ENACTMENTS OF JUSTINIAN.
|~ Book XI ~|
( S. P. Scott, The Civil Law, IV, Cincinnati, 1932 ).
1. Callistratus, Monitory Edict, Book II.
The heir should be interrogated in court with reference to what part of the estate he is the heir, whenever an action is brought against him, and the plaintiff is in doubt as to what share the person whom he intends to sue is heir. An interrogatory is necessary whenever the action is in personam, where suit is brought for a certain amount, as otherwise the plaintiff would be ignorant as to what portion of the estate of the deceased his adversary was entitled as heir, and sometimes he might claim too much and sustain some loss.
(1) We do not, however, make use of interrogatory actions at present, because no one can be compelled to answer anything with reference to his rights before the case is tried; and therefore these actions are less used and have fallen into desuetude. Only matters stated by the adverse party in court can be employed as proof by litigants, whether such matters relate to estates or to other things involved in judicial proceedings.
2. Ulpianus, On the Edict, Book XXII.
The Praetor published his Edict with reference to interrogatories because he knew that it was difficult to a party who brings suit against an heir or the possessor of the property of an estate to prove that anyone was an heir, or the possessor of such property;
3. Paulus, On the Edict, Book XVII.
For the reason that proof of entry upon an estate is, for the most part, difficult.
4. Ulpianus, On the Edict, Book XXII.
The Praetor desires to bind the party who was sued by his own answer made in court, so that if he makes admissions or tells a falsehood he may take the consequences; and at the same time that he may, by means of the interrogatory, obtain information as to what portion of the estate each heir is entitled.
(1) With reference to the statement of the Praetor: "He who answers having been interrogated in court," this must be understood to mean in the presence of a magistrate of the Roman people, or of the Governor of a province, or any other judge, for the term jus he says merely signifies the place where the judge happens to be for the purpose of exercising his functions or rendering decisions, whether he does this at home or while on a journey.
5. Gaius, On the Provincial Edict, Book III.
Where anyone is interrogated as to whether he is heir, or to what portion of an estate he is entitled, or whether he has under his control anyone on whose account a noxal action is brought; he should have time for deliberation, because if he makes an incorrect statement he will be subjected to inconvenience.
6. Ulpianus, On the Edict, Book XXII.
And because, as it is to the interest of deceased persons that they should have successors, so it is also of interest to those who are living that they should not be hurried, so long as they deliberate in a proper manner.
(1) Sometimes a person who is interrogated as to whether he is an heir is not compelled to answer; as, for instance, where he is sued by another if the estate is in dispute, (and this was determined by the Divine Hadrian); for otherwise if he denied that he was the heir, he would prejudice his case; or if he alleged that he was the heir he might be entangled in such a way as to be deprived of the estate.
7. The Same, On the Edict, Book XVIII.
Where anyone is interrogated in court as to whether a quadruped which has committed damage belongs to him, and he answers that it does, he will be liable.
8. Paulus, On the Edict, Book XXII.
Where a person who is interrogated with reference to a slave who has commited damage, answers that the slave is his, he will be liable under the Lex Aquilia as owner; and if the action is brought against him who answers, the real owner will be released from liability in said action.
9. Ulpianus, On the Edict, Book XXII.
Where anyone, without being interrogated, answers that he is the heir, he is considered as having been interrogated.
(1) We must understand the term "interrogated" not only to apply where questions are asked by the Praetor, but also where this is done by the adversary.
(2) If, however, a slave is interrogated, this is no interrogation any more than if a slave should ask the question.
(3) One person should not be compelled to answer for another as to whether the latter is the heir, for every one should be interrogated in court about himself; that is to say, when suit is brought against him.
(4) Celsus states in the Fifth Book of the Digest, that where a party defending a case for another is interrogated in court as to whether he for whom he appears is the heir, or to what part of the estate he is entitled, and he answered falsely, he himself will be liable as the defender of the case to the opposite party; but the case of him for whom he is conducting the defence will not be prejudiced; and there is no doubt that this opinion of Celsus is correct. Therefore, if he does not answer, should it not be considered whether or not he shall be held to be defending the case? It is only proper to say that he is not, since he is not defending it fully.
(5) Where anyone who is interrogated answers that he is the heir, but does not add to what part of the estate, it must be held that he has answered that he is heir to all of it; unless he should have been asked, for instance, whether he was heir to half of it, and he replied, "I am the heir," for then I should rather think that he had answered the question which was addressed to him.
(6) The question was asked, if anyone can be compelled to answer whether he is an heir by will, or whether the estate was obtained in his own name or through others who are subject to his authority, or through someone to whom he was heir? Therefore, in general, the Praetor should make up his mind when this question is put, whether the party is required to answer by what right he is heir, so that if he should ascertain that it is a matter of great importance, he may order him to answer more fully. These rules should be observed not only with reference to heirs but also with reference to praetorian successors.
(7) Finally, Julianus states that anyone to whom an estate has been delivered after having been interrogated in court, is required to answer whether the estate has been delivered to him.
(8) Where an action De peculio is brought, neither the father nor the owner is required to answer whether he has the son or the slave under his control; because this question alone can be put, namely, whether the peculium is in the hands of the party against whom proceedings have been instituted.
10. Paulus, On the Edict, Book XLVIII.
It is not foreign to the purpose, when we wish to enter into a stipulation for the prevention of threatened injury, for the party to be interrogated in court as to whether his house or the place from which it is feared damage may result is his, and what interest he has in the same; so that if he denies that the property is his, and refuses to give security against the threatened injury, he may be compelled either to yield, or if he prefers to resist, to surrender the property as having acted fraudulently.
11. Ulpianus, On the Edict, Book XXII.
Sometimes also a party when interrogated is required to answer with reference to his age.
(1) Where anyone who is not an heir, having been interrogated, answered that he is an heir to a share in the estate, he can be sued just as if he were an heir to a share in the same; for he will be trusted as against himself.
(2) Where a party who is an heir to the fourth of an estate, or not an heir at all, answers that he is heir to the entire estate, he can be sued in an action brought for the whole.
(3) Where anyone who is the heir to half alleges that he is heir to a quarter, he will suffer the following penalty for his falsehood, that is to say, he can be sued for the entire estate; for he should not have lied by stating that he was an heir to a smaller portion;
(4) Sometimes, however, he may reasonably think that he is the heir to a smaller portion; for instance, if he did not know that he had acquired a part of said estate by accrual, or had been appointed heir to an uncertain portion of the same; why then should his rights be prejudiced by his answer?
(5) Moreover, where one keeps silent in the presence of the Praetor, he is in such a position that if an action is brought he can be sued for the entire amount, just as if he denied that he was an heir; for where a person does not answer at all he is contumacious. He must suffer the following penalty for contumacy, that is to say, he may be sued for the entire amount, just as if he had denied that he was an heir; because he is held to have been guilty of contempt of the Praetor.
(6) Where the Praetor says, "Does not answer at all," the latter authorities understand this term as meaning that a man is considered not to have answered at all who does not specifically reply to the question asked, word for word. Where anyone is interrogated as to whether he is the sole heir to the estate, and he answered that he is an heir to a portion of the same, then, if he is heir to half, his answer will not prejudice him, for this opinion is the more lenient one.
(7) It makes no difference whether a party, when interrogated, makes a denial, or keeps silent, or answers ambiguously, so as to leave the interrogater in a state of uncertainty.
(8) We have no doubt that when a party who is interrogated answers he will be entitled to relief, where proper cause is shown; or if anyone is interrogated as to whether he is heir to his father and answers that he is, and afterwards, a will is produced by which it is ascertained that he was disinherited; it is perfectly just that he should obtain relief, and this was stated by Celsus. He, however, bases it upon another principle, namely, that matters which are subsequently ascertained demand relief; as, for example, a will might be concealed or removed, and afterwards produced; for why should this prejudice the party who answered what seemed at that time to be true? I hold that the same rule applies where a party answers that he is the heir, and the will is subsequently pronounced to be a forgery, or inofficious, or of no effect, for he did not answer dishonestly, but because he was deceived by the instrument.
(9) Where a man who is interrogated answers, he is liable in the same way as if he was bound by a contract under which he can be called to account, provided that he is interrogated by his adversary; but if he is interrogated by the Praetor, the authority of the Praetor has no bearing on the case, but only the answer of the party himself, or any falsehood which he may tell, is involved.
