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COMMENTARIVS PRIMVS DE IVRE - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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[I. DE IVRE CIVILI ET NATVRALI.]
§ 1.Omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur; nam quod quis|que populus ipse sibi ius constituit, id ipsius proprium est uocaturque ius ciuile, quasi ius proprium ciuitatis; quod uero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur uocaturque ius gentium, quasi quo iure omnes gentes utuntur. populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. quae singula qualia sint, suis locis proponemus.
Dig. 1, 1, 9 (Gaius), Inst. 1, 2, 1.
§ 2. Constant autem iura populi Romani ex legibus, plebiscitis, senatusconsultis, constitutionibus principum, edictis eorum qui ius edicendi habent, responsis prudentium.
Inst. 1, 2, 3.
§ 3. Lex est quod populus iubet atque constituit. Plebiscitum est quod plebs iubet atque constituit. plebs autem a populo eo distat, quod populi appellatione uniuersi ciues significantur, connumeratis etiam patriciis; plebis autem appellatione sine patriciis ceteri ciues significantur; unde olim patricii dicebant plebiscitis se non teneri, quia sine auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est ut plebiscita uniuersum populum tenerent; itaque eo modo legibus exaequata sunt.
Inst. 1, 2, 4.
§ 4. Senatusconsultum est quod senatus iubet atque constituit, idque legis uicem optinet, quamuis fuerit quaesitum.
Inst. 1, 2, 5.
§ 5. Constitutio principis est quod imperator decreto uel edicto uel epistula constituit. nec umquam dubitatum est, quin id legis uicem optineat, cum ipse imperator per legem imperium accipiat
Inst. 1, 2, 6; Dig. 1, 4, 1.
§ 6. ——— ius autem edicendi habent magistratus populi Romani; sed amplissimum ius est in edictis duorum praetorum, urbani et peregrini, quorum in prouinciis iurisdictionem praesides earum habent; item in edictis aedilium curulium, quorum iurisdictionem in prouinciis populi Romani quaestores habent; nam in prouincias Caesaris omnino quaestores non mittuntur, et ob id hoc edictum in his prouinciis non proponitur.
Inst. 1, 2, 7.
§ 7. Responsa prudentium sunt sententiae et opiniones eorum quibus permissum est iura condere. quorum omnium si in unum sententiae concurrunt, id quod ita sentiunt legis uicem optinet; si uero dissentiunt, iudici licet quam uelit sententiam sequi; idque rescripto diui Hadriani significatur.
Inst. 1, 2, 8.
ON CIVIL LAW AND NATURAL LAW.
§ 1. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. The rules established by a given state for its own members are peculiar to itself, and are called jus civile; the rules constituted by natural reason for all are observed by all nations alike, and are called jus gentium. So the laws of the people of Rome are partly peculiar to itself, partly common to all nations; and this distinction shall be explained in detail in each place as it occurs.
§ 2. Roman law consists of statutes, plebiscites, senatusconsults, constitutions of the emperors, edicts of magistrates authorized to issue them, and opinions of jurists.
§ 3. A statute is a command and ordinance of the people: a plebiscite is a command and ordinance of the commonalty. The commonalty and the people are thus distinguished: the people are all the citizens, including the patricians; the commonalty are all the citizens, except the patricians. Whence in former times the patricians maintained that they were not bound by the plebiscites, as passed without their authority; but afterwards a statute called the lex Hortensia was enacted, which provided that the plebiscites should bind the people, and thus plebiscites were made co-ordinate with statutes.
§ 4. A senatusconsult is a command and ordinance of the senate, and has the force of a statute, a point which was formerly controverted.
§ 5. A constitution is law established by the emperor either by decree, edict, or letter; and was always recognized as having the force of a statute, since it is by a statute that the emperor himself acquires supreme executive power.
§ 6. Power to issue edicts is vested in magistrates of the people of Rome, the amplest authority belonging to the edicts of the two praetors, the home praetor and the foreign praetor, whose provincial jurisdiction is vested in the presidents of the provinces, and to the edicts of the curule aediles, whose jurisdiction in the provinces of the people of Rome is vested in quaestors: in the provinces of the emperor no quaestors are appointed, and in these provinces, accordingly, the edict of the aediles is not published.
§ 7. The answers of jurists are the decisions and opinions of persons authorized to lay down the law. If they are unanimous their decision has the force of law; if they disagree, the judge may follow whichever opinion he chooses, as is ruled by a rescript of the late emperor Hadrian.
§ 1. Jurisprudence treats exclusively of positive law: the exclusive origin of positive law is some positive enactment; the term positive enactment including both the express or direct enactments of the political sovereign, and the implied, indirect, circuitous enactments imported by the sovereign’s acquiescence in the ruling of subordinate authorities. (See Holland’s Jurisprudence, chs. 2-5.)
The rules and principles denoted by the terms praetor-made law, jurist-made law, judge-made law, are only law because they are impliedly adopted, confirmed, and ratified by the silent acquiescence of the sovereign.
The organ by which the jus gentium of the Romans was promulgated, which made it by indirect enactment a portion of Roman Positive law, was principally the Edict of the Praetor. The relations of Roman citizens with aliens (peregrini), that is, with the members of foreign states formerly subjugated by Rome and now living under the protection of Roman law, as well as of aliens in their intercourse with one another, became, about 242 b. c., so frequent as to be made subject to the jurisdiction of a special minister of justice called Praetor peregrinus, who, like the Praetor urbanus, published an annual edict announcing the principles on which justice would be administered. These principles composed jus gentium as opposed to jus civium. Jus gentium, that is to say, was not really, as Roman jurists imagined or represented, a collection of the principles common to the legislation of all nations, but a body of rules which the Roman praetor thought worthy to govern the intercourse of Roman citizens with the members of all, originally independent, but now subject, foreign nations.
Gradually the rules originating in this way were extended to the intercourse of citizens with citizens, in cases where the rigorous conditions of jus civile were not exactly satisfied, and so precepts of jus gentium were transferred from the edict of praetor peregrinus to the edict of praetor urbanus.
The portion of the edict most fertile in principles of jus gentium would be the clauses in which the praetor announced, as he did in some cases, that he would instruct the judex, whom he appointed to hear and determine a controversy, to govern himself by a consideration of what was aequum et bonum, i. e. by his views of equity and expediency: and if any of the oral formularies of the earliest system of procedure (legis actiones) contained these or equivalent terms, such formularies may be regarded as a source of jus gentium. It may be observed that Gaius does not, like some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3; Inst. 1, 2 pr.), make any distinction between jus gentium and jus naturale. There is nothing in his writings, as they have come down to us, to draw attention to the fact that the teaching of nature may not be in accordance with the practice of nations, as the institution of slavery showed.
Another organ of quasi publication, whereby the rules of jus gentium were transformed from ideal law to positive law—from laws of Utopia to laws of Rome—were the writings of the jurists, who, at first with the tacit, afterwards with the express permission of the legislature, engaged, nominally in interpreting, really in extending the law, about the time of Cicero (De Legibus, § 1, 5), transferred to the edict of the praetor the activity which they had formerly displayed in developing the law of the Twelve Tables and the statutes of the Comitia. By these means, supplemented and confirmed by statute law and custom, the jus gentium gradually increased in importance, and gave the Roman empire its universal law.
Jus civile, i. e. jus civium or law peculiar to citizens, was the law of the Twelve Tables, augmented by subsequent legislation, by juristic interpretation, and by consuetudinary law. The institutions of jus civile may be exemplified by such titles to property as Mancipatio and In Jure Cessio, contracts by the form of Nexum and Sponsio, title to intestate succession by Agnatio or civil relationship; while corresponding institutions of jus gentium were the acquisition of property by Tradition, contract by Stipulation without the solemn term Spondeo, title to intestate succession by Cognatio or natural relationship. Other departments of life were not subject to parallel institutes of jus civile and jus gentium, but the mutual relations of citizens with citizens as well as of citizens with aliens were exclusively controlled by jus gentium: e. g. the informal contracts called Consensual, such as buying and selling, letting and hiring, partnership; and the informal contracts called Real, such as the contract of loan for use or loan for consumption.
Titles to ownership (jus in rem), according to jus gentium, which ultimately superseded civil titles, are explained at large in Book II.
In respect of Obligation (jus in personam), jus gentium may be divided into two classes, according to the degree in which it was recognized by Civil law:—
A. A portion of jus gentium was recognized as a ground of Action. To this class belong (1) the simple or Formless contracts to which we have alluded, (2) obligations to indemnify grounded on delict, (3) rights quasi ex contractu to recover property when it has been lost by one side and gained by the other without any right to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on this obligation to restore (condictiones), although it was a species of naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris) as any in the Civil code. In these cases the obligatio, though naturalis as founded in jus gentium, yet, as actionable, was said to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1.
The two eminently Civil spheres of the law of obligation were (1) specialty or Formal contracts, and (2) penal suits. Yet even into these provinces jus gentium forced a partial entrance. We shall see that aliens could be parties to a Stipulatio or Verbal contract, though not by the Civil formulary, Spondeo 3 § 93; and to Transcriptio, at least of one kind, 3 § 133, which was a form of Literal contract; and could be made plaintiffs or defendants in penal suits by means of the employment of certain Fictions, 4 § 37. This, however, was rather the extension of jus civile to aliens than the intrusion of jus gentium into a Civil province.
B. Other rights and obligations of jus gentium were not admitted as direct grounds for maintaining an action, yet were otherwise noticed by the institutes of civil jurisprudence and indirectly enforced. Thus a merely naturalis obligatio, though not actionable, might (1) furnish a ground of an equitable defence (exceptio): for instance, on payment of a merely natural debt the receiver has a right of retention, and can bar the suit to recover it back as a payment made in error (condictio indebiti soluti) by pleading the naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a claim by Compensatio, 4 § 61, cross demand or set-off, of a debt that rests on merely naturalis obligatio, Dig. 40, 7, 20, 2: or a merely naturalis obligatio might (2) form the basis of an accessory obligation, such as Suretyship (fidejussio) 3 § 119 a, or Guaranty (constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr., or Novation, 3 § 176, Dig. 46, 2, 1, 1, all institutions, which are themselves direct grounds of action. Though these rights and obligations of natural law are imperfect (obligatio tantum naturalis) as not furnishing immediate grounds of action, yet, as being partially and indirectly enforced by Roman tribunals, they clearly compose a portion of Positive law. Cf. 3 §§ 88, 89 comm.
§ 3. Plebiscites as well as the enactments of the Comitia populi were called Leges, and were named after the tribunes by whom they were carried, as the leges proper (rarely called populiscita) were named after the consul, praetor or dictator by whom they were carried. Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst. 2, 6, 2, Lex Furia testamentaria, 2 § 225, were plebiscites named after tribunes, while the Lex Valeria Horatia was named after two consuls, the Lex Publilia and Lex Hortensia were named after dictators, the Lex Aurelia, 70 b. c., after a praetor. (As to the history of plebiscita and leges and of the other sources of Roman law cf. Historical Introduction and see Smith’s Dict. of Greek and Roman Antiquities, 3rd ed. s. v.)
§ 4. The legislative power of the senate was in the time of the republic a matter of controversy. It is certain that it had a power of issuing certain administrative decrees or instructions to magistrates that was hardly distinguishable from legislation. Under the emperors matters were changed. Legislation by the Comitia, though spoken of by Gaius in the present tense, had ceased to be a reality after the time of Tiberius, and the last recorded lex was passed in the reign of Nerva. As early as the time of Augustus the auctoritas of the senate began to be regarded as the essential process in making a law, and the subsequent rogatio of the Comitia as a mere formality, which was finally omitted. Senatusconsults, like laws, were sometimes named after the consuls who proposed them, though this is not in their case an official designation; they are sometimes even called leges: thus the measure which Gaius calls Sc. Claudianum, § 84, is subsequently referred to by him under the name of lex, § 157, 4 §§ 85, 86. Ulpian says, Non ambigitur senatum jus facere posse. Dig. 1, 3, 9. Of course, these senatusconsults were merely a disguised form of imperial constitution. The sovereignty had in fact passed from both patricians and plebeians to the hands of the princeps. A measure was recommended by the emperor in an oratio or epistola to the senate, and then proposed by the consul who convoked the senate, and voted by the senate without opposition. Hence a senatusconsult is sometimes called oratio, e. g. oratio divi Marci, Dig. 2, 12, 1 pr. Even this form was finally disused. No senatusconsult relating to matters of civil law occurs after the time of Septimius Severus.
