CHAPTER XXII. MANUMISSION DURING THE EMPIRE (coni.). FIDEICOMMISSARY GIFTS.

Legacies and fideicommissa in general underwent a process of assimilation at the hands of Justinian, but there never was much real assimilation of direct and fideicommissary gifts of liberty.

A fideicommissum of liberty is in effect a direction contained in a will or codicil, addressed to some person and requiring him to free a slave. It may even be in an unconfirmed codicil, and so bind the heres ab intestato⁶. It may be given by word of mouth before witnesses, where the giver is in articulo mortis, and will then bind any heres’’. We have surviving instances of such gifts by will and codicil⁸. No particular words are needed, but the intent must be clear’, and the recorded

I C. 7. 4. 7; G. 2. 266—7; In. 2. 24. 2.

> C. 7. 4.11; In. 2. 24. 2, etc.

⁴ They are equal to direct sifts for Falcidian purposes (35. 2. 36. 2, 37, etc.). A. legacy of alimenta to freedmen covered those freed by fc. (34. 1. 2). It is the age of the testator which is material in such manumissions, post, p. 541. See also the rules as to addictio bonorum, post, Ch. xxvn.

⁸ Post, p. 538.

⁸ 40. 4. 43. Or in a will operating as a codicil, 40. 5. 24.11. Vangerow, Pand. § 527.

⁷ 40. 5. 47. 4.

⁶ Bruns, Fontes, 1. 273, 279. On p. 273 there is a legacy of a slave with a fideicommissum not to free.

⁸ 40. 5.16. The word commendo was not enough, P. 4.1. 6; C. 7. 4. 12.

514 Fidedcommissary Gifts: Construction [pt. n

instances seem to shew some variation of practice as to what is enough. In general the construction is favourable. Thus where X was made, by the will, tutor to the heres and a fideicommissum was imposed on X to free a certain slave of his own, X was excused from the tutela. Other tutores were appointed and it was held that the trust was essentially imposed on the heres, and therefore the new tutores were obliged to buy the slave with money of the estate and free him \ But though one who has liberty by fideicommisswm under a will can take gifts under the same will², yet a fideicommissum of money, sub conditions, with no gift of liberty, is not held to imply such a gift*. Such words indeed do not clearly shew that any gift is intended. But even where it is clear that a gift is meant, there is no rule, at least in classical law, that an intended direct gift, in some way defective, can be construed as a fidei- commissary gift to save it. This is indeed often done, but usually because the circumstances seem to impose a pious duty on someone to carry out the wishes of the deceased. Where a will gave a foster-child liberty and a fideicommissum and the will was imperfect, and the estate was administered as on intestacy, Paul tells us that the Emperor decided that the alumnus was entitled to be freed by the heres ab intestate, though the will contained no clausula codwillaris*.

1 40. 5. 41. 2.

³See 32. 8.1, and ante, p. 146, for gifts to servus heredie.

» C. 6. 42. 28. * 40. 6. 38.

• h. t. 41. pr. The case in 40. 4. 42 is construed as a legacy of the slave with a fidei- commieswn of liberty.

• 26. 2.10. 4. ’ In. 1. 14. 1.

s C. 7. 4.10. But it attributes the opinion toprudentee. » P. 4.13. 3.

ch. xxn] Implied Fideicommissary Gifts 515

there is a difficulty, since he cannot be tutor till he is free, or free till there is a tutor¹, since an impubes cannot free sine auctoritate¹. But, he adds, it will be treated as a case of absent tutores, so that under the decretum amplissimi ordinis he will be free and tutor.

In one text⁴ a direct gift which fails is, apparently for that reason alone, treated as fideicommissary. The rule laid down is that what is in a codicil is treated as if it were in the will, and thus if liberty is given in a codicil to one who was not the testator’s property at the time of the will, but is at the time of the codicil, the gift fails as being to a servos alienus. The text adds : et idea licet directae libertates deficiunt attamen ad fideicommissarias eundum est. The grammar and form generally of this remark, coupled with the fact that no reason is given, strongly suggest that this comes from Tribonian’.

Implied gifts inferred from the words of the testator are a good deal discussed in the texts, and were freely admitted.

A direction not to alienate is, we are told, a fideicommissum of liberty, si modo hoc animo fuerit adscriptum quod voluerit eum testator ad liber­tatem perduci*. But if this means an immediate gift, the text must be interpolated, as indeed its language suggests⁷. A direction ne postea serviat is certainly an immediate fideicommissum of liberty⁸. Directions that he is not to serve anyone else or not to be alienated or the like, are fideicommissa of liberty to take effect at the death of the fiduciarius, or, if the man is alienated, at once’. An alienation not voluntary, but resulting inevitably from what the testator has ordered, is not an alienation for this purpose, the testator not being supposed to have meant to include this. The text seems to add that on such facts if the direction is that he is to serve no other, freedom is due at death of fiduciary¹⁰. If on the other hand it is neither due to the testator, nor voluntary, e.g. where the fiduciary is publicatus, the condition is declared to be satisfied, and the slave is to be freed, if necessary by the public

¹ C. 6. 28. S. ’ 40.

⁸ Post, Ch. xxvn. One given freedom by fideicommissum cannot properly be made iwior, but, says Papinian, after he is free the appointment will be confirmed, 26. 2. 28.1.

⁴ 29. 7. 2. 2, ante,, p. 463. Fein-Glück, 1611 c, p. 237 sqq. treats it as the general rule, but of the texts he cites the only one in point (40. 5. 24. 10) is considered post, p. 578.

⁵ So A. Faber and apparently Mommsen. Fein-Glück, loc. cit., treats it as an expression of Julian’s equitable tendency. The text gives the same ride where the slave belonged to the testator when the will was made but not at time of codicil. The view of Cujas (Ad Afr. Tract. 2) has been generally accepted, i.e. that a non should be omitted, since time between will and death is immaterial, assuming that he was in the estate at the tim« of death. See Fein-Glück, Zoe. cit. and Lenel, Paling., ad Ä. I. Cujas notes that Paul holds such a gift good, 34. 4. 26. Mommsen, Ed. mai. ad k. I., thinks that as the concluding words of the text put the cases on one footing, the non is due to the compilers. Fein-Glück, toe. cit., gives an account of the many points which arise in this text. One other case may be mentioned here. A gift written in favour ot oneself is void: where a slave wrote a gift of liberty to himself iussu domini, this was in strictness void, but the Senate decided that it should impose a duty on the heres to free. Pius decided that it was to be as if written by his dominus, whom he was bound to obey, 48.10.15. 2, 8.

