Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

536 FIDEICOMMISSUM. FIDUCIA.
ble the objects of a fideicommissum, as a particull;lr Lox Vocni [LE VOCONsA]; and ill the case
piece of land, a slave, a garment, piece of silver, of proscribed- persons, incertae personae, Latini,
or a sum of money; and the duty of giving it to peregrini, caelibes, orbi. But the senatus-conthe fideicommissarius might be imposed either onI sultum Pegasianum destroyed the capacity of
the heres or on a legatee. In this way a slave caelibes and orbi to take fideicommissa, and gave
also might receive his liberty, and the request to them to those persons mentioned in the will who
manumnit might be addressed either to the heres or had children, and in default of such to the poputhe legatarius. The slave when manumitted was lus, as in the case of hereditates and legate.
the libertus of the person who manumitted him. fBoNA CADUCA.] Municipia could not take as
There were many differences between fideicom- heredes [COLLEGIUU]; but by the senatus-conimissa of single things and legacies. A person sultum Apronianum, which was probably passed
about to die intestate might charge his heres with in the time of Hadrian, they could take a fideia fideicommissum, whereas a legacy could only be commissa hereditas. (Ulp. 1Frcq. tit. 22. s. 5;
given by a testament, or by a codicil which was Plin. Ep. v. 7.) [HERES (ROMAN).] (Gains,
confirmed by a proper declaration of the testator in ii. 247-289; Ulp. roag. tit. 25: Inst. 2. tit. 23,
a will; but a fideicommissum could be given by 24; Dig. 36. tit. 1; Cod. 6. tit. 49; Mackeldey,
a simple codicil not so confirmed. A heres insti- Lelartucth, &c., 12th ed. ~ 726, &c.; Vangerow,
tuted by a will might be requested by a codicil, Leitfaden fJ'ir Pandekte Vorlesuzgzen, vol. ii. p.
not so confirmed as above, to transfer the whole 561.) [G. L.]
hereditas, or a part, to a third person. A woman FIDEJUSSOR. [INTTERCESSIO.
who was prevented by the provisions of the FIDEPROMTSSOR. [INT'ERCEcSSIO.]
Voconia lex from taking a certain hereditas, might FIDES. [LYRA.]
take it as a fideicommissum. The Latini, also, FIDI'CULA is said to have been an instru+wvho were prohibited by the Lex Junia from ment of torture, consisting of a number of strings.
taking hereditates and legacies by direct gift According to some modern writers, it was the
(directo jure) could take by fideicommissa. It was same as the equuleus, or at all events formed part
not legal to name a person as heres, and also to of it. [EQuaLEus.] The term,however, appears
name another who after the death of the heres, to be applied to any strings, whether forming part
should become heres; but it was lawful to request of the equuleus or not, by which the limbs or exthe heres on his death to transfer the whole or a tremities of individuals were tied tightly. (Sueton.
part of the hereditas to another. In this way a Tib. 62, Cal. 33; Cod. Theocl. 9. tit. 35. s. 1;
testator indirectly exercised a testamentary power Sigonius, De tJd. iii. 17.)
over his property for a longer period than the law FIDU'CIA. If a man transferred his property
allowed him to do directly. A man sued for a to another, on condition that it should be restored
legacy per formulam; but he sued for a fideicom- to him, this contract was called Fiducia, and the
missum before the consul or praetor for fideicom- person to whom the property was so transferred was
missa at Rome, and in the provinces before the saidfiduciaze accipere. (Cic. Top. c. 10.) A man
praeses. A fideicommissum was valid, if given in might transfer his property to another for the sake
the Greek language, but a legacy was not, until a of greater security in time of dangrer, or for other
late period. Justinian finally assimilated legacies sufficient reason. (Gains, ii. 60.) The contract of
and singular fideicommissa. [LEGATU.s; Inst. 2. fiducia or pactumn fiduciae also existed in the case
tit. 20. ~ 3; Cod. 6. tit. 43. s. 2.] of pignus; (and in the case of mancipation. [EMINATIt appears that there were no legal meanls of en- CIPATIO.] The hereditas itself might be an object
forcing the due discharge of the trust called fidei- of fiducia. [FIDEICOMAsiISSUsm.] The trustee was
commissum till the time of Augustus, who gave bound to discharge his trust by restoring the thing:
the consuls jurisdiction in fideicommissa. In the if he did not, he was liable to an actio fiduciae or
time of Claudius praetores fideicommissarii were fiduciaria, which was an actio bonae fidei. (Cic.
appointed: in the provinces the praesides took cog- dle Q. iii. 1 5, ad Faeo. vii. 12; ut inter bones
nizance of fideicommissa. The consuls still retained bene agler oportet.) If the trustee was cointheir jurisdiction, but only exercised it in impor- demned in the action, the consequence was intent cases. (Quintil. Inst. iii. 6.) The proceeding famia. Cicero enumerates the judicium fiduciac
was always extra ordinem. (Gains, ii. 228; U]p. with that tutelae and societatis as 1" judicia suinFrcag. tit. 25. s. 12.) Fideicommissa seem to have mae existimationis et paene capitis" (Cic. pro
been introduced in order to evade the civil law, Ros. Cohn. c. 6), where he is evidently alluding to
and to give the hereditas, or a legacy, to a person the conscquence of infamia. (Compare Savigny,
who was either incapacitated from taking directly, System, &c. vol. ii. p. 176.)
or who could not take as much as the donor wished When the object for which a thing was transto give. Gains, when observing that peregrini could ferred to another was attained, a remaancipatio of
take fideicommissa, observes that "this" (the ob- those things which required to be transferred by
ject of evading the law) " was probably the origin mancipatio or in jure cessio was necessary; andl
of fideicommissa;" but by a senatus-consultnm made with this view a particular contract (pactsct2 fiditin the time of Hadrian, such fideicommissa were ciae) was inserted in the formula of mancipatio. If
claimed by the fiscus. They are supposed to be no remancipatio took place, but only a simple rethe commendationes mortuorum mentioned by stitutio, usucapio was necessary to restore the QuiriCicero (de Fin. iii. 20). There is the case of tarian ownership, and this was called usureceptio.
Q. Pompeins Rufus (Val. Max. iv. 2. 7), who, The contract of fiducia might be accompanied with
being in exile,, was legally incapacitated from a condition, by virtue of which the fiducia might
taking any thing under the will of a Roman citi- cease in a given case, and thus the fiducia was conzen, but could claim it from his mother, who was nectedc with the Commissoria Lex, as we see in
the heres fiduciarius. They were also adopted in Paulus (Sent. Recept. ii. tit. 13), and in Cic. pro
the case of gifts to women, in order to evade the. Flacco, c. 21, " fiducia commissa," which may be