(10) Where a person, induced by a reasonable mistake, denies that he is an heir, he is worthy of indulgence.
(11) But where a party answers incorrectly without malicious intent, but through negligence; it must be held that he should be released from liability, unless the negligence closely resembles malice.
(12) Celsus states that a party can recall his answer, if no disadvantage results to the plaintiff from his doing so; and this seems to me to be perfectly true, and especially if he should do this after he has obtained more information, being better informed as to his rights either by documents or by letters from his friends.
12. Paulus, On the Edict, Book XVII.
Where a son who has rejected his father's estate, is interrogated in court and answers that he is the heir, he will be liable; for by answering in this manner he is held to have acted as the heir. But if a son who has rejected the estate is interrogated, and remains silent, he is entitled to relief; for the Praetor does not consider anyone who has rejected an estate as an heir.
(1) Any exception which can be employed in bar of an action brought in court against defendants can also be employed by a party against whom proceedings have been instituted on account of his answer; as, for instance, one based upon informal agreement, or previous decision, etc.
13. The Same, On Plautius, Book II.
Persons who, while answering, make false confessions, are bound by the same only where anyone has a right of action against another on account of a matter with reference to which he was interrogated; because where suit can be brought against another party if he were the owner, we render ourselves liable by our confession. Hence, where someone is under the control of his father, and I answer that he is my son, I will only be liable where his age appears to be such that he can be my son; because false confessions must agree with what is natural; and on this account the result would be that if I answered on behalf of the father I will not be held liable.
(1) Where anyone answers that the head of a household is his slave, he will not be liable to a noxal action; and even if a free man serves me in good faith as a slave, a noxal action cannot be brought against me; and if proceedings should be instituted, the right of action against the person who committed the illegal act will remain unimpaired.
14. Javolenus, On Cassius, Book IX.
When the individual on whose account issue has been joined in a noxal action is decided to be free, during the course of the trial, the defendant should be discharged; and the interrogation will be of no benefit because it was made in court; since where anyone has a right of action against another on account of a third party, he cannot transfer the liability of said party to one who confesses in court that he is his slave; as, for instance, if he confesses that the slave of another is his own; still, as no action can be brought against another person on account of a man who is free, liability cannot be transferred by means of any interrogatory or confession. The result in this case is that no action can properly be brought with reference to a freeman against someone who has made a confession.
(1) In general, confessions are considered only where what is included in the confession can be accepted as in conformity with law and nature.
15. Pomponius, On Sabinus, Book XVIII.
If, before an estate has been entered upon, I answered that a slave belonging to the estate is mine, I am liable; because an estate is considered the same as an owner.
(1) Where a party who is interrogated in court confesses that a slave is his, and the slave then dies, the party who answered is not liable; just as he would not have been liable after the death of said slave if he had belonged to him.
16. Ulpianus, On the Edict, Book XXXVII.
Where a slave is taken by the enemy, and someone, having been interrogated in court, answers with reference to him that he is under his control; although the right of postliminium may cause us to hesitate, nevertheless, I do not think that there is ground for a noxal action, because the slave is not under our control.
(1) Although it is held that a party is liable who confesses that another slave is his; still, it has been very properly held that he is only liable if the slave could have been his own, but if he could not acquire ownership in him, he is not liable.
17. The Same, On the Edict, Book XXXVIII.
Where the slave does not belong to one person, but to several, and all of them state falsely that he is not under their control, or some of them have done so, or have acted fraudulently to avoid having control of him; each one of them will be liable for the entire amount of damages, just as they would be liable if they had control over said slave; but one party who was not guilty of fraud in order to avoid having control of the slave, or does not make a false statement, will not be liable.
18. Julianus, On Urseius Ferox, Book IV.
Where a person who was heir to half of an estate wished to defend his absent co-heir, and, in order to avoid the burden of furnishing security, answered that he was the sole heir, and judgment was rendered against him; the plaintiff asked whether, as the party was insolvent, the former judgment could not be rescinded, and an action be granted him who was really the heir. Proculus answered that the judgment could be rescinded and the action be brought, and this is correct.
19. Papinianus, Questions, Book VIII.
Where a son who appears in behalf of his father keeps silent when interrogated, everything must be observed just as if he had not been interrogated.
20. Paulus, Questions, Book II.
Where a party answers that a slave who belongs to another is his, and suit is brought against him in a noxal action, the actual owner will be released. It is otherwise, however, where anyone confesses that he killed a slave whom someone else killed, or where anyone answers that he is an heir; for, in these instances, he who committed the act, or he who is the actual heir, is not released. These things do not conflict with one another; for, in the first instance, two parties are liable on account of the person of a slave, just as we say they are liable where a slave is owned in common, and if one is sued the other is discharged; but a party who confesses that he killed or wounded anyone is liable on his own account, nor should the crime of the person who committed it go unpunished on account of him who answered, unless the party making the confession was acting as the defender of him who committed the offence, or of the heir, and appeared in the case for this purpose; for then an exception will be granted and the plaintiff will be barred, because the former can recover what he paid by an action either on the ground of business transacted, or on that of mandate. The same rule applies where a party states that he is the heir by direction of the heir himself, or he, for any other reason, wishes to appear in his defence.
(1) Where anyone is asked in court whether he is in possession of a certain tract of land; I ask whether he can be compelled to answer as to how much of the said land he is in possession? I replied that Javolenus states that the possessor of land is obliged to answer as to the amount of said land which he holds in his possession; so that if he alleges that he is in possession of the smaller portion, the plaintiff shall be placed in possession of the other portion with reference to which no defence is made.
(2) The same rule applies where we give security against threatened injury; for in this instance the party should also answer what portion of the land belongs to him, so that he may arrange the stipulation with respect to said portion; and the penalty in this case, where the party does not promise, is that we should take possession; and therefore, on this account it is essential to know whether the party is in possession of said premises or not.
21. Ulpianus, On the Edict, Book XXII.
Wherever a sense of equity influences a judge, there is no doubt that in pursuance of justice an interrogatory should take place.
22. Scaevola, Digest, Book IV.
the Imperial Procurator was conducting an examination with reference
to a debt due to the Treasury, one of the sons of the deceased who
had not obtained possession of the property of the estate and was
not an heir, answered that he was the heir; can he be held liable
by the other creditors as having answered the interrogatory? The reply
was that a party cannot be sued on account of his answer by those
who have not interrogated him in court.
Where an action for the partition of an estate and one for the division of property held in common or for the establishment of boundaries is brought between several persons, the same judge should be selected; and, moreover, they should all be present in the same place, in order that the co-heir or joint-owners may the more easily assemble.
2. Papinianus, Questions, Book II.
Where one of several guardians is sued because the others are not solvent, and this one requests it, they can all be brought before the same judge; and this is set forth in Imperial Rescripts.
The Praetor says: "Where anyone is alleged to have harbored a male or female slave belonging to another, or have persuaded him or her maliciously to do anything which would depreciate the value of him or her, I will grant an action for double the value of the property."
(1) He will not be liable under this Edict who purchases a slave in good faith, nor can he bring an action for the corruption of the slave, because he has no interest in the slave not being corrupted; and, in fact, if anyone should admit that this is true, the result would be that an action would lie in favor of two parties for the corruption of the slave, which is absurd. We are of the opinion that this action cannot be brought by a party whom a free man is serving as a slave in good faith.
(2) When the Praetor says "harbors," we understand this to mean where anyone takes under his protection a slave belonging to another; and this, properly speaking, signifies giving him refuge for the purpose of concealing him, either on his own premises, or in a place or building belonging to another.
(3) "To persuade" does not exactly mean to compel and force anyone to obey you, but it is a term of moderate signification; for anyone can persuade another by either good or bad advice, and therefore the Praetor adds "maliciously," by which he "diminishes the value," hence, a party does not commit the offence unless he persuades the slave to do something by which his value may be lessened, and therefore, where a party solicits a slave either to do something or to contrive something which is dishonorable, he is held to be subject to this Edict.
(4) Shall a person, however, be liable where he has driven a slave of good habits to commit a crime, or instigates a bad slave, or shows him how to perpetrate the act? The better opinion is that even if he showed the bad slave how to perpetrate the offence he will be liable. And, in fact, if the slave had already intended to take to flight, or to commit a theft, and the person referred to should have approved of his intention, he will be liable, for the malice of the slave should not be increased by praising him; therefore, whether he made a good slave bad or a bad slave worse, he will still be held to have corrupted him.