40. 5. 24. 8. ? Gradenwitz, Interpol. 212. ⁶ 40. 5. 24. 7.

0 40. 5. 9, 10. pr., 21. ¹⁰ Ibid.

616 Fideicommissary Gifts: Discretion in Heres [pt. n authority¹. If the fiduciary having sold him buys him back this does not mend matters: the condition is already satisfied’. All this suggests, as Gradenwitz points out⁹, that the proposition at the beginning of this paragraph is interpolated, and, as he further observes, the same thing is probably true of the remark in the same text⁴ that the favourable effect of such a direction as ne alienee, however far it goes, does not apply if there was some other object, as that the heres should keep him and beat him severely, the burden of proof of this contrary intent being on the heres.

A gift si heres voluerit is void: the heres can of course free if he likes, but is under no duty⁹. Very little more, however, will turn it into a duty. The words si volueris fidei tuae committo, si tibi videbitur peto manumittas, si tibi videbitur manumittas, si voluntatem probaveris*, these, or any Greek equivalent, compel the heres to use the discretion of a bonus vir about the matter, and to free the man if he deserves it⁷. This may be a case of favor libertatis, since we are told that the words, si volueris fidei tuae committo, have no effect in other testamentary matters⁸. So also “if you find them worthy,” or si te promeruerint dignos eos libertate emstimes are good fideicommissary gifts’. These forms seem to mean much the same thing: the man is entitled to be freed if he is reasonably worthy, i.e. if he has done nothing making him clearly unworthy. His right is not to depend on his having rendered such services to the fiduciary as to have deserved liberty of him¹⁰. But it may be left to the fiduciarius to choose when he will free¹¹, and in the cases we have been discussing he might do it at any time during his life, and if he died without having done it, his heres was bound to free at once“.

The words si placeat seem to be of the same class, and to impose a duty on the heres if the man be fit. But two texts in which this word is used create some difficulty. A slave is directed to be freed, si uxori meae placeat, the wife being one of the instituted heredes. She refuses her share, so that all falls to the other heres. Alexander decides that the man is entitled to his freedom if the wife does not object¹⁹. Else­where, Modestinus holds that her ceasing to be heres must not prejudice the man, and moreover that her dissent is immaterial¹⁴. As fidei- commissary gifts are binding on substitutes and coheredes^u, and a gift

¹ A. t. 12. ®r. ² A. t. 21. ⁸ loc. cit. and op. cit. 38.

* 40. 5. 24. 8. ⁸ Đ›. t. 46. 8. « Ibid.

^I 40. 5. 46.i>r., 3.

⁸ lb. But even in other caeee anything shewing that he was to exercise discretion would validate the gift, 82.11. 7. See Bufnoir, Conditions, 198.

⁸ 40. 5. 46. 8.

¹⁸ 40.4.20,51.1; 40.5.41. 4, 46. 8. Where such a word as indicium was used it is clear that the testator meant the beree to have a discretion: there was no absolute fideicommiesum, 40. 5.

41. 6.

^II 40. 5. 17, 46. 4. ¹² 40. 4. 20. ¹⁸ C. 7. 4. 8.

¹⁴ 40. 5. 14. ¹⁸ 31. 61. 1, etc.,розі, p. 523. ch. xxiij Gifts at Discretion of other Persons 517 of liberty may be at the discretion of a third party¹, it is not clear why anyone should have thought the gift must fail on the above facts, as it appears that someone did. It must be assumed, as is suggested above, that the words give not a mere power of veto, but impose a duty to free if the man is worthy. This might create a difficulty where the person on whom the duty is imposed cannot free, as not being heres, but both texts agree that this is not fatal. But Alexander² lays it down that she can still exercise her''discretion, though he does not commit himself on the question whether it is now an absolute discretion or not. Modestinus, on the other hand⁸, thinks that the discretion is vested in her as heres, and is now therefore not exercisable at all— apparently he regards it as struck out, as being quasi-impossible⁴.

As the gift may be at the discretion of a third person¹, so it may be at that of the slave himself⁵. Even if it is not so expressed, the gift will not take effect, invito servo, as it is for his benefit, unless it is clear that there was an intention to benefit his master, e.g. if a heres is ordered to buy a slave at a very high price, and free him. In such a case the heres is compellable by the owner to buy him⁸.

Where the heres is directed to free one of several slaves, but there is no evidence as to which the testator meant, the gift is void⁷. The case contemplated seems to be where the words are “ Let my heres free two of my familia rustica” or the like, and where there is no direction to the heres to choose, the analogy of a legatum generis is not applied: in fact the analogy would be rather with a gift to one of two persons. And here the rule of legacy is followed. But where a man who has three slaves directs the heres to choose two and free them, this is a valid gift and the heres may choose as against a legatee of the slave⁸. This last point is noticeable as a case in which a more or less general gift takes precedence of a specific gift,favore libertatis. The case gave rise to difficulties where the heres failed to free any of them*. It may be added that in the case of fideicommissa in varying terms, Pius enacted that the last was to be preferred, as expressing the last will of the testator¹⁰. In direct gifts, as we have seen, that operates which is most favourable to liberty¹¹. The difference seems to result merely from over general language of the Emperor, since in legacies also, apart from liberty, the later gift is preferred¹².

The principles to be applied as to condition and the like are much

^I 49. 5. 46. 2. ² C. 7. 4. 8. ⁸ 40. 5. 14.

â€? Ante, p. 489. ⁸ 40. 5. 46. 1.

« A. t. 32.1; op. 28. 5. 84.1, post, p. 530. ⁷ 34. 5. 27.

⁸ 40. 5. 46. 5. If one died the others were entitled to be freed.

» Post, p. 556. ¹⁰ 35.1. 90 ; 40. 4. 5; C. 6. 38. 4. pr.

