Definition
In Roman and medieval law, *fortuna* carries two distinct legal meanings:
1. Fortune or chance, used to describe the mechanism by which uncertainty or random determination resolves a legal question — most prominently in the partition of inherited land among coparceners by the drawing of lots. The Latin maxim *fortunam faciunt judicem* ("they make fortune the judge") describes this process: where division of an estate cannot be resolved by agreement or priority, chance arbitrates the result, each coparcener receiving the portion that falls to her by lot.
2. Treasure-trove — found property of uncertain ownership, typically gold, silver, or coin discovered concealed in land or buildings. This usage, noted by Jacob, treats *fortuna* as a term for windfall property that vests in the Crown or lord absent a known owner.
Common Language
Modern common usage (Wiktionary): *Fortuna* in modern English refers primarily to the Roman goddess of luck, fate, and fortune, equivalent to the Greek Tyche. The word also appears as a proper noun in geographic names.
Historical common usage (Webster's 1913): Webster's treats *fortune* (the English derivative) as chance, luck, or the accidents of life — the force believed to distribute prosperity and adversity arbitrarily.
The gap matters because the legal term is not metaphorical. When historical legal sources invoke *fortuna*, they are describing a formal procedural mechanism — the drawing of lots as a legally sanctioned method of partition — or a specific property category (treasure-trove). Neither usage carries the vague connotation of luck in ordinary speech.
Common Confusion
Researchers should not conflate the two distinct legal senses. *Fortuna* as "chance" (the partition-by-lot rule) is a procedural concept operating within the law of coparcenary. *Fortuna* as "treasure-trove" is a property concept tied to the law of found property and Crown prerogative. Historical sources, including both editions of Black's, present both meanings within the same entry without clearly separating them, which can mislead a reader into treating them as related doctrines. They are not.
Why It Matters in Research
Researchers working in English legal history before the nineteenth century will encounter *fortuna* principally in two contexts, and misidentifying which context applies will send research in the wrong direction.
In coparcenary materials, *fortunam faciunt judicem* signals a lot-drawing partition procedure. Coke's *Institutes* (*Co. Litt.* 167) and Bracton (fol. 75b) are the primary sources, and both the first and second editions of Black's trace directly to those authorities. A researcher encountering this phrase in a land dispute record or pleading should look to the law of coparcenary and the mechanics of partition — not to any doctrine of chance or probability in a modern sense.
In treasure-trove materials, *fortuna* as a synonym requires cross-referencing Jacob's *Law Dictionary*, the source Black's cites but does not quote. Jacob's entry situates *fortuna* within the Crown's prerogative claim to found wealth. Researchers should note that treasure-trove law underwent substantial statutory modification in England (ultimately abolished as a distinct category under the Treasure Act 1996), so the *fortuna* label in older sources reflects a legal landscape that no longer exists.
Neither usage of *fortuna* survives as active legal vocabulary in American or modern English law. The term is now exclusively a historical Latin marker. When it appears in digitized corpus searches, it will surface in treatise quotations, maxim collections, and land records — rarely, if ever, in statutory text.
Historical Dictionary Support
All three source dictionaries — Black's (1st), Black's (2nd), and Burrill's — agree on the core Latin translation ("fortune," "chance") and on the *fortunam faciunt judicem* maxim. The agreement across editions is essentially verbatim, suggesting that later editions did not revisit the underlying sources independently.
Burrill's adds genuine value by quoting Bracton directly in Latin (*ut quilibet habeat partem illam quæ per sortem ei acciderit*), which grounds the lot-drawing procedure in its medieval common law authority more precisely than Black's does. Burrill's also omits the treasure-trove meaning entirely, treating *fortuna* as purely a procedural/chance concept. This divergence from Black's is worth noting: it may reflect Burrill's narrower focus on common law pleading and practice rather than property law broadly.
Black's inclusion of the treasure-trove sense without citation beyond "Jacob" is the weakest link in the historical record. Researchers should not treat that connection as settled doctrine without consulting Jacob's *Law Dictionary* directly.
Jurisdictional Note
The lot-drawing partition procedure associated with *fortuna* was a feature of English common law coparcenary, which applied only to inheritance by females in the absence of male heirs. American jurisdictions adapted or replaced coparcenary rules through partition statutes. The treasure-trove sense is primarily an English Crown prerogative doctrine with limited American application.