(5) He also makes a slave worse who persuades him to commit some injury or theft, or induces him to take to flight, or instigates the slave of another to do these things, or to confuse his peculium, or to be a lover of women, or to wander about, or to devote himself to magical arts, or to be present too often at exhibitions, or to be riotous; or to persuade a slave who is a court official either by words or by bribery to mutilate or falsify the accounts of his master, or even to render an account of which he has been placed in charge unintelligible;
2. Paulus, On the Edict, Book XIX.
Or makes him extravagant or disobedient, or persuades him to indulge in debauchery.
3. Ulpianus, On the Edict, Book XXIII.
By the addition of the term "maliciously" the Praetor refers to the deceit of the party who persuades the slave, but if anyone should depreciate the value of the slave without malicious intent, he does not incur disgrace; and he is not liable if he does this for a joke.
(1) For this reason a question arises if anyone should persuade a slave belonging to another to climb up on a roof, or to descend into a well, and he, obeying, ascends or descends and breaks a leg or any other limb, or loses his life; will the party be liable? If he did this without malicious intent he will not be liable, but if he did it maliciously he will be;
4. Paulus, On the Edict, Book XIX.
It is more convenient, however, to hold him liable to a praetorian action under the Lex Aquilia.
5. Ulpianus, On the Edict, Book XXIII.
The term "maliciously" also has reference to a person who harbors a slave, so that he is not liable unless he acted maliciously in doing so. If, however, anyone harbors a slave in order to hold him for his master, or, induced by humanity or pity, or for some other reason which is praiseworthy and just, he will not be liable.
(1) Where anyone maliciously persuades a slave whom he thought to be free to commit some act, it seems to me that he should be held liable; for he is guilty of a greater offence who, thinking a man is free, corrupts him, and therefore if he is a slave the party will be liable.
(2) This action is for double damages, even against a party who confesses, although the Lex Aquilia only imposes this penalty upon one who makes a denial.
(3) Where a male or female slave is said to have committed the act, an action is granted with the privilege of surrendering the slave by way of reparation.
(4) This action has reference to the time when the slave was corrupted or harbored, and not to the present time; and therefore if the slave should die, or be sold or manumitted, the action can, nevertheless, be brought; and where the right has once arisen, it is not extinguished by manumission;
6. Paulus, On the Edict, Book XIX.
For the estimate of former value is made for the purposes of this action;
7. Ulpianus, On the Edict, Book XXIII.
Since bad slaves may perhaps obtain their freedom, and sometimes good reasons may arise subsequently for their manumission.
8. Paulus, On the Edict, Book XIX.
An heir, whose slave was corrupted, is entitled to this action, not only where the slave continues to be a portion of the estate, but also where he has ceased to be such; for instance, where he has been bequeathed.
9. Ulpianus, On the Edict, Book XXIII.
The question is asked by Julianus in the Ninth Book of the Digest, whether a party who corrupts a slave owned in common by myself and him, can be held liable to this action; and he says that he can be held liable by the other joint-owner; and, moreover, that suit can be brought against him for the partition of common property, and also on the ground of partnership, if the joint-owners are partners. But why does Julianus make the condition of the partner worse when he brings suit as such, than where he institutes proceedings against a stranger? Where an action is brought against a stranger, this can be done whether he harbored or corrupted the slave, but when it is brought on the ground of partnership, this is done without the alternative, that is to say, without the allegation of harboring him; for perhaps Julianus thought that this did not affect the partner, for no one can harbor his own slave; but if he did so for the purpose of concealing him, it can be maintained that he is liable.
(1) Where I have the usufruct in a slave and you the mere ownership, and the said slave is deteriorated by me, you can institute proceedings against me; but if you committed the act, I can proceed against you by means of a praetorian action; for this action is applicable to all kinds of corruption, and it is to the interest of the usufructuary for the slave in whom he enjoys this right to be of good habits. The usufructuary is also entitled to a praetorian action if another party should harbor or corrupt the slave.
(2) This action is also granted for double the value of the property.
(3) But it is still a question whether an estimate of the damage sustained by the slave in body or disposition should only be made, that is to say, of the amount of diminution of the value of the slave, or whether other things should be also taken into consideration. Neratius states that the party guilty of corrupting the slave should be compelled to pay damages to the amount to which the value of the slave is diminished on account of his being corrupted.
10. Paulus, On the Edict, Book XIX.
In this case an appraisement of the property which the slave took away with him is also included, as all the loss is doubled, and it makes no difference whether the property was brought to the defendant or to another, or was even consumed; for it is more just that the party who was the principal in the offence should be held liable, than for him to be sought for to whom the property was brought.
11. Ulpianus, On the Edict, Book XXIII.
Neratius says that where thefts are committed afterwards, they are not to be included in the estimate. This opinion I think to be correct, for the words of the Edict, "As much as the value of the property," embrace all damage.
(1) I persuade a slave to deface notes of debtors, and I undoubtedly will be liable; but if, on account of the habit of committing breaches of the law which he has contracted, the slave steals, defaces, or destroys, other documents of this kind, it must be said that the person who corrupted him is not liable on account of these acts.
(2) Although an action will lie for the corruption of slaves with reference to property which is stolen, we can, nevertheless, bring an action for theft, as it must be held that the articles were removed with the aid and advice of the party who made the solicitation; nor will it be sufficient to bring either one of the actions, because the employment of one does not cause the other to be dispensed with. Julianus says the same thing with reference to a party who harbors and conceals a slave, and deteriorates him; for the offences of theft and of deteriorating a slave are distinct. In addition to this, the party will be liable to a personal action for the recovery of the property; for although the other may have obtained the slave by means of a suit of this kind, as well as a penalty by an action for theft, still, he is entitled to an action for the corruption of the slave to the amount of his interest:
12. Paulus, On the Edict, Book XIX.
For the reason that the defendant is still bound, although the property has been restored.
13. Ulpianus, On the Edict, Book XXIII.
This action is a perpetual one, and is not limited by time, and lies in favor of the heir and other successors; but it will not be granted against an heir, because it is a penal one.
(1) A party is also liable to this action if he corrupts a slave belonging to an estate; and he is also liable in a suit for the estate as a depredator,
14. Paulus, On the Edict, Book XIX.
So that the action for the recovery of an estate may have the same scope as this action.
(1) This Edict does not apply in the case of the corruption of a son or a daughter under paternal control, as the action was established for corrupting a slave who is part of our property, and it is one in which the owner can prove that he has become poorer, although the honor and reputation of his family remain unimpaired. An equitable action for damages, however, will lie for an amount to be decided by the judge, since it is for our interest not to have the minds of our children corrupted.
(2) Where a slave who is owned in common by yourself and me corrupts a slave who is mine individually; Sabinus says that an action cannot be brought against the joint-owner any more than if my own slave had corrupted another of my slaves. Moreover, if a slave owned in common corrupts one owned by another, it should be considered whether an action can be brought against both joint-owners, or against each separately, in the same way as other offences which are the subject of noxal actions. The better opinion is that each owner is liable for the entire amount, but if one of them pays, the other will be released.
(3) Where a slave in whom I have an usufruct corrupts a slave belonging to me, I have a right of action against the mere owner of the property.
(4) A debtor is entitled to this action on account of a slave who has been given in pledge for the debt.
(5) In this action the double damages are not estimated in addition to the property, for what was doubled is the loss sustained.
(6) The result of this is that if it is proved that you have persuaded my slave to steal something from Titius; you will not only be liable to the extent to which the slave is deteriorated, but also for what I shall be obliged to pay to Titius.
(7) Again, you will be liable to me not only if the slave caused me loss on account of your advice, but also if he caused it to a stranger as well, because I am responsible under the Lex Aquilia; but if I am liable to anyone for hiring because I leased a slave to him, and he became deteriorated through your influence, you will be liable on this account, and also under similar circumstances.
(8) The estimate of damages made in this action depends upon how much the value of the slave was diminished, which is the question to be decided by the judge.
