The Same, Pandects, Book I. The term “conceived in promiscuous intercourse” is applicable to those who cannot show who their father is, or if they can do so, he is not their lawful father, and these are called spurious, from spora.

Modestinus, Pandects, Book I. Illegitimate or emancipated children cannot be brought under paternal authority against their consent.

The Same, Pandects, Book I. We can even give an infant in adoption.

Modestinus, Pandects, Book I. For he first begins to have a civil status on the day when he is manumitted.

The Same, Pandects, Book I. A son under paternal control cannot manumit a slave who is part of his peculium, unless he does so by order of his father; and the slave, after having been manumitted, becomes the freedman of the father.

Modestinus, Pandects, Book I. I can, in accordance with the Constitution of the Divine Augustus, manumit a slave in the presence of the Prefect of Egypt.

The Same, Pandects, Book I. If the person to whom the slave is ordered to make payment should purchase him, and then sell him to another, he must pay the last purchaser, for Julianus decided that if he to whom the slave was ordered to make payment obtains the ownership of him, and alienates him, the condition will also pass to the purchaser.

The Same, Pandects, Book I. A female slave cannot be manumitted on account of marriage by anyone but the man who intends to marry her; because if one man should manumit her for this reason, and another should marry her, she will not become free. Hence Julianus gave it as his opinion that she would not be liberated from servitude even if the person who manumitted and repudiated her should marry her within six months; on the ground that the Senate had reference to a marriage which should have taken place after the manumission, without any other preceding it.

Modestinus, Pandects, Book II. A will is the lawful expression of our wishes with respect to what anyone desires to be done after his death.

Modestinus, Pandects, Book II. Where a son is appointed an heir under some condition, and while the condition is pending gives himself to be arrogated, he will cease to be a necessary heir.

The Same, Pandects, Book II. It is an act of kindness for an heir to be appointed for the time that he can obtain the benefit of the inheritance, as for instance: “Let Lucius Titius be my heir for the time when he can obtain my estate.” The same rule applies to legacies. 1Whenever it is not apparent who the appointed heir is, the appointment will not be valid; and this may happen where the testator had several friends of the same name, and in designating the one whom he appointed he used only a single name; unless it is disclosed by the clearest evidence whom the testator had in his mind.

Modestinus, Pandects, Book II. Heirs are said to be either appointed or substituted. Those who are appointed belong to the first degree, those who are substituted to the second, or the third degree. 1There are two kinds of substitutions, the simple, as, for example: “Let Lucius Titius be my heir, and if Lucius Titius should not be my heir, then let Seius be my heir; if he should not be my heir, or should be and die before arriving at puberty, then let Gaius Seius be my heir.” 2We can substitute an heir for others who have been appointed, as well as for those who have disinherited; and we can substitute an heir who has already been appointed, or anyone else. 3A father cannot substitute an heir for his children, unless he appoints one for himself; for without the appointment of an heir no provision of a will is valid.

Modestinus, Pandects, Book II. When the property of a debtor is sold; upon the demand of creditors, a second sale of his property is allowed to be made until his entire indebtedness is discharged, provided the debtor has made acquisitions sufficient to justify the Prætor in taking action.

The Same, Pandects, Book III. A legacy is a donation left by a will.

Modestinus, Pandects, Book III. There is this difference between agnates and cognates: cognates are included among agnates, but agnates are not included among cognates; for example, the brother of a father, that is, the paternal uncle, is both an agnate and a cognate, but the brother of a mother, that is to say, the maternal uncle, is an agnate, but not a cognate. 1As long as there is any hope that a deceased person will have a direct heir, there is no ground for the claim of blood relatives to the estate; for example, where the wife of the deceased is pregnant, or his son is in the hands of the enemy.

The Same, Pandects, Book V. A person charged with the manumission of a slave under the terms of a trust can, in no way whatever, render the condition of the said slave worse; and therefore he cannot in the meantime sell him to anyone else, in order that he to whom he was sold may emancipate him; and if he should deliver the slave, he will be compelled to purchase and manumit him; for it is sometimes to the interest of a slave to be manumitted by an old man rather than by a young one.

The Same, Pandects, Book III. To “assign” a freedman is for a patron to declare to which of his children he desires his freedman to belong.

