include those relations who were excluded by the rigour of the Civil law (t. 9, post).

The Prætor admitted as cognati all the relations, without any preference of one over the other, except what arose from nearness of degree to the deceased (proximitatis nomine), and without preference of one relation because of his being of the same family with the deceased: for the only thing regarded in the case of cognati was the tie of blood. Hence those who by a minima diminutio capitis were no longer agnati of the deceased, and therefore could not be called amongst the legitimi hæredes (1), might come in amongst the cognati. The same rule applied to collaterals (2) related through females.

§ 3. Again children, members of an adopted family, might succeed their natural father as cognati; because regard was had, not to the ties of blood but of family.

Again an adopted person might succeed as a cognatus his adopted agnatus; so long as the agnatio arising out of the adoption continued, the person adopted was both agnatus and cognatus of the members of the adopted family; for every agnatus must be a cognatus (D. 38, t. 8, 1, § 4).

But as this fictitious cognatio ceased with the agnatio of which it was a mere result, what was the use of reserving a place in the third order for the adopted person, for he could not claim it after he had ceased to be a member of the family; and whilst a member, he came in as agnatus in the second rank? The reason is this: before Justinian's time there was no devolution from one agnatus to another, so that in case the nearest agnatus to whom the succession descended, and who excluded all the others, would not or could not succeed, the other agnati, to whom the succession did not devolve, had an interest to appear as cognati.

cessors.

§ 4. Children vulgo concepti were not agnati to each other; for, their father being unknown, their only relations were through females, and they were not members of the same family; but they succeeded as cognati. § 5. The Prætor however did not admit cognati of any degree as sucOn the contrary, he admitted none beyond cognati of the sixth degree, and amongst those of the seventh degree the children of the male and female second cousins. Herein the order of cognati differs from that of the sui hæredes, for the agnati would be called to the hæreditas legitima or to the possessio bonorum unde legitimi, though of the tenth or even lower degrees.

(1) The Prætor called those in the position of sui hæredes who had suffered minima diminutio capitis to succeed; but an agnatus who had suffered this diminutio capitis could not remain in the second rank except by a special law. Thus, Anastasius allowed eman.

cipated brothers and sisters, and Justinian allowed nephews and nieces, to retain the place of agnati (B. 3, t. 2).

(2) § 2 speaks only of collaterals, because ancestors and issue through females were provided for by senatus - consulta Tertullianum and Orphitianum.

P

TITLE VI.-OF THE DEGREES OF RELATIONSHIP.

Pr. There are two lines of relationship: the direct line, subdivided into the upper, or ascending, and lower, or descending; and the collateral line. The direct line contains both above and below relations of the first degree: the collateral line begins with relations of the second degree.

In the first degree: above, father and mother; below, son and daughter. In the second degree: above, the grandfather (avus) and grandmother (avia); below, the grandson (nepos) and the granddaughter (neptis); in the collateral line, the brother and sister.

In the third degree: above, the great-grandfather (proavus), the greatgrandmother (proavia); below, the great-grandson (pronepos), and the great-granddaughter (proneptis); in the collateral line, the son and daughter of the brother and sister, i.e., nephew and niece (fratris sororisque filius filia), the uncle by the father (patruus), the uncle by the mother (avunculus), the father's sister (amita), the mother's sister (matertera), i.e., the aunt.

In the fourth degree: above, the great-great-grandfather (abavus), the great-great-grandmother (abavia); below, great-great-grandson and -daughter (abnepos, abneptis): in the collateral line, the grandson and granddaughter of the brother or the sister, the great-uncle, and greataunt by the father (patruus magnus, amita magna), i.e., the brother and sister of the grandfather, the great-uncle and great-aunt by the mother (avunculus magnus, matertera magna), i.e., the brother and sister of the grandmother; lastly, the cousins, male and female (1).