(9) Sometimes, in fact, the slave becomes worthless, so that it is of no advantage to have such a slave. In this instance, can the party who influenced him be compelled to pay the value of the slave, and the owner still hold him and profit by this; or should the owner be compelled to surrender the slave and accept his value? The better opinion is, that the owner should have the choice as to whether he would prefer to retain the slave and receive damages equal to double the amount to which the slave was deteriorated; or to surrender the slave, if he has the power to do so, and accept his value; and if he has not power to do this, he should still accept his value, and assign to the party who solicited the slave his right of action to recover the slave at his own risk. Whatever has been stated with reference to the surrender of the slave is only applicable where the slave is alive when proceedings are instituted. But what if proceedings were instituted after the slave was manumitted? The defendant will not readily be heard by the judge, if he alleges that he manumitted him because he did not wish to have him in his house, as he desired to obtain the money as well as the freedman.
15. Gaius, On the Provincial Edict, Book VI.
The mind of a slave is corrupted if he is persuaded to treat his master with contempt.
16. Alfenus Varus, Digest, Book II.
The owner of a slave who had employed him as a steward manumitted him, and subsequently caused him to produce his accounts, and finding that they were not correct, he ascertained that the slave had spent the money on some woman. The question arose whether he could bring suit against this woman for corrupting the slave, as the slave was already free? I answered that he could, and that he could also do this for theft on account of the money which the slave had given her.
17. Marcianus, Rules, Book IV.
action is granted a husband against his wife on account of corrupting
a slave, even while marriage exists, but only for simple damages in
consideration of matrimony.
He who conceals a fugitive slave is a thief.
(1) The Senate decreed that fugitive slaves shall not be admitted on land or be protected by the superintendents or agents of the possessors of the same, and prescribed a fine. But, if anyone should, within twenty days, restore fugitive slaves to their owners, or bring them before magistrates, what they had previously done will be pardoned; but it was afterwards stated in the same Decree of the Senate that immunity is granted to anyone who restores fugitive slaves to their masters, or produces them before a magistrate within the prescribed time, when they are found on his premises.
(2) This decree also granted a right of entry to a soldier or civilian on the estates of Senators or private parties for the purpose of searching for a fugitive slave, and, indeed, the Lex Fabia, as well as the Decree of the Senate which was enacted while Modestus was Consul, had reference to this matter. It is stated therein that where parties wished to search for fugitive slaves, letters should be given them addressed to magistrates, and a fine of a hundred solidi was established to be imposed upon the magistrates, if, having received the letters, they refused to assist the parties making the search; and the same penalty was inflicted upon anyone who refused to allow the search to be made on his premises. A general Rescript of the Divine Marcus and Commodus is extant, in which it is set forth that all governors, magistrates, troops and garrisons are obliged to assist persons who are searching for fugitive slaves, and to surrender them if they are found; and that any parties on whose land the slaves are concealed shall be punished if they are implicated in the crime.
(3) Every person whosoever who arrests a fugitive slave is bound to produce him in public.
(4) And the magistrates are very properly notified to detain them carefully in custody to prevent their escape.
(5) You must understand the word "fugitive" to include a slave who is in the habit of running about. Labeo, however, says in the first Book on the Edict, that the offspring of a fugitive female slave is not included in this designation.
(6) A slave is understood to be produced in public who is delivered up to the municipal magistrates or officers of the government.
(7) Careful custody permits the use of irons.
(8) The slaves must be held in custody until they are brought before the Prefect of the Watch, or the Governor. Information must be given to the magistrates of their names and marks, as well as the addresses of the party to whom any one of them says he belongs; in order that fugitive slaves may be the more easily recognized, and claimed. And in the word "marks" scars are also included. The rule is the same where these matters are brought to public notice by writing in a public place or in a temple.
2. Callistratus, Judicial Inquiries, Book VI.
Slaves who are simply fugitives should be returned to their masters; but where they pretend to be free, it is customary to punish them severely.
3. Ulpianus, On the Office of Proconsul, Book VII.
The Divine Pius stated in a Rescript that, where a party wishes to search for a fugitive slave on the premises of another, he can apply to the Governor for letters to be furnished him; and, if the case demands it, an officer also, in order that he may be permitted to enter and make search, and the Governor can also inflict a penalty upon him who does not permit the search to be made. The Divine Marcus, in an Address which he delivered before the Senate, granted power to parties who wished to search for fugitive slaves to enter upon and search the land of the Emperor, as well as that of Senators and private individuals for fugitive slaves, and to examine the bed-rooms and tracks of those who concealed them.
4. Paulus, Sentences, Book I.
Custom-house officers and policemen are required to carefully retain fugitive slaves in custody after they have been caught. Municipal magistrates must also send such fugitive slaves, after they have been caught, properly guarded to the office of the Governor of the province or the Proconsul.
5. Tryphoninus, Disputations, Book I.
a fugitive slave betakes himself to the arena, he cannot escape the
power of his master by exposing himself to this danger, which is only
that of the risk of death; for the Divine Pius stated in a Rescript
that such a slave must, by all means, be restored to his master, either
before or after the combat with wild beasts; since sometimes he may
have embezzled money, or committed some other greater breach of the
law, so that he would prefer to betake himself to the arena rather
than undergo an inquiry, or suffer punishment for his flight, hence
he must be given up.
The Praetor says: "Where anyone beats a person in whose house a game with dice is said to have taken place, or damages him in any way; or where anything at the time has been removed clandestinely from the house, I will not grant an action. Where anyone employs violence on account of a game with dice, I will punish him as the circumstances may demand."
(1) Where gamblers rob one another, an action will not be refused on the ground of property taken by force; but it is only the host who is forbidden to bring suit, and not the gamblers, although they may seem to be unworthy of indulgence.
(2) It should also be noted that where the proprietor of the house has been beaten or has suffered loss, he cannot bring an action, no matter when or where this occurred, but theft can be committed with impunity in the house at the time when the gambling was going on, even though the party who commits any one of the offences may not have taken part in the game. It is certain that we must understand the term "house" to mean the habitation and domicile.
(3) Where the Praetor refuses to grant an action for theft, let us see whether this refers to the penal action alone, or whether the complainant wishes to introduce proceedings for the production of the property, or bring an action for recovery? It is stated by Pomponius that it is only the penal action which is refused, but this I do not think to be correct, as the Praetor says simply, "If anything has been removed clandestinely, I will not grant an action." He says further: "Where anyone employs violence on account of a game with dice, I will punish him as the circumstances may demand." This clause has reference to the punishment of a party who compels another to play, and signifies that he may be fined or sentenced to the quarries, or imprisoned in chains.
2. Paulus, On the Edict, Book XIX.
For certain persons are accustomed to force others to play, sometimes doing this from the beginning, and sometimes, after they themselves are beaten, compelling them to remain.
(1) A Decree of the Senate forbids playing for money, except where the parties contend with spears, or by throwing the javelin, or in running, leaping, wrestling, or boxing, for the purpose of displaying courage and address:
3. Marcianus, Rules, Book V.
In cases of this kind bets are allowed under the Titian, Publician, and Cornelian laws, but it is not lawful under other laws where the contest is not for the exhibition of skill.
4. Paulus, On the Edict, Book XIX.
Where anything is out on the table at a banquet members of the household are permitted to gamble for it.
(1) If a slave, or a son subject to paternal control loses, his father or his owner are entitled to recover what he lost. Moreover, if a slave has received money, an action De peculio will be granted against his master, but not a noxal action, because it is based on business transacted; but the defendant will not be compelled to pay more than the amount included in the peculium.
An equitable action is granted under this Edict against the head of
a household or a patron, for the recovery of money lost by games with
The Praetor grants an action in factum against a surveyor of land, as we must not be deceived by him, since we are interested in obtaining a correct report of measurements; where, for example, a controversy has arisen with respect to boundaries, or the purchaser or the vendor desires to ascertain the size of the tract of land to be sold. He grants this action for the reason that the ancient authorities did not consider the contract made with a person of this kind to be one of leasing and hiring, but rather that his services were donated as a favor, and hence what was given to him by way of remuneration was designated honorary; but if an action is brought for leasing and hiring, it must be said that it is brought to no purpose.
(1) This action only requires the existence of positive malice. For it was held that the surveyor will be thoroughly restrained if he can only be sued on the ground of positive malice, since he is not civilly liable. Therefore, if he has displayed a want of skill, he who employed him has only himself to blame, but if he was guilty of negligence, he will be equally secure; and it is evident that gross negligence resembles malice. But where he receives compensation, he will, according to the terms of the Edict, be responsible for every kind of negligence; for undoubtedly the Praetor knows that parties of this kind work for pay.
(2) He only is liable to this action who makes a report; but we must understand that he makes a report who does so through another;
2. Paulus, On the Edict, Book XXV.
Or in writing.