§ 5. Although when Gaius wrote the emperor had not yet acquired the formal right of making statutes, his supreme executive power enabled him to give to his constitutions the same force as if they had been leges. The legal origin and character of the different forms of imperial constitution has been much controverted, and certainly varied at different periods.
Edicts were legislative ordinances issued by the emperor in virtue of the jurisdiction appertaining to him as highest magistrate, and were analogous to the edicts of the praetors and aediles. In the time of Gaius they had only binding force during the life of the emperor who issued them, requiring the confirmation of his successor for their continuing validity; but from the reign of Diocletian, when the empire assumed an autocratic form, their duration ceased to be thus limited.
Decreta were judicial decisions made by the emperor as the highest appellate tribunal: or in virtue of his magisterial jurisdiction, and analogous to the extraordinaria cognitio of the praetor.
Epistolae or rescripta were answers to inquiries addressed to the emperor by private parties or by judges. They may be regarded as interpretations of law by the emperor as the most authoritative juris peritus. Cf. § 94 comm.
Some examples of direct legal changes made by early emperors are recorded, as the right conferred by the edict of Claudius mentioned in § 32 c of this book.
The words of Gaius explaining why constitutions had the force of law seem to be imperfect, and may be supplemented from Justinian, who openly asserts for himself absolute authority: Sed et quod principi placuit legis habet vigorem: cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in this and in the corresponding passage of the Digest (1, 4, 1) attributed to Ulpian, lex regia, in memory of the lex curiata, whereby the kings were invested with regal power. According to Cicero the king was proposed by the senate and elected by the Comitia Curiata, and the election was ratified in a second assembly presided over by the king: e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus adscivit, qui ut huc venit, quanquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit, De Republ. 2, 13. According to Mommsen and other modern writers, however, the later Roman idea, that the king was elected by the Comitia, is wrong, the lex curiata having been passed, not to elect a king, but merely to ratify a previous election or nomination. A lex curiata was also passed to confer on a Roman magistratus his imperium, and similarly the Roman emperor derived some of his powers from leges, but it seems a mistake to suppose that in the time of the principate a single lex gave him his entire authority. A fragment of a bronze tablet, on which was inscribed the lex investing Vespasian with sovereign powers, was discovered at Rome in the fourteenth century, and is still preserved in the Capitol.
§ 6. Huschke points out that the vacant space in the MS. before jus probably contained a definition of Edicta.
All the higher magistrates of Rome were accustomed to issue edicts or proclamations. Thus the consuls convoked the comitia, the army, the senate, by edict: the censors proclaimed the approaching census by edict: the aediles issued regulations for the market by edict: and magistrates with jurisdiction published edicts announcing the rules they would observe in the administration of justice, the Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules being called Edicta urbana, while the Edicts of the governors of provinces were called Edicta provincialia. These edicts, besides being orally proclaimed, were written on white tablets (in albo) and suspended in the forum: apud forum palam ubi de plano legi possit, Probus, ‘in the forum in an open space where persons standing on the ground may read.’ Such an edict was always published on entering on office (est enim tibi jam, cum magistratum inieris et in concionem adscenderis, edicendum quae sis observaturus in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum perpetuum, as opposed to occasional proclamations, Edictum repentinum. A clause (pars, caput, clausula, edictum) retained from a former edict was called Edictum tralaticium, Gellius, 3, 18; and though doubtless the edicts gradually changed according to changing emergencies, each succeeding praetor with very slight modifications substantially reproduced the edict of his predecessor. In the reign of Hadrian the jurist Salvius Julianus, called by Justinian Praetoriani edicti ordinator, reduced the edict to its definite form, and if the yearly publication was not discontinued (cf. § 6, jus edicendi habent), at all events Julian’s co-ordination of Praetorian law was embodied in all subsequent publications. Such was the origin of jus honorarium (praetorium, aedilicium), as opposed to jus civile: and from what has preceded, it need hardly be stated that the antithesis, jus civile, jus honorarium, is to a great extent coincident with the antithesis, jus civile, jus gentium.
It may be observed that Gaius does not attribute to edicts the force of a statute: and this theoretical inferiority of jus honorarium had a vast influence in modelling the forms and proceedings of Roman jurisprudence. The remedy or redress administered to a plaintiff who based his claim on jus civile differed from that administered on an appeal to jus honorarium, as we shall see when we come to treat of Bonitary ownership, Bonorum possessio, Actio utilis, in factum, ficticia. This difference of remedy preserved jus civile pure and uncontaminated, or at least distinguishable from jus honorarium; but this perpetuation of the memory of the various origins of the law, like the analogous distinction of Equity and Common law in English jurisprudence, was purchased by sacrificing simplicity of rule and uniformity of process.
The legislative power of the popular assembly and the absence of legislative power in the senate and praetor were marked by a difference of style in the lex and plebiscite, edict, and decree of the senate: while the lex and plebiscite employed the imperative (damnas esto, jus potestasque esto, &c.), the resolutions of the senate scrupulously avoid the imperative and are clothed in the forms placere, censere, arbitrari, &c., as if they were rather recommendations than commands: and the edicts and the interdicts of the praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a milder form of imperative. Or to show that their force and operation is limited to his own tenure of office, they are expressed in the first person (actionem dabo, ratum habebo, vim fieri veto). Where he has authority to command he shows it by using the imperative, as in addressing the litigants (mittite ambo hominem, inite viam, redite, 4 § 13 comm.) or the judge (judex esto, condemnato, absolvito). Ihering, § 47.
In the first period of the empire, that is, in the first three centuries of our era, it was the policy of the emperors to maintain a certain show of republican institutions, and the administration of the empire was nominally divided between the princeps or emperor and the people as represented by the senate. Thus, at Rome there were two sets of magistrates, the old republican magistrates with little real power, consuls, praetors, tribunes, quaestors, in outward form elected by the people; and the imperial nominees with much greater real authority, under the name of praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum, praefectus annonae, praefectus aerario; for though nominally the people and princeps had their separate treasuries under the name of aerarium and fiscus, yet the treasury of the people was not managed by quaestors as in the time of the republic, but by an official appointed by the emperor. Similarly the provinces were divided between the people and the prince, the people administering those which were peaceful and unwarlike, the prince those which required the presence of an army. The governor of a province, whether of the people or the emperor, was called Praeses Provinciae. The Praeses of a popular province was a Proconsul, and the chief subordinate functionaries were Legati, to whom was delegated the civil jurisdiction, and quaestors, who exercised a jurisdiction corresponding to that of the aediles in Rome. The emperor himself was in theory the Proconsul of an imperial province; but the actual governor, co-ordinate with the Proconsul of a senatorial province, was the Legatus Caesaris, while the financial administration and fiscal jurisdiction were committed to a functionary called Procurator Caesaris, instead of the republican Quaestor. Sometimes the same person united the office of Procurator and Legatus, as, for instance, Pontius Pilate.
§ 7. The opinions of a jurist had originally only the weight that was due to his knowledge and genius; but on the transfer of power from the hands of the people to those of the princeps, the latter recognized the expediency of being able to direct and inspire the oracles of jurisprudence; and accordingly Augustus converted the profession of jurist into a sort of public function, giving the decisions of certain authorized jurists the force of law, Pomponius in Dig. 1, 2, 49 (cf. Inst. 1, 2, 8). ‘Until Augustus, the public decision of legal questions was not a right conferred by imperial grant, but any one who relied on his knowledge advised the clients who chose to consult him. Nor were legal opinions always given in a letter closed and sealed, but were generally laid before the judge in the writing or by the attestation of one of the suitors. Augustus, in order to increase their weight, enacted that they should be clothed with his authority, and henceforth this office was sought for as a privilege.’ Those jurists who had the jus respondendi were called juris auctores. Their auctoritas resided, in the first instance, in their responsa, or the written opinions they gave when consulted on a single case, but in the second instance, doubtless, in their writings (sententiae et opiniones), which were mainly a compilation of their responsa, a fact which has left its traces in the disjointed and incoherent style which disagreeably characterizes Roman juristic literature. The jus respondendi instituted by Augustus and regulated by Tiberius, who themselves held the office of Pontifex Maximus, gave those to whom it belonged similar authority in interpreting law as had previously been exercised by the College of Pontifices—‘omnium tamen harum et interpretandi scientia et actiones apud Collegium Pontificum erant, ex quibus constituebatur, quis quoque anno praeesset privatis’ (Pomponius in Dig. 1, 2, 6; cf. Sohm, § 18).
As to the mode of collecting the opinions of the juris auctores no precise information has come down to us, but § 6 shows that the duty of the judex, in the not uncommon event of the authorities differing in their opinions on a case, was open to doubt, till Hadrian’s rescript allowed him under these circumstances to adopt the opinion he preferred. It may be gathered from the words ‘quorum omnium’ that all authorized jurists had to be consulted. The jus respondendi, as thus explained, may have continued in existence till the end of the third century, by which time the originative force of Roman jurisprudence had ceased. Instead of giving independent opinions jurists had become officials of the emperor, advising him in drawing rescripts and other affairs of imperial government. Legal authority rested in the writings of deceased juris auctores. (For a discussion of the causes of the decline of Roman Jurisprudence see Grueber’s Art. in Law Quarterly Review, vii. 70.) In the course of centuries the accumulation of juristic writings of co-ordinate authority was a serious embarrassment to the tribunals. To remedy this evil, a. d. 426, Valentinian III enacted what is called the law of citations, Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of any other jurists whom these writers quoted, provided that such quotations should be verified by reference to the original writings of these jurists (codicum collatione firmentur—on the question of the way of interpreting these words cf. Sohm, p. 122, n. 1, § 21). In case of a divergence of opinion, the authorities were to be counted, and the majority was to prevail. In case of an equal division of authorities, the voice of Papinian was to prevail. a. d. 533, Justinian published his Digest or Pandects, a compilation of extracts from the writings of the jurists, to which, subject to such modifications as his commissioners had made in them, he gives legislative authority. Every extract, accordingly, is called a lex, and the remainder of the writings of the jurists is pronounced to be absolutely void of authority. To prevent the recurrence of the evil which his codification was intended to remove, and confident in the lucidity and adequacy of his Digest and Code, which latter is a compilation of imperial statute law after the model of the Theodosian code, Justinian prohibits for the future the composition of any juristic treatise or commentary on the laws. If any one should disregard the prohibition, the books are to be destroyed and the author punished as guilty of forgery (falsitas), Cod. 1, 17, 2, 21. The constitutions enacted by Justinian subsequent to the publication of his code are called Novellae, Constitutiones or Novels.
We shall find frequent allusions, as we proceed in this treatise, to the existence of rival schools among the Roman juris auctores. This divergence of the schools dates from the first elevation of the jurist to a species of public functionary, namely, from the reign of Augustus, in whose time, as we have seen, certain jurists began to be invested by imperial diploma with a public authority. In his reign the rival oracles were M. Antistius Labeo and C. Ateius Capito: Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47. ‘The first founders of the two opposing sects.’ From Labeo’s works there are 61 extracts in the Digest, and Labeo is cited as an authority in the extracts from other jurists oftener than any one else except Salvius Julianus. From Sempronius Proculus, a disciple of Labeo, and of whom 37 fragments are preserved in the Digest, the school derived its name of Proculiani. Other noted jurists of this school were Pegasus, in the time of Vespasian; Celsus, in the time of Domitian, who gave rise to the proverb, responsio Celsina, a discourteous answer, and of whom 141 fragments are preserved; and Neratius, of whom 63 fragments are preserved. To the other school belonged Masurius Sabinus, who flourished under Tiberius and Nero, and from whom the sect were called Sabiniani. To the same school belonged Caius Cassius Longinus, who flourished under Nero and Vespasian, and from whom the sect are sometimes called Cassiani: Javolenus Priscus, of whom 206 fragments are preserved: Salvius Julianus, the famous Julian, above mentioned, of whom 456 fragments are preserved: Pomponius, of whom 578 fragments are preserved: Sextus Caecilius Africanus, celebrated for his obscurity, so that Africani lex in the language of lawyers meant lex difficilis, of whom 131 fragments are preserved: and, lastly, our author, Gaius, who flourished under Hadrian, Antoninus Pius, and Marcus Aurelius, and from whose writings 535 extracts are to be found in the Digest.
