JURE CESSIO USUCAPTIO -AUCTIO.

53

Cicero commonly uses mancipium and nexum or -us, as of the same import pro Muren. 2. pro Flacc. 32. Cacin. 16. but sometimes he distinguishes them: as, de Harusp. 7. where mancipium implies complete property, and nexus only the right of obligation, as when one receives any thing by way of a pledge.* Thus a creditor had his insolvent debtor jure nexi, but not jure mancipii, as he possessed his slave.

There were various other modes of acquiring legal property; as, 1. JURE CESSIO, or CESSIO IN JURE, Cic. Top. 5. when a person gave up his effects to any one before the prætor or president of a province, who adjudged them to the person who claimed them (vindicanti addicebat); which chiefly took place in the case of debtors, who, when they were insolvent, gave up their goods (bona cedebant) to their creditors.

2. USUCAPTIO vel USUCAPIO, Cic. Cacin. 26. Legg. i. 21. and also usûs auctoritas, when one obtained the property of a thing, by possessing it for a certain time without interruption, according to the law of the twelve tables; for two years, if it was a farm or immovable, and for one year if the thing was movable: Ur usus aucTORITAS, i. e. e. jus dominii, quod usu paratur, FUNDI BIENNIUM, CÆTERARUM RERUM ANNUUS USUS ESSET, Plin. Ep. v. 1. But this took place only among citizens. For ADVERSUS HOSTEM, i. e. peregrinum, ETERNA AUCTORITAS ERAT; sc. alicujus rei, Cic. Off. i. 12. i. e. res semper vindicari poterat a peregrino, et nunquam usu capi. Hence Cicero says, Nihil mortales a diis usucapere possunt. If there was any interruption in the possession, it was called USURPATIO, which, in country farms, seems to have been made by breaking off the shoot of a tree (circulo defringendo), Cic. de Orat. iii. 28. But afterwards a longer time was necessary to constitute prescription, especially in the provinces, namely, ten years among those who were present, and twenty years among those who were absent. Sometimes a length of time was required beyond remembrance. This new method of acquiring property by possession, was called LONGA POSSESSIONE CAPIO, or LONGE POSSESSIONIS PRÆROGATIVA, vel PRESCRIPTIO.

3. EMPTIO SUB CORONA, i. e. purchasing captives in war, who were sold with chaplets on their heads. See p. 32.

4. AUCTIO, whereby things were exposed to public sale, (hasta, v. voci præconis subjiciebantur,) when, a spear being set up, and a public crier calling out the price (præcone pretium proclamante), the magistrate who was present adjudged them (addicebat) to the highest bidder, Cic. Phil. ii. 26. The person who bade, held up his finger (digitum tollebat), Cic. Verr. i. 54. digito licitus est, iii. 11.

The custom of setting up a spear at an auction seems to have been derived from this, that at first only those things which were taken in war were sold in that manner. Hence hasta is put for a public sale, and sub hasta venire, to be publicly sold. [Juvenal. iii. 33. præbere caput dominá venale sub hasta.]

The day, sometimes the hour, and the terms of the auction, used

«Mancipia implies the actual transfers of property; nexum, the form where the ownership remains, but the thing is pledged."— Nieb. i. p. 509.

54

AUCTORITAS ADJUDICATIO - DONATIO.

to be advertised, either by a common crier, (a præcone prædicari, v. conclamari,) Plaut. Men. v. 9. 94. or in writing, tabulâ proscribi, Cic. Ep. ad Fratr. ii. 6. Proscribebatur sc. domus seu quis emere, seu conducere vellet, Plin. Ep. vii. 27. Edes venales inscribit literis, Plaut. Trin. i. 2. 131. Hence tabula is put for the auction itself, Ib. Tabulam proscribere, for auctionem constituere; proscribere domum v. fundum, to advertise for sale, Cic. And those whose goods were thus advertised were said pendére, Suet. Claud. 9. and also the goods bona suspensa; because the advertisement (libellus v. tabella) was affixed to a pillar (pila v. columna) in some public place, Senec. de Benef. iv. 12. So tabulas auctionarias proferre v. tabulam, to publish, Cic. Cat. ii. 8. Phil. ii. 29. ad tabulam adesse, to be present at the sale, pro Quinct. 6. Thus also sub titulum nostros misit avara lares, i. e. domum, forced me to expose my house to sale, Ovid. Remed. Amor. 302.