(1) If, however, I direct you, a surveyor, to survey my field, and you turn this over to Titius, and he, in the course of the work does something through positive malice, you will be liable; because you have displayed positive malice in trusting such a man.
3. Ulpianus, On the Edict, Book XXIV.
Where I direct two persons to make a survey and both of them are guilty of malice, I can bring suit against them severally for the entire amount; but where one of them, after having been sued, satisfies my claim, an action against the other one must be refused.
(1) This action can be brought by anyone whose interest it was that a report of false measurement should not be made; that is to say, either by the purchaser or by the vendor, who has been injured by the report.
(2) Pomponius, however, says that if on account of the report, the purchaser pays the vendor too much, a suit cannot be brought by him against the surveyor, because he has a right of action to recover what has been paid in excess; for it is not the interest of the purchaser to do this, since he has the right of action for recovery, unless the vendor is insolvent; for then the surveyor will be liable.
(3) Where the vendor, having been deceived by the surveyor, conveys a larger amount of land; Pomponius says, that in compliance with the same rule, no action against the surveyor will lie, because the vendor is entitled to an action on sale against the purchaser, unless the purchaser is not solvent.
(4) Pomponius also states that where a surveyor is employed on account of a trial, and he defrauds me in his report, he will be liable if, on this account, I obtain less by the judgment. It is clear that, if he was appointed by the court and maliciously makes a report against me, he doubts whether I have a right to hold him liable, nevertheless, he rather thinks I have.
(5) Pomponius says that this action should be granted to the heir and to other persons of the same kind, but that it should be refused against the heir and persons of that description.
(6) He says that the action is noxal rather than De peculio when brought with reference to a slave, although a civil action De peculio may be available.
4. Paulus, On the Edict, Book XXV.
This action is a perpetual one, for the cause derives its origin not from the time when the bad faith began, but from the date when the business was undertaken.
5. Ulpianus, On the Edict, Book XXIV.
Where the surveyor does not make a false report of the measurement, but delays the report, and the result is that the vendor is released after promising to convey the property within a specified time, this action cannot be brought; and Pomponius says that an equitable action should not be granted, and therefore recourse must be had to an action based on fraud.
(1) If a false report is made, and the purchaser sues the vendor on his contract, he can also sue the surveyor, but if he had no interest in doing this, judgment will not be rendered against the surveyor. If he does not sue the vendor for the entire amount which is lacking, but for a smaller amount; Pomponius says, and very properly, that suit can be brought against the surveyor for the remainder. The Praetor extended the scope of this action still further; for where there is a false statement made of the measure of anything else, this action is available; hence, where a party deceives his employer in the measurement of a building or in that of grain or wine;
6. Paulus, On the Edict, Book XXIV.
Or with reference to the breadth of a pathway, or as to a servitude calling for the insertion of timbers, or a projecting roof, when inquiry is made for this purpose, or where the measurement of a court-yard or of materials or stone is taken, and a false report given;
7. Ulpianus, On the Edict, Book XXIV.
Or where the dimensions of anything else is falsely stated, he will be liable.
(1) This action will be granted where the surveyor makes a false measurement by means of instruments.
(2) Pomponius also states that anyone is entitled to this action against someone who is not a surveyor but was guilty of deceit in measurement.
(3) In the same manner the action should be granted against an architect who has been guilty of deceit; for the Divine Severus decreed that action should be granted against an architect or a contractor.
I, myself, think that an action should be granted also against an
accountant who designedly makes a false calculation.
Where anyone expends anything on account of a funeral, he is considered to have made the contract with the deceased and not with his heir.
2. The Same, On the Edict, Book XXV.
Aristo says that a place in which a slave has been buried is religious.
(1) A party who has placed a dead body in the premises of another or caused this to be done, is liable to an action in factum. We must, however, understand "the premises of another" to mean either a field or a building; but these words grant the action to the owner, not to a possessor in good faith; for when the statement is made "In the premises of another," it is apparent that the owner is meant, that is the party to whom the ground belongs. Even when an usufructuary makes the interment, he will be liable to the mere owner of the property. It is debatable whether a joint-owner is liable if he acted without the knowledge of his co-owner; but the better opinion is that he can be sued in an action for the partition of an estate, or in one for the division of common property.
(2) The Praetor says: "Where the body or bones of a dead man are said to have been taken to ordinary ground or to a burial place in which the party had no right, he who does this is liable to an action in factum, and will be subjected to a pecuniary penalty."
(3) The "taking" which the Praetor was thinking of is that which occurred for the purpose of burial.
(4) Ground is styled "ordinary" which is neither sacred, consecrated, nor religious, but is a locality to which none of these adjectives will apply.
(5) A burial-place is a spot where human bodies or bones are deposited. Celsus, however, says that a place which is destined for burial does not become religious entirely, but only that portion of it where the body is laid.
(6) A monument is whatever is erected for the purpose of preserving the memory of the deceased.
(7) When anyone has an usufruct, this does not render the place religious. Where, however, one party has the mere ownership, and another the usufruct, the latter cannot make the place religious, nor can the mere owner do so, unless he should happen to bury there the party who bequeathed the usufruct, since he could not be so conveniently buried elsewhere; and this was the opinion of Julianus. The place, however, cannot be rendered religious if the usufructuary is not willing; but if he consents, the better opinion is that it becomes religious.
(8) No one can make a place religious which is subject to a servitude, unless the party entitled to the servitude consents. But if the party can make use of the servitude no less conveniently in some other place, it cannot be held that the burial was made for the purpose of interfering with the servitude, and therefore the place becomes religious; and indeed this is reasonable.
(9) Where a person has given his land in pledge and buries one of his own family therein, he will make it religious; and if he himself should be buried there, the same rule applies; but he cannot assign this right to another.
3. Paulus, On the Edict, Book XXVII.
It is more to the public advantage to say that a place can be made religious by the consent of all parties; and this was held by Pomponius.
4. Ulpianus, On the Edict, Book XXV.
Where a party who was appointed heir buries the body of the head of the family before he enters upon the estate, by doing so he makes the place religious, but no one should think that by this act he is conducting himself as heir; for let us suppose that he is still deliberating as to whether he will enter upon the estate. I, myself, am of the opinion that even though the heir did not bury the body but someone else did, and the heir either took no active part, or was merely absent, or feared that he might be considered as conducting himself as heir, still he makes the ground religious; for very often deceased persons are buried before their heirs appear. In this instance the ground becomes religious only when it was the property of the deceased, for it is but natural to hold that a place where a person is buried belonged to him; especially if he is buried in a spot which he himself had selected. To such an extent does this rule apply that, even where the body is buried by the heir in ground bequeathed by a legacy, still, the burial of the testator renders the place religious, provided that he could not have been buried as conveniently elsewhere.
5. Gaius, On the Provincial Edict, Book XIX.
"The family burying place" means one set apart by some one for himself and his household; but an "hereditary burial-place" is one which a man provides for himself and his heirs,
6. Ulpianus, On the Edict, Book XXV.
Or where the head of the household acquired it by hereditary right. In both instances, however, heirs and other successors of every description whatever may legally be buried, and may also bury others, although they may be heirs to a very small amount either by will or on intestacy, even if the other heirs do not consent. The same privilege is granted to children of both sexes, and descendants of other degrees, as well as to emancipated persons, whether they have become heirs or have rejected the estate. With reference to disinherited relatives, however, they may be buried through motives of humanity, unless the testator, influenced by just hatred, has expressly forbidden it; but they cannot bury others except their own descendants. Freedmen can neither be buried, nor bury others under such circumstances, unless they become the heirs to their patron; although certain patrons have indicated by inscriptions that they have erected monuments for themselves and their freedmen. Papinianus also held this opinion, and it has repeatedly been established by decisions.
(1) So long as there is only a monument, anyone can sell it, or give it away; if, however, it becomes a cenotaph, it must be stated that it can be sold; as the Divine Brothers stated in a Rescript that a structure of this kind is not religious.
7. Gaius, On the Provincial Edict, Book XIX.
He who buries a dead body on land belonging to another can be compelled by an action in factum to either remove the body which he buried, or to pay the price of the land. This action can be brought by an heir as well as against one, and it is perpetual.
(1) Where a man placed a dead body in a stone chest which belongs to another, in which, as yet, no corpse has been laid; the Proconsul grants an equitable action in factum against him, since it cannot be properly said that he placed the body in a burial-place, or on land belonging to another.