If we now inquire whether this divergence of schools was based on any difference of principle, the answer is, No: on none, at least, that modern commentators have succeeded in discovering: it was merely a difference on a multitude of isolated points of detail. We are told indeed that the founders were men of dissimilar characters and intellectual dispositions: that Labeo was characterized by boldness of logic and a spirit of innovation; while Capito rested on tradition and authority, and inclined to conservatism, Dig. 1, 2, 47; but it is altogether impossible to trace their opposing tendencies in the writings of their successors: and we must suppose that the intellectual impulse given by Labeo was communicated to the followers of both schools of jurisprudence. But though, as we have stated, no difference of principle was involved, each school was accustomed to follow its leaders or teachers (praeceptores) with much servility; and it is quite an exception to find, on a certain question, Cassius, a member of the Sabinian school, following the opinion of Labeo; while Proculus, who gave his name to Labeo’s school, preferred the opinion of Ofilius, the teacher of Capito, 3 § 140; Gaius too, who was a Sabinian, sometimes inclines to the opinion of the rival school; cf. 3, § 98. Controversies between the two schools are referred to by Gaius in the following passages of his Institutes: 1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98, 103, 141, 167-8, 177-8; 4, 78-9, 114, 170.
As long as these schools of law, which may have derived their constitution from the Greek schools of philosophy, existed, the office of President appears to have devolved by succession from one jurist to another. (For an account of this subject and references to the chief modern writers who have discussed it see Sohm, pp. 98, &c.)
We may briefly mention some of the most illustrious jurists who flourished somewhat later than Gaius. Aemilius Papinianus, who was probably a Syrian, lived in the time of Septimius Severus, and was murdered by the order of Caracalla: 601 extracts from his writings are contained in the Digest. It was perhaps to some extent due to the transcendent genius, or at least to the extraordinary reputation, of Papinian, which made him seem too great to be reckoned any man’s follower, that we cease about his time to hear of opposing schools of jurisprudence. Papinian appears to have accompanied Severus to York, fulfilling the important function of praefectus praetorio, so that England may claim some slight connexion with the brightest luminary of Roman law.
A disciple and colleague of Papinian, of Syrian origin, who likewise became praefectus praetorio, was Domitius Ulpianus, murdered by the praetorian soldiery, whose domination he resisted, in the presence of the Emperor Alexander Severus: 2464 fragments, composing about a third of the whole Digest, are taken from his writings. An epitome of his Liber Singularis Regularum is still extant in a manuscript of the Vatican Library, and is the work referred to when, without mentioning the Digest, we cite the authority of Ulpian.
Another disciple and colleague of Papinian was Julius Paulus, of whose writings 2081 fragments are preserved in the Digest, forming about a sixth of its mass. An epitome of his treatise called Sententiae Receptae is found, with the Epitome of Gaius, in the code of Alaric II, king of the Visigoths; and it is to this book that we refer when we simply cite the authority of Paulus.
A disciple of Ulpian’s was Herennius Modestinus, of whom 344 extracts are contained in the Digest. After Modestinus the lustre of Roman jurisprudence began to decline. (For a detailed account of the Roman jurists, see Roby’s Introduction to the Digest, chs. vi-xvi.)
Besides the sources of law enumerated by Gaius, the Institutes of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of consuetudinary or customary law (jus non scriptum, consensu receptum, moribus introductum). To this branch of law are referred, with other rules, the invalidity of donations between husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to make a will for his filiusfamilias who dies before the age of puberty (pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in Coemption and Adrogation, 3 § 82. See also 4 §§ 26, 27. We may suppose that Customary law, like Roman law in general, would fall into two divisions, jus civile and jus gentium, the former embracing what Roman writers sometimes speak of as mores majorum. Before the time of Gaius, however, most of Customary law must have been incorporated by statute, as in early times by the law of the Twelve Tables, or taken up into the edict of the praetor or the writings of the jurists, Cic. De Invent. 2, 22, 67; i.e. unwritten law must have changed its character and have been transformed into written law.
[II. DE IVRIS DIVISIONE.]
§ 8. Omne autem ius quo utimur uel ad personas pertinet uel ad res uel ad actiones. et prius uideamus de personis. Inst. 1, 2, 12: Gaius in Dig. 1, 5, 1.
ON THE BRANCHES OF THE LAW.
§ 8. The whole of the law by which we are governed relates either to persons, or to things, or to actions; and let us first examine the law of persons.
§ 8. What are the leading divisions of law—what are the main masses into which legislation naturally breaks itself—what are the joints and articulations which separate the whole code into various subordinate codes, like the different limbs and members of an organic whole—what is the import of the Gaian division, adopted perhaps from previous writers, into jus personarum, jus rerum, jus actionum, or rather, to adhere to the classical phrases, jus ad personas pertinens, jus ad res pertinens, jus ad actiones pertinens?
By jus ad actiones pertinens, to begin with the easier part of the problem, there is no doubt that the inventor of the division intended to designate the law of PROCEDURE as opposed to the law of rights; the adjective code, to use Bentham’s phraseology, as opposed to the substantive code. There is as little doubt that in the Institutions of Gaius this design is not executed with precision, and that, instead of the law of procedure, the last portion of his treatise contains also to some extent the law of sanctioning rights, as opposed to the law of primary rights. (For the meaning of this distinction see Austin’s Jurisprudence, bk. 1.) Or perhaps we should say that the legislative provisions respecting Procedure have a double aspect: a purely formal aspect, so far as they give regularity and method to the enforcement of sanctioning rights; and a material aspect, so far as certain stages of procedure (e.g. litis contestatio and res judicata) operate like Dispositions or any other Titles to modify the substantive rights of the contending parties. Procedure, then, is treated of in these Institutions partly indeed in its formal character, but still more in its material character, i.e. so far as its incidents can be regarded as belonging to the substantive code.
It is more difficult to determine the principle of the other division, the relation of the law of Persons to the law of Things. They both deal with the rights and duties of persons in the ordinary modern acceptation of the word; why then, we may inquire, are certain rights and duties of persons separated from the rest and dealt with under the distinguishing category of jura personarum? It is not enough to say with Austin that the law of Things is the universal or general portion of the law, the law of Persons a particular and exceptional branch; that it is treated separately on account of no essential or characteristic difference, but merely because it is commodious to treat separately what is special and exceptional from what is general and universal. This answer furnishes no positive character of the law of Persons, but only the negative character of anomaly, i.e. of unlikeness to the larger portion of the law; but it would be difficult to show that the law of Persons is more exceptional, anomalous, eccentric, than the Civil dispositions as opposed to the Natural dispositions of the law of Things.
We must look to the details of the law of Persons, and observe whether its dispositions have any common character as contrasted with the dispositions of the law of Things. The law of Persons, in other words, the law of Status, classifies men as slaves and free, as citizens (privileged) and aliens (unprivileged), as paterfamilias (superior) and filiusfamilias (dependent). The law of Things looks at men as playing the parts of contractors or of neighbouring proprietors; in other words, the law of Persons considers men as UNEQUALS, the law of Things considers them as EQUALS: the one may be defined as the law of relations of inequality, the other as the law of relations of equality.
It may induce us to believe that the law of unequal relations and the law of equal relations is a fundamental division of the general code, if we consider how essential are the ideas of equality and inequality to the fundamental conception of law. If we ventured on a Platonic myth, we might say that Zeus, wishing to confer the greatest possible gift on the human race, took the most opposite and uncombinable things in the universe, Equality and Inequality, and, welding them together indissolubly, called the product by the name of political society or positive law.
The assumption will hardly be controverted, that in the relations of subject to subject, Positive law, like Ethical law, recognizes, as an ideal at least, the identity of the just (lawful) with the equal. Inequality, however, is no less essentially involved in positive law. We have seen that there is no right and no duty by positive law without a legislator and sovereign to whom the person owing the duty is in subjection. On the one side weakness, on the other irresistible power. Positive rights and duties, then, imply both the relation of subject to subject and the relation of subject to sovereign or wielder of the sanction, in other words, both the relation of equal to equal and the relation of unequal to unequal. It is the more surprising that Austin should apparently have failed to seize with precision this conception of the law of Persons, as he makes the remark, in which the whole truth seems implicitly contained, that the bulk of the law of Persons composes the Public, Political, or Constitutional code (jus publicum). Political society or government essentially implies subordination. It implies, on the one hand, sovereign power reposing in various legislative bodies, distributed, delegated, and vested in various corporations, magistrates, judges, and other functionaries; on the other hand, private persons or subjects subordinate to the sovereign power and to its delegates and ministers. The different forms of government are so many forms of subordination, so many relations of superior and inferior, that is, so many relations of unequals. Public law, then, is a law of Status, and the law of Persons or law of Status in the private code is the intrusion of a portion of the public code into the private code; or, in barbarous and semi-civilized legislations, the disfigurement of private law by the introduction of relations that properly belong to public law. For instance, the most salient institution of the ancient Roman law of Persons, the power of life and death over wife and child that vested in the father of the household, was the concession to a subject of an attribute that properly belongs to the sovereign or a public functionary. Another institution, slavery, placed one subject over another in the position of despotic sovereign. The relation of civis to peregrinus may be conjectured to have originally been that of patronus to cliens, that is to say, of political superior to political inferior.
Government or positive law has usually commenced in the invasion by the stronger of the (moral) rights of the weaker; but so necessary is inequality to equality, or subordination to co-ordination, that the (moral) crimes of ancient conquerors are regarded with less aversion by philosophic historians, as being the indispensable antecedents of subsequent civilization. The beginnings, then, of positive law have been universally the less legitimate form of inequality, inequality between subject and subject, leaving its traces in dispositions of the civil code: but the advance of civilization is the gradual elimination of inequality from the law, until little remains but that between magistrate and private person, or sovereign and subject. Modern society has advanced so far on the path of equalization, in the recognition of all men as equal before the law, that the distinctions of status, as they existed in the Roman law of persons, are almost obliterated from the private code. Slavery has vanished; parental and marital power are of the mildest form; civilized countries accord the same rights to cives and peregrini; guardians (tutores) in modern jurisprudence, as in the later period of Roman law, are considered as discharging a public function, and accordingly the relation of guardian and ward may be regarded as a portion of the public code.
Before we terminate our general remarks on the nature of status, it is necessary to distinguish from the law of Persons a department of law with which, in consequence of a verbal ambiguity, it is sometimes confounded. Blackstone deserves credit for having recognized Public law as part of the law of Persons; but he also included under the law of Persons that department of primary rights to which belong the right of free locomotion, the right of using the bodily organs, the right to health, the right to reputation, and other rights which perhaps more commonly emerge in the redress meted out for their violation, that is, in the corresponding sanctioning rights, the right of redress for bodily violence, for false imprisonment, for bodily injury, for defamation, and the like. These, however, are not the special and exceptional rights of certain eminently privileged classes, but the ordinary rights of all the community, at least of all who live under the protection of the law; they belong to filiusfamilias as well as to paterfamilias, to peregrinus and latinus as well as to civis. The rights in question, that is to say, do not belong to the law of unequal rights, or the law of Persons, but to the law of equal rights, or the law of Things.