In the fifth degree: above, the great-grandfather's or -mother's grandfather (atavus), grandmother of the same (atavia): below, the grandson or-daughter of the great-grandson or -daughter (atnepos, atneptis): in the collateral line, the great-grandson and -daughter of a brother and sister, the great-grandfather's brother or sister (propatruus, proamita); the greatgrandmother's brother or sister (proavunculus, promatertera); the son and the daughter of the first cousin, male or female; the cousin of the father or the mother, i.e., the son or daughter of the great-uncle or -aunt by the father's side, or of the great-uncle or -aunt by the mother's side (2). In the sixth degree: above, the great-grandfather's great-grandfather or mother (tritavus, tritavia); below, the great-grandson or

(1) Cousins, male and female, are called generally consobrinus, consobrina; but in strictness this term applies to the children of two sisters; patrueles to the children of two brothers; and amitini to the children of a brother and of a sister.

(2) The cousin of my father and of my

mother (my cousin once removed) was called propior sobrino, because he was one degree nearer than his own son, my sobrinus. The children of cousins (consobrini) are second cousins to each other (sobrini).

-daughter of a great-grandson or -daughter (trinepos, trineptis), in the collateral line the great-great-grandson or -daughter of the brother and sister; the brother and sister of the great-great-grandfather (abpatruus, abamita); the brother and sister of the great-great-grandmother (abavunculus, abmatertera); the son and the daughter of the great-granduncle or -aunt by the father's side; of the great-grand-uncle or -aunt by the mother's side; also second cousins, i.e., the children or brothers or sisters, patrueles of consobrini or amitini (1).

§ 7. Beyond the sixth degree there was no particular name for each of the relations; it was thought sufficient to count them by generations (B. 1, t. 10).

§ 10. The relationship between slaves was disregarded by the Civil and the Prætorian law, or rather, no right of succession was acquired by such relationship. But Justinian held it sufficient to entitle children to succeed their father and mother, and also to succeed each other (B. 1, t. 10).

It will be observed that the nearest in degree was not always entitled to the succession. A relation more distant in degree sometimes came in jointly with another less distant, and sometimes even excluded him. For it was only when there was no suus hæres nor agnatus that nearness of degree entitled a man to the preference. Thus grandchildren being sui hæredes were preferred to brothers and sisters of the deceased, though they were both in the same degree, and even to the father and mother, who were in the first degree.

TITLE VII.-OF THE SUCCESSORS OF FREEDMEN.

Pr. According to the Twelve Tables when a freedman died testate, the hæredes instituti succeeded; when he died intestate, first, the sui hæredes, and in default of them, the patron and his children, who stood for the agnati; hence the freedman, to exclude his patron, had only to appoint a hæres, or to adopt a stranger who would become his suus hæres (2).

But the Prætor's edict remedied this; for if a freedman died testate, leaving the patron nothing, or less than half his successio, the patron might have possessio bonorum contra tabulas of the half; unless, indeed, the hæres institutus was the testator's natural child. If a freedman died

(1) I.e., the son and daughter of the father's or the mother's cousin (sobrinus, sobrina), the grandson or granddaughter of the cousin-german by the father's side, the grandson or granddaughter of the cousin german by the mother's side.

(2) By the old law, freed women had no

sui hæredes; and women sui juris were under perpetual tutela, and required the authority of the tutor (who was the patron) to make a will. Hence, the patron was not likely to lose the freedwoman's succession (Gaius, 3, 43; Ortolan, t. 1, 236).

intestate, leaving none but adopted children as his sui hæredes, the patron might also have possessio bonorum of half.-Natural children, although emancipated, excluded the patron; unless, indeed, they were legally disinherited.

§ 2. By the Twelve Tables, the patron's children, in default of their father, had the same rights as he had: the patroness had the same right to succeed her freedman as a patron had. But the Prætorian edict, though it allowed the possessio bonorum as above to the patron and his male children, did not allow it to the patroness and the patron's female children. The lex Papia Poppaa, however, made an exception in favour of such women as had a certain number of children.

