Immagini della pagina
PDF
ePub

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 (surculo 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 PRÆEROGATIVA, vel PRESCRIPTIO.

3. EMPTIO SUB CORONA, i. e. purchasing captives in war, who were sold with chaplets on their heads. p. 33.

See

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 hastá venire, to be publicly sold.

[ocr errors]

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

E 2

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.

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 familiâ herciscundâ, vel ercto ciundo, i. e. hæreditate dividenda, in dividing an inheritance among co-heirs, Cic. Orat. i. 58. Cæcin. 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 what

ever.

Ter

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. 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 magistrates, friends and relations to one another, and that on various 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 abovementioned methods, or by inheritance, by adoption (arrogatione), or by law, as a legacy, &c. were said to be IN DOMINIO

[ocr errors]

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 law suits. 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 Cæsenniæ legat, ut frueretur unà cum filio, Cic. Cæsin. 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.

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 family and fortunes to one who was called FAMILIÆ EMPTÓR, 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 life-time. This act was called FAMILIE MANCIPATIO; which being finished in due form, the testator, holding the testament in his hand, said, HÆC, UTI IN HIS TABULIS CERISVE SCRIPTA SUNT, ITA DO, ITA LEGO, ITA TESTOR, ITAQUE VOS, QUIRITES, TESTIMONIUM PRÆBITOTE. Upon which, as was usual in like cases, he gently touched the tip of the ears of the witnesses; (auriculâ tactâ antestabatur, quod in imâ aure

E 3

memoriæ

memoria 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 vivá voce, without writing; as Horace just before his death is said to have named Augustus. For the abovementioned formalities were not always observed, especially in later times. It was reckoned sufficient if one subscribed his will, or even named his heir viva 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 wholly with his own hand, in which case it was called holographum. Sometimes it was written by a friend or by others, Plin. Epist. vi. 26. Thus the testament of Augustus 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 tabulæ cerata 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 tabellá Mendacem linis imposuisse nolam, 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

[ocr errors]

cancelled

cancelled it 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 Caesar is said to have entrusted his testament to the eldest of the Vestal Virgins, Suet. Jul. 83.

In the first part of a wiil, 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 chuse 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 EXHÆRES ESTO, Plin. Ep. v. 1. Hence Juvenal. Sat. 10. 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 commit tebat) 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

[blocks in formation]
« IndietroContinua »