alienus servus: quod enim placuit de usufructuario, idem placet et de bonae fidei possessore. itaque quod extra duas istas causas adquiritur, id vel ad ipsum pertinet, si liber est, vel ad dominum, si servus est. sed bonae fidei possessor cum usuceperit servum, quia eo modo dominus fit, ex omnibus causis per eum sibi adquirere potest: fructuarius vero usucapere non potest, primum quia non possidet, sed habet ius utendi fruendi, deinde quia scit servum alienum esse. non solum autem proprietas per eos servos, in quibus usum fructum habetis vel quos bona fide possidetis, vel per liberam personam, quae bona fide vobis servit, adquiritur vobis, sed etiam possessio loquimur autem in utriusque persona secundum definitionem, quam proxime exposuimus, id est si quam possessionem ex re vestra vel ex operibus suis adepti fuerint. 5 Ex his itaque apparet per liberos homines, quos neque iuri vestro subiectos habetis neque bona fide possidetis, item per alienos servos, in quibus neque usum fructum habetis neque iustam possessionem, nulla ex causa vobis adquiri posse. et hoc est, quod dicitur per extraneam personam nihil adquiri posse excepto eo, quod per liberam personam veluti per procuratorem placet non solum scientibus, sed etiam ignorantibus vobis adquiri possessionem secundum divi Severi constitutionem et per hanc possessionem etiam dominium, si dominus fuit qui tradidit, vel usucapionem aut longi temporis praescriptionem, si dominus non sit.

possess, for the latter presupposes a condition in which free actions are possible, Savigny, Poss. § 9.

In Gaius (ii. 94) it is stated as a question whether one can acquire possession through a slave in whom one has a usufruct; but it had been settled in the affirmative by the time of Papinian, on the ground that though one does not possess him, one does not possess a filiusfamilias either, Paulus in Dig. 41. 2. 1. 8: presumably the doubt expressed in Gaius ii. 90 was settled in the same manner. But the limits within which he could acquire possession for the person who had the usufruct are fixed, precisely as they are here, by Papinian in Dig. 41. 2. 49. pr., who explains Gaius' difficulty by remarking that the usufructuary at any rate has detention of the slave, and detention 'borrows much from the law.'

§ 5. A person who was not in our potestas, manus, or mancipium, or bona fide possessed by, or a slave in usufruct to, us, was called an extranea persona: and the earlier Roman law, so far from allowing a man to acquire ownership through such an outsider to him, would not

mus.

Hactenus tantisper admonuisse sufficiat, quemadmodum 6 singulae res adquiruntur: nam legatorum ius, quo et ipso singulae res vobis adquiruntur, item fideicommissorum, ubi singulae res vobis relinquuntur, opportunius inferiori loco referevideamus itaque nunc, quibus modis per universitatem res vobis adquiruntur. si cui ergo heredes facti sitis sive cuius bonorum possessionem petieritis vel si quem adrogaveritis vel si cuius bona libertatum conservandarum causa vobis addicta fuerint, eius res omnes ad vos transeunt. ac prius de hereditatibus dispiciamus. quarum duplex condicio est: nam vel ex testamento vel ab intestato ad vos pertinent. et prius est,

ut de his dispiciamus, quae vobis ex testamento obveniunt.

hear of his so acquiring even possession, the old maxim being 'per extraneam personam nihil adquiri potest.' Such extraneae personae had always been able to retain for a man a possession which he had validly got for himself and it would seem that soon after the establishment of the empire (Dig. 41. 2. 51) it was attempted by an extension of the principle to break down the old rule as to the original acquisition of possession, and thus to get over the necessity of a double traditio. Labeo seems by implication (Dig. loc. cit.) to have favoured the proposed innovation, which was also approved by Javolenus. Neratius, writing under Trajan, says 'per procuratorem possessionem adipisci nos iam fere convenit' Dig. 41. 3. 41: Gaius (ii. 95) refers to the controversy as still unsettled but Paulus (sent. rec. 5. 2. 2), Ulpian (Dig. 41. 1. 20. 2), and Modestinus (ib. 53), assert the new doctrine as though in their day it was completely and universally recognised. Thus the constitution of Severus (Cod. 7. 32. 1) alluded to in the text did not make new law, but was merely a statutory confirmation of a principle already sufficiently established by juristic consensus, as indeed its terms themselves allow. Its importance was that, in respect of all objects in which ownership could be transferred by mere traditio, even ownership could be acquired for one by an extranea persona: 'ea quae civiliter adquiruntur per eos, qui in potestate nostra sunt, adquirimus, veluti stipulationem (mancipationem ?); quod naturaliter adquiritur, sicuti est possessio, per quemlibet volentibus nobis possidere adquirimus' Modestinus in Dig. 41. I. 53. When, as under Justinian, traditio was the universal mode of transferring dominium in res corporales, delivery of possession to one's agent, if the transferor was owner, was delivery of ownership to oneself if he was not, all that one got was possession, which, however, usucapio could convert into ownership: but usucapio did not begin to run until the acquisition of possession by the agent was made known to the principal, Cod. 7. 32. 1.