Modestinus, Pandects, Book IV. Where a guardian is appointed for two minors, even if he can excuse himself from the guardianship of one of them, he will still remain the guardian of the other, if the property of the minors is separate.

The Same, Pandects, Book IV. Several guardians may be appointed at the same time.

The Same, Pandects, Book IV. The question arose, where an action is granted against magistrates, should the principal be collected together with the interest, or can interest not be claimed, since it has been decided that interest on penalties cannot be recovered. It was stated in a Rescript by the Divine Severus and Antoninus, that interest can be collected, since the same action is granted against magistrates that lies against guardians.

Modestinus, Pandects, Book IV. If an attorney is appointed for the purpose of making a defence, he is ordered to give security for the payment of the judgment, by means of a stipulation which is not interposed by the attorney himself, but by the principal party in the case. If, however, the attorney defends someone, he himself is compelled to furnish security by the stipulation for the payment of the judgment.

The Same, Pandects, Book IV. A debtor is understood to be one from whom money can be collected against his will.

Modestinus, Pandects, Book V. Where a son under paternal control, a ward, or a slave draws up a will and seals it, possession of the property mentioned therein cannot be granted to the legatees, even though the testator should be a son who is independent, or a ward who has reached the age of puberty, or a slave who should become free, at the time of his death; for the reason that a will drawn up by one who has no right to do so is void.

Modestinus, Pandects, Book V. Usucaption is the addition of ownership by means of continuous possession for a time prescribed by law.

The Same, Pandects, Book V. A freeman cannot be the object of a stipulation, for demand cannot be made for his delivery, nor can his appraised value be paid, any more than if a person should stipulate for a dead slave, or for land in the hands of the enemy.

The Same, Pandects, Book V. A purchaser in good faith is one who was not aware that the property which he bought belonged to another; or thought that he who sold it had the right to do so; as, for instance, that he was an agent, or a guardian.

Ad Dig. 16,2,1ROHGE, Bd. 8 (1873), S. 43: Zulässigkeit der Compensation von Gegenforderungen, obschon über letztere bereits quittirt ist, sofern die Quittung die Art der Tilgung nicht ergibt und behauptet wird, daß dieselbe nicht durch Zahlung, sondern durch Aufrechnung geschehen ist.Modestinus, Pandects, Book VI. Set-off is a contribution made between a debt and a credit.

Modestinus, Pandects, Book VI. Where a man has a son, and by him a grandson under his control, and gives his son in adoption, but retains his grandson under his authority, and his son, having subsequently been emancipated by his adoptive father, dies, after appointing foreign heirs, the son of the one who remained under the control of his grandfather can demand prætorian possession of the estate of his father, although he may never have been under his control. Hence it is held that it is not indispensable for him to have been under his control; for if it is decided otherwise, and the son should not be emancipated, the grandson of him who remained under the control of his grandfather can demand prætorian possession of the estate contrary to the provisions of the will. 1The same rule of law applies where a son, having been emancipated, a grandson by him remains under the control of his grandfather, and is afterwards given in adoption to his father; that is to say, he can demand prætorian possession of the estate of his grandfather in opposition to the terms of his will, because by this adoption he does not become a member of another family. 2If, however, my emancipated son should adopt a stranger as his son, the said adoptive son cannot demand prætorian possession of my estate contrary to the provisions of my will, for the reason that he never sustained the relation of grandson to me.

Modestinus, Pandects, Book XVI. A certain man, having emancipated his son, retained the children of the latter under his control. The emancipated son, having had children, afterwards died. It was decided that those grandchildren who remained under the control of their grandfather, were, by virtue of a special decree, entitled to prætorian possession of the estate of the latter, together with those who were born after the emancipation, with the exception that, if the grandfather desired to obtain the estate of his son, by means of his grandchildren, he could place his property in collation, or he could emancipate them, in order that they might obtain for themselves the benefit of their father’s estate. This the Divine Marcus stated in a Rescript.

The Same, Pandects, Book VI. A freedman who promised money to his patron, which the latter demanded of him for the purpose of rendering his freedom oppressive, will not be liable; and if the patron should exact the money, he cannot obtain possession of his estate contrary to the provisions of the will of the freedman.