It behoved the auction to be made in public, Cic. ib. & contra Rull. i. 3. and there were courts in the Forum where auctions were made (ATRIA AUCTIONARIA), to which Juvenal is thought to allude, Sat. vii. 7. A money-broker (argentarius) was also present, who marked down what was bidden, and to whom the purchaser either paid down the price, or gave security for it, Cic. pro Cacin. 6. Quinctil. xi. 2. The sale was sometimes deferred (auctio proferebatur), Cic. ad Atticum, xiii. 12. [See below, under head of Public Servants.]

The seller was called AUCTOR, and was said vendere auctionem, Cic. pro Quinct. 5. in the same manner as a general, when he sold the whole plunder of a city, was said vendere sectionem, Cæs. de Bell. Gall. ii. 33. The right of property conveyed to the purchaser was called AUCTORITAS; and if that right was not complete, he was said a malo auctore emere, to buy from a person who had not a right to sell, Cic. in Verr. v. 22. Plaut. Curc. iv. 2. 12.

5. ADJUDICATIO, which properly took place only in three cases; in familia herciscundâ, vel ercto ciundo, i. e. hæreditate dividenda, in dividing an inheritance among co-heirs, Cic. Orat. i. 58. Cacin. 3. in communi dividendo, in dividing a joint stock among partners, Cic. Ep. vii. 12. in finibus regundis, in settling boundaries among neighbours, Cic. Legg. i. 21. when the judge determined any thing to any of the heirs, partners, or neighbours, of which they got immediate property; but arbiters were commonly appointed in settling bounds, Cic. Top. 10. Sometimes, however, things were said to be adjudged (adjudicari) to a person, which he obtained by the sentence of a judge from any cause whatever.

6. DONATIO. Donations which were made for some cause, were called MUNERA; as from a client or freedman to his patron, on occasion of a birth or marriage, Ter. Phorm. i. 1. 13. Those things which were given without any obligation, were called DONA; but these words are often confounded.

At first presents were but rarely given among the Romans; but afterwards, upon the increase of luxury, they became very frequent and costly. Clients and freedmen sent presents to their patrons, Plin. Ep. v. 14. slaves to their masters, citizens to the emperors and gistrates, friends and relations to one another, and that on various

USUSFRUCTUS

RIGHT OF TESTAMENT, ETC.

554

occasions; particularly on the Kalends of January, called STRENÆ; at the feasts of Saturn, and at public entertainments, APOPHORETA; to guests, XENIA; on birth-days, at marriages, &c. Plin. & Martial. passim.

Those things which were acquired by any of the above-mentioned methods, or by inheritance, by adoption (arrogatione), or by law, as a legacy, &c. were said to be IN DOMINIO QUIRITARIO, i. e.. justo et legitimo : Other things were said to be IN BONIS, and the proprietors of them were called BONITARII, whose right was not so good as that of the DOMINI QUIRITARII, qui optimo jure possidere dicebantur, who were secure against lawsuits. But Justinian abolished these distinctions.

When a person had the use and enjoyment of a thing, but not the power or property of alienating, it was called USUSFRUCTUS, either in one word; thus Usumfructum omnium bonorum suorum Casenniæ legat, ut frueretur unà cum filio, Cic. Cæcin. 4.; or in two; as, Usus enim ejus et fructus fundi testamento viri fuerat Cæsenniæ, Ib. 7. and the person FRUCTUARIUS, or USUFRUCTUARIUS.

6. THE RIGHT OF TESTAMENT AND INHERITANCE.

NONE but Roman citizens (sui juris) could make a will, or be witnesses to a testament, or inherit any thing by testament, Cic. pro Arch. 5. Dom. 32. [The wills of minors were valid.]

Anciently testaments used to be made at the Comitia Curiata, which were in that case properly called Calata, Gell. xv. 27.

