
(2) If the property should be simply evicted, the vendor becomes still more liable to the purchaser if he provided against eviction by a stipulation.1
(3) If property which has been purchased is evicted after transfer and delivery have taken place, the vendor will be liable for double damages.
(4) Where land is sold, and the vendor makes a false allegation as to the quantity, he can be sued for double the amount which he falsely stated, and it is the duty of the judge to make the estimate of the same.
(5) The return of a defective slave, when the blemish has been concealed, can be required within six months.
(6) If, in order to sell a slave for more money, the vendor makes false statements with reference to his accomplishments, or his peculium, and an action on purchase is brought against him, the vendor will be compelled to pay to the purchaser the amount of the overvaluation, unless the purchaser is ready to return the slave.
(7) The crops, the labor of slaves, the increase of flocks, and the offspring of female slaves belong to the purchaser from the day of sale.
(8) You sold me a tract of land belonging to another person, and it afterwards became mine for a valuable consideration; if part of the purchase money was paid an action on purchase will lie in my favor against you to recover it.
(9) Unless the purchaser pays the price immediately after the delivery of the property he is required to pay interest on the same.
(10) A person who is dumb can both purchase and sell; an insane person, however, can do neither.
(11) Where a slave who has been purchased in good faith takes to flight on account of a former vicious habit, the party who sold him and was aware of the fraud, can not only be required to pay the value of the slave, but also that of any property which he may have taken with him in his flight. (12)
(13) When proof of his former habit of flight is lacking the statements of the slave should be believed, for he is considered to be interrogated with reference to himself, and not either for or against his master.
(14) In a contract executed in good faith, the obligation of written instruments is demanded without reason, provided the truth with reference to the good faith of the contract can be established.
(15) Land is considered to belong to him in whose name it was purchased and not to him by whom the money was paid, provided the land was delivered to the purchaser.
(16) Where the principal debtor is selected as being liable, his security or heir is released. The same rule does not apply to mandators.
1 Eviction was dispossession by legal procedure based upon concealed faults or a bad title. It was applicable to every species of property and every degree of ownership. An implied warranty in favor of the purchaser was considered to exist at the time of the sale; and sometimes a bond was given with a penalty for double the value of the article or land sold.
The vendor was obliged, under all circumstances, to indemnify the purchaser for the loss sustained. Proof in court of the existence of a lien of any description, or of a servitude which had not been disclosed, would be sufficient to cause eviction. When this was established, a demand could be made for the return of the object of the sale. Joint owners were liable pro rata, in proportion to their respective interests. A reservation of the right of eviction by the vendor, if assented to by the purchaser, barred the latter from instituting proceedings, even though he may have been aware at the time that the title to the property in question was defective. ED.
CONCERNING LEASING AND HIRING.
(1) A freeman who has control of his own condition can make it either better or worse, and hence can lease his services by day or by night.
(2) Where land is deteriorated through want of cultivation and failure to keep buildings in repair, the damage resulting from negligence must be made good by the lessee to the owner, according to the decision of the judge.
(1) Betrothal can take place between persons over or under the age of puberty.
(2) Marriage cannot legally be contracted by persons who are subject to the control of their father, without their consent; such contracts, however, are not dissolved, for the consideration of the public welfare is preferred to the convenience of private individuals.
(6) Marriage cannot be contracted, but cohabitation can exist between slaves and persons who are free.
(7) An insane person of either sex cannot contract marriage, but where marriage has been contracted it is not annulled by insanity.
(8) An absent man can marry a wife; an absent woman, however, cannot marry.
(9) It has been decided that a freedman who aspires to marry his patroness, or the daughter of the wife of his patron, shall be sentenced to the mines, or to labor on the public works, according to the dignity of the person in question.
1 Original manuscript illegible.
(1) A man cannot keep a concubine at the same time that he has a wife.....1 Hence a concubine differs from a wife only in the fact that she is entertained for pleasure.