8. Ulpianus, On the Edict, Book XXV.
Where bones or a body have been buried by another party not a relative, it is a question whether the owner of the land can dig them up, or remove them without a decree of the pontiffs or the order of the Emperor; and Labeo says that the pontifical permission or the order of the Emperor must be obtained, otherwise an action for injury will lie against the person who removed the remains.
(1) Where a place that is religious is alleged to have been sold as profane, the Praetor grants an action in factum in favor of the party who is interested in the matter against the vendor; and this action can also be brought against the heir of the latter, since it resembles an action on a contract of sale.
(2) Where a man buried a dead body in a place intended for the use of the public, the Praetor will grant an action against him if he acted maliciously, and he should be punished by the extraordinary authority of the Court, although the penalty is a moderate one; but where he acted without malice he must be discharged.
(3) In this action the term "profane place" is also applicable to a building.
(4) This action can not only be brought by an owner but by anyone entitled to the usufruct in the land, or by one who is entitled to a servitude over the same; because these parties also have the right to prevent it being done.
(5) Where anyone is prevented from burying in a place where he has the right to do so, he is entitled to an action in factum as well as an interdict, even though he himself has not been hindered but his agent has been; since, under such circumstances, he himself is considered to have been prevented.
9. Gaius, On the Provincial Edict, Book XIX.
Where some one is prevented from burying the body or bones of a deceased person, he can at once make use of an interdict by which it is forbidden to employ force against him, or he can make the interment elsewhere, and afterwards bring an action in factum, by means of which, as plaintiff, he will recover damages to the amount of his interest in not having been prevented from making the interment; and in the calculation shall be included the price of the land which he purchases or the rent of any which he leases, or the value of his own land which no one would render religious unless compelled to do so. Therefore, I wonder why it should appear to be settled that this action cannot be granted either in favor of, or against an heir; as it is evident that it involves the account of a certain sum of money which forms the basis of the claim; at all events the suit can be brought at any time between the parties themselves.
10. Ulpianus, On the Edict, Book XXV.
Where the vendor of land reserves a burial-place for the interment of himself and his descendants, and he is prevented from using a road for the purpose of burying a member of his household, he can bring suit; for it has been decided that a right of way through the land for the purpose of burial was reserved in the agreement between the purchaser and the vendor.
11. Paulus, On the Edict, Book XXVII.
If, however, the site of a monument should be sold under the condition that no one should be buried there whom there was a right to bury; an agreement of this kind will not be sufficient, but it must be made secure by means of a stipulation.
12. Ulpianus, On the Edict, Book XXV.
Where anyone has a burial place but has no right of way to it, and is prevented from reaching it by his neighbor, the Emperor Antoninus and his father stated in a Rescript that it is customary to petition for a pathway to a burial place by sufferance, and it is usually granted; and, whenever there is no servitude, the privilege can be obtained from the party who owns the adjoining premises. This rescript, however, which gives the means of obtaining the right of way by petition, does not allow a civil action, but it may be applied for in extraordinary proceedings; for the Governor is required to compel a pathway to be granted to the party where a reasonable price is paid, and the judge must also investigate whether the place is suitable so that the neighbor may not suffer serious injury.
(1) It is provided by a decree of the Senate that the use of a burial place is not to be contaminated by alterations, that is to say, it must not be used for other purposes.
(2) The Praetor says: "Where any expense is incurred on account of a funeral I will grant an action for its recovery against the party who is interested in the same."
(3) This Edict is issued for a good reason, namely, in order that a party who conducted the funeral may bring suit for what he expended; so that the result would be that bodies will not lie unburied, or that some stranger should conduct the funeral.
(4) He whom the deceased selected must conduct the funeral, but if he should not do so he will be liable to no penalty, unless something of value was left to him for this purpose; for then, if he does not comply with the will of the deceased, he will be excluded from the bequest. If, however, the deceased did not make any provision for this, and the duty has not been transferred to anyone, it will devolve upon the heirs who were appointed, and, if none were appointed, upon the heirs at law or the cognates who succeed in their regular order.
(5) The funeral expenses are to be regulated in accordance with the means or dignity and rank of the deceased.
(6) The Praetor, or the municipal magistrate, is required to order the funeral expenses to be paid out of the money belonging to the estate if there is any, and if there is none, he must order such property to be sold as would perish by lapse of time, and the retention of which would be a burden to the estate; and in case this cannot be done, he shall order any gold or silver which there may be, to be sold or pledged, in order to provide the necessary funds.
13. Gaius, On the Provincial Edict, Book XIX.
Or he may collect the money from debtors to the estate if he can easily do so:
14. Ulpianus, On the Edict, Book XXV.
And if anyone should interfere with the purchaser in order to prevent said property from being delivered to him, the Praetor must intervene and protect an act of this kind, where any obstacle is interposed.
(1) Where the deceased was either a tenant or a lodger, and left nothing to pay his funeral expenses; Pomponius says that they must be paid out of the proceeds of articles which have been brought into the lodging, and if there is anything in excess, this will be liable for unpaid rent. Moreover, if any legacies have been bequeathed by the testator whose funeral is the subject of discussion, and there is nothing with which to bury him, the said legacies must also be utilized for this purpose; for it is better that the funeral expenses of a testator should be obtained from his own property than that others should receive their legacies. Where, however, the estate has been entered upon, any property sold must not be taken from the purchaser, because he who has brought anything under an order of court is a bona fide possessor, and has the ownership of the same. Nevertheless, a legatee should not be deprived of his legacy if he can be indemnified by the heir; but if he cannot, it is better for the legatee not to be benefited pecuniarily, than that the purchaser should sustain any loss.
(2) Mela says that if a testator directs anyone to attend to his funeral and he does not do so after having received money for that purpose, an action on the ground of fraud shall be granted against him; nevertheless, I think, that he can be compelled to conduct the funeral under the extraordinary authority of the Praetor.
(3) The only expense which can be incurred on account of a funeral is that without which the funeral could not be conducted; as, for instance, what is incurred by the removal of the body, and also where money is expended on the place where the body is to be buried. Labeo says it must be considered to be expended on account of the funeral, because a place must be prepared in which the body may be laid.
(4) The expenses of anyone who dies away from home and which are incurred for the purpose of bringing back the body, are included in the funeral expenses, although he is not yet buried; and the same rule applies where anything is done for the purpose of guarding the body, or for preparing it for burial, or where anything is expended in providing marble or clothing.
(5) It is not proper, however, that any ornaments nor other articles of this kind should be buried with the body, as persons of the lower class are accustomed to do.
(6) This action which is styled a funeral one, is based upon what is proper and reasonable, and includes only what has been expended with reference to the funeral, but no other outlay. The term "reasonable" must be understood to have reference to the rank of the party who was buried, to the circumstances of the case, to the time, and to good faith; so that no charge may be made for more than the actual amount disbursed, nor even for what was actually expended, if this was immoderate. Therefore the means of the party for whom the money was spent must be taken into consideration, as well as the property itself, where it is immoderately expended without good cause. But what must be done where the expense is provided for by the will of the testator? In reply to this it must be held that his will is not to be followed if the expense should be excessive, for it ought to be in proportion to the means of the deceased.
(7) Sometimes, however, where a man has assumed the payment of funeral expenses he cannot recover them if he was actuated by filial affection, and did not pay with the intention of recovering the amount which he incurred; and this our Emperor stated in a Rescript. Therefore an estimate will have to be made by an arbiter, and the motive with which the expense was incurred carefully considered; that is, whether the party attended to this matter for the deceased or for his heir, or whether he was induced by humanity, or compassion, or filial reverence, or affection? Nevertheless, the degree of compassion may be distinguished so as to conclude that the party who conducted the funeral at his own expense did so in order that the deceased should not remain unburied, and not that he did this gratuitously; and if this should be clear to the judge he ought not to discharge the defendant; for who is there that can bury the dead body of a stranger without being impelled by a sense of duty? Hence it is proper for the party to state whom he buried, and from what motive he did so, to avoid being afterwards interrogated with reference to the same.
