De castrensi peculio
(Concerning castrense peculium.)
1 Ulpianus libro quarto decimo ad edictum. Filii familias militis si peculium apud patrem remansit sine testamento filio defuncto, pater ipsi heres non fit, sed tamen heres is fiet, quibus filius fuit.
1 Ulpianus, On the Edict, Book XLII. Where the peculium of a son under paternal control, who is a soldier, remains in the hands of his father, and the son dies intestate, his father will not become his heir; but he will, nevertheless, become the heir of those from whom the son has a right to inherit.
2 Idem libro sexagensimo septimo ad edictum. Si filius familias miles decesserit, si quidem intestatus, bona eius non quasi hereditas, sed quasi peculium patri deferuntur: si autem testamento facto, hic pro hereditate habetur castrense peculium.
2 The Same, On the Edict, Book LXVII. When a son under paternal control, who is a soldier, dies intestate, his property will pass to his father, not as his estate, but as his peculium. If, however, he made a will, his castrense peculium will be considered as his estate.
3 Idem libro octavo ad legem Iuliam et Papiam. Si mulier filio viri militi ad castrenses vel militares forte res comparandas reliquerit pecuniam, utique castrense peculio ea quae comparantur adnumerari incipiunt.
3 The Same, On the Lex Julia et Papia, Book VIII. If a woman should leave money for the purchase of articles suitable for military service to the son of her husband, who is in the army, anything purchased with it by him will be included in his castrense peculium.
4 Tertullianus libro singulari de castrensi peculio. Miles praecipua habere debet, quae tulit secum in castra concedente patre. 1Actionem persecutionemque castrensium rerum semper filius etiam invito patre habet. 2Si pater familias militiae tempore vel post missionem adrogandum se praebuerit, videndum erit, ne huic quoque permissa intellegatur earum rerum administratio, quas ante adrogationem in castris adquisierit, quamvis constitutiones principales de his loquantur, qui ab initio cum essent filii familias militaverint. quod admittendum est.
4 Tertullianus, On Castrense Peculium. A soldier should be especially entitled to any articles which he took with him into camp with the consent of his father. 1The son has always, even against the will of his father, the right of action and recovery of the property constituting his castrense peculium. 2If the head of a household, during the term of his military service, and after his discharge, should offer himself to be arrogated, let us see if he should not be understood to have the free administration of any property which he acquired in camp before his arrogation, although the Imperial Constitutions only mention those who, as sons under paternal control, served from the time when they entered the army. This rule should be adopted.
5 Ulpianus libro sexto ad Sabinum. Miles filius familias a commilitone vel ab eo, quem per militiam cognovit, heres institutus et citra iussum patris suo arbitrio recte pro herede geret.
5 Ulpianus, On Sabinus, Book VI. A son under paternal control, serving as a soldier, who is appointed an heir either by a fellow-soldier, or by one whom he has known through being in the service, can of his own accord become his heir, without the order of his father.
6 Idem libro trigensimo secundo ad Sabinum. Si militi filio familias uxor servum manumittendi causa donaverit, an suum libertum fecerit, videamus, quia peculiares et servos et libertos potuit habere. et magis est, ut hoc castrensi peculio non adnumeretur, quia uxor ei non propter militiam nota esset. plane si mihi proponas ad castra eunti marito uxorem servos donasse, ut manumittat et habiles ad militiam libertos habeat, potest dici sua voluntate sine patris permissu manumittentem ad libertatem perducere.
6 The Same, On Sabinus, Book LII. If the wife of a son under paternal control should give him a slave to be manumitted, let us see whether this makes him his freedman, for he can hold both slaves and freedmen as part of his peculium. The better opinion is that the slave in question should not be included in the castrense peculium, because he did not become acquainted with his wife through being in the army. It is clear, however, that if you suppose the wife gave the slave to her husband while he was on his way to camp, in order that he might manumit him, and he renders the freedman fit for military service, it may be said that if he manumits the slave by his own will, and without the consent of his father, he will grant him his freedom.
7 Idem libro trigensimo tertio ad edictum. Si castrense peculium maritus habeat, in quantum facere potest condemnabitur, quia etiam non castrensibus creditoribus ex eo peculio magis est eum cogi respondere.