The anomalous institution of slavery, however, furnishes a ground for controverting this arrangement; for, as by this legalized iniquity of ancient law, the slave, living as he did, not so much under the protection as under the oppression of the law, was denuded of all legal rights, including those of which we speak, we cannot say that these rights belong to servus as well as to liber. The same, however, may be said of contract rights and rights of ownership, for the slave had neither part nor lot in these on his own account any more than in the right of a man to the use of his own limbs. In defining, therefore, jura rerum to be the equal rights of all, we must be understood to mean, of all who have any rights. Perhaps, indeed, instead of saying that jura rerum are the rights of men regarded as equal, it would be more exact to say, that while jus personarum regards exclusively the unequal capacities, that is, the unequal rights of persons, jus rerum treats of rights irrespectively both of the equality and the inequality of the persons in whom they are vested, leaving their equal or unequal distribution to be determined by jus personarum.
In order to mark the natural position of these rights in the civil code, I have avoided designating them, with Blackstone, by the name of Personal rights, a term which I am precluded from using by yet another reason. I have employed the terms Personal right and Real right to mark the antithesis of rights against a single debtor and rights against the universe. Now the rights in question are rights that imply a negative obligation incumbent on all the world, that is to say, in our sense of the words they are not Personal, but Real.
As contrasted with Acquired rights (Erworbene Rechte, jus quaesitum) they are called Birthrights or PRIMORDIAL rights (Urrechte), names which are open to objection, as they may seem to imply a superior dignity of these rights, or an independence, in contrast with other rights, of positive legislation, characters which the name is not intended to connote. For purposes of classification this branch of primary rights is of minor importance. Unlike Status, Dominion, Obligation, Primordial rights are not the ground of any primary division of the code. The actions founded on the infraction of Primordial rights partly belong to the civil code of obligation arising from Tort (e.g. actio injuriarum), partly and principally to the criminal code. (On the different interpretations which have been put on this threefold division of Private Law cf. Moyle’s Introduction to the Inst. Just.)
[III. DE CONDICIONE HOMINVM.]
§ 9. Et quidem summa diuisio de iure personarum haec est quod omnes homines aut liberi sunt aut serui.
§ 10. Rursus liberorum hominum alii ingenui sunt, alii libertini.
§ 11. Ingenui sunt qui liberi nati sunt; libertini qui ex iusta seruitute manumissi sunt.
§ 12. Rursus libertinorum 〈tria sunt genera; nam aut ciues Romani aut Latini aut dediticiorum〉 numero sunt. de quibus singulis dispiciamus; ac prius de dediticiis.
ON DIVERSITIES OF CONDITION.
§ 9. The first division of men by the law of persons is into freemen and slaves.
§ 10. Freemen are divided into freeborn and freedmen.
§ 11. The freeborn are free by birth; freedmen by manumission from legal slavery.
§ 12. Freedmen, again, are divided into three classes, citizens of Rome, Latins, and persons on the footing of enemies surrendered at discretion. Let us examine each class in order, and commence with freedmen assimilated to enemies surrendered at discretion.
§ 12. As Gaius has not marked very strongly the divisions of the present book, it may be worth while to consider what are the leading branches of the doctrine of Status. Status falls under three heads—liberty (libertas), citizenship (civitas), and domestic position (familia).
Under the first head, men are divided into free (liberi) and slaves (servi): the free, again, are either free by birth (ingenui) or by manumission (libertini). We have here, then, three classes to consider: ingenui, libertini, servi.
Under the second head men were originally divided into citizens (cives) and aliens (peregrini). The rights of citizens fall into two branches, political and civil, the former being electoral and legislative power (jus suffragii) and capacity for office (jus honorum); the latter relating to property (commercium) or to marriage (connubium). Aliens were of course devoid of the political portion of these rights (suffragium and honores); they were also devoid of proprietary and family rights as limited and protected by the jus civile (commercium and connubium), though they enjoyed corresponding rights under the jus gentium. At a subsequent period a third class were intercalated between cives and peregrini, namely, Latini, devoid of the political portion of the rights of citizenship, and enjoying only a portion of the private rights of citizenship, commercium without connubium. Here also, then, we have three classes, cives, Latini, peregrini.
The powers of the head of a family came to be distinguished by the terms potestas, manus, mancipium: potestas, however, was either potestas dominica, power over his slaves, or potestas patria, power over his children, which, at the period when Roman law is known to us, were different in kind; so that the rights of paterfamilias were really fourfold. Manus or marital power placed the wife on the footing of filiafamilias, which was the same as that of filiusfamilias. Paterfamilias had a legal power of selling (mancipare) his children into bondage; and mancipium, which is also a word used to denote a slave, designated the status of a filiusfamilias who had been sold by his parent as a bondsman to another paterfamilias. In respect of his purchaser, such a bondsman was assimilated to a slave: in respect of the rest of the world, he was free and a citizen, though probably his political capacities were suspended as long as his bondage (mancipii causa) lasted, § 116*. As slaves are treated of under the head of libertas, and the status of the wife (manus) was not legally distinguishable from that of the son, we may say, that in respect of domestic dependence or independence (familia), as well as in respect of libertas and civitas, men are divided into three classes,—paterfamilias, filiusfamilias, and Qui in mancipio est; paterfamilias alone being independent (sui juris), the other two being dependent (alieni juris) in unequal degrees.
These different classes are not examined by Gaius with equal minuteness. Under the first head he principally examines the libertini: the classes under the second head, cives, Latini, peregrini, are only noticed indirectly, i. e. so far as they present a type for the classification of libertini; and the bulk of the first book of the Institutions is devoted to domestic relations.
In modern jurisprudence, Status having disappeared, the law of domestic relations—the relation of husband to wife, parent to child, guardian to ward—constitutes the whole of that of which formerly it was only a part, the law of Persons. It differs from the rest of the civil code in that, while the relations of Property and Obligation are artificial and accidental, the relations governed by the code of the Family are natural, and essential to the existence of the human race: so much so that the principal relations of the family extend to the rest of the animal world, and the portion of the code relating to them is called by Ulpian pre-eminently jus Naturale, Dig. 1, 1, 3, Inst. 1, 2 pr. Secondly, whereas every feature of Property and Obligation is the creation of political law, Domestic life is only partially governed by political law, which leaves the greater portion of its rights and duties to be ruled by the less tangible dictates of the moral law.
The pure law of the Family, that is, when we exclude all consideration of Property and Obligation relating to property, is of very moderate compass: but with the pure code of the family it is convenient to aggregate what we may call with Savigny, Syst. § 57, the applied code of the Family, i.e. such of the laws of Property and Obligation as concern members of the family group—husband and wife, parent and child, guardian and ward. The main divisions then of the substantive code are Family law Pure and Applied; the law of Ownership; and the law of Obligation. If, in view of its importance, we separate from the law of Ownership the law of Rerum Universitates, confining the law of Ownership to the province of Res singulae, we may add to the three we have enumerated a fourth division, the law of Successions per universitatem. Sohm, § 29.
[IIII. DE DEDITICIIS VEL LEGE AELIA SENTIA.]
§ 13. Lege itaque Aelia Sentia cauetur ut qui serui a dominis poenae nomine uincti sint, quibusue stigmata inscripta sint, deue quibus ob noxam quaestio tormentis habita sit et in ea noxa fuisse conuicti sint, quiue ut ferro aut cum bestiis depugnarent traditi sint, inue ludum custodiamue coniectifuerint, et postea uel ab eodem domino uel ab alio manumissi, eiusdem condicionis liberi fiant, cuius condicionis sunt peregrini dediticii.
[V. DE PEREGRINIS DEDITICIIS.]
§ 14. Vocantur autem peregrini dediticii hi qui quondam aduersus populum Romanum armis susceptis pugnauerunt, deinde uicti se dediderunt.
§ 15. Huius ergo turpitudinis seruos quocumque modo et cuiuscumque aetatis manumissos, etsi pleno iure dominorum fuerint, numquam aut ciues Romanos aut Latinos fieri dicemus, sed omni modo dediticiorum numero constitui intellegemus.
§ 16. Si uero in nulla tali turpitudine sit seruus, manumissum modo ciuem Romanum modo Latinum fieri dicemus.
§ 17. Nam in cuius persona tria haec concurrunt, ut maior sit annorum triginta, et ex iure Quiritum domini, et iusta ac legitima manumissione liberetur, id est uindicta aut censu aut testamento, is ciuis Romanus fit; sin uero aliquid eorum deerit, Latinus erit.
[VI. DE MANVMISSIONE VEL CAVSAE PROBATIONE.]
§ 18. Quod autem de aetate serui requiritur, lege Aelia Sentia introductum est. nam ea lex minores xxx annorum seruos non aliter uoluit manumissos ciues Romanos fieri, quam si uindicta, apud consilium iusta causa manumissionis adprobata, liberati fuerint.
§ 19. Iusta autem causa manumissionis est ueluti si quis filium filiamue aut fratrem sororemue naturalem, aut alumnum, aut paedagogum, aut seruum procuratoris habendi gratia, aut ancillam matrimonii causa, apud consilium manumittat.
[VII. DE CONSILIO ADHIBENDO.]
§ 20. Consilium autem adhibetur in urbe Roma quidem quinque senatorum et quinque equitum Romanorum puberum; in prouinciis autem uiginti recuperatorum ciuium Romanorum, idque fit ultimo die conuentus; sed Romae certis diebus apud consilium manumittuntur. maiores uero triginta annorum serui semper manumitti solent, adeo ut uel in transitu manumittantur, ueluti cum praetor aut pro consule in balneum uel in theatrum eat.
§ 21. Praeterea minor triginta annorum seruus [manumissus] potest ciuis Romanus fieri, si ab eo domino qui soluendo non erat, testamento eum liberum et heredem relictum ——— (24 uersus in C legi nequeunt) Ulp. 1, 14; Inst. 1, 6, 1; Epit. 1, 1, 2.
§ 22. — homines Latini Iuniani appellantur; Latini ideo, quia adsimulati sunt Latinis coloniariis; Iuniani ideo, quia per legem Iuniam libertatem acceperunt, cum olim serui uiderentur esse.
§ 23. Non tamen illis permittit lex Iunia uel ipsis testamentum facere, uel ex testamento alieno capere, uel tutores testamento dari.
Ulp. 20, 14.
§ 24. Quod autem diximus ex testamento eos capere non posse, ita intellegemus, ne quid directo hereditatis legatorumue nomine eos posse capere dicamus: alioquin per fideicommissum capere possunt.
§ 25. Hi uero qui dediticiorum numero sunt nullo modo ex testamento capere possunt, non magis quam quilibet peregrinus, nec ipsi testamentum facere possunt secundum id quod magis placuit.
§ 26. Pessima itaque libertas eorum est qui dediticiorum numero sunt; nec ulla lege aut senatusconsulto aut constitutione principali aditus illis ad ciuitatem Romanam datur.
§ 27. Quin etiam in urbe Roma uel intra centesimum urbis Romae miliarium morari prohibentur; et si qui contra ea fecerint, ipsi bonaque eorum publice uenire iubentur ea condicione, ut ne in urbe Roma uel intra centesimum urbis Romae miliarium seruiant neue umquam manumittantur; et si manumissi fuerint, serui populi Romani esse iubentur. et haec ita lege Aelia Sentia conprehensa sunt.
FREEDMEN ASSIMILATED TO SURRENDERED FOES AND DISPOSITIONS OF THE LEX AELIA SENTIA.
§ 13. The law Aelia Sentia enacts that slaves who have been punished by their proprietors with chains, or have been branded, or have been examined with torture on a criminal charge, and have been convicted, or have been delivered to fight with men or beasts, or have been committed to a gladiatorial school or a public prison, if subsequently manumitted by the same or by another proprietor, shall acquire by manumission the status of enemies surrendered at discretion.
CONCERNING SURRENDERED ENEMIES.
§ 14. Surrendered enemies are people who have taken up arms and fought against the people of Rome and having been defeated have surrendered.
§ 15. Slaves tainted with this degree of criminality, by whatever mode they are manumitted and at whatever age, and notwithstanding the plenary dominion of their proprietor, never become citizens of Rome or Latins, but can only acquire the status of enemies who have surrendered.