The testament of a soldier just about to engage, was said to be made IN PROCINCTU, when in the camp, while he was girding himself, or preparing for battle, in presence of his fellow-soldiers, without writing, he named his heir (nuncupavit), Cic. de Nat. D. ii. 3. de Orat.i. 53. So, in procinctu carmina facta, written by Ovid at Tomi, where he was in continual danger of an attack from the Getæ, Pont. i. 8. 10. +

But the usual method of making a will, after the laws of the twelve tables were enacted, was PER ES ET LIBRAM, or per familiæ emptionem, as it was called; wherein before five witnesses, a libripens and an antestatus, the testator, by an imaginary sale, disposed of his

"Usus was the occupation, for which an individual rendered a stated due, fructus. In this sense Lucretius says: Vitaque mancipio nulli datur, omnibus. usu, (for usui.) Life belongs to the common stock of nature; she withdraws it from the possessor at her pleasure; it never becomes his property. Mancipium was the old word for property; usus, according to its most ancient meaning, was the act of possessing; possessio, the object possest: hence usu capere.” - Nieb. ii. p. 137. By the laws of Rome, a son, during the life of his father, could not dispose of his effects by will. Soldiers were excepted, but this exception only related to what they got by their military services (peculium castrense.)

"Solis præterea testandi militibus jus

Vivo patre datur: nam quæ sunt parta labore
Militiæ, placuit non esse in corpore census,

Omne tenet cujus regimen pater."-Juv. Sat. xvi. 51.

Their peculium castrense was not looked upon as a part of their private fortune (in corpore census), over the whole of which the father had a power, so that they could not dispose of it by will during his lifetime.

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FORMS OF MAKING A WILL.

family and fortunes to one who was called FAMILIÆ EMPTOR, who was not the heir, as some have thought, Suet. Ner. 4. but only admitted for the sake of form (dicis causá), that the testator might seem to have alienated his effects in his lifetime. This act was called FAMILIE MANCIPATIO; which being finished in due form, the testator, holding the testament in his hand, said HEC, UTI IN HIS

TABULIS CERISVE SCRIPTA SUNT, ITA DO, ITA LEGO, ITA TEStor,

wholly with his own hand, in Sometimes it was written by a Thus the testament of Augus

ITAQUE VOS, QUIRITES, TESTIMONIUM PRÆBETOTE. Upon which, as was usual in like cases, he gently touched the tip of the ears of the witnesses (auriculâ tactâ antestabatur, quòd in imâ aure memoriæ locus erat, Plin. xi. 45.); this act was called NUNCUPATIO TESTAMENTI, Plin. Ep. viii. 18. Hence nuncupare hæredem, for nominare, scribere, or facere, Suet. & Plin. passim. But sometimes this word signifies, to name one's heir viva voce, without writing; as Horace just before his death is said to have named Augustus. For the above-mentioned formalities were not always observed, especially in later times. It was reckoned sufficient if one subscribed his will, or even named his heir vivâ voce, before seven witnesses. Something similar to this seems to have prevailed anciently, Cic. Verr. i. 45. whence an edict about that matter is called by Cicero, VETUS et TRANSLATICIUM, as being usual, Ib. 44. Sometimes the testator wrote his will which case it was called holographum. friend or by others, Plin. Epist. vi. 26. tus was partly written by himself, and partly by two of his freedmen, Suet. Aug. 102. Lawyers were usually employed in writing or drawing up wills, Cic. de Orat. ii. 6. Suet. Ner. 32. But it was ordained under Claudius or Nero, that the writer of another's testament (called by lawyers testamentarius) should not mark down any legacy for himself, Suet. Ner. 17. When a testament was written by another, the testator wrote below, that he had dictated and read it over (SE ID DICTASSE ET RECOGNOVISSE). Testaments were usually written on tables covered over with wax, because in them a person could most easily erase what he wished to alter, Quinctilian. x. 3. 31. Hence CERE is put for tabula ceratæ or tabulæ testamenti, Juvenal. i. 63. Martial. iv. 70. PRIMA CERA, for prima pars tabulæ, the first part of the will, Horat. Sat. ii. 5. 53. and CERA EXTREMA, or ima, for the last part, Cic. Verr. i. 36. Suet. Cæs. 83. But testaments were called TABULE, although written on paper or parchment, Ulpian.