7 The Same, On the Edict, Book XXXIII. If the husband has a castrense peculium, judgment will be rendered against him to the extent of his means; for he will be compelled to make payment out of his peculium, even to those who are not castrensian creditors.
8 Idem libro quadragensimo quinto ad edictum. Si forte uxor vel cognatus vel quis alius non ex castris notus filio familias donaverit quid vel legaverit et expresserit nominatim, ut in castrensi peculio habeat: an possit castrensi peculio adgregari? et non puto: veritatem enim spectamus, an vero castrensis notitia vel affectio fuit, non quod quis finxit.
8 The Same, On the Edict, Book XLV. If his wife, or a relative, or anyone else who did not become known to him through his service in the army, donates, or bequeaths anything to a son under paternal control, and expressly states that he shall hold it as his castrense peculium, can this be added to it? I do not think that it can, for we consider the truth and whether the acquaintance or the affection was derived from military service, and not something which anyone may have imagined.
9 Idem libro quarto disputationum. Proponebatur filius familias miles testamento facto extraneum heredem scripsisse, patre deinde superstite decessisse, pater deliberante herede instituto et ipse diem functus, deinde heres institutus repudiasse hereditatem. quaerebatur, ad quem castrense peculium pertineret. dicebam castrense peculium filii familias, si quidem testatus decessit, quasi hereditatem deferri heredi scripto, sive extraneum scripsit heredem sive patrem. sed cum nihil de peculio decernit filius, non nunc obvenisse patri, sed non esse ab eo profectum creditur. denique si servo filii castrensi libertatem pater adscripserit moxque filius vivo patre defunctus sit, non impeditur libertas, cum, si filius patri supervixerit, impediatur libertas. unde Marcellus putat necessarium quoque heredem servum filii peculiarem patri existere posse, si filio pater supervixerit. idem referebam et si rem peculiarem filii pater legaverit: nam eodem casu, quo libertatem competere diximus, legatum quoque vel debebitur vel impedietur. quibus ita praemissis et in proposito dicebam, cum heres non adiit hereditatem, retro peculium patris bonis accessisse: unde posse dici etiam aucta patris bona per hanc repudiationem. nec est novum, ut ex postfacto aliquis successorem habuisse videatur. nam et si filius eius, qui ab hostibus captus est, decesserit patre captivo vivo, si quidem pater regrederetur, quasi filius familias peculium haberet: enimvero si ibidem pater decesserit, quasi pater familias legitimum habebit successorem, et retro habuisse creditor eius successor ea quoque, quae medio tempore filius iste quaesiit, nec heredi patris, sed ipsi filio quaesita videbuntur.
9 The Same, Disputations, Book IV. The following case was stated. A son under paternal control, who was a soldier, and who was appointed a foreign heir by will, afterwards died during the lifetime of his father; and, while the appointed heir was deliberating whether to accept the estate or not, the father himself died; and then the appointed heir rejected the estate. The question arose to whom the castrense peculium would belong. I held that if the son died testate, it would belong to the appointed heir, as the estate of the son, whether he had appointed a foreign heir, or his father. If, however, the son made no disposition of his peculium, it would not appear to pass to his father, but would seem to always have been a part of the property of the latter. Finally, if the father should grant freedom to a slave forming part of the castrense peculium of his son, and his son should afterwards die during the lifetime of his father, the grant of freedom would not be interfered with, but if the son survived his father, this would not be the case. Wherefore, Marcellus thinks that a slave who formed part of the peculium of the son would become the necessary heir of the latter, if his father should survive him. I gave the same opinion where the father bequeathed the peculium of his son; for, in the same case, in which we stated that the grant of freedom would stand, we also stated that the legacy would either be due, or be annulled. These matters having been disposed of, I said with reference to the case stated, that, as the heir did not enter upon the estate, the peculium was retroactively added to the property of the father; hence it might be held that the estate of the father was even increased by this refusal. It is not a new principle that anyone may appear to have a successor on account of the occurrence of some subsequent event. For if the son of a man who had been captured by the enemy should die while the father was living and in captivity, and his father should return, he would be entitled to the estate of his son as his peculium. If, however, his father should die in captivity, his son, as the head of a household, would have a lawful heir, and his successor would, by retroactive effect, be considered to be entitled to whatever the said son had acquired in the intermediate time; and this would appear to have been obtained not for the heir of the father, but for the son himself.