§ 16. If the slave has not committed offences of so deep a dye, manumission sometimes makes him a citizen of Rome, sometimes a Latin.
§ 17. A slave in whose person these three conditions are united, thirty years of age, quiritary ownership of the manumitter, liberation by a civil and statutory mode of manumission, i. e. by the form of vindicta, by entry on the censor’s register, by testamentary disposition, becomes a citizen of Rome: a slave who fails to satisfy any one of these conditions becomes only a Latin.
ON MANUMISSION AND PROOF OF ADEQUATE GROUNDS OF MANUMISSION.
§ 18. The requisition of a certain age of the slave was introduced by the lex Aelia Sentia, by the terms of which law, unless he is thirty years old, a slave cannot on manumission become a citizen of Rome, unless the mode of manumission is by the form of vindicta, preceded by proof of adequate motive before the council.
§ 19. There is an adequate motive of manumission if, for instance, a natural child or natural brother or sister or foster child of the manumitter’s, or a teacher of the manumitter’s child, or a male slave intended to be employed as an agent in business, or a female slave about to become the manumitter’s wife, is presented to the council for manumission.
CONCERNING THE CONSTITUTION OF THE COUNCIL.
§ 20. The council is composed in the city of Rome of five senators and five Roman knights above the age of puberty: in the provinces of twenty recuperators, who must be Roman citizens, and who hold their session on the last day of the assize. At Rome the council holds its session on certain days appointed for the purpose. A slave above the age of thirty can be manumitted at any time, and even in the streets, when the praetor or pro-consul is on his way to the bath or theatre.
§ 21. Under the age of thirty a slave becomes by manumission a citizen of Rome, when his owner being insolvent leaves a will, in which he gives him his freedom and institutes him his heir (2 § 154), provided that no other heir accepts the succession.
§ 22. Slaves manumitted in writing, or in the presence of witnesses, or at a banquet, are called Latini Juniani: Latini because they are assimilated in status to Latin colonists (§ 131), Juniani because they owe their freedom to the lex Junia, before whose enactment they were slaves in the eye of the law.
§ 23. These freedmen, however, are not permitted by the lex Junia either to make a will or to take under the will of another, or to be appointed testamentary guardians.
§ 24. Their incapacity to take under a will must only be understood as an incapacity to take directly as heirs or legatees, not to take indirectly as beneficiaries of a trust.
§ 25. Freedmen classed with surrendered enemies are incapable of taking under a will in any form, as are other aliens, and are incompetent to make a will according to the prevalent opinion.
§ 26. It is only the lowest grade of freedom, then, that is enjoyed by freedmen assimilated to surrendered aliens, nor does any statute, senatusconsult, or constitution open to them a way of obtaining. Roman citizenship.
§ 27. Further, they are forbidden to reside in the city of Rome or within the hundredth milestone from it; and if they disobey the prohibition, their persons and goods are directed to be sold on the condition that they shall be held in servitude beyond the hundredth milestone from the city, and shall be incapable of subsequent manumission, and, if manumitted, shall be the slaves of the Roman people: and these provisions are dispositions of the lex Aelia Sentia.
§ 14. Peregrini dediticii. Cf. Livy 1, 38; Theoph. 1, 5, 3.
§ 15. Pleno jure. Cf. § 54 and 2 § 41.
§ 17. The earliest forms of manumission depended on the fiction that the slave is a freeman. They therefore carry us back to a time when manumission was not legally recognized. Cf. Sohm, p. 174, n. 4, and p. 58, n. 4. Manumission was either a public or a private act. When manumission, besides freeing a slave from the dominion of his proprietor, converted him into a citizen of Rome, it was not a matter of merely private interest to be accomplished by the sole volition of the proprietor. Accordingly, the three modes of manumission which conferred Roman citizenship on the manumitted slave, vindicta, censu, testamento, involved in different forms the intervention of the State.
In manumission by Vindicta the State was represented by the praetor. The vindicta or festuca was a rod or staff, representing a lance, the symbol of dominion, with which the parties in a real action (vindicatio) touched the subject of litigation as they solemnly pronounced their claim, 4 § 16. Accordingly it was used in a suit respecting freedom (liberalis causa), for this, as status is a real right (jus in rem), was a form of real action, and was sometimes prosecuted by way of genuine litigation, sometimes was merely a solemn grant of liberty, that is, a species of alienation by surrender in the presence of the magistrate (in jure cessio). In a liberalis causa the slave to be manumitted, being the subject of the fictitious litigation, could not himself be a party, but was advocated by a vindex or adsertor libertatis, who in later times was usually represented by the praetor’s lictor. The adsertor grasping the slave with one of his hands, and touching him with the vindicta, asserted his freedom. The proprietor quitting his grasp of the slave (manu mittens) and confessing by silence or express declaration the justice of the claim, the magistrate pronounced the slave to be free. This procedure, which came to be much curtailed, belonging to the praetor’s voluntary, not his contentious, jurisdiction, did not require the praetor to be seated on his elevated platform in the comitium (pro tribunali), but might be transacted by him on the level ground (de plano); and as the mere presence of the praetor constituted a court (jus), he was usually seized upon for the purpose of manumissions as he was preparing to take a drive (gestatio), or to bathe, or to go to the theatre, § 20 (for the different accounts given of this mode of manumission see Roby, Private Law, 1, p. 26, n. 1).
In manumission by the Census the interests of the State were represented by the censor. Censu manumittebantur olim qui lustrali censu Romae jussu dominorum inter cives Romanos censum profitebantur, Ulpian, 1, 8. ‘Registry by the censor was an ancient mode of manumission by the quinquennial census at Rome when a slave at his master’s order declared his right to make his return of property (professio) on the register of Roman citizens.’ Ex jure civili potest esse contentio, quum quaeritur, is qui domini voluntate census sit, continuone an ubi lustrum conditum liber sit, Cic. De Orat. 1, 40. ‘It is a question of civil law, when a slave is registered with his owner’s sanction, whether his freedom dates from the actual inscription on the register or from the close of the censorial period.’ The census was a republican institution, which had been long obsolete when Gaius wrote. Ulpian, l. c., speaks of it as a thing of the past. Since the Christian era only three had been held, the last under Vespasian, a. d. 74.
Wills were originally executed at the Comitia calata, 2 § 101, where the dispositions of the testator, including his donations of freedom, received legislative sanction, being converted into a private law by the ratification of the sovereign assembly. When a new form of will was introduced, 2 § 102, testators retained their power of manumission, although the people here at the utmost were only symbolically represented by the witnesses of a mancipation. Bequests of liberty were either direct or indirect. A direct bequest of liberty (directo data libertas) made the manumitted slave a freedman of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect bequest, that is, a request to the heir to manumit the slave (fideicommissaria libertas), made the slave on manumission a freedman of the heir, 2 § 266.
§ 18. The lex Aelia Sentia passed in the reign of Augustus, a. d. 4, and named after the consuls Sextus Aelius Catus and Caius Sentius Saturninus, was intended to throw obstacles in the way of acquiring Roman citizenship (Sueton. Aug. 40). One of its enactments provided that a slave under the age of thirty could not be made a citizen unless manumitted by vindicta, after proof of adequate motive before a certain judicial board. We may inquire what would be the effect of manumission if the causae probatio were omitted. Inscription on the censor’s register, if in use, would probably have been null and void, as this ceremony was either a mode of making a Roman citizen or it was nothing. Testamentary manumission, as we learn from Ulpian, 1, 12, left the man legally a slave, but gave him actual liberty (possessio libertatis, in libertate esse, as opposed to libertas), a condition recognized and protected by the praetor. Manumission by vindicta left him still a slave (according to the MS. of Ulpian, ib. the slave of Caesar). Either the lex Aelia Sentia or lex Junia, it is uncertain which (cf. §§ 29, 31; Ulpian, l. c.), apparently provided that, in the absence of causae probatio, the minor triginta annis manumissus should belong to the new class which it introduced, namely, the Latini.
§ 19. Alumnus denotes a slave child reared by the manumitter, as appears from the following passage: Alumnos magis mulieribus conveniens est manumittere, sed et in viris receptum est, satisque est permitti eum manumitti in quo nutriendo propensiorem animum fecerint, Dig. 40, 2, 14 pr. ‘Foster children are more naturally manumitted by women than by men, though not exclusively; and it suffices to allow the manumission of a child who has won his master’s affection in the course of his education.’ (For the custom derived from Greece of employing slaves as paedagogi in Roman households see Smith’s Dict. of Greek and Roman Antiq. s. v.)
§ 20. The Equites Romani, who at Rome composed a moiety of the council mentioned in the text, were either Equites or Equites equo publico (for the title eques Romanus equo publico, which appears in inscriptions, see Wilmann’s Index Inscriptionum, 2178, 2182; cf. Greenidge, Infamia, p. 88). Eques was such merely by his census: Eques equo publico was a youth nominated by the emperor to the turmae equitum; not, however, intended for actual service with the legions, but merely marked out as an expectant of future employment in higher public functions, military or civil. The title of Princeps juventutis, often conferred by the emperors on their successors designate, denoted the leader of the Equites equo publico. This distinction of classes among Equites lasted down to the time of Hadrian, and perhaps later. In the time of Augustus, and subsequently, the list of judices (album judicum) was, according to Mommsen (Staatsr. 3, p. 535), taken simply from the Equites equo publico, the Senatores being no longer a decuria. Augustus added a new decuria, the Ducenarii, those whose census amounted to 200,000 sesterces, who judged minor cases; and subsequently Caligula added a fifth (cf. Greenidge’s Roman Public Life).
Recuperators are judges not taken from the panel (album judicum); see Greenidge’s Legal Procedure of Cicero’s Time, p. 266.
§ 21. Ulpian says, 1, 14, that a slave either under thirty years of age, or one who otherwise would only have become dediticius, or a freedman of the lowest class, if he is instituted the heres necessarius of an insolvent, becomes civis Romanus; cf. 2 § 154. Mommsen would supplement the text in this section with the following words—‘relictum alius heres nullus excludit neque ullus alius ex eo testamento heres existat idque eadem lege cautum est.’ In respect of what is missing in the remainder of the lacuna cf. note to Huschke’s Gaius.
When manumission was a purely private act, it could not confer Roman citizenship; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code promulgated a. d. 506 by Alaric II, king of the Visigoths of Spain and Gaul, contained, besides extracts from the codex Theodosianus (promulgated a. d. 438), a selection from the Sententiae of Paulus and an epitome of these Institutes of Gaius. From this epitome it appears that in the paragraphs now obliterated Gaius proceeded to explain the modes of private manumission by which a slave became Latinus Junianus, and instanced writing (per epistolam), attestation of witnesses (inter amicos), invitation of the slave to sit with other guests at the table of his master (convivii adhibitione).
§ 22. The lex Junia, as this law is called by Gaius and Ulpian (3, 3), or lex Junia Norbana, the title given to it by Justinian (Inst. 1, 5, 3), may be regarded as of uncertain date; the common opinion based on the word Norbana has been that it was passed in the reign of Tiberius, a. d. 19, fifteen years after the lex Aelia Sentia in the consulate of Marcus Junius Silanus and Lucius Norbanus Balbus, but it is now thought by some well-known writers to be earlier than the lex Aelia Sentia; thus Mommsen (Staatsr. 3, 626) is inclined to put it back to the end of the free republic (cf. Schneider, Zeitschr. d. Sav. Stiftung v. R. A. 1884). It defined and modified the status conferred by such acts of private manumission as were probably mentioned in this paragraph, converting Praetoris tuitione liber into ipso jure liber, or possessio libertatis into genuine libertas; with, however, sundry grievous stints and deductions. Under this statute the freedman was nominally assimilated to Latinus coloniarius, the citizen of a Roman colony in Latium; that is, had a moiety of the private rights composing civitas Romana or jus Quiritium, possessing commercium without connubium. As incapable of connubium or civil marriage, the Latinus was incapable of patria potestas over his children and of agnatio or civil relationship. Though incapable of civil marriage he was of course capable of gentile marriage (matrimonium, uxorem liberorum quaerendorum causa ducere) and of natural relationship (cognatio), just as an alien (peregrinus), though, by want of commercium, incapable of dominion ex jure Quiritium, was capable of bonitary ownership (in bonis habere) under the jus gentium.