1 Original manuscript illegible.
CONCERNING WOMEN WHO FORM UNIONS WITH THE SLAVES OF OTHERS, AND ON THE CLAUDIAN DECREE OF THE SENATE.
(1) If a freeborn woman, who is also a Roman citizen or a Latin, forms a union with the slave belonging to another, and continues to cohabit with him against the consent and protest of the owner of the slave she becomes a female slave.
(2) If a freeborn woman forms a union with a slave who is a ward, she becomes a female slave by the denunciation of the guardian.
(3) Although a woman cannot permit her freed woman to cohabit with the slave of another without the permission of her guardian; still, by denouncing her who has formed such an union with her slave, she will acquire the woman as her slave.
(4) An attorney, a son under paternal control, and a slave, by the order of his father, master, or principal, makes a woman a female slave under such circumstances by denouncing her.
(5) If a free woman forms a union with a slave constituting part of the peculium of a son under paternal control, he will acquire the woman as his slave by operation of law, without any inquiry as to his father's consent.
(6) A freedwoman who, with the knowledge of her patron, forms a union with a slave of another, becomes the female slave of the person who denounces her.
(7) If a freedwoman, without the knowledge of her patron, forms a union with the slave of another, she becomes the female slave of the patron, under the condition that, at some time or other, he will confer Roman citizenship upon her.
(8) If a freeborn woman forms a union with a slave included in the castrense peculium of a son under paternal control, she becomes his female slave if he denounces her.
(9) If a daughter under paternal control, without the consent or knowledge of her father, forms a union with a slave belonging to another she will retain her position, even after being denounced; for the reason that the condition of a parent cannot become worse through any act of his children.
(10) If a daughter under paternal control, by order of her father, and against the will of his master, forms a union with the slave of another she becomes a female slave; because parents can render the condition of their children worse.
(11) A freedwoman who forms a union with the slave of her patron will remain in the same condition after having been denounced, because she is considered to have been unwilling to abandon the house of her patron.
(12) Any woman who erroneously thinks that she is a female slave, and on this account forms a union with the slave of another, and, after having ascertained that she is free, continues in the same relation with him, becomes a female slave.
(13) If a patroness forms a union with the slave of her freedman, it has been decided that she does not become a female slave by his denunciation.
(14) A freeborn woman, who knowingly forms a union with a slave belonging to a municipality, becomes a female slave without denunciation, but the rule is not the same if she was ignorant of his condition; and, moreover, she is considered to have been ignorant if, having ascertained the facts, she broke off relations with the slave or thought that he was a freedman.
(15) A free woman who forms a union with a slave that has several masters becomes the slave of the first one who denounces her, unless this is done by all of them at once.
(16) If a mother forms a union with the slave of her son, the Claudian Decree of the Senate does not abolish the filial reverence which should be entertained for a mother; even though she should blush on account of her disgrace, as in the case of her who cohabits with the slave of her freedman.
(17) Although it is provided by the Decree of the Senate that a woman becomes a female slave after having been notified by three denunciations, still, this cannot be determined by the owner without the authority of a decree issued by the Prætor or the Governor, for he only should deprive a person of freedom who can confer it.
(18) If a daughter under paternal control continues to cohabit with a slave after the death of her father, she becomes a female slave in accordance with the terms of the Claudian Decree of the Senate.
TITLE XXI A.
(1) A dowry either precedes or follows marriage, and hence it can be given either before or after the ceremony, but where it is given before marriage it anticipates its occurrence.
(2) It is provided by the Lex Julia concerning adultery that a husband cannot alienate any land given by way of dowry, without the consent of his wife.
CONCERNING AGREEMENTS ENTERED INTO BETWEEN HUSBAND AND WIFE.
(1) The crops of dotal land are gathered for the benefit of the husband during the existence of the marriage, and also proportionately during the year in which a divorce takes place.