Testaments were always subscribed by the testator, and usually by the witnesses, and sealed with their seals or rings (signis eorum obsignabantur), Cic. pro Cluent. 13. 14. and also with the seals of others, Cic. Att. vii. 2. Suet. Tib. c. ult. Plin. Ep. ix. 1. They were likewise tied with a thread. Hence nec mea subjectâ convicta est gemma tabella Mendacem linis imposuisse notam, Nor is my ring, i. e. nor am I convicted of having affixed a false mark or seal, to the thread on a forged deed or will, Ovid. Pont. ii. 9.69. It was ordained that the thread should be thrice drawn through holes, and sealed, Suet. Ner. 17.

The testator might unseal (resignare) his will, if he wished to alter or revise it (mutare vel recognoscere). Sometimes he cancelled it

RIGHTS OF INHERITING, DISINHERITING, ETC.

57

altogether; sometimes he only erased (inducebat v. delebat) one or two

names.

Testaments, like all other civil deeds, were always written in Latin. A legacy expressed in Greek was not valid, Ulpian. Fragm. xxv. 9. There used to be several copies of the same testament. Thus Tiberius made two copies of his will, the one written by himself, and the other by one of his freedmen, Suet. Tib. c. ult.

Testaments were deposited, either privately in the hands of a friend, or in a temple with the keeper of it (apud Edituum). Thus Julius Cæsar is said to have intrusted his testament to the eldest of the Vestal Virgins, Suet. Jul. 83.

In the first part of a will, the heir or heirs were written thus: TITIUS MIHI HÆRES ESTO, sit v. erit; or thus, TITIUM HÆREDEM ESSE JUBEO, vel volo; also, hæredem facio, scribo, instituo. If there were several heirs, their different portions were marked. If a person had no children of his own, he assumed others, not only to inherit his fortune, but also to bear his name (nomen suum ferre), as Julius Cæsar did Augustus (in familiam nomenque adoptavit, adscivit, Suet. Assumpsit, Plin.)

If the heir or heirs who were first appointed (instituti) did not choose to accept, (hæreditatem adire, v. cernere nollent,) or died under the age of puberty, others were substituted in their room, called HÆREDES SECUNDI; secundo loco v. gradu scripti v. substituti, Cic. pro Cluent. 11. Horat. Sat. ii. 5. 45. Suet. Jul. 83.

A corporate city (respublica) could neither inherit an estate, nor receive a legacy, Plin. Ep. v. 7.; but this was afterwards changed.

A man might disinherit (exhæredare) his own children, one or all of them, and appoint what other persons he pleased to be his heirs ; thus, TITIUS FILIUS MEUS EXHERES ESTO, Plin. Ep. v. 1. Hence Juvenal. Sat. x. 236. Codice sævo hæredes vetat esse suos. Sometimes the cause (ELOGIUM, i. e. causa exhæredationis) was added, Cic. pro Cluent. 48. Quinctilian. vii. 4. 20. decl. 2. A testament of this kind was called INOFFICIOSUM, and when the children raised an action for rescinding it, it was said to be done per querelam INOFFICIOSI.

Sometimes a man left his fortune in trust (fidei committebat) to a friend on certain conditions, particularly that he should give it up (ut restitueret v. redderet) to some person or persons. Whatever was left in this manner, whether the whole estate, or any one thing, as a farm, &c., was called FIDEICOMMISSUM, a trust; and a person to whom it was thus left, was called HÆRES FIDUCIARIUS, who might either be a citizen or a foreigner, 1. 8. § 4. D. de acceptil

A testament of this kind was expressed in the form of request or entreaty (verbis precativis); thus, ROGO, PETO, VOLO, MANDO, fidei TUÆ COMMITTO, Ter. And. ii. 5.; and not by way of command (verbis imperativis), as all testaments were, and might be written in any language.

In the last part of the will (in tabulis secundis), tutors were appointed for one's children, and legacies (legata) left to legatees (legataris) all in direct and commanding words: Thus, TUTOR ESTO, vel TUTORES SUNTO: TUTOREM V. -ES DO, Cic. Ep. xiii. 61. Plin. Ep. ii. 1. And to their protection the testator recommended his children,