TITLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE THE GIFTS OF LIBERTY

A new form of succession was added by a constitution of the Emperor Marcus, which provided that if slaves, who have received a bequest of liberty from their master in a will under which no heir takes, wish to have his property adjudged to them, their application shall be entertained.

1 Such is the substance of a rescript addressed by the Emperor Marcus to Popilius Rufus, which runs as follows: 'If there is no successor to take on the intestacy of Virginius Valens, who by his will has conferred freedom on certain of his slaves, and if, consequently, his property is in danger of being sold, the magistrate who has cognizance of such matters shall on application entertain your desire to have the property adjudged to you, in order to give effect to the bequests of liberty, direct and fiduciary, provided you give proper security to the creditors for payment of their claims in full. Slaves to whom liberty has been directly bequeathed shall become free exactly as if the inheritance had been actually accepted, and those whom the heir was requested to manumit shall obtain their liberty from you; provided that if you will have the property adjudged to you only upon the condition, that even the slaves who have received a direct bequest of liberty shall become your freedmen, and if they, whose status is now in question, agree to this, we are ready to authorize compliance with your wishes.

And lest the benefit afforded by this our rescript be rendered ineffectual in another way, by the Treasury laying claim to the property, be it hereby known to those engaged in our service that the cause of liberty is to be preferred to pecuniary advantage, and that they must so effect such seizures as to preserve the freedom of those who could have obtained it had the inheritance been accepted under the will.'

2 This rescript was a benefit not only to slaves thus liberated, but also to the deceased testators themselves, by saving their property from being seized and sold by their creditors; for it is certain that such seizure and sale cannot take place if the property has been adjudged on this account, because some one has come forward to defend the deceased, and a satisfactory defender too, who gives the creditors full security for payment.

3 Primarily, the rescript is applicable only where freedom is conferred by a will. How then will the case stand, if a man who dies intestate makes gifts of freedom by codicils, and on the intestacy no one accepts the inheritance? We answer, that the boon conferred by the constitution ought not here to be refused. No one can doubt that liberty given, in codicils, by a man who dies having made a will, is effectual.

4 The terms of the constitution show that it comes into application when there is no successor on an intestacy; accordingly, it is of no use so long as it is uncertain whether there will be one or not; but, when this has been determined in the negative, it at once becomes applicable.

5 Again, it may be asked whether, if a person who abstains from accepting an inheritance can claim a judicial restoration of rights, the constitution can still be applied, and the goods adjudged under it? And what, if such person obtains a restoration after they have been actually adjudged in order to give effect to the bequest of freedom? We reply that gifts of liberty to which effect has once been given cannot possibly be recalled.

6 The object with which this constitution was enacted was to give effect to bequests of liberty, and accordingly it is quite inapplicable where no such bequests are made. Supposing, however, that a man manumits certain slaves in his lifetime, or in contemplation of death, and in order to prevent any questions arising whether the creditors have thereby been defrauded, the slaves are desirous of having the property adjudged to them, should this be permitted? and we are inclined to say that it should, though the point is not covered by the terms of the constitution.

7 Perceiving, however, that the enactment was wanting in many minute points of this kind, we have ourselves issued a very full constitution, in which have been collected many conceivable cases by which the law relating to this kind of succession has been completed, and with which any one can become acquainted by reading the constitution itself.