In virtue of commercium, the Latinus Junianus was capable of Quiritary ownership, of civil acquisition and alienation (usucapio, mancipatio, in jure cessio), contract (obligatio), and action (vindicatio, condictio), like a Roman citizen; but in respect of testamentary succession his rights were very limited. He was said to have testamentary capacity (testamenti factio), Ulpian, 20, 8; but this only meant that he could perform the part of witness, or familiae emptor, or libripens (2 § 104), i. e. could assist another person to make a valid will; not that he could take under a will either as heir or as legatee, or could dispose of his own property by will, Ulpian, 20, 14. At his death all his property belonged to his patron, as if it were the peculium of a slave, 3 § 56. In fact, as Justinian says: Licet ut liberi vitam suam peragebant, attamen ipso ultimo spiritu simul animam atque libertatem amittebant, Inst. 3, 7, 4. ‘Though free in their lifetime, the same moment that deprived them of life reduced them to the condition of slaves.’
Although in the person of libertus himself, Latinitas retained many traces of its servile origin, yet it was not so for his posterity; these disabilities only attached to the original freedman, not to his issue. The son of the dediticius or Latinus Junianus, though reduced to absolute penury by the confiscation of the parental property to the patron, began, and continued, the world with the ordinary capacities, respectively, of peregrinus and Latinus coloniarius, and was under no legal obligations to the patron of his father.
Long before the time of Gaius, Latinitas or Latium had only a juristic, not an ethnographic signification. Cf. § 79. Soon after the Social War (b. c. 91) all Italy received the civitas Romana. Originally Gallia Cispadana (Southern Lombardy) had civitas Romana, while Gallia Transpadana (Northern Lombardy) had only Latinitas, but Gallia Transpadana afterwards obtained civitas. Latinitas was a definite juristic conception, and Latin status was conferred as a boon on many provincial towns and districts that had no connexion with Latium or its races. Vitellius is carped at by Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri, Hist. 3, 55). Hadrian made many similar grants (Latium multis civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See § 131 Comm.
[QVIBVS MODIS LATINI AD CIVITATEM ROMANAM PERVENIANT.]
§ 28. Latini uero multis modis ad ciuitatem Romanam perueniunt.
§ 29. Statim enim ex lege Aelia Sentia minores triginta annorum manumissi et Latini facti si uxores duxerint uel ciues Romanas uel Latinas coloniarias uel eiusdem condicionis, cuius et ipsi essent, idque testati fuerint adhibitis non minus quam septem testibus ciuibus Romanis puberibus, et filium procreauerint, cum is filius anniculus esse coeperit, datur eis potestas per eam legem adire praetorem uel in prouinciis praesidem prouinciae, et adprobare se ex lege Aelia Sentia uxorem duxisse et ex ea filium anniculum habere; et si is apud quem causa probata est id ita esse pronuntiauerit, tunc et ipse Latinus et uxor eius, si et ipsa 〈eiusdem condicionis sit, et filius, si et ipse〉 eiusdem condicionis sit, ciues Romani esse iubentur.
Ulp. 3, 3.
§ 30. Ideo autem in huius persona adiecimus ‘si et ipse eiusdem condicionis sit,’ quia si uxor Latini ciuis Romana est, qui ex ea nascitur, ex nouo senatusconsulto, quod auctore diuo Hadriano factum est, ciuis Romanus nascitur.
Cf. § 80; Ulp. l. c.
§ 31. Hoc tamen ius adipiscendae ciuitatis Romanae etiamsi soli minores triginta annorum manumissi et Latini facti ex lege Aelia Sentia habuerunt, tamen postea senatusconsulto, quod Pegaso et Pusione consulibus factum est, etiam maioribus triginta annorum manumissis Latinis factis concessum est.
§ 32. Ceterum etiamsi ante decesserit Latinus, quam anniculi filii causam probauerit, potest mater eius causam probare, et sic et ipsa fiet ciuis Romana, si Latina fuerit —|—NA permissum — | —NAquibusdam — |NA ipse filius ciuis Romanus sit, quia ex ciue Romana matre natus est, tamen debet causam probare ut suus heres patri fiat.
§ 32 a. 〈quae〉 uero diximus de filio annicul〈o, eadem et de filia annicula〉 dicta intellegemus.
§ 32 b. |—|—|NA id est fiunt ciues Romani, si Romae inter uigiles sex annis militauerint. postea dicitur factum esse senatusconsultum, quo data est illis ciuitas Romana, si triennium militiae expleuerint.
Ulp. 3, 5.
§ 32 c. Item edicto Claudii Latini ius Quiritium consecuntur, si nauem marinam aedificauerint, quae non minus quam decem milia modiorum frumenti capiat, eaque nauis uel quae in eius locum substituta sit sex annis frumentum Roman portauerit.
Ulp. 3, 6.
§ 33. Praeterea a Nerone constitutum est ut si Latinus qui patrimonium sestertium cc milium plurisue habebit in urbe Roma domum aedificauerit, in quam non minus quam partem dimidiam patrimonii sui inpenderit, ius Quiritium consequatur.
Tac. Ann. 15, 43; Ulp. 3, 1.
§ 34. Denique Traianus constituit ut si Latinus in urbe triennio pistrinum exercuerit, in quo in dies singulos non minus quam centenos modios frumenti pinseret, ad ius Quiritium perueniat.
Ulp. l. c.
§ 35. —|—|—| sequi —|NA maiores triginta annorum manumissi et Latini facti —|—NA ius Quiritium consequi — tri|ginta annorum manumittant —|—|NA manumissus uindicta aut censu aut testamento — ciuis Romanus|—NAlibertus fit qui eum iterauerit. ergo si seruus in | bonis tuis, ex iure Quiritium meus erit, Latinus quidem a te solo fieri potest, iterari autem a me, non etiam a te potest, et eo modo meus libertus fit. sed et ceteris modis ius Quiritium consecutus meus libertus fit. bonorum autem quae—, cum is morietur, reliquerit tibi possessio datur, quocumque modo ius Quiritium fuerit consecutus. quodsi cuius et in bonis et ex iure Quiritium sit manumissus, ab eodem scilicet et Latinus fieri potest et ius Quiritium consequi.
Ulp. 3, 1-4.
MODES BY WHICH LATIN FREEDMEN BECOME ROMAN CITIZENS.
§ 28. Latins have many avenues to the Roman citizenship.
§ 29. For instance, the lex Aelia Sentia enacts that when a slave below the age of thirty becomes by manumission a Latin, if he take to himself as wife a citizen of Rome, or a Latin colonist, or a freedwoman of his own condition, and thereof procure attestation by not less than seven witnesses, citizens of Rome above the age of puberty, and begets a son, on the latter attaining the age of a year, he is entitled to apply to the praetor, or, if he reside in a province, to the president of the province, and to prove that he has married a wife in accordance with the lex Aelia Sentia, and has had by her a son who has completed the first year of his age: and thereupon if the magistrate to whom the proof is submitted pronounce the truth of the declaration, that Latin and his wife, if she is of the same condition, and their son, if he is of the same condition, are declared by the statute to be Roman citizens.
§ 30. The reason why I added, when I mentioned the son, if of the same condition, was this, that if the wife of the Latin is a citizen of Rome, the son, in virtue of the recent senatusconsult made on the motion of the late Emperor Hadrian, is a citizen of Rome from the date of his birth.
§ 31. This capacity of acquiring Roman citizenship, though by the lex Aelia Sentia exclusively granted to those under thirty years of age who had become Latins by this statute, by a subsequent senatusconsult, made in the consulship of Pegasus and Pusio, was extended to all freedmen who acquire the status of Latins, even though thirty years old when manumitted.
§ 32. If the Latin die before proof of his son’s attaining the age of a year the mother may prove his condition, and thereupon both she and her son, if she be a Latin, become citizens of Rome. And if the mother fails to prove it, the tutors of the son may do so or the son himself when he has attained the age of puberty. If the son himself is a Roman citizen owing to the fact of his having been born of a Roman citizen mother, he must nevertheless prove his condition in order to make himself his father’s self successor.
§ 32 a. What has been said about a son of a year old, must be understood to be equally applicable to a daughter of that age.
§ 32 b. By the Visellian statute those either under or over thirty years of age, who when manumitted become Latins, acquire the jus quiritium, i. e. become Roman citizens, if they have served for six years in the guards at Rome. A subsequent senatusconsultum is said to have been passed, by which Roman citizenship was conferred on Latins, who completed three years’ active military service.
§ 32 c. Similarly by an edict of Claudius Latins acquire the right of citizenship, if they build a ship which holds 10,000 modii of corn, and this ship or one substituted for it imports corn to Rome for six years.
§ 33. Nero further enacted that if a Latin having property worth 200,000 sesterces or more, build a house at Rome on which he expends not less than half his property, he shall acquire the right of citizenship.
§ 34. Lastly, Trajan enacted that if a Latin carry on the business of miller in Rome for three years, and grinds each day not less than a hundred measures of wheat, he shall attain Roman citizenship.
§ 35. Slaves who become Latins either because they are under thirty at the time of their manumission, or having attained that age because they are informally manumitted, may acquire Roman citizenship by re-manumission in one of the three legal forms, and they are thereby made freedmen of their re-manumitter. If a slave is the bonitary property of one person and the quiritary property of another he can be made a Latin by his bonitary owner, but his re-manumission must be the act of his quiritary owner, and even if he acquires citizenship in other ways he becomes the freedman of his quiritary owner. The praetor, however, invariably gives the bonitary owner possession of the inheritance of such freedman. A slave in whom his owner has both bonitary and quiritary property, if twice manumitted by his owner, may acquire by the first manumission the Latin status, and by the second Roman citizenship.
§ 29. This enactment is stated by Ulpian to belong to the lex Junia (Ulp. 3, 3), cf. § 18, comm.
Pronuntiaverit. The decision (sententia) of the judex in a judicium ordinarium was either condemnatio or absolutio of the defendant. In actions in which the case was left to the arbitrium of a judex this was apparently preceded by pronuntiatio, a declaration of the rights of the parties. This appears from the following, among other passages: Sed et si fundum vindicem meum esse, tuque confessus sis, perinde teneberis atque si dominii mei fundum esse pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter me et te controversia esset, juravero hereditatem meam esse, id consequi debeo quod haberem si secundum me de hereditate pronuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for the plaintiff, if the defendant obeyed the arbitrium or provisional order of the judex by making restitution, there was no subsequent condemnatio. Cf. 4 § 49. In the form of real action, called a praejudicium, that is, a preliminary issue of fact, the pronuntiatio formed the whole result of the trial, and was not followed by sententia. Similarly, when a Latinus laid his claim of Roman citizenship before the praetor under this enactment of the lex Aelia Sentia, the result of the extraordinaria cognitio of the praetor was merely a pronuntiatio without any subsequent decretum.
§ 31. Pegasus and Pusius were consuls in the reign of Vespasian. Inst. 2, 23, 5.
§ 32 b-§ 35. For references to the Visellian law cf. Cod. 9, 21 and 31. It was probably passed a.d. 24, when Serv. Cornelius Cethegus and L. Visellius Varro were consuls (but see Mommsen, Staatsr. 3, 424). Besides the method provided by the lex Aelia Sentia, and by the Senatusconsultum mentioned in § 31, Latinus or Latina might attain the Roman citizenship under the following conditions:—
1. By erroris causae probatio, i.e. if Latinus marry Peregrina, believing her to be Latina or Civis, § 70; or Latina marry Peregrinus, believing him to be Latinus, § 69; or if Civis, believing himself to be Latinus or Peregrinus, marry Latina, § 71; or if Civis marry Peregrinus, believing him to be Civis or Latinus; or if Civis marry Latina or Peregrina, believing her to be Civis Romana, § 67; on birth of a child and on proof of this mistake, the Latinus or Latina and their offspring acquire the citizenship.