^II Ante, p. 488. ¹² 85.1. 51.pr. As to gifts “to A or B,” ante, p. 461, post, p. 556. 518 Fideicommissary Gifts: Conditions [pt. n the same as in direct gifts¹: a few illustrations may be given. A slave to be freed when a certain person reaches 16 is entitled to freedom at that date though the person be dead*. A slave to be freed on rendering accounts is not responsible for losses not imputable to his negligence’, nor, when the dominus had approved and signed his accounts, for the insolvency of any debtors therein set out^{[1883] [1884] [1885] [1886] [1887] [1888]}. On the other hand if the freedom is not due at once, he must render account of his adminis­tration since the death, it being enough that he pay over all that is due. Thus where tutores have approved his accounts since the death he need not get them approved again, even though the tutores are themselves condemned in the actio tutelae“. To be freed in 8 annos means after 8 years, and it is a matter of construction whether they run from the death or the date of the will·. Where a son is to free a slave after 5 years, if he pays so much a day, and he omits the pay­ment for 2 years, he is not free unless the heres has taken his services instead ; in that case the condition is so far satisfied, since non per ewm stat that it is not carried out^[1889]. If the slave given liberty condition­ally by fideicommisswm is also legated, the legatee is entitled to take him but must give security for his restoration if the condition occur. Ofilius, however, was of opinion that this was so only if the liberty was intended to adeem the legacy pro tanto, the legatee being entitled to shew, if he could, that the testator meant to burden the heres with the cost of repurchase^{[1890] [1891] [1892] [1893]}. The text remarks that the rule is the same in direct gifts’.

The gift may be accompanied by one of the hereditas. In such a case the man can compel the heres to enter, free him, and hand over the hereditas™. A Senatusconsult provides that if he is impubes, the heres shall be bound to enter, and a tutor will be appointed to take the hereditas, and see that all proper securities are given¹¹. Where several are freed by fideicommissum, and the heres is directed to hand over the inheritance to them, and he doubts its solvency, he can be compelled to enter, and hand it over to the first, who will be free and

ch. xxn] Ademptio. Lapse 519

take the Aeredtias'. If a servus alienus is appointed here«, there may be a fideicommisswn of liberty to him, post mortem domini, which will leave his dominos heres¹.

Like other gifts they are liable to revocation and destruction. We are told that they may be adeemed in the form in which they were made. This does not mean, as the text seems to suggest, that if given by will they cannot be adeemed by codicil, or vice versa, but that the form of words used must be the same in the ademption as it was in the gift’. There are many forms of implied ademptio. Thus if the gift is prevented from taking effect by the operation of some restrictive statute, e.g. the lex lulia, this is a practical ademption⁴. Punishing by chaining by the testator is an implied ademption*, and it may be presumed that, in general, what would adeem any direct gift would adeem a fideicommisswn. A legacy of the slave will ordinarily have the same effect upon the gift of liberty as it would have on a direct gift*. In general the latest written is preferred, whether it is the legacy or the liberty, but there is a presumption, in case of doubt, in favour of the liberty⁷.

If the will completely fails from any cause, the gift fails unless it is also imposed on the heres ab intestate, a construction readily adopted⁸. So if the codicil in which they are given becomes irritus they fail, but if the heres confirms them and lets the slaves in libertate morari, it is laid down by Severus and Caracalla that the liberty is complete*. As it stands this is a puzzling statement. There has been no formal act of manu­mission, and at this time the informal permission of the heir could have given no more than latinity. If in its present form it is to be put down to the Emperors at all, it must be regarded as a privilegium.

The results of lapse can be shortly stated so far as they are known. If the will fails, the gift fails, unless it is charged also on the heres db intestate¹â€ť, subject to the rule that if the hereditas, or indeed the gift on which the fideicommissum is charged, goes to the fisc, that authority must carry out the gift so far as possible“. If the gift lapses to an heir, the rule of earlier classical law is that he takes it free of the burden, so far as it is a case of lapse under the ius antiquum¹*, but caduca and the like take their burdens with them¹⁸. Severus provided that burdens should bind substitutes, and Ulpian cites Julian as in-

^I If the estate is insolvent this ends the matter: one alone can be free. If the others claim to be freed and have their share, this will be gone into when they claim before the Praetor, 28. 6. 84.1. So also in case of direct gift. Ante, p. 607.

*81.14.1. ⁸ Ulp. 2.12; D. 46. 4. 14. â€?40.6.1.

« 40. 6. 43. « Ante, p. 468. ’ 40. 6. 60; cp. A. t. 47. 4.

⁸ 40. 6. 24. 11, 47. 4; C. 7. 2. 12. ⁸ 40. 5. 30. 17.

“ 40. 6. 24. 11, 47. pr.

^II30. 96.1; 36.1. 60.1; 34. 9. 6. 4; 40. 6. 6,12. pr., 2, 61. pr. As to the case of the fisc, see also post, Ch. xxvn.

“ 31. 29. 2, Celsos. ¹⁸ Ulp. 17. 3.

ferring that if a legitimus heres refused, a fideicommissum charged on him would bind his coheir^[MDCCCXCIV]. This is a doubtful inference, and in any case it is no authority for the case of lapse of a legacy to a heres or co-legatee. It is not clear whether the distinctions which applied to other burdens in case of lapse applied to gifts of liberty. We are told nothing as to manumissions charged on joint legacies, but there is reason to think they were more favourably treated than other trusts in later classical times. Where a legacy burdened with such a gift is pro non scripto, Papinian says, on grounds of equity, that the heres must carry out the trust*. And Ulpian lays down a similar rule, precisely because such gifts are to be favoured*. Paul deals in the same spirit with the case in which the legatee refuses the gift of the slave⁴.

The rules under the sc. Pegasianum, as to compulsion to enter, have no application in the case of a mere gift of liberty without hereditas, but there are nevertheless some exceptions to the rule that failure of the heres to enter avoids the gift. Thus a collusive repudiation in order to avoid the gift leaves it still binding⁵. So where the heres “omits” the will and takes on intestacy, he must free those whom either he or a substitute was under a fideicommissum to free⁶, even though they be slaves of third persons⁷. And though the gift is not binding on the heres ab intestate, still if the heir under the will took money not to enter he must free the slaves⁸. It should be remarked that the gift is binding on all successors of the fiduciary, of any kind⁹.