(2) A stipulation should be attached to all agreements, so that an action on the stipulation can be brought.
CONCERNING DONATIONS BETWEEN HUSBAND AND WIPE.
(1) A donatio causa mortis is one made under apprehension of impending death; as, for instance, on account of illness, a journey, a sea voyage, or war.
(2) A donation for the sake of manumission is permitted between husband and wife through favor to freedom, or, in fact, for the reason that no one is pecuniarily benefited by it; and therefore they are not prohibited from making reciprocal donations for the purpose of manumitting slaves.
(3) A donation cannot be made between husband and wife through the intermediation of a third party.
(4) A fictitious sale with the intention of making a donation cannot be contracted between husband and wife.
(5) Where the party who made a donation at the time of marriage survives the other to whom it was made, the property donated remains in the hands of the donor.
(6) No matter at what time a donation in anticipation of death was made between husband and wife, it vests as soon as death takes place.
CONCERNING THE BIRTH OP CHILDREN.
(1) If a female slave conceives, and has a child after she has been manumitted, the child will be free.
(2) If a free woman conceives and has a child after having become a slave, the child will be free; for this is demanded by the favor conceded to freedom.
(3) If a female slave conceives, and in the meantime is manumitted, but, having subsequently again become a slave, has a child, it will be free; for the intermediate time can benefit, but not injure freedom.
(4) A child born to a woman who should have been manumitted under the terms of a trust, is born free, if it comes into the world after the grant of freedom is in default.
(5) If, after a divorce has taken place, a woman finds herself to be pregnant, she should within three hundred days notify either her husband, or his father to send witnesses for the purpose of making an examination of her condition; and if this is not done, they shall, by all means, be compelled to recognize the child of the woman.
(6) If the woman should not announce that she is pregnant, and should not permit the witnesses sent to make an examination of her, neither the father nor the grandfather will be compelled to support the child; but the neglect of the mother will not offer any impediment to the child being considered the proper heir of his father.
(7) Where a woman denies that she is pregnant by her husband, the latter is permitted to make an examination of her, and appoint persons to watch her.1
(8) The physical examination of the woman is made by five midwives, and the decision of the majority shall be held to be true.
(9) It has been decided that a midwife who introduces the child of another in order that it may be substituted, shall be punished with death.
1 This is no doubt the origin of the ancient English writ De ventre inspiciendo, issued on the application of the heir presumptive to ascertain whether or not the widow of a deceased ancestor was feigning pregnancy for the ultimate purpose of producing a supposititious heir to the estate. Bracton describes the examination as follows: "Vbi se fecerit pregnantem, cum no sit, ad querelam veri heredis, per præceptum domini regis, faciet vic. venire talem muliarem coram eo, et coram custodibus placitorum coronæ, vel etiam coram aliquo quem dominus rex iustic, constituent et faciet eam videri a discretis mulieribus, et tractari per vbera, et per ventrem, ad inquirendam veritatem, et si suspitio habeatur alicujus falsitatis, qualiter debeat custodiri." (Bracton, De Leg. et Consuet. Ang. II, 69.) Britton says that if the woman was decided to be pregnant, or if any doubt existed on that point, she was shut up in a castle or some other secure place under guard, and excluded from the society of all persons liable to suspicion, until she was delivered, or her condition definitely ascertained. By virtue of this writ, she could thus be taken from her family and secluded for an indefinite period. (Britton, De Legibus Anglicanis, Cap. 66, De Gardes, 444.)
Extraordinary precautions against fraud are prescribed by the Partidas. The woman alleged to be pregnant was compelled to notify her deceased husband's relatives of the fact twice every month from the time of his death up to the date of her confinement, or until it was absolutely certain that she was not enceinte. They had a right to select a jury of five reputable women to examine her, and if she was found to be pregnant, to ask the judge of the district to appoint a woman to guard her. A second examination could be made thirty days before her anticipated delivery. She was never left alone for a moment, night or day; no pregnant woman, nor any child, was permitted to approach her; and when the birth took place, two midwives and sixteen other women were legally allowed to be present. Three lights were required to be kept burning in the house for several nights previously, in order to prevent the introduction of a supposititious heir. ED.