§ 6. Justinian now proceeds to discuss universal successions, or the modes in which a man's entire proprietary relations-his property and his rights and liabilities, so far as they are not purely personal-pass

qua in re necessarium est initio de ordinandis testamentis exponere.

uno ictu to another, or others viewed collectively. Four such modes are here enumerated, but far the most important of them are hereditas and bonorum possessio, which are treated together and practically form a single institution. Their problem is this:-When a man dies, what becomes of his property, and who, if any one, becomes answerable for his liabilities?

According to the Roman view, as soon as a man died his proprietary relations assumed a separate, independent, and collective existence : his universitas iuris became specifically an hereditas, belonging, in many cases, as yet to no one, and as it were perpetuating the existence of the deceased: 'res hereditariae, antequam aliquis heres existat, nullius in bonis sunt' Dig. 1. 8. 1. pr. It became, in fact, a juristic person, as capable, in many respects, of acquiring rights and incurring liabilities as a natural person hereditas non heredis personam sed defuncti sustinet, ut multis argumentis iuris civilis probandum est' Dig. 41. I. 33. 2, 'mortuo reo promittendi et ante aditam hereditatem fideiussor accipi potest, quia hereditas personae vice fungitur, sicuti municipium et decuria et societas' Dig. 46. 1. 22.

There is no precise resemblance between the Roman heres and the English heir. The latter is the person who succeeds to such real property of a deceased person as he has not disposed of by will: the former was the person who succeeded to the universitas iuris of a deceased, whether under a will or an intestacy: and succeeding as he did to the universitas iuris, there was necessarily no more distinction between realty and personalty than between rights and liabilities.

Until the hereditas had vested in an heir or heirs, and so lost its independent existence, it remained a persona under the name of hereditas iacens. In the heir or heirs, taken collectively, it can vest only as a whole until it has so vested, the rights and liabilities of which it consists are inseparable. Where there is no will, this is not difficult to realise even to a mind habituated to the English distinction between realty and personalty but even where there was a will, the testator could not begin by saying 'I bequeath so and so to A:' he must first give it to the heir or heirs, as a part of the aggregate universitas, and charge them to give it to the intended legatee. Universality of succession is thus the prime characteristic of the Roman law of inheritance: 'nihil est aliud hereditas, quam successio in universum ius, quod defunctus habuit' Dig. 50. 16. 24.

The answer to the question, to whom the hereditas belongs, or who is entitled to become heres, depends upon the further question, whether the deceased has left behind him a valid testament. There is reason to believe that at one time wills were unknown in Roman law: that when a man died, his universitas iuris devolved on a person or persons by rules rigidly prescribed by law, which he had no power to alter or override. But the testamentary power, when once admitted, was very generally exercised: which will perhaps account for its being treated first

X.

DE TESTAMENTIS ORDINANDIS.

Testamentum ex eo appellatur, quod testatio mentis est. Sed ut nihil antiquitatis penitus ignoretur, sciendum est 1 olim quidem duo genera testamentorum in usu fuisse, quorum altero in pace et in otio utebantur, quod calatis comitiis appellabatur, altero, cum in proelium exituri essent, quod procinctum dicebatur. accessit deinde tertium genus testamentorum, quod dicebatur per aes et libram, scilicet quia per emancipationem, id est imaginariam quandam venditionem, agebatur quinque testibus et libripende civibus Romanis puberibus praesentibus et eo qui familiae emptor dicebatur.

by both Gaius and Justinian. The two modes of succession are mutually exclusive, If a man made a will, all his property (unless he were a soldier) must perforce go to the heir or heirs therein instituted, even though expressly instituted to certain portions of it only: there was nothing left for the rules of intestate succession to operate on, or to go to the person or persons who would have succeeded him had he died intestate: 'neque enim idem ex parte testatus et ex parte intestatus decedere potest, nisi sit miles' Tit. 14. 5 inf. : cf. Cicero, de invent. 2. 21.