If the fiduciary has charges against the slave, of malversation, or the like, this is not a ground for delaying the liberty. This is declared to have been repeatedly laid down by Marcus Aurelius, Severus and Caracalla¹⁶. But the Praetor, in adjudicating, will take into consideration what is due on these accounts, by means of an arbiter if necessary, and order securities accordingly^[MDCCCXCV]. Moreover in an appro­priate case the actio eapilatae hereditatis will lie¹⁹, since manumission does not destroy liability for delict¹⁸. In the same way, the personal need of the fiduciary or the badness of the slave affords no reason why the manumission should not be carried out¹⁴: Cassius was of a different opinion, but was overruled on the ground that there was no compul­sion to take the correlative benefit, but he might not have one without the other.

The lex Falcidia and the sc. Pegasianum have obvious applications in this matter. A legacy of a slave to be freed is not liable to the Falcidian deduction, nor is the man counted in the hereditas, but any­thing left with him is of course subject to the deduction¹, as is money left to a man in order that he may free a slave*. Indeed the rule goes further, for if a slave and money are left to X and there is a fidei­commissum to free the slave, the Falcidian quarter is reckoned, it seems, on the whole of the gift, including the slave. But it can be taken only out of the money, so that in effect the gift of the slave stands good in its entirety, and the man is entitled to his freedom’. The same rule is applied where the legacy is to the slave himself who is to be freed⁴. According to the rules laid down by Ulpian, the fideicommissary gift must be carried out by the fiduciary, if he has accepted the gift, how­ever small this is (but not if it proves to be nothing at all), if the slave affected is his own. But if the slave is to be purchased he is not re­quired to spend more than the gift in buying him. If, however, the gift increases in value, so as to amount to the price of the slave, the donee must buy him, and, conversely, if it was enough when it was received the fact that it has diminished in value does not release him. On the other hand if he has accepted the gift under a mistake as to its value, he is allowed to restore it. There are evidences of dispute, but all this is clearly the rule of later law⁶, and there seems no reason to doubt that it is classical.

Paul considers the case in which the gift is in itself enough but is cut down by the lex Falcidia, so that it is too small. He mentions diverse views, e.g. that the donee may keep the gift and not free even in the case of his own slave (a view in conflict with that just stated, and with settled law⁶, at least as to this last point), and that if he has accepted the three-quarters he must buy and free⁷. The view finally accepted is, it seems, that in this case, too, if it is his own slave he must free, but he need not buy for more than the gift: in fact the case of reduction by the lex Falcidia is put on the same level as original insufficiency⁸. The text of Paul ends with the solution, which must be due to the compilers, that in such a case the heres must pay the legacy in full as if the testator had so directed. Before the time of Justinian such a direction would have had no force’.

Just as a slave freed is deducted in arriving at the amount of the hereditas, so if the heres is directed to free his own slave, or a servus alienus, he is entitled to deduct the value of this slave from the hereditas as a debt¹⁰.

¹ 35. 2. 33, 34, 36. 3. * 35. 2. 34.

⁸ h. t. 36. 3. The legacy of the slave may have value if the man is not to be freed at once.

⁴ h. t. 35. ⁸ 40. 5. 24. 12—16, 45. 1; 35. 2. 36.1; C. 6. 50. 13.

• Post, p. 529. 1 40.5.6. ⁸ 40. 5. 22. pr.; 35. 2. 36. pr., 1.

» Nov. 1. 2. 10 35. 2. 36. 2, 37. 1.

Where the fideicommissum is not immediate, but is subject to dies or condition, there is, as in the case of direct gifts, some difficulty. The few texts dealing with the matter suggest that it is immaterial whether the gift is direct or fideicommissary¹. We have seen² that the rule is not easy to make out in the case of direct gifts, and there certainly is the difference that, at least in later law, a legacy of a slave to whom a direct gift of liberty post tempus was made, was void³, which could not be the case where the legatee was directed to free him. We are told that if a slave, the only property of the testator, is left to be freed after three years, this is in effect a legacy of three years’ enjoyment of him and one fourth of the acquisitions ex operis will belong to the heres*. This is simple, but not very logical, since this would certainly not represent one fourth of the benefit to the legatarius, nor would it be what would come to the heres if the slave were regarded as his, as to one quarter, in the meantime. In fact the conveyance of the slave is not treated as a benefit at all: what is regarded as left is the right of acquisition ex operis. It is clear that no really cogent solution was reached. Another text which may be regarded as dealing with the case where the slave is legated pure, with a conditional fideicommissum* of liberty, reflects still more the obscurity of the matter. It is the work of Paul, citing Caecilius, and while it is not clear that Paul adopts the views of Caecilius, it is still more uncertain what those views were. The problem is whether the gift of the slave is to be regarded as a legacy, subject to a Falcidian deduction. The answer of Caecilius seems to be that the gift of the slave is a legacy and that thus a certain part of him may remain with the heir, under the lex Falcidia*. When the con­dition happens he vests wholly in the legatee. Caecilius adds: si quid ex operis eius medio tempore consecutus fuerit heres, id in pretium eius erogare eum debere, propter legis Falddiae rationem. And Valens adds that the man is to be valued as a statuliber. The plain meaning of these words is that he is not in the hereditas at his full value, since, unlike a thing legated, which, as we have seen, was imputed at its full value⁷, he, if freed simply, was not imputed at all: a legacy given absolutely was of course counted in the inheritance. The words of Caecilius seem to mean that what comes to the heres as part owner, must be set off by him against the value of the slave as a statuliber, so that, so soon as he has received what equals the quarter of the man’s value, he vests wholly in the legatee*. This agrees in principle with the other text’, but is not wholly satisfactory“.

I A. t. 36. 4, 56. 3. » ^nte, pp. 474 eqq. » Ante, p. 469. * 35. 2. 56. 3.

’ 35. 2. 36. 4, 37. pr. The argument turns on uncertainty though diet is mentioned.

• Cp. 35. 2. 49. pr. ’ ^nte, p. 474.

• So in principle, Pothier, ad K. I. (in tit. de legatis, lxxvi). · 35. 2. 56. 3.

io Mommsen (perhaps also Lend) expunges the word here» and presumably understands the text differently. See ante, p. 475, n. 7.