IN WHAT WAY CHILDREN BECOME THEIR OWN MASTERS.
(1) A father captured by the enemy ceases to have his children under his authority, but, having returned, he will recover control of them as well as of all his property, by the law of postliminium, just as if he had never been taken captive by the enemy.
(2) Separate mancipations can be made in the presence of the same or different witnesses, and either on the same day, or at different times.
(3) Emancipation can take place even upon a holiday.
(4) Emancipation and manumission can take place before municipal magistrates having legal jurisdiction.
(5) A son under paternal control is not compelled to be emancipated against his will.
(1) In the second chapter of the Lex Julia concerning adultery, either an adoptive or a natural father is permitted to kill an adulterer caught in the act with his daughter in his own house or in that of his son-in-law, no matter what his rank may be.
(2) If a son under paternal control, who is the father, should surprise his daughter in the act of adultery, while it is inferred from the terms of the law that he cannot kill her, still, he ought to be permitted to do so.
(3) Again, it is provided in the fifth chapter of the Lex Julia that it is permitted to detain witnesses for twenty hours, in order to convict an adulterer taken in the act.
(4) A husband cannot kill any one taken in adultery except persons who are infamous, and those who sell their bodies for gain, as well as slaves, and the freedmen of his wife, and those of his parents and children; his wife, however, is excepted, and he is forbidden to kill her.
(5) It has been decided that a husband who kills his wife when caught with an adulterer, should be punished more leniently, for the reason that he committed the act through impatience caused by just suffering.1
(6) After having killed the adulterer, the husband should at once dismiss his wife, and publicly declare within the next three days with what adulterer, and in what place he found his wife.
(7) An angry husband who surprises his wife in adultery can only kill the adulterer, when he finds him in his own house.
(8) It has been decided that a husband who does not at once dismiss his wife whom he has taken in adultery, can be prosecuted as a pander.
(10) It should be noted that two adulterers can be accused at the same time with the wife, but more than that number cannot be.
(11) It has been decided that adultery cannot be committed with women who have charge of any business or shop.
(12) Anyone who debauches a male who is free, against his consent, shall be punished with death.
(14) It has been held that women convicted of adultery shall be punished with the loss of half of their dowry and the third of their estates, and by relegation to an island. The adulterer, however, shall be deprived of half his property, and shall also be punished by relegation to an island; provided the parties are exiled to different islands.
(15) It has been decided that the penalty for incest, which in case of a man is deportation to an island, shall not be inflicted upon the woman; that is to say when she has not been convicted under the Lex Julia concerning adultery.
(16) Fornication committed with female slaves, unless they are deteriorated in value or an attempt is made against their mistress through them, is not considered an injury.
(17) If a delay is demanded in a case of adultery it cannot be obtained.
1 It seems more than probable that from this source has been derived the principle of what is known in the United States as "the unwritten law". As will be noted, its application was more restricted among the Romans, who required the homicide to be committed in the house of the aggrieved party in order to render it justifiable. Greece, as we learn from Plutarch's Life of Solon, was the first nation that recognized it; in that country indemnity was absolute, and no limitation of place was prescribed, the only essential being that the parties should be taken in flagrante delicto. Mohammedan law does not accept this doctrine, for, as the preservation of female chastity is, by Moslem custom, entrusted to eunuchs, the husband is to blame if he did not take sufficient precautions to secure it. In Scotland, in former times, no distinction was made between homicide under these circumstances and murder, but it was customary to recommend the culprit to mercy. (Mackenzie, The Laws and Customes of Scotland in Matters Criminal, XI, 14.) The killing of a married woman and her lover by the husband of the former, when they are surprised in the act of adultery, is excusable homicide under both the French and Belgian Codes. (Code Pénal de France, Art. 324. Code de Lois Pénales Beiges, Art. 413.) Under the English law the provocation suffered renders the offence manslaughter. (Stephen, A Digest of the Criminal Law, Art. 224d.) The rule is the same in the United States. (Wharton, A Treatise of Criminal Law, Vol. 1, Sec. 425.) ED.