Modestinus, Pandects, Book VI. The following are the degrees of prætorian possession on the ground of intestacy: first, that of the proper heirs; second, that of the heirs at law; third, that of the next of kin; finally that of husband and wife. 1Prætorian possession on the ground of intestacy is granted where there is no will, or where there is one and no application is made for possession of the estate either in accordance with the provisions of the will, or in opposition to them. 2Prætorian possession of the estate of a father dying intestate is granted to his children; not only to such as were under his control at the time of his death, but also to those who have been emancipated.

The Same, Pandects, Book VI. He is called an arbiter in whose hands several persons have deposited property which is in dispute, whether he has been appointed by a judge, to whom application had been made; or whether the property has been submitted to him for arbitration by those who claim it.

Modestinus, Pandects, Book VII. By res judicata, is meant the termination of a controversy by the judgment of a court. This is accomplished either by an adverse decision, or by discharge from liability.

The Same, Pandects, Book VII. The time granted to a party to satisfy a judgment rendered against him is also granted to his heirs and other successors, at least the time that has not expired, because the privilege is conceded rather to the case than to the person.

The Same, Pandects, Book VII. A contract for his services cannot be made by a master with his freedman for any time previous to obtaining his liberty.

Modestinus, Pandects, Book VIII. All persons are promised complete restitution by the Prætor when proper cause is shown; so that he may examine the justice of the case, and ascertain whether it belongs to that class to which he can afford relief.

The Same, Pandects, Book VIII. When a master is attacked, his slaves should attempt to assist him with arms, and with their hands, with cries, and with the interposition of their bodies. If anyone should not offer assistance when he is able to do so, he shall deservedly be subjected to punishment for this reason.

The Same, Pandects, Book IX. He is considered to be unworthy of the benefit of the Falcidian Law, who acts in such a way as to cause the trust to be extinguished. 1Moreover, where an heir is requested to transfer the estate to some one who is not entitled to receive it, he will not, by the Plancian Decree of the Senate, be permitted to retain the fourth of said estate; but the said fourth, in accordance with a Rescript of the Divine Pius, will belong to the Treasury.

The Same, Pandects, Book IX. Some doubt exists on the point as to whether a patron can only assign a freedman to his son, who is under his control, or to his emancipated son, provided he has at least two others under his control. The better opinion is that he can do so.

The Same, Pandects, Book IX. When anyone promises a sum of money in consideration of obtaining a magisterial honor or a sacerdotal office, and, before he obtains the honor or enters upon the duties of the office, he dies, his heirs should not be sued for the money which he promised in consideration of the said honor or magistracy. This was provided by the Imperial Constitutions, unless, during his lifetime, the work had been begun either by the person himself, or by the city.

Modestinus, Pandects, Book X. As, generally speaking, we cannot summon persons to whom respect should be shown, without an order of the Prætor.

Modestinus, Pandects, Book X. Or any privilege of a religious character.

Modestinus, Pandects, Book X. It is provided by the Imperial Constitutions that neither those who govern provinces nor their attendants, shall go into business, or lend money with or without interest.

The Same, Pandects, Book X. Where anyone ignorantly leases property to a soldier, believing him to be a civilian, it is settled that he can collect the rent from him, for since he was not aware that he was a soldier, he is not guilty of violation of military discipline.

The Same, Pandects, Book X. No one can stipulate for a penalty instead of interest above the lawful rate.

Modestinus, Pandects, Book X. Money is transported which is carried across the sea. If, however, it is expended in the same place where it was lent, it cannot be designated as transported. Let us see, however, whether merchandise purchased with this money will be considered to occupy the same position. It makes a difference whether the merchandise is carried at the risk of the creditor, for then the money will be transported.

Modestinus, Pandects, Book X. If I have pledged property with you, and then steal and sell it, a doubt arises as to whether it can be acquired by usucaption. The better opinion is that it can be so acquired.

Modestinus, Pandects, Book X. Arbiters are appointed to determine the dimensions of land; and he who is stated to have a larger part of the entire tract will be compelled to transfer a certain portion to the others who have smaller ones; and this is stated in a rescript.