The Trebellian (or Pegasian) principles are the same, but other and more important questions arise in connexion with them. The main point to note is that the power of compelling the heres to enter to save the fideicommissum does not apply to fideicommissa of liberty alone¹: it is allowed only for the benefit of fideicommissariae heredi­tates. The rule is illustrated by many “ hard cases.” A man who is given a fideicommissum subject to a further fideicommissum of the whole cannot, it seems, compel the heres to enter, as he is to get nothing. Accordingly where A is heres with a fideicommissum of liberty and hereditas in favour of S, and S is subject to a fideicommissum hereditatis in favour of B, S cannot compel the heres to enter, as liberty, which is all he will get, is not enough. But it will not greatly matter, if the estate is solvent, for B is allowed to compel the heres to enter, and will then be bound to free S’. Where A and B are heredes, S has a fidei­commissum of liberty from A and of hereditas from B. Both refuse to enter. S cannot compel them. There is no compulsion for liberty alone, and B not being bound to the liberty cannot be bound to one who has no right to be free. But though in the facts as stated the liberty will fail, still, if A alone refuses, B takes all, and can be compelled to enter, as S now has a claim against him for both liberty and hereditas*. On the same facts if A enters and frees S, then as there can be no question of intestacy, and S is free, he can compel B to enter and hand over the hereditas¹. This is a provision of Antoninus Pius, whom we shall find legislating freely in cases of hardship in this connexion. It must be remembered that, in his time, the gift specially charged on B would not have bound A if, B having failed to take, A had acquired the whole by ius accrescendi. Later, as the result of a rescript of Severus and Caracalla, the provision would have been unnecessary, as A would have been bound by the fideicommissum hereditatis*.

Where a heres is required to give liberty and the hereditas to his own slave, he cannot be compelled to enter, though, if he does, he must carry out the fideicommissa*. On the other hand there are many cir­cumstances under which the slave can compel the heres to enter. Thus where the testator’s slave is freed directo, or by fideicommissum, with a fideicommissum of the hereditas, he can compel the heres to enter⁷. Where T was heres, and there was a direct gift of liberty to S, S’s child Z was left to S with a fideicommissum to free it, and there was a fideicommissum hereditatis in favour of Z. T refused to enter. On

¹ 36. 1. 54. 1, 57. 2. Ab to bonorum addictio, post, Ch. xxvn.

’ 36.1. 57. 2. ⁸ 36. 1. 54. 1. â€? h. t. 17. 17.

⁸ Seee.g. 31. 29. 1. As to lapse.in general, ante, p. 470. Where S had a fideicommissum hereditatis from A the heres and of liberty from B a legatee, he could not make A enter, as his right was dependent on B’s and B could not. B was in fact dead and the case was decided as one of lapse, 36. 1. 55, ante, p. 519. « 36. 1. 17. 13.

⁷ h. t. 23. 1. Where a heres is rogatus to free S and there is a fideicommissum hereditatis in favour of T, and T ia directed to hand the hereditas to S, S can make the heres enter, h. 1.17. 16. It must be presumed that the slave belonged to the testator.

524 Position of Slave pending Completion [pt. n application to the Emperor (Pius), it was ordered that T should enter. This made S free. Her child was then to be handed to her, and to be then freed by her, and a tutor appointed, by whose auctoritas Z could accept transfer of the hereditas. The will directed the inheritance to be handed to Z only when she was of marriageable age. To prevent evil results from this, as the child might die under age and the heres have the estate on his hands, it was ordered that if the child did so die, the estate should be sold as if there were no heres. The text adds that this constitutes a precedent¹. Much in this case turns on matters which do not concern us. It seems, however, difficult to reconcile it with some of the cases already discussed: one might have thought that neither S nor Z could compel entry, for S is to get nothing but liberty’, and Z’s right is subordinate to that of S’. It does not appear that it is in this connexion that the text treats itself as creating a precedent, but it is clear that when the substantial intent was to give to a slave of the testator liberty and the hereditas, Antoninus thought it should not be hampered by too great regard for legal principle. We know that if the heres was to free his own slave and hand him the hereditas, the value of the slave so freed might be deducted from it as a debt⁴.

We have seen that these gifts need for completion an act of manu­mission. Till that has been done, of there has been mora⁸, they are still slaves for all purposes’. Their children born in the meantime are slaves and belong to their owner⁷. But the beneficiaries themselves are quasi statuliberi, which much improves their position. Thus their status is not affected by alienation or usucapion even though the liberty was conditional at the time when the alienation occurred, and the alienation was inter vivos or mortis causa⁸. The fidudarius cannot in any way make their position worse’. Marcus Aurelius lays it down that no act or defect of his is in any way to affect the slave¹⁰. Of these acts and defects we shall have illustrations, when we come to deal with statutory restrictions¹¹. Others can be taken here. If the slave is instituted by the fidudarius with a gift of liberty, he is not a heres necessarius¹⁸. If the fidudarius chains the slave, this is no bar to his liberty”. The fidudarius may not hand him to another to free¹⁴: if, however, he does in any way alienate him, we have seen that the holder is bound to free him”. But he may choose, if he prefers, to be freed by the original rogaius—so it was provided by Hadrian and by Antoninus Pius”—and the fidudarius

^I A. t. 11. 2. ² 36. 1. 57. 2, fin. » A. t. 55.

⁴ h. t. 28.17. Ante, p. 521. The rule that in estimating the value of a hereditas, the value of slaves to be freed is deducted, is confined to these cases of deduction of a quarter. Thus in reckoning the burden of funeral expenses of a woman, heres and vir are liable in the proportion of the hereditas and of that part of the dos which remains with the err. But there is no deduction in respect of freed slaves, 11. 7. 20—25.

⁸ Post, Ch. xxvn. 8 40. 5. 45. 2. ⁷ C. 7. 4. 3; D. 35. 2. 24.1.

8 40. 5. 24. 21, 45. 2, 51. 3. ⁹ 40. 5. 15. ¹⁰ h. t. 30.16.

^II e.p. post, pp. 537 sqq. ¹⁸ 28. 5. 85. nr. ¹⁸ P. 4. 12. 4.