10 Pomponius libro singulari regularum ex nota Marcelli. Constat nec patribus aliquid ex castrensibus bonis filiorum deberi.
10 Pomponius, Rules, According to a note of Marcellus, it is settled that nothing is due to a father from the castrensian property of his son.
11 Macer libro secundo de re militari. Castrense peculium est, quod a parentibus vel cognatis in militia agenti donatum est vel quod ipse filius familias in militia adquisiit, quod, nisi militaret, adquisiturus non fuisset. nam quod erat et sine militia adquisiturus, id peculium eius castrense non est.
11 Macer, On Military Affairs, Book II. Castrense peculium is what has been given by parents or relatives to one who is serving in the army, or what a son under paternal control has himself obtained while in the service, and which he would not have acquired if he had not been a soldier; for whatever he might have acquired without being in the army does not constitute any part of his peculium, castrense.
12 Papinianus libro quarto decimo quaestionum. Pater, qui dat in adoptionem filium militem, peculium ei auferre non potest, quod semel iure militiae filius tenuit. qua ratione nec emancipando filium peculium ei aufert, quod nec in familia retento potest auferre.
12 Papinianus, Questions, Book XIV. A father who gives his son, who is a soldier, in adoption, does not take from him the peculium which he has already acquired by the right of military service. For which reason, he does not deprive his son of his peculium by emancipating him, since he cannot take it from him even if he remains in his family.
13 Idem libro sexto decimo quaestionum. Divus Hadrianus rescripsit in eo, quem militantem uxor heredem instituerat filium, extitisse heredem et ab eo servos hereditarios manumissos proprios eius libertos fieri.
13 The Same, Questions, Book XVI. The Divine Hadrian stated in a Rescript that where a wife appointed a son under paternal control her heir, he would become her heir; and that any slaves belonging to the estate who were manumitted by him would become his own freedmen.
14 Idem libro vicensimo septimo quaestionum. Filius familias miles si captus apud hostes vita fungatur, lex Cornelia subveniet scriptis heredibus: quibus cessantibus iure pristino peculium pater habebit. 1Proxima species videtur, ut scriptis heredibus deliberantibus, quod servus interim stipulatus est vel ab alio sibi traditum accepit, quod quidem ad patris personam attinet, si forte peculium apud eum resederit, nullius momenti videatur, cum in illo tempore non fuerit servus patris: quod autem ad scriptos heredes, in suspenso fuisse traditio itemque stipulatio intellegatur: ut enim hereditarius fuisse credatur, post aditam fit hereditatem. sed paterna verecundia nos movet, quatenus et in illa specie, ubi iure pristino apud patrem peculium remanet, etiam adquisitio stipulationis vel rei traditae per servum fiat. 2Legatum, quod ei servo relictum est, quamvis tunc propter incertum nulli sit adquisitum, omisso testamento patri tunc primum per servum adquiretur, cum, si fuisset exemplo hereditatis peculio adquisitum, ius patris hodie non consideraretur.
14 The Same, Questions, Book XXVII. When a son under paternal control, who is a soldier, is captured and dies in the hands of the enemy, the Cornelian Law will come to the relief of the appointed heirs, and if they do not accept the estate, the father will be entitled to the peculium by virtue of his prior right. 1The following case seems to resemble the one previously stated; so that while the testamentary heirs are deliberating, whatever a slave in the meantime stipulates for, or receives from another person by delivery to himself, is of no legal effect, so far as the father is concerned, if the peculium remained in his hands, as the slave did not belong to the father at that time. But with reference to the appointed heirs, both the delivery and the stipulation are understood to remain in suspense; for the slave will be considered to have belonged to the estate after it has been accepted. The respect due to the father, however, induces us to say that in the case where the peculium remains in his hands by virtue of his former right, any acquisition obtained by the stipulation, or any property delivered to the slave, will be to his advantage. 2A legacy left to such a slave is not acquired by any of the heirs, because it is still uncertain whether it will be accepted or not. But if the will should not be executed, the legacy will be at once acquired by the father through the slave; for if it had been acquired by the peculium, as in the case of an estate, the right of the father would not at present be considered.