2. By magistracy in a Latin colony Latinus becomes Civis Romanus, §§ 95, 96.
3. By re-manumission (iteratio), i.e. on slaves under thirty when manumitted acquiring Latinity by one of the private modes of manumission, a subsequent manumission by one of the public modes, vindicta, censu, or testamento, converted them from Latini into Cives, § 35, and Ulp. 3, 4.
4. Under the lex Visellia above mentioned by six years’ service in the Roman guards (si inter vigiles Romae sex annos militaverit, Ulp. 3, 5). A decree of the senate made three years’ service a sufficient title, § 32 b. Compare the provision of 13 Geo. II, c. 3, whereby every foreign seaman who in time of war serves two years on board an English ship, and all foreign protestants serving two years in a military capacity in the American colonies, are naturalized.
5. Under a constitution of Nero by building a house in Rome (aedificio, Ulp. 3, 1), § 33.
6. Under an edict of Claudius by building a ship of 10,000 modii and importing corn to Rome for six years, § 32 c, Sueton. Claud., Ulp. 3, 6. Compare the English law by which all foreign protestants employed three years in the whale fishery are naturalized, except as to capacity for public office.
7. Under a constitution of Trajan by building a mill and bakehouse for the supply of Rome (pistrino, Ulp. 3, 1), § 34.
8. By bearing three children, Ulp. 3, 1.
9. By imperial grant (beneficio principali, Ulp. 3, 2). This and the previous mode of acquiring citizenship were perhaps mentioned by Gaius at the beginning of § 35.
Civitas Romana and Jus Quiritium are synonymous, but the former term was always used when citizenship was conferred on a Peregrinus, the latter generally when it was conferred on Latinus Junianus: e. g. Quare rogo, des ei civitatem, est enim peregrinae conditionis, manumissus a peregrina. . . . Idem rogo, des ius Quiritium libertis Antoniae Maximillae . . . quod a te, petente patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod et ius Quiritium libertis necessariae mihi feminae et civitatem Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid. 10, 5. Civitas Romana, however, was sometimes used in speaking of the enfranchisement of Latinus, as we see from § 28.
§ 36. | Non tamen cuicumque uolenti manumittere licet.
Inst. 1, 6 pr.
§ 37.Nam is qui | in fraudem creditorum uel in fraudem patroni manumittit, nihil agit, quia lex Aelia Sentia inpedit libertatem.
Inst. l. c., Ulp. 1, 15.
§ 38. Item eadem lege minori xx annorum domino non aliter manumittere permittitur, quam [si] uindicta apud consilium iusta causa manumissionis adprobata [fuerit].
Inst. 1, 6, 4.
§ 39. Iustae autem causae manumissionis sunt ueluti si quis patrem aut matrem aut paedagogum aut conlactaneum manumittat. sed et illae causae, quas superius in seruo minore xxx annorum exposuimus, ad hunc quoque casum de quo loquimur adferri possunt. item ex diuerso hae causae, quas in minore xx annorum domino rettulimus, porrigi possunt et ad seruum minorem xxx annorum.
Inst. 1, 6, 4, 5.
§ 40. Cum ergo certus modus manumittendi minoribus xx annorum dominis per legem Aeliam Sentiam constitutus sit, euenit ut qui xiiii annos aetatis expleuerit, licet testamentum facere possit et in eo heredem sibi instituere legataque relinquere possit, tamen, si adhuc minor sit annorum xx, libertatem seruo dare non possit.
Inst. 1, 6, 7.
§ 41. Et quamuis Latinum facere uelit minor xx annorum dominus, tamen nihilo minus debet apud consilium causam probare et ita postea inter amicos manumittere.
§ 36. Not every owner who is so disposed is permitted to manumit.
§ 37. An owner who would defraud his creditors or his own patron by an intended manumission, attempts in vain to manumit, because the lex Aelia Sentia prevents the manumission.
§ 38. Again, by a disposition of the same statute, before attaining twenty years of age, the only process by which an owner can manumit is fictitious vindication, preceded by proof of adequate motive before the council.
§ 39. It is an adequate motive of manumission, if the father, for instance, or mother or teacher or foster-brother of the manumitter, is the slave to be manumitted. In addition to these, the motives recently specified respecting the slave under thirty years of age may be alleged when the manumitting owner is under twenty; and, reciprocally, the motives valid when the manumitting owner is under twenty are admissible when the manumitted slave is under thirty.
§ 40. As, then, the lex Aelia Sentiaimposes a certain restriction on manumission for owners under the age of twenty, it follows that, though a person who has completed his fourteenth year is competent to make a will, and therein to institute an heir and leave bequests; yet, if he has not attained the age of twenty, he cannot therein enfranchise a slave.
§ 41. And even to confer the Latin status, if he is under the age of twenty, the owner must satisfy the council of the adequacy of his motive before he manumits the slave in the presence of witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17, or the beginning of the eighteenth year (Inst. 1, 6, 7), finally permitted minors to enfranchise by will as soon as they could make a valid will, i. e. at the age of 14 (Novella, 119, 2). He mentions that the lowest class of freedmen (dediticia libertas) had long been obsolete, and formally abolished the second class (latina libertas), converting informal modes of making Latinus, such as per epistolam, inter amicos, into modes of making Civis Romanus, and declaring the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst. 1, 5.
DE LEGE FVFIA CANINIA.
§ 42. Praeterea lege Fufia Caninia certus modus constitutus est in seruis testamento manumittendis.
Inst. 1, 7, 1.
§ 43. Nam ei qui plures quam duos neque plures quam decem seruos habebit usque ad partem dimidiam eius numeri manumittere permittitur; ei uero, qui plures quam x neque plures quam xxx seruos habebit usque ad tertiam partem eius numeri manumittere permittitur. at ei qui plures quam xxx neque plures quam centum habebit usque ad partem quartam potestas manumittendi datur. nouissime ei qui plures quam c nec plures quam d habebit, non plures manumittere permittitur quam quintam partem; neque plures 〈—〉 tur: sed praescribit lex, ne cui plures manumittere liceat quam c. quodsi quis unum seruum omnino aut duos habet, ad hanc legem non pertinet et ideo liberam habet potestatem manumittendi.
§ 44. Ac ne ad eos quidem omnino haec lex pertinet qui sine testamento manumittunt. itaque licet iis, qui uindicta aut censu aut inter amicos manumittunt, totam familiam liberare, scilicet si alia causa non inpediat libertatem.
§ 46. Nam et si testamento scriptis in orbem seruis libertas data sit, quia nullus ordo manumissionis inuenitur, nulli liberi erunt, quia lex Fufia Caninia quae in fraudem eius facta sint rescindit. sunt etiam specialia senatusconsulta quibus rescissa sunt ea quae in fraudem eius legis excogitata sunt.
§ 47. In summa sciendum est, 〈cum〉 lege Aelia Sentia cautum sit, ut creditorum fraudandorum causa manumissi liberi non fiant, hoc etiam ad peregrinos pertinere (senatus ita censuit ex auctoritate Hadriani), cetera uero iura eius legis ad peregrinos non pertinere.
DE LEGE FVFIA CANINIA.
§ 42. Moreover, by the lex Fufia Caninia a certain limit is fixed to the number of slaves who can receive testamentary manumission.
§ 43. An owner who has more than two slaves and not more than ten is allowed to manumit as many as half that number; he who was more than ten and not more than thirty is allowed to manumit a third of that number; he who has more than thirty and not more than a hundred is allowed to manumit a fourth; lastly, he who has more than a hundred and not more than five hundred is allowed to manumit a fifth: and, however many a man possesses, he is never allowed to manumit more than this number, for the law prescribes that no one shall manumit more than a hundred. On the other hand, if a man has only one or only two, the law is not applicable, and the owner has unrestricted power of manumission.
§ 44. Nor does the statute apply to any but testamentary manumission, so that by the form of vindicta or inscription on the censor’s register, or by attestation of friends, a proprietor of slaves may manumit his whole household, provided that there is no other let or hindrance to impede their manumission.
§ 46. If a testator manumits in excess of the permitted number, and arranges their names in a circle, as no order of manumission can be discovered, none of them can obtain their freedom, as both the lex Fufia Caninia itself and certain subsequent decrees of the senate declare null and void all dispositions contrived for the purpose of eluding the statute.
§ 47. Finally, it is to be noted that the provision in the lex Aelia Sentia making manumissions in fraud of creditors inoperative, was extended to aliens by a decree of the senate passed on the proposition of the Emperor Hadrian; whereas the remaining dispositions of that statute are inapplicable to aliens.
§ 47. The lex Fufia Caninia, passed under Augustus (Sueton. Aug. 40), to prevent the degradation of citizenship by testators abusing their testamentary right of manumission, was generally called the lex Furia Caninia before the manuscript of Gaius was re-examined by Studemund; it was abrogated by Justinian. See Inst. 1, 7. The clause of the lex Aelia Sentia referred to in the text was retained by Justinian. Inst. 1, 6 pr.
DE HIS QVI SVI VEL ALIENI IVRIS SINT.
§ 48. Sequitur de iure personarum alia diuisio. nam quaedam personae sui iuris sunt, quaedam alieno iuri subiectae sunt.
Inst. 1, 8 pr.
§ 49. Rursus earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt.
Inst. l. c.
§ 50. Videamus nunc de his quae alieno iuri subiectae sint; 〈nam〉 si cognouerimus quae istae personae sint, simul intellegemus quae sui iuris sint.
Inst. l. c.
§ 51. Ac prius dispiciamus de iis qui in aliena potestate sunt.
Inst. l. c.
§ 52. In potestate itaque sunt serui dominorum. quae quidem potestas iuris gentium est: nam apud omnes peraeque gentes animaduertere possumus dominis in seruos uitae necisque potestatem esse; et quodcumque per seruum adquiritur, id domino adquiritur.
Inst. 1, 8, 1.
§ 53. Sed hoc tempore neque ciuibus Romanis, nec ullis aliis hominibus qui sub imperio populi Romani sunt, licet supra modum et sine causa in seruos suos saeuire; nam ex constitutione imperatoris Antonini qui sine causa seruum suum occiderit, non minus teneri iubetur, quam qui alienum seruum occiderit. sed et maior quoque asperitas dominorum per eiusdem principis constitutionem coercetur; nam consultus a quibusdam praesidibus prouinciarum de his seruis, qui ad fana deorum uel ad statuas principum confugiunt, praecepit ut si intolerabilis uideatur dominorum saeuitia cogantur seruos suos uendere. et utrumque recte fit; male enim nostro iure uti non debemus; qua ratione et prodigis interdicitur bonorum suorum administratio.
Inst. 1, 8, 2.
§ 54. Ceterum cum apud ciues Romanos duplex sit dominium (nam uel in bonis uel ex iure Quiritium uel ex utroque iure cuiusque seruus esse intellegitur), ita demum seruum in potestate domini esse dicemus, si in bonis eius sit, etiamsi simul ex iure Quiritium eiusdem non sit; nam qui nudum ius Quiritium in seruo habet, is potestatem habere non intellegitur.
DE HIS QVI SVI VEL ALIENI IVRIS SINT.
§ 48. Another division in the law of Persons classifies men as either dependent or independent.
§ 49. Those who are dependent or subject to a superior, are either in his power, in his hand, or in his mancipation.
§ 50. Let us first explain what persons are dependent on a superior, and then we shall know what persons are independent.
§ 51. Of persons subject to a superior, let us first examine who are in his power.
§ 52. Slaves are in the power of their proprietors, a power recognized by jus gentium, since all nations present the spectacle of masters invested with power of life and death over slaves; and (by the Roman law) the owner acquires everything acquired by the slave.