“ 40. 5. 34. pr. w h. t. 24. 21; 19.1. 43. ^w 40. 5.10. 1, 24. 21.

ch. xxn] Position of Slave pending Completion 525

will then be bound to buy him back and manumit him¹. So where the heres dies without having done it, and his heres hands on the hereditas, ex Trebelliano, the slave may choose by whom he will be freed². Even if he has actually been freed by the wrong one, Pius decides that he can, on claiming, become a libertus of the original rogatus, the rule being perfectly general, and applying whether the alienation was voluntary or not³. All this is a rough and ready way of securing adherence to the testator’s intention, and thus the rule is not applied if the will shews that the testator meant any holder to free⁴· Moreover if the fidudarius should have died without successors, the man will be the buyer’s libertus, since otherwise, the buyer, having no one from whom to claim, will lose both the price and the libertus⁶. As to those texts which say that if the heres dies without freeing the man, his heres must’, it should be noted that under Antoninus Pius the rules of mora were applied in this case and he was treated as if he had been duly freed’.

The fiduciary, as he may not make the man’s position worse, may not exact services from him, even though the will authorise this: iure publico derogare non potuit fidudarius⁶. Even if the manumissus promise them, his promise is null, for it must be libertatis causa, and he is entitled to his liberty⁹. But if he promise, after freedom, knowing he need not, this is a valid donatio¹⁶·, if the will shews that the testator meant the fiduciary to have the full rights of patronage, then, perhaps, it is said, he may impose services¹¹. Where a son was told to free his father’s slave, Paul is made to say¹²: dicendum est posse sum etiam contra tabulas habere et operas imponere: hoc enim potuisset etiamsi directam libertatem accepisset, quasi patroni filius. This is unin­telligible; a son cannot ignore his father’s manumission. But for the last three words it might perhaps be understood of a son who has obtained bonorum possessio contra tabulas and can wholly ignore the manumission¹³. But patroni filius cannot impose operas. It seems idle to guess at what Paul may originally have written.

We have hitherto assumed the general validity of the gift: we have now to consider by whom, in favour of whom, and on whom they may be created and charged.

Any person who can make a fideicommissum, may make one of liberty¹⁴, subject to the requirement of age under the lex Aelia Sentia¹³.

1 40. 5.15. ² h. t. 23.1. He might thus get an older patron, h. 1.15, 51. 3.

³ h. t. 24. 21, 26. pr. QI course in this case there was no handing back.

⁴ 49. 5. 24. 21. fin. ⁸ A. t. 26. « h. t. 12. 1; 40. 4. 20; P. 4. 13. 2.

i 40. 5. 26. pr.; post, Ch. xxvn. He is in some ways better off than a statuliber_y e.g. in rela­tion to the sc. Silanianum, ante, p. 95.

838.1.13. 1, 42; 38. 2. 29. pr.; cp. Vat. Fr. 225.

» 38.1. 7. pr._y 7. 4,13.1. ™ h. t. 47. » 38. 2. 29. 1.

¹² 40. 5. 33. pr. ¹⁸ So Otto and Schilling. ¹⁴ 40. 5. 24.pr.

« C. 7.4. 5; poet, p. 537.

526 To whom Fideicommissary Gifts may be made [pt. n

More detail is needed as to the person in favour of whom it may be made. It may be a slave of the testator or of the heres or of a legatee or of a fideicommissarius or even of a person taking nothing under the will¹, provided, according to one text, that there was testamenti factio with his owner². The reason for this last rule is obscure: the outsider is no party to the will. There was nothing to prevent a man’s buying a slave from a peregrinus and then freeing him, and it is not easy to see any reason why he should not be able to direct his heres to do so. It seems most probable that the jurist had in mind the case of an extraneus who was also the fidudarius. One could not require a man to free his slave without giving him something by the will and one could not give him anything at least by direct gift unless there was testamenti factio. Indeed whatever the origin of the rule it must have been narrower than it seems or have had exceptions. Thus in one text it is doubted whether a fideicommissum of liberty could be given to a serous hostium. The objection is not, as might have been expected, that there is no testamenti factio with his dominus, but that such a person is unworthy to become a Roman citizen. The objection is overruled so far as to allow such a gift to be valid, if it were given for the event of his passing to Roman ownership*. It may even be given to a serous poenae, and will take effect if he is pardoned, though there is, in such cases, no postliminium*.

It may be made in favour of a person actually free, and if at the time of the death, or, if it is conditional, at the time when the con­dition is fulfilled, he has become a slave, the gift will take effect*. It will be noticed that this is an exception, favore libertatis, to the rule that one cannot make provisions contemplating the enslavement of a free man*. It is perhaps for this reason that it is valid only if he is a slave at the time when the gift can first operate, a restriction which finds no analogy in the cases we have just discussed.

Such a gift may be made in favour of an unborn person. Paul’s text is not free from difficulty⁷, and Justinian speaks of a division of opinion among the jurists on the matter*. Against the validity of such gifts there is the rule that fideicommissa in favour of incertae personae and postumi alieni are void*. On the other hand, it is a very reasonable application of favor libertatis, and there are texts which make it un­certain whether such a postumus could be an incerta persona, at any rate if born before the testator died”. There are other texts which

¹ G. 2. 264; Ulp. 2. 11; C. 7. 4. 6; D. 82. 8. 1; 40. 6. 16; 40. 7. 13. 4.

² 40. S. 31. pr. * 40. 5. 24. 2.

* h. I. 5, ante, p. 410. It may be given to one conceived and bom ex damnata, since he is an ordinary slave, or to the slave of an unborn person, h. I. 4, 6.

* h. I. 3. ⁶ 18.1. 34. 2. ⁷ P. 4.14.1. The ms. reads nascitw.

⁶C. 7. 4.14. · e.g. G. 2. 287.

¹⁰ e.g. 34. 5. 5 egg. The classes of incertaepersonae and postwin are usually kept distinct.

ch. xxn] On whom they may be charged 527

speak of fideicommissa in favour of the children of a certain person, with no indication that the gift was confined to those which were born at the time the will was made¹.

If the testator thought the slave to whom fideicommissary liberty was given was his own, but he was really alienus, the gift is nevertheless good². As the text notes, this would not be true of a fideicommissum of property³: it is a case of favor libertatis.