2 Original manuscript illegible.
CONCERNING THE EXCUSES OP GUARDIANS.
(1) Deadly enmity entertained by anyone against the father of a ward excuses a person from guardianship, to prevent wards from being committed to the care of an enemy of their father.
(2) A party cannot, without his consent, be called to take charge of him whose guardianship he administered.
CONCERNING THE APPOINTMENT OF PERSONS OP SUPERIOR POWER.
(1) He is not considered to have properly appointed a person of superior power who does not state the reason for the appointment.
(2) The party appointed should not only be superior in rank but also in point of property.
WHO CANNOT APPOINT PERSONS OP SUPERIOR AUTHORITY.
(1) Where a freedman whom a father has appointed a guardian is said to be insolvent, he cannot be excused, but a curator may be associated with him.
ON THE RESCRIPT OF THE DIVINE SEVERUS.
(1) When a guardian or curator has been detected in the commission of fraud, he shall be fined double the sum of money out of which he attempted to defraud the minor.
(1) A thief is one who handles the property of another with evil intent.
(2) There are four kinds of theft, namely: manifest, non-manifest, the receiving of stolen goods, and the delivery of stolen property to another. A manifest thief is one who is caught in the act, and who is taken with the property within the boundaries of the place from whence he removed it, or before he arrived at the place where he intended to take it on that day. A non-manifest thief is one who is not caught in the act, or with the property in his possession; but, still cannot deny that he has committed the theft.
(3) A person in whose possession the proceeds of the theft are found is liable in the action for receiving stolen goods. He is liable in an action for having offered stolen property who delivered it to another to avoid having it found in his possession.
(4) He can bring an action of theft whose interest it is that the property should not be lost.
(5) He can bring an action to recover stolen goods who detected the presence of the property, that is to say, found it. He with whom the property was found can bring the action for offering stolen goods.
(6) The actions for all four kinds of theft lie in favor of an heir but are not granted against an heir.
(7) A slave who is guilty of theft or has committed damage can, if his master is not prepared to make good the loss according to his means, be surrendered by way of reparation.
(8) Where a slave commits a theft, and is subsequently manumitted or alienated, an action can be brought against him after his manumission, or against his purchaser, if he is sold; for the damage follows the person.
(9) If a son under paternal control commits a theft and is afterwards emancipated, an action of theft is granted against him, because in all cases the damage follows the person.
(10) Not only he who actually perpetrated the theft, but he also by whose aid or advice the offence was committed, is liable in the action of theft.
(11) Property belonging to an estate cannot be stolen before it comes into the possession of the heir.
(12) It has been decided that anyone who carries away and conceals a harlot for the purpose of debauchery is liable in the action of theft.
(13) The action of manifest theft includes the penalty of quadruple the value of the property in addition to the recovery of the same, by a species of claim and personal suit.
(14) The penalty for receiving stolen goods, and for offering the same imposed upon him who offered it, is triple the value in addition to the recovery of the property itself.
(15) A person convicted of any kind of theft becomes infamous.
(16) The action of theft lies against the proprietor of an inn or stable kept for hire, for any property which is lost therein.
(17) If property which has been sold is stolen before being delivered, both the purchaser and the vendor can bring the action of theft, as both of them are interested in delivering the property, or in having it delivered.
(18) If any property is lost in a ship or boat the action of theft will be granted against the master of the vessel.
(19) A debtor commits a theft if he removes property given in pledge to his creditor, and if he himself, should lose it, he can in like manner be prosecuted in his own name.