15 Idem libro trigensimo quinto quaestionum. Pater militi filio reverso quod donat, castrensis peculii non facit, sed alterius peculii, perinde ac si filius numquam militasset. 1Si stipulanti filio spondeat, si quidem ex causa peculii castrensis, tenebit stipulatio: ceterum ex qualibet alia causa non tenebit. 2Si pater a filio stipulatur, eadem distinctio servabitur. 3Servus peculii, quod ad filium spectat, ab extero si stipuletur aut per traditionem accipiat, sine distinctione causarum res ad filium pertinebit: non enim ut filius duplex ius sustinet patris et filii familias, ita servus, qui peculii castrensis est quique nullo iure, quamdiu filius vivit, patri subiectus est, aliquid adquirere simpliciter stipulando vel accipiendo patri potest. quae ratio suadet, ut, si ab ipso patre servus, qui ad filium pertinet, stipuletur ex quacumque causa vel traditum accipiat, sic adquiratur filio res et stipulatio, quemadmodum si exter promisisset, quoniam persona stipulantis et accipientis ea est, ut sine differentia causarum quod per eum agitur emolumentum filii spectet. 4Si servi pater usum fructum amiserit, cuius proprietatem in castrensi peculio filius habebat, plenam proprietatem habebit filius.
15 The Same, Questions, Book XXXV. What a father gives to his son after he has returned from the army does not form part of his castrense peculium, but belongs to another peculium, just as if his son had never been in military service. 1If a father should promise his son by a stipulation that whatever he acquires will be for the benefit of his peculium castrense, the stipulation will stand; but it will be void under any other circumstances. 2When a father stipulates with his son for his own benefit, the same distinction shall be observed. 3If a slave, forming part of the peculium of the son, should stipulate for or receive by delivery anything from a stranger, the property will belong to the son, without making any distinction between the considerations for the stipulation or the delivery. For, as the son sustains the double part of the head of a household and a son under paternal control, so the slave, who forms part of the peculium castrense, and who, under no circumstances, is subject to the authority of the father as long as the son lives, cannot acquire for the benefit of the father what he has merely stipulated for, or has received. Hence, if a slave, who belongs to the son, stipulates for anything, or receives anything from the father, the property delivered or stipulated for is acquired for the son, just as if the contract had been made with a stranger, since the person who stipulates or receives is such that the transaction is carried on for the benefit of the son, no matter what the consideration may be. 4If a father has lost the usufruct of a slave, the ownership of whom formed part of the castrense peculium of the son, the latter will have the entire ownership of the slave.
16 Idem libro nono decimo responsorum. Dotem filio familias datam vel promissam in peculio castrensi non esse respondi. nec ea res contraria videbitur ei, quod divi Hadriani temporibus filium familias militem uxori heredem extitisse placuit et hereditatem in castrense peculium habuisse. nam hereditas adventicio iure quaeritur, dos autem matrimonio cohaerens oneribus eius ac liberis communibus, qui sunt in avi familia, confertur. 1Hereditatem castrensi peculio non videri quaesitam respondi, quam frater patruelis in alia provincia stipendia merens fratri patrueli, cum quo numquam militavit, reliquit: sanguinis etenim ratio, non militiae causa meritum hereditatis accipiendae praebuerat.
16 The Same, Opinions, Book XIX. I held that a dowry given or promised to a son under paternal control will not form part of his peculium castrense. This does not appear to be opposed to the opinion published in the time of the Divine Hadrian, by which it was decided that a son under paternal control, who is in the army, could be the heir of his wife, and that her estate would form part of his castrense peculium, for an inheritance is acquired by adventitious right, while a dowry is inseparable from marriage, and is bestowed with its charges for the benefit of the common children belonging to the family of their grandfather. 1I also gave it as my opinion that anything which one paternal uncle left to another paternal uncle, with whom he had never served in the army, and which he had acquired in another province, should not be considered as a part of the peculium castrense of him to whom it was bequeathed; as the consideration of blood relationship, and not that of military service, was the cause of his receiving the estate.