We pass to the question : on whom may such gifts be charged ? The general rule is that they may be imposed on anyone who can be charged with any fideicommissum*, i.e. substantially, on any person who takes a pecuniary benefit under the will, or the paterfamilias of any such person³. It is noticeable that Gaius does not speak of fideicommissarii as being liable to such charges, but we have already seen such cases*. If he takes anything under the will, it is enough, even though he renounces, or is excused from, some of its provisions’. On the other hand, if it appears as a matter of construction that the direction to free was with special reference to a particular gift, and that gift was not made or did not take effect, then even though he is entitled to benefits under other parts of the will, he may not be bound to this fidei­commissum*. It must be a gift having a pecuniary value, and thus One who has received nothing by the will except the release of a lien over property for the security of a debt, which, however, remains still due, cannot be burdened with a fideicommissum*. This general statement may be ended with the remark that as the freeing is not voluntary and is not exactly an alienation, one who is bound to free under a fideicommissum may do so even at a time when he is forbidden to alienate¹⁰, though a pupillus may not do it without the auctoritas of his tutor¹¹.

The cases are, however, of such different types that they must be treated under distinct heads.

A. Where the fideicommissum is charged either on the heres, the slave being an unlegated slave of the testator, or on a person to whom the slave is given either by legacy or fideicommissum. It may of course be charged on one or more or on all the heredes, and it is sometimes difficult to say which the testator meant. The heres charged may have only a part of the slave, in which case he must procure the other parts from his coheredes¹*. A difficulty arises where one of the heredes not

¹ e.g. C. 7. 4.16.pr., ante, p. 476.

a 40. 5. 39. pr. ⁸ P. 4. 1. 8; Ulp. 25. 5. ⁴ Ulp. 2. 9.

⁸ G. 2. 263 sqq.; Ulp. 25. 10 (cp. 24. 21); In. 2. 24. 2; D. 29. 7. 8. 1; 36. 1. 80 2; etc.

« 36. 1.17. 16; G. Ep. 2. 7. 2. ’ 40.5.41.3. ⁸ 31. 34.,pr.

⁹32. 3, 4. The further Juleicommiemm must it seems be of liberty or something of pecuniary value. Where one was directed to free a slave in order to marry her he must free but need not marry, 40. 5. 51.12.

¹⁰ 40. 5. 31. 2. 11 A. t. 11. « 29. 7. 11—13.

528 Fideicommissary Gifts to Servus Hereditarius [pt. n charged is an infans, and is thus incapable of selling. It is settled by a sc. Vitrasianum, and a decree of Antoninus Pius, that the persons charged shall in that case be able to free him, a valuation being taken of the part belonging to the infans, and they being liable to him as if there were a judgment for that amount¹. If the fiduciarius frees the slave by will and leaves his hereditas to him, he is not a heres neces­sarius, as he was already entitled to liberty, but if the original liberty was conditional he will be necessarius, unless and until the condition occurs, and then voluntarius¹.

The gift need not have been by actual legacy. If a slave is given to a man by donatio mortis causa, and there is a fideicommissum of liberty, and he gets nothing else he is bound to free⁸, but not if it is a simple gift inter vivos*. And of course there is no fideicommissum on one who gets neither the slave nor anything else⁸. Where a legatee is under a fideicommissum to free we are told that the heres can refuse delivery of the slave unless the legatee will give security to carry out the manumission¹¹. This rule of Julian’s seems an excess of caution, in view of the machinery for compelling completion which we shall have to consider later’, and which was certainly in existence in Julian’s day. The additional precaution is rendered possible by the fact that the words used by the testator make the legacy one sub modo, and in the case of such gifts the heres has in general the right to require security for the completion of the intended purpose⁸. If on the other hand the legatee refuses to receive the slave, he may be compelled to cede his actions to some nominee of the slave, so that the liberty may not fail’.

If a slave is left to X to free, the terms may be such as to give some profit to him (X), e.g. the manumission may be conditional or ex die. In that case a fideicommissum beyond that of liberty may be imposed on X in favour of the slave or any third person¹⁰.

W^There a slave was legated to be freed, and the heres refused to give him and was condemned to give his value, the jurists doubted whether he was entitled to be freed and if so by whom, and if by the heres whether the legatee was entitled to keep his legacy. Justinian is our sole authority for the dispute. After adverting to the stupidity of the judge, who had power to order delivery and not damages, he goes on to settle the point in a way we shall have to consider later¹¹.

140.5.30.6. « 28.5.3. 3,85.2»·. « 32. 37.3.

* 40. 5. 40. pr. » 40.5.26.6. » 40.5.48.

’ Post, Ch. xxvn. 8 32.19, gee Pernice, Labeo, 3.1. 37.

8 40. 5. 33. 2. It is not a case of failure of the gift. io 32. 3. 1.

¹¹ C. 7. 4. 17. If the fiduciary is a fideicommissarius of the hereditas, and it is only informally handed over, it is likely that, before Justinian, the manumission could not be completed so as to make the man a civis till he was acquired by usucapio. See Pap. Kesp. 9. 2; Esmein, Melanges, 352.

ch. xxii] Gift of liberty to a Slave of Fiduciarius 529

B. Where a heres, legatee or fideicommissarius is charged to free his own slave. The general rule is that if he accepts the benefit he must free the slave, even though the man is worth more than the gift¹. Where X was left land and money with a direction to free a slave, he was bound to free even though, owing to the lex Falcidia, he did not get the money^{[1896] [1897] [1898]. But he must get a real benefit. Thus, accepting a legatum dotis does not bind the wife to free a slave of hers’. Upon one point there seems to have been a difference of opinion. If a man accepted a legacy burdened with such a fideicommissum, but the legacy reached him lessened in value, either as having been cut down by the lex Falcidia, or from some other cause imminutum, there were some jurists who thought that he was entitled to rescind his acceptance[1899] [1900].}

Ulpian’ goes on to lay down the rule for the case where the in­struction is to free several slaves, and the gift is not enough for all. The donee must free so many as the money will serve for. They are to be taken in the order of the will, or if this is not possible, the matter must be decided by lot or by the decision of an arbiter. We should be inclined to apply this text to the case of instructions to purchase and free, but for the fact that the writer immediately proceeds to discuss that as a distinct case. The rule is perhaps to be justified on the ground that while a single liberty cannot be divided, several can. But the text is corrupt and such a set of positive provisions have a Byzantine look.