(20) A father, or a master can bring the action of theft for property which a son under paternal control, or a slave, has surreptitiously removed; for it is important that proceedings should be instituted against him who can be sued for the peculium.
(21) If I should afterwards surreptitiously remove property which I lent to you for use, you will have no right to bring the action of theft against me, for we cannot steal something which is our own.
(22) Anyone who is about to search for stolen property should previously say what he is looking for, and should state the name and the nature of the articles.
(23) If anyone commits unlawful injury while searching for stolen property, he will be liable in an action under the Lex Aquilia.
(24) A reward promised for information leading to the apprehension of a thief is legally due.
(25) If growing grain, or trees of any kind are cut down for the purpose of being stolen, the culprit can be sued for double the value of the property.
(26) If anyone steals a slave held in common, the action of theft is also granted to the joint owner.
(27) Anyone who takes property supposed to be abandoned, does not commit theft; even though it has not been left by the owner with the intention of abandoning it.
(28) If a slave commits a theft in company with his master, the action of theft is granted against his master in addition to a personal action for the recovery of the property.
(29) A fuller, or a tailor, who receives clothing for the purpose of cleaning or repairing it, and makes use of it, is considered to have committed theft by merely handling it, because he is not understood to have received it for that purpose.
(30) Where crops have been stolen from land, the tenant or the owner can bring the action of theft, for the reason that it is to the interest of both of them to pursue the property.
(31) Anyone.who steals a female slave, who is not a harlot, for the purpose of debauchery, is liable in the action of theft; and if he conceals her he can be punished under the Lex Favia.
(32) Anyone who steals any documents or written evidence of an obligation is liable in the action of theft for the sum mentioned therein; nor does it make any difference whether they have been cancelled or not, because it can be proved by means of them that a debt has been discharged.
(33) Anyone who advises a slave to take to flight is not liable in the action of theft, but is in the one for corrupting a slave.
(34) If stolen property is returned to the possession of the owner, the right of action for theft is extinguished.1
(35) Anyone who breaks into, or opens a place which is closed, but removes nothing, cannot be sued in the action of theft, but the action of injury can be brought against him.
(36) Anyone who steals his own property is not liable in the action of theft, provided that in doing so he does not injure another.
(37) A fugitive slave still remains in the possession of his owner, but his owner is not liable to the action of theft on his account, because he is not under his control.
1 The disposition of stolen goods does not, in England, when it takes place publicly, in the ordinary course of trade, and in good faith, cause any loss to the parties directly concerned. "The common law did ordaine (to encourage men thereunto) that all sales and contracts of any thing vendible in faires or markets overt should not be good onely between the parties, but should bind those that right had thereunto." (Coke, Institutes, II, Page 713.)
"Where goods are sold in market overt according to the usage of the market, the buyer acquires a title to the goods provided he buys them in good faith and without notice of any defect or want of title on the part of the seller." (Sales of Goods Act, 1893.) This rule has been appropriated, almost without alteration, from the laws of Menu. "He who has received a chattel, by purchase in open market, before a number of men, justly acquires the absolute property, by having paid the price of it, if he can produce the vendor:
"But, if the vendor be not producible, and the vendee prove the public sale, the latter must be dismissed by the king without punishment; and the former owner, who lost the chattel, may take it back on paying the vendee half its value." (Sir Wm. Jones Works, Vol. III, Page 304.)
This doctrine is not applicable in the United States. "A sale ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor. It has been frequently held in this country, that the English law of the market overt had not been adopted; and consequently, as a general rule the title of the true owner cannot be lost without his own free act and consent." (Kent, Commentaries on American Law, Vol. II, Page 390.)
CONCERNING THE SERVICES OF FREEDMEN.
(1) A freedman is compelled to support his patron, if he is in want, by means of gifts, presents, and services, to the extent of his means.