17 Idem libro secundo definitionum. Pater, qui castrense peculium intestati filii retinebit, aes alienum intra modum eius et annum utilem iure praetorio solvere cogitur: idem, si testamento scriptus heres extiterit, perpetuo civiliter ut heres convenietur. 1Pater a filio milite vel qui militavit heres institutus testamenti causam omisit et castrense peculium possidet: legitimi heredis exemplo cogetur ad finem peculii perpetuo legata praestare. quod si filius post annum quam militare desierat iure communi testamento facto vita decessit, ratione Falcidiae retinebitur quarta. ceterum si testamenti causam pater omisit, cum peculium creditoribus solvendo non esset, nihil dolo videbitur fecisse, quamvis temporis incurrat compendium.
17 The Same, Definitions, Book II. A father having the right to retain the castrense peculium of his son who died intestate is compelled by the Prætorian Law to pay his debts during the available year, as far as the peculium will allow. Likewise, if he should become the testamentary heir of his son, he will always be liable for these debts as his heir, under the Civil Law. 1A father who was appointed heir by his son, who either was or had been in the army, did not accept the estate under the will, and kept possession of his castrense peculium. He can, just as an heir at law, be compelled without limit of time to pay any legacies bequeathed by his son, to the extent that the peculium will permit. If, however, the son, having made his will according to the Common Law, should die within a year after leaving the army, a fourth of his estate can be retained by his father under the Falcidian Law. But if his father should fail to accept the estate under the will, because the peculium was not sufficient to satisfy the creditors, he will not be considered to have acted fraudulently; although he may be obliged to discharge the indebtedness during the prescribed time.
18 Maecianus libro primo fideicommissorum. Ex castrensi peculio servus a patre heres institui potest et filium necessarium heredem patri facit. 1Et in summa ea res hi actus patris, qui ad praesens alienationem alicuius iuris de castrensi peculio praestant, impediuntur: hi vero, qui non statim quidem, sed postea efficere solent, eo tempore animadvertentur, quo habere effectum consuerunt, ut, si sit filius, cui auferatur, nihil agatur, si ante decesserit, actus patris non impediatur. 2Itaque negabimus patrem filio salvo communi dividundo agentem proprietatem alienaturum, exemplo dotalis praedii. sed nec si socius ultro cum eo agat, quicquam agetur, veluti si cum eo ageret, cui bonis interdictum est. 3Servos ex eo peculio usu fructu, item praedia tam usu fructu quam ceteris servitutibus pater liberare poterit: sed et servitutes his adquirere. id enim et eum, cui bonis interdictum est, verum est consequi posse. neque autem servis ex eo peculio neque praediis usum fructum vel servitutem imponere pater potest. 4Si quando ex eo peculio filius rem alienam bona fide tenebit, an pater eius in rem vel ad exhibendum actionem pati debeat, ut ceterorum nomine, quaeritur. sed verius est, cum hoc peculium a patris bonis separetur, defensionis necessitatem patri non inponendam. 5Sed nec cogendus est pater aes alienum, quod filius peculii nomine, quod in castris adquisiit, fecisse dicetur, de peculio actionem pati: et, si sponte patiatur, ut quilibet defensor satisdato filium in solidum, non peculio tenus defendere debet. sed et eius filii nomine non aliter movere actiones potest, quam si satis dederit eum ratam rem habiturum.