Some exceptional cases may be noted^[1901]. Where the legatee attacks the will and thus loses his legacy, the fideicommissum must fail. Paul says that in such a case it is the business of the Fisc to buy and free the slave, if the fiduciarius will sell, which he cannot be compelled to do^[1902].

A libertus institutes his patron for his legitima pars and gives him a further legacy, directing him to free one of his slaves. If he takes the legacy he must free, but he may refuse it and keep the legitima pars. If he is made sole heres and accepts, he must free. But, if there is a substitute, he may by Praetorian decree take the legitima pars, leaving the rest to the substitute, who must free if he can buy the slave^{[1903] [1904]. There can be little doubt that this text is interpolated’, but 530 Direction to buy and free a Slave [pt. n it is hard to say how far. The jurist’s difficulty is to reconcile the rule, that one who receives a benefit may be burdened with a fidei­commissum, with the duty to the patron not to impose on him a dis­tasteful manumission. The point is not merely financial, and the rules cited by Gradenwitz1 as to the extent to which manumissions are binding on the patron are hardly material: the point is that it is one of his own slaves, not the testator’s. It seems clear that the mere gift to the patron of what he is entitled to, does not enable the testator to impose a fideicommissum1, but this text, though it raises this point, does not decide it. The actual solution given is in itself rational, but it conflicts with the principle that one entitled to the whole cannot enter for half[1905]. It is however probably not from Tribonian, but an abridgement of what Papinian said. The text contemplates some other application of the decretum than that mentioned above: it may be that, as Gradenwitz[1906] [1907] [1908] [1909] [1910] [1911] [1912] supposes, Papinian suggested some solution for the case of legacy to the patron, which Tribonian has suppressed’.}

A legacy is left to A with a fideicommissum to free S, and a further fideicommissum of the legacy in S’s favour. Here neither fideicommissum is binding. For A cannot be bound unless he gets something, which on the facts he does not, as, if he freed S, he would have to give him the money. It is as if he was under a fideicommissum of the money in favour of a third person. Of course he is bound if the fideicommissum of the money is ex die or sub conditione, so that he gets something from it⁸.

C. Where a beneficiary is directed to buy and free a slave. Here the general rule is that if he takes the gift he is bound to carry out the fideicommissum, if he can with the money, but he need not give more than he has received, and if the owner will not sell the slave at that price the fiduciary may keep the legacy ex voluntate testatoris¹. But there are complications and difficulties. If the owner has himself taken a benefit under the will, he is of course bound to sell him to the fiduciarius at a reasonable price and then no difficulty arises’. If there are several slaves and the money is not enough for all, they must be bought and freed so far as the money will go, in the order of the will if that is discoverable, if not either by lot or on the decision of an arbiter, as in the analogous case of a person directed to free a number

of his own slaves¹. If the owner will not sell, or will not sell at a reasonable price (for it does not seem that the fiduciary is bound to give more, however large the benefits he has received), nothing can be done². If the price asked is not obviously unreasonable, the difficulty being merely that they cannot quite come to terms, the Praetor will on application fix a price which the owner may accept if he likes². If the gift of liberty is conditional and the condition is not yet satisfied, the fiduciarius is not bound to buy and free, even though the owner has prevented the fulfilment, and so non per servum stat that the con­dition is not satisfied. This is a common sense rule: the condition might be one benefiting the heres, and costing the owner something⁴. If both the owner and the slave are willing, the owner can compel the fiduciary to buy and free, or, in the alternative, he may, by a provision of Caracalla, free the slave himself and sue the fiduciary for his value⁶. In any case, the owner cannot be compelled to free or hand the man over, till he has received security for the price⁶.

If the owner refuses to sell at a fair price what is the effect ? Gaius and Ulpian say the gift is annulled, as does the much later Epitome of Gaius⁷. But Justinian says the gift differtur till the opportunity arises⁸, and he inserts in his Code an enactment of about a.d. 220 which lays down the same rule⁹. It is possible that this is interpo­lated, though that seems unlikely. The texts in the Digest hardly touch this point, but those that approach it shew no sign of much handling¹⁰. On the whole it seems likely that the constitution attributed to Alexander is genuine, and that while the classics allowed pendency of the gift for the case where by any change of value it might come within the value of the legacy, Alexander allowed it also for the possi­bility of change of mind in the vendor. Whether these rules are of Justinian’s time or earlier, they are as follows. If the owner does not sell now, the gift will be in suspense till he will¹¹. The fiduciary on taking his gift may be required to give security (cautio), to carry out the purchase and manumission, if the owner should lower his demand, or the slave diminish in value, or the legacy increase in amount or value, though it be only by fruits or interest, provided it reach the necessary sum¹². If he refuses to give this security, his action for the legacy will be met by an exceptio doli^iS.

i 40. 5. 24. 18; op. A. Z. 17. ² h. t. 31. 4. ⁸ Ibid. ⁴ 40. 4. 55. 2.

⁵ 40. 5. 31. 4; C. 6. 50. 13; post, Ch. xxvii. ⁶ 40. 5. 32. pr.

1 G. 2. 265; Ulp. 2. 11; G. Ep. 2. 7. 7. 8 i_n. 2. 24. 2.

9 C. 7. 4. 6.

w Most of them are in 40. 5.24. Gradenwitz shews (Interpolationen, 41) that parts of this lex are interpolated, but he does not refer to any passage touching this point.

n C. 7. 4.6.

¹³ 40. 5. 7, 24. 14—16, 31. 4. In 40. 5. 24. 16 pendency may be contemplated in that part of the text of which the grammar is normal, but there is an appended clause which can hardly be by the haud which wrote the beginning.

¹⁸ As to the case of diminution of the legacy, ante, p. 521.

532 Direction to buy and free a Slave [pt. ii, ch. xxn

It is likely that this fideicommissum to buy and free was never a common case, and it is also probable that the difficulty which certainly exists in reconstructing the classical rules is in part due to the fact that, on a considerable number of points, there were doubts among the jurists. It is noticeable that even in A.D. 220 Alexander feels it neces­sary to declare that such a gift is possible¹.

> C. 7.4.6.