§ 2. Sometimes the lex Papia Poppaa entitled the patron to come in with the freedman's natural children. Thus the patron took an equal share with such children when any freedman died either testate or intestate, leaving fewer than three children, and a sum of 100,000 sesterces. A patroness, if freeborn, and the mother of three children, had the same right.

§ 3. According to the system introduced by Justinian, when a freedman died testate, a distinction was made between him who was minor and him who was major centenariis (1). If minor, the patron had only the sum bequeathed to him: if major, the patron might have possessio bonorum contra tabulas of a third, not of a half, as heretofore (2). When the freedman died intestate, whatever might be his fortune, the patron succeeded only in the second rank (ordo), as under the Twelve Tables, and never came in with any child of the deceased.

§3. These rules of Justinian as to a freedman and his children, apply to a freedwoman and her children, and to the patroness as well as the patron.

§ 3. In default of patron or patroness, their children succeeded the freedman: Justinian admitted not only their children, but their collateral relations to the fifth degree, and that to the exclusion of all the collaterals of the freedman; because relationship through slaves benefited no one: except, indeed, after Justinian's time, the freedman's children, who, though conceived before the enfranchisement, succeeded their father, and excluded the patron.

§ 3. When the patron's issue succeeded the freedman, those more

(1) A centenarius is one who has 100 aurei, aureus-100 sesterces. Thus, the 1000 aurei of the lex Papia (passed in the reign of Augustus) were reckoned by Justinian equal to 100 in his time.

(2) But Justinian did not allow the patron to claim the possessio bonorum, so as to prejudice the freedman's natural children; for it was only in default of

them, or when it was impossible they could succeed by obtaining the possessio unde liberi or contra tabulas, or by preferring a plaint of inofficiositas, that the patron could demand his third. This third was clear of all charges, even for the benefit of the children of the deceased; legacies and trusts were to be paid by the other instituti (§ 3).

remote did not come in as representatives with those less remote; but the nearest of the issue excluded the more remote, and those of equal degree came in jointly, and divided the succession equally-per capita and not per stirpes.

§ 4. It is to be observed that the rules of the old law as to freedmen succeeding did not apply to all freedmen; but only to those being Roman citizens. Latini Juniani had no hæredes, because at death they were considered as never having been free, and because all the goods acquired by them were acquired for the patron, and therefore formed part of his succession, if he had died previously (1). After Justinian abolished the distinction between freedmen, the system established by him regulated the devolution of every freedman's property (B. 1, t. 5).

TITLE VIII.-OF THE ADSIGNATIO OF FREEDMEN.

Pr. Although in general a freedman's goods devolved jointly on the deceased patron's children of equal degree, the patron was allowed, by a senatus-consultum A.D. 45, to assign the freedman to one of his children, who was to accept the hæreditas alone, as if he were sole patron of the deceased: nor did the other children recover their rights of succession until the particular one died childless.

§ 1. A man might assign any number of freedmen or freedwomen to his son or grandson, to his daughter or granddaughter, provided they still continued under his power: and that even though the grandchildren would of necessity become subject to their father.

§ 2. But the emancipation of the filius-familias, to whom the freedman had been assigned, annulled the assignment: an assignment could benefit none but a filius-familias; but it continued valid when made jointly to a filius-familias, afterwards emancipated, and to another filiusfamilias who continued subject to the patron.

§ 3. This sort of assignment required no solemnity: it was enough for the patron to manifest somehow his intention to assign by parol, or by writing, or even by a sign; moreover, it might be inter vivos, or by an act of last will.-Lastly, an assignment once made was revoked by the patron manifesting his intention so to do.

(1) The goods of the freedmen Latinus did not therefore pass to the deceased patron's children, but to his haredes. Now, as his children were not of necessity his hæredes, the Sc. Largianum (A.D. 42)

decreed that they should be preferred to any hæredes extranei, to whom the patron's hæreditas would have gone; unless, indeed, the children had been formally disinherited.