18 Marcianus, Trusts, Book I. A slave forming part of the castrense peculium of a son may be appointed heir by his father, and in this way make the son the necessary heir of his father. 1And, in a word, all matters or acts of the father which, for the time, may cause any alienation of a right belonging to the castrense peculium are prohibited, but any of these things which do not become operative immediately, but do so afterwards, are considered with reference to the time when they ordinarily take effect; so that if a son is deprived of any of his rights by his father, his act will be void, but this will not be the case if the son is already dead. 2Therefore, we deny that a father who brings an action in partition, while his son is living, cannot alienate the property; as is the case with land forming a part of the dowry. And if a partner of the son should make any agreement with the father, it will be void, just as if he had contracted with someone who had been forbidden to manage his own estate. 3A father can release from usufruct slaves who form part of the peculium castrense of his son, and he can also release land from usufruct, as well as from other servitudes imposed upon it; and he can also acquire servitudes for the land. It is true that he who is forbidden to manage his own property has this privilege. A father, however, cannot impose an usufruct or a servitude on the slaves or land constituting part of the peculium. 4If a son in good faith holds as part of his peculium property which belongs to another, the question arises whether a real action or one to compel the production of the property can be brought against his father, as in the case of other sons. The better opinion is that as this peculium is separate from the property of the father, the necessity of making a defence should not be imposed upon him. 5Nor can a father be compelled to defend an action De peculia, based on indebtedness which his son is said to have incurred on account of the peculium which he acquired in the service; and if he voluntarily submits to be sued, he should, like any other defender, give security for the entire amount involved, and not merely to the extent of the peculium. He cannot, however, bring an action in the name of his son without giving security that the latter will ratify his act.
19 Tryphoninus libro octavo decimo disputationum. De hereditate ab adgnato commilitone data Scaevola noster dubitabat, quia potuit et ante notus et amicus dare, potuit et non dare, nisi commilitium caritatem auxisset. nobis ita videtur, si ante commilitium factum sit testamentum, non esse peculii castrensis eam hereditatem, si postea, contra. 1Sed si servus peculii castrensis a quocumque sit heres scriptus, iussu militis adire debebit hereditatem eaque fiet bonorum castrensis peculii. 2Filius familias paganus de peculio castrensi fecit testamentum et, dum ignorat patri se suum heredem extitisse, decessit. non potest videri pro castrensibus bonis testatus, pro paternis intestatus decessisse, quamvis id in milite etiamnunc rescriptum sit, quia miles ab initio pro parte testatus, pro parte intestatus potuerat mori, quod ius iste non habuerit, non magis quam sine observatione legum facere testamentum. necessario ergo castrensis peculii heres scriptus universa bona habebit, perinde ac si pauperrimus facto testamento decessisset ignorans se locupletatum per servos alio loco agentes. 3Pater peculii castrensis filii servum testamento liberum esse iussit: intestato defuncto filio familias, mox patre quaeritur, an libertas servo competat. occurrebat enim non posse dominium apud duos pro solido fuisse: denique filium posse manumittere talis peculii servum Hadrianus constituit: et si testamento tam filii quam patris idem servus accepisset libertatem et utrique pariter decessissent, non dubitaretur ex testamento filii liberum eum esse. sed in superiore casu pro libertate a patre data illa dici possunt, numquid, quoad utatur iure concesso filius in castrensi peculio, eousque ius patris cessaverit, quod si intestatus decesserit filius, postliminii cuiusdam similitudine pater antiquo iure habeat peculium retroque videatur habuisse rerum dominia. 4Non tamen ut heres vivo filio vindictam servo imposuit, dicatur eum post mortem intestati filii ex illa manumissione liberum factum esse. 5Quid autem, si testamentum fecerit filius et non sit eius adita hereditas? non tam facile est dicere continuatum patri post mortem filii rerum peculii dominium, cum medium tempus, quo deliberant instituti heredes, imaginem successioni praestiterit. alioquin et si adita sit ab instituto hereditas filii, dicetur a patre ad eum transisse proprietatem, quod absurdum est. si in pendenti, ut in aliis, et in hac specie habeamus dominia, ut ex facto retro fuisse aut non fuisse patris credamus? secundum quod difficile erit expedire, si, dum deliberant heredes, dies cesserit legati servo dati istius peculii testamento eius, ex quo pater nihil capere potuisset, an id ad ipsum pertineat, cum utique ad heredem filii pertineret. facilior tamen de libertate servi deliberatio est in specie, in qua intestatus filius decessisse proponitur. non est ergo ratio respondendi competere libertatem eo tempore datam, quo non fuit in dominio patris? favorabilem tamen sententiam contrariam in utroque casu non negamus.