(8) In the case of many sons who conduct the funerals of their parents, or other persons who could have been appointed heirs do so although on this account it is not to be presumed that they are acting as heirs, or entering on the estate, still, in order that necessary heirs may not be held to have interfered, or others to have acted as heirs; it is customary for them to state that they caused the funeral ceremonies to be conducted from motives of duty. If anything superfluous should have been done, it would be held that the parties protected themselves to avoid being thought to have intermeddled, and not for the purpose of recovering their expenses; since they have plainly stated that they acted from motives of duty, but they must go still farther in their allegations in order to be able to recover what they expended.
(9) Perhaps someone may say that there are instances where a certain share of the expense incurred can be recovered, so that the individual in question did this partly while transacting business for another, and partly because he was impelled by a sense of duty. This is true, and therefore he can recover a portion of the expense which he did not incur with the intention of donating.
(10) When a judge hears a case of this kind which is based on grounds of equity he should sometimes not allow a moderate expenditure where, for example, the expenses of his funeral had been small, with the intention of casting odium upon the character of the deceased, who had been a wealthy man; as the judge, in this instance, ought not to consider an account of this kind, since it is apparent that by burying him in this manner a premeditated insult was offered to his memory.
(11) Where anyone buries the head of a household while under the impression that he himself is his heir, he cannot bring an action to recover the funeral expenses; because he did not act with the intention of transacting the business of another; and this is also the opinion of Trebatius and Proculus. I think, however, that an action for the funeral expenses should be granted to him where proper cause is shown.
(12) Labeo says that whenever anyone has some other action for the purpose of recovering funeral expenses he cannot avail himself of a funeral action; and therefore, if he is entitled to an action for the partition of an estate, he cannot bring a funeral action; but it is clear that if an action for the partition of an estate has been already brought, he can bring one for the recovery of the funeral expenses.
(13) Labeo also says that if you conduct the funeral of a testator against the wishes of his heir, you can bring the funeral action if proper cause is shown; but what if the person whom the heir forbade to act was the son of the testator? In this instance it can be alleged against the plaintiff, "Therefore you have conducted the funeral through a sense of duty." But suppose that I have made the statement, I will then be entitled to bring the funeral action, for it is proper that deceased persons should be buried by means of funds obtained from their estates. What if a testator had directed you to make arrangements for the funeral, and the heir prohibits it, and you, nevertheless, conduct it; is it not just that you should have the right to bring an action for the recovery of the funeral expenses?" Generally speaking, I am of the opinion that a just judge will not rigidly adhere to the mere action based on business transacted, but will construe the rules of equity more liberally, since this is something which the character of the proceeding enables him to do.
(14) The Divine Marcus, however, stated in a Rescript that any heir who prevents a funeral from being conducted by the party whom the testator selected, does not act honorably; although there is no penalty established by which he may be punished.
(15) If anyone conducts a funeral at the request of another, he is not entitled to a funeral action, but he certainly is who directed the funeral to take place, whether he paid the expense of the same to him whom he requested to conduct it, or whether he still owes it. Where, however, a ward makes such a request without the authority of his guardian, a praetorian action for the recovery of the funeral expenses should be granted against the heir in behalf of the party who incurred them; for it is unjust for the heir to profit in this way. Where, however, a ward orders a funeral which he himself ought to attend to be conducted without the authority of his guardian; I think that the action should be granted against him, if he himself is the actual heir to the party who was buried, and the estate is solvent. On the other hand, where anyone conducts a funeral at the request of the heir, Labeo says he cannot bring the funeral action, because he is entitled to an action on mandate.
(16) If, however, he conducts the funeral as one transacting business for the heir, although the latter may not have ratified the act, Labeo said that he is, nevertheless, entitled to an action for the recovery of the funeral expenses.
(17) This action is granted against those who ought to conduct the funeral, for instance, against the heir, the possessor of the property of the estate, or any other successor.
15. Pomponius, On Sabinus, Book V.
A patron who makes application for the possession of the property of an estate in opposition to the provisions of the will, must pay the expenses of the funeral.
16. Ulpianus, On the Edict, Book XXV.
Where any property comes to anyone by way of dowry, the Praetor grants a funeral action against him; for it was held by the ancient authorities to be perfectly just that the funeral expenses of women should be paid out of their dowries, just as out of their private property, and that the man who profits by the dowry on the death of a woman should contribute to her funeral expenses, whether he is the father or the husband of the woman aforesaid.
17. Papinianus, Opinions, Book III.
If, however, the father has not yet recovered the dowry, the son alone may be sued, and he can charge the father with whatever he has paid on this account:
18. Julianus, Digest, Book X.
For the expenses of a funeral are a debt of the dowry:
19. Ulpianus, On Sabinus, Book XV.
And therefore the dowry is liable for this debt.
20. The Same, On the Edict, Book XXV.
Neratius asks: Where a man who gave a dowry for a woman stipulated that two-thirds of the same should be returned to him, and that the other third should remain with the husband, and agreed that the husband should not contribute anything to the funeral expenses; will the husband be liable for them? He answers that if the stipulator himself buried the woman, the agreement will be operative, and that a funeral action will be of no effect; but if someone else conducted the funeral, then the husband can be sued, because the public law cannot be infringed by such an agreement. But what if anyone should give a dowry for a woman under the condition that it is to revert to him if she died during marriage, or if the marriage should be terminated in any other manner; would he not then be compelled to contribute to the funeral expenses? Since, however, the dowry reverts to him on the death of the woman, it may be stated that he should contribute.
(1) If the husband profits by the dowry, he can be sued for the funeral expenses, but the father cannot; however, I think with reference to this case that where the dowry is not sufficient to meet the funeral expenses, because it is very small, an action should be granted against the father for the deficiency.
(2) Where a woman who is her own mistress dies, and her estate is not solvent, her funeral expenses must be paid out of her dowry alone; and this was stated by Celsus.
21. Paulus, On the Edict, Book XXVII.
Where the person whose funeral was conducted was under paternal control, a funeral action can be brought against the father in proportion to his rank and means.
22. Ulpianus, On the Edict, Book XXV.
Celsus says that where a woman dies, her funeral expenses should be paid out of the dowry remaining in the hands of her husband, and out of the remainder of her property in proportion.
23. Paulus, On the Edict, Book XXVII.
For instance where the dowry is worth a hundred aurei, and her estate two hundred, the heir must contribute two-thirds, and the husband one-third of the funeral expenses:
24. Ulpianus, On the Edict, Book XXV.
Julianus states that, in this instance, the legacies must not be deducted.
25. Paulus, On the Edict, Book XXVII.
Or the value of slaves who have been manumitted.
26. Pomponius, On Sabinus, Book XV.
Nor debts deducted.
27. Ulpianus, On the Edict, Book XXV.
Thus the husband and the heir are compelled to contribute to the funeral proportionally.
(1) Suit cannot be brought for the recovery of funeral expenses against a husband, if he paid the dowry to his wife during marriage, so Marcellus says; and this opinion is correct in those instances in which he is permitted by law to do this.
(2) Moreover, I think that a husband is liable to an action for funeral expenses only so far as his means permit; for he is held to be enriched by the sum which he would have been forced to pay to his wife if she had sued him.
28. Pomponius, On Sabinus, Book XV.
Where there is no dowry, then Atilicinus says that the father must pay the entire expense; or else the heir of the woman, if she was emancipated, should do so. If, however, there are no heirs, and the father should not be solvent, suit can be brought against the husband to the extent of his property, in order that it may not appear due to his bad behavior that his wife was left unburied.
29. Gaius, On the Provincial Edict, Book XIX.
Where a woman, after a divorce, marries another man and then dies; Fulcinius does not think that the first husband should pay the expenses of the funeral, even though he may have profited by the dowry.
(1) Where anyone conducts the funeral of a daughter under paternal control, before her dowry is returned to her father; he can very properly bring suit against her husband, but where the dowry has been returned, he can hold her father liable; but, at all events, where suit is brought against the husband, he should return to the father of the woman that much less.
30. Pomponius, On Sabinus, Book XV.
On the other hand, whatever the father has expended on the funeral of his daughter, or paid on account of a funeral action having been brought against him by another, he can recover from the husband in an action of dowry.
(1) But where an emancipated married woman dies during coverture, her heirs, or the possessors of the property of her estate will be compelled to contribute, as well as her father in proportion to the amount of the dowry which he has received, and her husband in proportion to the amount of the dowry by which he has profited.
31. Ulpianus, On the Edict, Book XXV.
Where a son under paternal control is a soldier and has castrense peculium, I think that his successors are primarily liable, and that afterwards recourse must be had to his father.