The Same, Pandects, Book XI. We must remember that the statues of those who have been relegated, or deported for high treason, should be removed.

The Same, Pandects, Book XI. Under the Prætorian Edict, offices should be conferred by degrees, and, as is stated by a letter of the Divine Pius to Titianus, this should be done from the less important to the more important ones. 1Although it is provided by the municipal law, that men of a certain condition should be preferred in making appointments to the magistracy, still it must be remembered that this rule ought only to be observed when the candidates are solvent. This is set forth in a Rescript of the Divine Marcus. 2The Divine Brothers stated in a Rescript that whenever there is a scarcity of citizens eligible to the magistracy, immunity can be, to some extent, infringed. 3The Divine Antoninus and his Father stated in a Rescript that although a physician may already have been approved, he can be rejected by the municipality. 4The Divine Antoninus stated in a Rescript that those who instructed children in the rudiments of learning were not exempt from the duties of public office.

Modestinus, Pandects, Book XI. It is not lawful to inscribe even the name of the Governor upon a public work.

Modestinus, Pandects, Book XI. The Divine Marcus stated in a Rescript that the Governor of a province should consult the Emperor with reference to works which have been constructed on the walls or gates of cities, or other public property, and also where walls have been built.

The Same, Pandects, Book XI. It is stated in a Rescript of the Divine Severus that we cannot erect statues to others upon public works constructed by private individuals, against the consent of the latter. 1The Divine Antoninus stated in a Rescript that where anyone has promised a work in order to avoid performing the duties of an office, he can be compelled to perform its duties instead of constructing the work.

Modestinus, Pandects, Book XII. So far as our law is concerned, it is not easy to go beyond the seventh degree, when a question arises with reference to natural relationship, as nature hardly permits the existence of cognates to extend beyond that degree. 1The term “cognates” is thought to be derived from the fact that relatives are descended from one ancestor, or have a common origin or birth. 2Relationship among the Romans is understood to be two fold, for some connections are derived from the Civil and others from Natural Law, and sometimes both coincide, so that the relationship by the Natural and the Civil Law is united. And, indeed, a natural connection can be understood to exist without the civil one, and this applies to a woman who has illegitimate children. Civil relationship, however, which is said to be legal, arises through adoption without Natural Law. Relationship exists under both laws when a union is made by marriage lawfully contracted. Natural relationship is designated by the term cognation; but civil relationship, although it may very properly be designated by the same name, is more accurately styled agnation, which has reference to relationship derived through males. 3As certain special rights exist with reference to persons connected by affinity, it is not foreign to the subject to briefly discuss this connection. Persons related by affinity are the cognates of husband and wife, so called for the reason that two relationships, differing from one another, are joined by marriage, and one is transferred to the other. For affinity is derived from marriage. 4The following are the terms of affinity, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepson, and stepdaughter. 5There are no degrees of affinity. 6The father of the husband or the wife, is called the father-in-law, and the mother of either of them is called the mother-in-law. Among the Greeks the father of the husband was called hekuros and the mother hekura, the father of the wife was called penveros and the mother penvera. The wife of the son is called the daughter-in-law, the husband of a daughter the son-in-law. A second wife is called the stepmother of children born of a former one; the husband of a mother having children by a former husband is called the stepfather, and children born of either of them are designated stepsons, and stepdaughters; a father-in-law may also be denned as the father of my wife, and I am his son-in-law. The grandfather of my wife is called my grandfather-in-law, and I am his grandson-in-law; on the other hand, my father is the father-in-law of my wife, and she is his daughter-in-law, and my grandfather is her grandfather-in-law, and she is his granddaughter-in-law; likewise, the grandmother of my wife is my grandmother-in-law, and I am her grandson-in-law; and my mother is the mother-in-law of my wife, and she is her daughter-in-law; and my grandmother is her grandmother-in-law, and my wife is her granddaughter-in-law. The stepson of my wife is the son of her former husband, and I am his stepfather; on the other hand, my wife is said to be the stepmother of children whom I have by a former wife, and my children are her stepchildren. The brother of a husband is the brother-in-law of his wife, and is called by the Greeks dayr, as is stated by Homer. The sister of the husband is a sister-in-law of the wife called by the Greeks galos. The wives of two brothers are called sisters-in-law, designated among the Greeks as einateres, which Homer also mentions. 7It is wrong for such persons to contract marriage reciprocally for the reason that, on account of their affinity, they bear the relation of parents and children to one another. 8It must be remembered that neither cognation nor affinity can exist unless the marriage which gives rise to affinity is not forbidden by law. 9Freedmen and freedwomen can become connected with one another by affinity. 10A child given in adoption, or emancipated, retains all the relationship by cognation and affinity which he formerly possessed, but he loses the rights of agnation. But with reference to the family into which he came by adoption, no one is his cognate except his adoptive father, and those to whom he becomes the agnate. No one belonging to the adoptive family is related to him by affinity. 11Anyone who has been interdicted from fire and water, or has lost his civil rights in any way, so as to have forfeited his freedom and his citizenship, also loses all his connections of cognation and affinity which he previously had.