19 Tryphoninus, Disputations, Book XVIII. Our Scævola is in doubt with reference to an estate left to a soldier by one of his relatives and comrades in arms, for the reason that if he had been known to him, and had been connected with him before he entered the army, he could have appointed him his heir, and he also might not have done so, if his military service with him had not increased his affection. It seems to us that if the will had been made before the parties served together in the army, the estate would not form part of the peculium castrense, but if it was made afterwards, the opposite opinion should prevail. 1If a slave, forming part of the castrense peculium, is appointed heir by anyone whomsoever, he should enter upon the estate by the order of his master, and it will become part of the property composing the castrense peculium. 2A son under paternal control, who was at the time in civil life, made a will disposing of his castrense pecidium, and while he was not aware that he was the proper heir of his father, died. It can not be held that he died testate, so far as the property of his castrense peculium was concerned, and intestate with reference to the estate of his father; although this is now stated in rescripts with reference to a soldier, because he can die partly testate in the beginning, and afterwards partly intestate; but this man did not enjoy this right, as he could not have made a will without observing all the legal formalities. Therefore, the appointed heir would be entitled to all the property of the castrense peculium, just as if a person who believed himself to be extremely poor should die after making a will, without being aware that he had been enriched by the acts of his slaves elsewhere. 3A father ordered a slave, who formed part of the castrense peculium of his son, to be free by his will. The son under paternal control having died, and his father, also, soon afterwards, the question arose whether the slave was entitled to his freedom, for the objection was made that the absolute ownership could not belong to two persons; and, on the other hand, Hadrian decided that a son could not manumit a slave forming part of such a peculium. If the slave had received his freedom by the wills of both the son and the father, and both of them had died, there could be no doubt that he would become free by the will of the son. But, in the first instance, it can be said in favor of the freedom granted by the father that the right of the latter did not cease until the son used that which had been granted him with reference to his castrense peculium; because if the son should die intestate, the father would be entitled to his peculium by his prior right, resembling that of postliminium, and the ownership of the property would appear to have had a retroactive effect. 4Still, it should not be said that, if the father, during the lifetime of his son and as his heir, should publicly manumit the slave, the latter would become free by such a manumission after the son had died intestate. 5But what if the son should make a will, and his estate should not be entered upon? It is not so easy to decide that the ownership of the property constituting the peculium would continue to belong to the father, after the death of the son, as the intermediate time, during which the testamentary heirs deliberate, offers the appearance of a succession. Otherwise, even if the estate of the son were entered upon by the testamentary heir, it might be said that the ownership passed to him from the father, which is absurd, if we hold that the property is in suspense in this case as well as in others; and we believe that by retroactive effect it either belonged or did not belong to the father. In accordance with this, if, while the heirs were deliberating, the time should arrive for the delivery of the legacy to the slave forming part of the peculium, under the will of someone, from which the father could obtain nothing, it is difficult to determine whether the legacy should belong to the father himself or not, as, otherwise, it would pass to the son’s heir. The decision of the question relating to the freedom of the slave is more easy to arrive at in the case in which the son is presumed to have died intestate. There is, therefore, no reason to state that he was entitled to freedom granted at the time when he did not belong to the father; still, we do not refuse a contrary opinion in either instance.
20 Paulus libro singulari ad regulam Catonianam. Sed si ponas filium testamentum fecisse et patrem heredem instituisse: cum utique pater testamento suo servo filii libertatem dedisset, qui ad eum ex testamento filii pertinere coeperit, videndum est, numquid ei comparari debeat, qui, cum manumitteretur, alienus erat, deinde postea adquisitus est. sed favorabile est libertatem a patre relictam admittere: et ab initio patris esse eum videri ex hoc, quod postea contigit, ostenditur.
20 Paulus, On the Rule of Cato. If you suppose that a son has made a will, and appointed his father his heir, after the father by his will has granted freedom to his son’s slave, who began to belong to him by the will of his son, let us see whether this slave should be compared to one who belonged to another at the time he was manumitted, and the ownership of whom was afterwards acquired. It is favorable to freedom to admit that it was granted by the father, and to hold that the slave belonged to the latter from the beginning; which is shown from what afterwards occurred.