Commentaries on the Last Two Titles of the Digest

...affable, a Consul indeed in childhood, but a more illustrious senator by the goodness of his morals. Rutilius Namatianus, 1, Itinerary. The boy had previously ruled the Phoenicians as Proconsul.

9. But why is it a wonder that boys were made Consuls, when Gaius Caligula wished for his horse to take the Consulship? Suetonius in Caligula, chapter 55, at the end; Johannes Xiphilinus, epitomizer of Dio, folio (mine) 134, whose words there are these: "One of his horses, which he named Incitatus, he invited to dinner, so that he would provide it barley from gold, and pour wine into golden cups, and swear by his fortune, and promise that he would make him Consul; which he would have done completely, if he had lived longer." What is it to betray foolishness, if this is not?

3. THE SAME.

1. So it is read in the common Codices. An example of this reading exists in Law 4; Law: If any. 14, Digest, On acquiring inheritance. He can repudiate an inheritance who is also able to acquire it, Law: He is able. 18, Digest, on the same. Whence one instituted heir under a condition cannot repudiate the inheritance while the condition is pending, because he cannot acquire it either before the condition exists, the said law 13; Law 174, paragraph 1, Digest, on this title; Law: Deferred. 151, Digest, On the meaning of words. Fabrus, on this.

2. In the Florentine Pandects this rule is conceived thus: His is the power not to refuse, who is able to will. The sense of this reading is this: He is able to suffer and permit, that is, to consent tacitly, who is also able to will, that is, to consent expressly. A. Augustinus, 1, Emendations 2, at the end. To will argues for open and express consent, Law 5, Code, On letting and hiring. Cujacius in law 4, Digest, On pacts. An example of this reading is in Law 1, paragraph "knowledge," 3, Digest, On the tributory action. Here we understand knowledge as that which also includes will. But (as I think) not will, but Patience; for the master ought not to will, but not-to-refuse. If therefore he knows and does not protest, he does not contradict, he will be bound by the tributory action. Cicero, 13 to Atticus, 22: "In your recent letters, I first recognized that you did not refuse this, that is, to suffer and not contradict."