Modestinus, Pandects, Book XII. Persons who are infamous and have no right to bring an accusation are undoubtedly permitted to bring this one. 1Soldiers, also, who cannot defend other causes, can act in this proceeding; for as they guard the peace, they, much more than others, should be permitted to bring this accusation. 2Slaves, also, should be heard as accusers in cases of this kind, even against their masters, as well as freedmen against their patrons. 3This accusation, however, should not be considered by judges as affording an opportunity to show their veneration for the majesty of the Emperor, for this should only be done where the charge is true; for the personal character of the accused should be taken in account, and whether he could have committed the offence, as well as whether he had previously done or planned anything of the same nature, and also if he was of sane mind, for a slip of the tongue ought not inconsiderately be held as deserving of punishment. For, although rash persons ought to be punished, still, they should be excused, just as lunatics are, when the offence is not included in the strict terms of the law; or if it should be punished, as resembling one specified by the law. 4The crime of lese majesty committed by defacing statues or portraits is much worse when perpetrated by soldiers.

The Same, Pandects, Book XII. By a decree of the Senate it is ordered that anyone who offers sacrifices for the purpose of causing misfortune shall be subjected to the penalty of this law.

Modestinus, Pandects, Book XII. The penalty of parricide, as prescribed by our ancestors, is that the culprit shall be beaten with rods stained with his blood, and then shall be sewed up in a sack with a dog, a cock, a viper, and an ape, and the bag cast into the depth of the sea, that is to say, if the sea is near at hand; otherwise, it shall be thrown to wild beasts, according to the Constitution of the Divine Hadrian. 1Those who kill other persons than their father and mother, their grandfather and grandmother, whom we have stated above, are punished according to the custom of our ancestors, either suffer a capital penalty, or are sacrificed to the gods. 2When anyone, while insane, kills his parents, he shall go unpunished, as the Divine Brothers stated in a Rescript with reference to a man who, being insane, killed his mother; for it is sufficient for him to be punished by his insanity alone, but he must be guarded with great care, or else be kept in chains.

The Same, Pandects, Book XII. He who makes or carves a false seal is liable under the Cornelian Law relating to Wills. 1In case of the substitution of a child, the parents alone, or those who have an interest in the matter, are entitled to bring the accusation, but none of the people can institute a public prosecution.

Modestinus, Pandects, Book XII. It is provided by the Imperial Mandates that the property of persons who are sought for shall be sealed up during the year, and if they return, and offer proper excuses, they shall have it restored to them. If, however, they do not answer, and no one appears to defend them, after a year has elapsed, their property shall be confiscated to the Treasury. 1And, during the intermediate year, any movable property belonging to them may be sold, in order to prevent it being spoiled by delay, or destroyed, and the proceeds thereof shall be deposited; as authorized by the Divine Severus and Antoninus. 2The Divine Trajan stated in a Rescript that crops also are considered movable property. 3Care, however, should be taken that the fugitive shall, in the meantime, be paid nothing by his debtors, lest by this means his flight may be aided.

The Same, Pandects, Book XII. If anyone remains for a long time under an accusation, his punishment should, to some extent, be mitigated; for it has been decided that those who have been accused for a considerable time should not be punished as severely as those who have been tried and convicted without delay. 1No one can be sentenced to be thrown down from a rock.