(1) Anyone who buries a male or female slave belonging to another, has a right of action against his or her owner for the recovery of the funeral expenses.
(2) This action is not limited to a year, but is perpetual; and is granted to the heir and other successors, as well as against successors.
32. Paulus, On the Edict, Book XXVII.
Where the possessor of an estate conducts the funeral and afterwards loses his claim to the estate, and, in delivering the same fails to deduct the amount which he expended, he will be entitled to a praetorian action for the recovery of the expenses.
(1) Where both husband and wife die at the same moment of time, Labeo says that this action should be granted against the heir of the husband in proportion to the amount of the dowry to which he is entitled; since the liability itself passed to him on account of the dowry.
33. Ulpianus, On the Edict, Book LXVIII.
Where a man was formerly heir, but the estate was subsequently taken from him as being unworthy; the better opinion is that the right of sepulture still remains with him.
34. Paulus, On the Edict, Book LXIV.
Where a place is bequeathed under a condition, and in the meantime the heir buries the deceased, this does not make the place religious.
35. Marcellus, Digest, Book V.
Our ancestors were very far from thinking that anyone who came forward for the destruction of his country and to kill his parents and children should be mourned; so where a son killed his father or a father his son, if either had been guilty of such an offence, they held that the act was without criminality; and that the party should even be rewarded.
36. Pomponius, On Quintus Mucius, Book XXVI.
Where a place is taken by the enemy it ceases to be either religious or sacred, just as freemen pass into slavery. Where, however, such places are freed from this calamity, they are restored to their former condition by a kind of postliminium, as it were.
37. Macer, On the Law of the Twentieth Relating to Successions, Book I.
Under the head of "funeral expenses" must be understood whatever is disbursed on account of the body; for instance, in the purchase of ointments, as well as the price of the place where the deceased is buried, and where any rent that is to be paid, together with the cost of the sarcophagus, the hire of vehicles, and anything else which is consumed on account of the body before it is buried; I think should be included in the funeral expenses.
(1) The Divine Hadrian stated in a Rescript that a sepulchral monument is anything which is erected as a monument, that is to say, for the protection of the place where the body is laid; and therefore, if the testator ordered a large building to be constructed, for example, a number of porticos in a circular form, these expenses are not incurred on account of the funeral.
38. Ulpianus, On All Tribunals, Book IX.
It is the duty of the Governor of a province to see that the bodies or bones of deceased persons are not detained, or maltreated, or prevented from being transported on the public highway, or buried.
39. Marcianus, Institutes, Book III.
The Divine Brothers decreed by an Edict that a body should not be disturbed after it had been lawfully interred, that is to say, placed in the ground; for a body is held to be placed in the ground where it is deposited in a chest with the intention that it shall not be removed elsewhere. It must not be denied, that it is lawful to remove the chest itself to a more convenient spot, if circumstances demand it:
40. Paulus, Questions, Book III,
For where anyone has interred a body with the intention of subsequently removing it to some other locality, and preferred to deposit it there for a time rather than to bury it permanently, or to provide, as it were, a last resting place for it; the place will remain profane.
41. Callistratus, Institutes, Book II.
Where several persons own the place where a body is brought for interment, all of them must give their consent if the remains are those of a stranger; for it is established that any one of the joint-owners themselves can properly be buried there, even without the consent of the others, especially when there is no other place in which he could be buried.
42. Florentinus, Institutes, Book VII.
Generally speaking, a monument is something which is handed down to posterity by way of a memorial; and in case a body or remains should be placed inside of it, it becomes a sepulchre; but if nothing of this kind is deposited therein, it becomes merely a monument erected as a memorial which is termed by the Greeks a cenotaph, that is to say an empty sepulchre.
43. Papinianus, Questions, Book VIII.
There are persons who, although they cannot make a place religious, still can very properly make application for an interdict with reference to the burial of a dead body; as, for instance, where the mere owner of property buries or wishes to bury a corpse in land of which the usufruct is held by another, since, if he buries it there he will not make the place a lawful sepulchre, but if he is prevented from doing so, he can very properly make application for an interdict by means of which an inquiry can be instituted as to the right of ownership. The same rules apply to the case of a joint-owner who wishes to bury a dead body in ground held in common against the consent of his co-owner; for, on account of the public welfare, and in order that corpses may not lie unburied, we have ignored the strict rule which sometimes is dispensed with in doubtful questions relating to religious matters; for the highest rule of all is the one which is favorable to religion.
44. Paulus, Questions, Book III.
Where interment is made in different places, both of them do not become religious, for the reason that two sepulchres are not created by the burial of one person; but it seems to me that place should be religious where the principal part of the body is laid; that is to say, the head, whereof a likeness is made by means of which we are recognized.
(1) When, however, permission is obtained for remains to be removed, the place ceases to be religious.
45. Marcianus, Trusts, Book VIII.
Funeral expenses are always charged to the estate, and it is customary for them to take precedence of all other debts, when the estate is insolvent.
46. Scaevola, Questions, Book II.
Where a man had several tracts of land and bequeathed the usufruct of all of them separately, he can be buried in any one of them, and the heir shall have the right of selection, and the opportunity to favor the others. A praetorian action will, however, be granted the usufructuary against the heir, to enable him to recover damages to the amount that the value of his usufruct is diminished by the selection.
(1) Where the heir of a woman buries her body on land belonging to her estate, he can recover from her husband the amount which he should contribute towards the expense of the funeral, which depends upon the value of the land.
Where clothing is bequeathed to anyone, and he sells it for the purpose
of paying the funeral expenses, it is held that a praetorian action
based on a prior claim should be granted against the heir.
The Praetor says: "Whither or howsoever anyone has a right to transport a dead body without your consent, I forbid force to be employed to prevent him from taking the said dead body thither and burying it there."
(1) Where anyone has the right to bury a corpse, he must not be prevented from doing so, and he is held to be prevented if he is hindered from conveying the body to the place or is interfered with on the way.
(2) The mere owner of the premises can make use of this interdict with reference to the transport of a dead body; and, indeed, it is applicable in the case of land which is not religious.
(3) Moreover, if I have a right of way to a tract of land to which I desire to take a corpse for burial, and I am prevented from using the said right of way, it has been held that I can proceed by means of this interdict; because, having been prevented from using the right of way, I am also prevented from transporting the corpse; and the same rule must be adopted where I am entitled to any other servitude.
(4) It is evident that this interdict is a prohibitory one.
(5) The Praetor says: "Wherever anyone has a right to take a dead body without your consent, I forbid force to be employed to prevent him from building a sepulchre on the land, if he does this without malicious intent."
(6) This Edict was promulgated because it is to the interest of religion that monuments should be erected and adorned.
(7) No one shall be prevented from building a sepulchre or a monument in a place where he has a right to do so.
(8) A person is held to be prevented when he is hindered in having material transported which is necessary for erecting a building; and hence if anyone prevents the workmen who are necessary from coming, there will be ground for an interdict; and if anyone prevents the placing of machinery the interdict will also be available, provided he does this in a place which is subject to the servitude; but if you try to set up your machinery on my land, I will not be liable to an interdict, if I have the right to prevent you from doing so.
(9) A person must be understood to "build" not only when he begins a new work, but also where he wishes to make repairs.
(10) When a man does something in such a way that a sepulchre falls down, he is liable to this interdict.
2. Marcellus, Digest, Book XXVIII.
The Royal Law refuses permission for a woman who died during pregnancy to be buried before her unborn child is removed from her; and anyone who violates this law is held to have destroyed the hope of a living child by the burial of the pregnant mother.
3. Pomponius, On Sabinus, Book IX.
Where anyone is building a sepulchre near your house you can serve notice of a new structure upon him; but after the work has been completed, you will have no right of action against him except by means of the interdict Quod vi aut clam.
(1) Where a body is buried near a house belonging to another but within the limits prescribed by law, the owner of the house cannot afterwards prevent the same party from burying another body there, or from erecting a monument; if he acted with the knowledge of the owner from the beginning.
4. Ulpianus, Opinions, Book II.
The right to a burial-place is not acquired by a party through long possession, if it does not lawfully belong to him.
5. The Same, Opinions, Book I.
Where human remains are deposited in a tomb which is said to be unfinished, this does not offer any hindrance to its completion.
(1) Where, however, the place has already been made religious, the pontiffs should determine to what extent the desire of repairing the structure may be indulged without violating the privileges of religion.