Two other technical terms require a brief explanation. In some cases the law cast the inheritance upon a person or persons whether they wished it or not, Tit. 19. 1 and 2 inf.: immediately upon a man's decease they became heirs ipso facto, and could in no way at law disencumber themselves of the legal rights and duties, taken in the aggregate, which that character imposed upon them. But in other cases (Tit. 19. 5 inf.) no one became heres immediately, though some one (or more) was entitled to become so if he pleased: here, as soon as it was known who was the person so entitled, the hereditas was said to be 'delata' to him delatio is the right actually to become heir: 'delata hereditas intellegitur, quam quis possit adeundo consequi' Dig. 50. 16. 151. If, after consideration, he decides that the inheritance is worth taking, delatio is followed by aditio (Tit. 19. 5 and 7 inf.), actual acceptance of the succession. First comes the death; then delatio; and finally, after a greater or less interval, aditio. But, whether the law makes one heir nolens volens, or whether one deliberately accepts the inheritance after fully weighing its advantages and disadvantages, one cannot get rid of the character of heres, with all its liabilities, when one has once been invested with it: 'semel heres, semper heres.' How far this principle, as well as the other already cited supr. from Tit. 14. 5, had been modified at the end of Justinian's legislative work will appear from the following Titles.

Tit. X. § 1. The two earliest forms of wills were in reality legislative acts

sed illa quidem priora duo genera testamentorum ex veteribus temporibus in desuetudinem abierunt: quod vero per aes et libram fiebat, licet diutius permansit, attamen partim et hoc in usu esse desiit. Sed praedicta quidem nomina testamen2 torum ad ius civile referebantur. postea vero ex edicto praetoris alia forma faciendorum testamentorum introducta est: iure enim honorario nulla emancipatio desiderabatur, sed septem testium signa sufficiebant, cum iure civili signa testium

of the whole populus, either peaceably assembled in the comitia at Rome, or engaged in a campaign in the field for the evidence hereby afforded that intestate was older than testamentary succession see Maine, Ancient Law pp. 199, 200. Both of them were entirely oral. The will made per aes et libram was perhaps due in origin to the plebeians, who had no locus standi in the comitia calata, though it must have been largely used by the patricians, owing to the length of the intervals at which wills could be made in the comitia, 'quae bis in anno testamentis faciendis destinata erant' Gaius ii. 101. When writing came into general use, so that the proceedings need no longer be entirely oral, it underwent important changes, which are noticed by Gaius, ii. 103-108, and alluded to here by Justinian (partim in usu esse desiit), in particular acquiring the property of secrecy. The will in procinctu, common a few years before the conquest of Numantia, Velleius Paterc. 2. 5, was obsolete in the time of Cicero, de nat. deor. 2. 3.

§ 2. This praetorian will, as it is usually called, was really no will at all: for a will is a disposition of the civil law, bestowing the hereditas, and the person taking under it is heres. It grew out of the irksomeness of the formalities required in the will per aes et libram, and of the grave injustice which must frequently have resulted from the avoidance of wills through trivial defects of form, which eventually induced the praetors to uphold incomplete mancipatory testaments. Regarding form as of value only so far as it secured evidence, all that they required was that the written tabulae of the will should be attested by the seals of seven competent witnesses (Justinian's remark that sealing had not been necessary by the civil law seems contradicted by Cicero (in Verr. 2. 1. 45), who says that the edict required 'tabulas testamenti obsignatas non minus multis signis quam e lege oportet'). How far, and in what sense, such dispositions were upheld is deserving of careful notice, for nothing affords a more instructive or characteristic illustration of the mode in which the praetorian law modified and supplemented the old ius civile. By the latter, such an instrument as a mere written document, no matter by how many witnesses attested, had absolutely no validity whatever for the purpose intended. Nor had the praetor authority to enact that it should avail to pass the hereditas, or that the person named in it as heir should be heir: 'quos autem praetor vocat ad hereditatem, hi heredes ipso quidem iure non fiunt: nam praetor heredes facere non potest' Gaius iii. 32,