§ 53. But in the present day neither Roman citizens, nor any other persons under the empire of the Roman people, are permitted to indulge in excessive or causeless harshness towards their slaves. By a constitution of the Emperor Antoninus, a man who kills a slave of whom he is owner, is as liable to punishment as a man who kills a slave of whom he is not owner: and inordinate cruelty on the part of owners is checked by another constitution whereby the same emperor, in answer to inquiries from presidents of provinces concerning slaves who take refuge at temples of the gods, or statues of the emperor, commanded that on proof of intolerable cruelty a proprietor should be compelled to sell his slaves: and both ordinances are just, for we ought not to make a bad use of our lawful rights, a principle recognized in the interdiction of prodigals from the administration of their fortune.
§ 54. But as citizens of Rome may have a double kind of dominion, either bonitary or quiritary, or a union of both bonitary and quiritary dominion, a slave is in the power of an owner who has bonitary dominion over him, even unaccompanied with quiritary dominion; if an owner has only bare quiritary dominion he is not deemed to have the slave in his power.
§§ 52, 53. The condition of the slave was at its worst in the golden period of Roman history. As soon as Rome found her power irresistible she proceeded to conquer the world, and each stage of conquest was the reduction of a vast portion of mankind to slavery. 30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator, the captor of Tarentum; 150,000 Epirots by Paulus Aemilius, the subjugator of Epirus. Julius Caesar retrieved his shattered fortunes by enormous operations in the slave market during his campaign in Gaul. Thus, unfortunately for the slave, the slave market was continually glutted and slave life was cheap. The condition of the slave gradually but slowly improved under the emperors. The killing of the slave of another was not an offence under the lex Cornelia de sicariis itself, but by the interpretation of later times it was brought under this law. A lex Petronia of uncertain date, but which must have been passed before the destruction of Pompeii, a. d. 79, being mentioned in an inscription found there, required a slave-owner to obtain the permission of a magistrate before exposing a slave to be torn to pieces by wild beasts, and only allowed such permission to be granted for some offence committed by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master killing his own slaves who fell sick, and enacted that the exposure of a slave to perish in his sickness should operate as a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is said to have deprived proprietors of the power of putting slaves to death without a judicial sentence, Spartian, Had. 18 (but see on this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a master who killed his own slave to be responsible in the same way as if he had killed the slave of another, cf. § 53, 3 § 213, i. e. guilty of murder, and subject to the penalty of the lex Cornelia de sicariis. We read in Justinian’s Digest: Qui hominem occiderit punitur non habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2. The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be remembered, however, that none of these laws deprive the master of the right of punishing his slaves himself for domestic offences. Hadrian prohibited the castration of a slave, consenting or not consenting, under penalty of death, Dig. 48, 8, 4, 2. Antoninus Pius also protected slaves against cruelty and personal violation, Dig. 1, 6, 2, obliging the master, as we see by the text, to manumit them on account of his maltreatment. The Digest, 1, 6, 1, quoting § 53, after sine causa, interpolates, legibus cognita, thus placing slaves under the protection of the law, and almost recognizing in slaves some of the primordial rights of humanity, except that, as already observed, obligation does not necessarily imply a correlative right. Roman law to the end, unlike other legislations which have recognized forms of slavery, refused to admit any rights in the slave. Florentinus, however, not long after the time of Gaius, admitted that slavery, though an institution of jus gentium, was a violation of the law of nature. Servitus est constitutio juris gentium qua quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian says the same: Quod attinet ad jus civile, servi pro nullis habentur, non tamen et jure naturali; quia quod ad jus naturale attinet, omnes homines aequales sunt, Dig. 50, 17, 32. ‘Before the Civil law a slave is nothing, but not before the Natural law; for in the eye of Natural law all men are equal.’ The belief in a Natural law, more venerable than any Civil law, was very prevalent in the ancient world, and one of the principal contributions of Philosophy to civilization.
The absolute privation of all rights was sometimes expressed by saying that a slave has no persona, caput, or status: e. g. Servos quasi nec personam habentes, Nov. Theod. 17. Servus manumissus capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum servus manumittitur, quia servile caput nullum jus habet, ideo nec minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The word ‘persona,’ however, is sometimes applied to slaves; e. g. in personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput in the last but one of the above-quoted passages.
But though a Roman slave was incapable of being invested with rights for himself, yet he often filled positions of considerable importance both in public and private life and was allowed by his owner to hold a considerable peculium. It was because slaves were ordinarily employed as procuratores in commercial transactions, that Roman law failed to develop the principle of contractual agency, as it is understood in modern systems of jurisprudence.
DE PATRIA POTESTATE.
§ 55. Item in potestate nostra sunt liberi nostri quos iustis nuptiis procreauimus. quod ius proprium ciuium Romanorum est; fere enim nulli alii sunt homines qui talem in filios suos habent potestatem qualem nos habemus. idque diuus Hadrianus edicto quod proposuit de his, qui sibi liberisque suis ab eo ciuitatem Romanam petebant, significauit. nec me praeterit Galatarum gentem credere in potestate parentum liberos esse.
Inst. 1, 9 pr.
DE PATRIA POTESTATE.
§ 55. Again, a man has power over his own children begotten in civil wedlock, a right peculiar to citizens of Rome, for there is scarcely any other nation where fathers are invested with such power over their children as at Rome; and this the late Emperor Hadrian declared in the edict he published respecting certain petitioners for a grant of Roman citizenship to themselves and their children; though I am aware that among the Galatians parents are invested with power over their children.
§ 55. The most peculiar portion of the Roman law of status is that which refers to patria potestas, or the relation of paterfamilias to filiusfamilias. Patria potestas was founded on consuetudinary law (cum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and may be considered under two heads, (1) as regarding the person of the son, (2) as regarding proprietary rights acquirable by the son.
1. Over the person of the child the father had originally a power of life and death. Patribus jus vitae in liberos necisque potestas olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parricidiis, enumerating the persons who could be guilty of parricide, or the murder of a blood relation, omits the father, Dig. 48, 9. Compare also the formula of Adrogatio, §§ 97-107, commentary. But in later times this power was withdrawn. Hadrian condemned to deportation a father who in the hunting-field killed his son who had committed adultery with his stepmother, Dig. 48, 9, 5. Constantine, a. d. 319, included killing by a father under the crime of parricide, Cod. 9, 17. Fathers retained the power of moderate chastisement, but severe punishment could only be inflicted by the magistrate, Cod. 8, 46, 3. Si atrocitas facti jus domesticae emendationis excedat, placet enormis delicti reos dedi judicum notioni, Cod. 9, 15. Trajan compelled a father to emancipate a son whom he treated with inhumanity, Dig. 37, 12, 5. It was originally at the option of the parent whether he would rear an infant or expose it to perish, but in later times such exposure was unlawful, as was declared by Valentinian, Valens, and Gratian, a. d. 374, Cod. 8, 51, 2.
Originally also parents had the power of selling (mancipandi) their children into bondage, thus producing a capitis minutio, or degradation of status. The patriarchs of the Roman race may perhaps have been slave-dealers who, like some savage tribes in Africa and elsewhere, trafficked in the bodies of their own children, but we must note that the bondage into which a Roman father sold his children was, at least at the time at which this institution is known to us, a limited degree of subjection: the mancipation, which if made three times released a son from his father’s power according to a provision of the Twelve Tables, could only be made to another Roman citizen, and the bondsman continued to be liber and civis. And this power also was withdrawn in more civilized times. A law of Diocletian and Maximian, a. d. 294, declares the sale, donation, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript of one of the Antonines commences in the following terms, Cod. 7, 16, 1: ‘You are guilty, by your own admission, of an unlawful and disgraceful act, as you state that you sold your freeborn children.’ Justinian increased the penalties of the law against creditors who took possession of the freeborn child of a debtor as a security for a debt. He enacted that the creditor should forfeit the debt, should pay an equal sum to the child or parent, and in addition should undergo corporal punishment, Novella, 134, 7. In the time of Gaius, the only genuine sale of a child into bondage was in the case of noxal surrender, i. e. when a father sued for the delict of a child, in lieu of damages, surrendered his delinquent son or daughter as a bondsman (mancipium) to the plaintiff, § 140. The sale of the child in adoption and emancipation was merely fictitious; even noxal surrender was practically obsolete in the time of Justinian, by whom it was formally abolished, Inst. 4, 8, 7. Constantine, however, a. d. 329, in cases of extreme poverty permitted parents to sell their children immediately after birth (sanguinolentos), and this constitution was retained in the code of Justinian, Cod. 4, 43, 2.
2. In respect of property, filiusfamilias was capable of obligation but not of right; he could be debtor but not creditor; in any transaction where an independent person (sui juris) would have been creditor, filiusfamilias was merely a conduit-pipe through which a right vested in his father as creditor or proprietor. Even in domestic relations filiusfamilias could only figure as inferior, not as superior; he owed obedience, but could not exercise command (jus, in the special sense which it has in the phrases, sui juris, alieni juris); he could only be an instrument by which his father acquired a right of command. Thus, filiusfamilias had commercium, and could take by mancipatio, but the property he thus took vested in his father; he could make a valid contract, but the contractual right vested in his father; he had testamentifactio, that is, he could be witness, libripens, familiae emptor, but he could not make a will, for he had no property to leave; and if he took under a will as legatee or heir, the legacy or succession vested in his father: cf. 2 § 87, 3 § 163, comm. He had the other element of civitas, connubium; that is, he could contract a civil marriage and beget civil children; but the patria potestas over these children vested not in the father but in the grandfather, and if the marriage was accompanied with power of hand (manus), marital power over the wife, this vested not in the husband but in the husband’s father. Any property which the son was allowed by his father to manage was called his peculium, i. e. was held on the same terms as property which a slave administered by permission of his proprietor. In respect of debts which he incurred, the son did not act as conduit-pipe, but (except for a loan of money, which the Sc. Macedonianum made irrecoverable) was liable in his own person, Dig. 44, 7, 39. ‘A son under power incurs obligation by the same titles, and may be sued on the same grounds of action as an independent person.’ The same rule applied to the son as to the slave: Melior conditio nostra per servos fieri potest, deterior fieri non potest, Dig. 50, 17, 133. ‘The melioration of his proprietor’s condition is in the power of a slave, but not the deterioration.’
In his public functions, filiusfamilias was entirely beyond the sphere of patria potestas. Quod ad jus publicum attinet non sequitur jus potestatis, Dig. 36, 1, 14. Thus, a son could act as praetor or as judex in a suit to which his father was a party. He could even preside as magistrate over his own adoption or emancipation: Si consul vel praeses filiusfamilias sit, posse eum apud semetipsum vel emancipari vel in adoptionem dari constat, Dig. 1, 7, 3 (which makes it doubtful how far political functions were suspended even by the state of mancipium or bondage). He could also be appointed guardian (tutor), for guardianship (tutela) was held to be a public function, Dig. 1, 6, 9. ‘A filiusfamilias in his public relations is deemed independent, for instance, as magistrate or as guardian.’
The above-stated incapacities of filiusfamilias were subject, however, to certain exceptions and modifications, which may now be briefly considered.
a. In certain cases filiusfamilias had an anomalous right of suing in his own name (suo nomine), i. e. not merely as procurator or attorney of his father, and even in opposition to his father’s wishes, Dig. 44, 7, 9. ‘A filiusfamilias can only, according to Julian, sue in his own name for outrage, by interdict for violent or clandestine disturbance, for a deposit, and for a thing he has lent for use.’ These suits, which, in spite of the statement in the text, were not the only, though perhaps the oldest, actions maintainable by a person under power, deserve a brief explanation. Without the right to Honour, one of the primordial rights of humanity, a man is scarcely a freeman, and, accordingly, this right vests definitively in filiusfamilias, and does not again pass out of him to vest in his father. Any dishonouring outrage, therefore, gave filiusfamilias a right of bringing a civil action, called actio injuriarum, in his own name, though the paterfamilias as a rule maintained the action both on his own account and that of his son; if, however, he was unable to do so, or his character was dubious, the son could proceed by himself (cf. 3 § 221, and Dig. 47, 10, 17, 10, &c.), although any pecuniary damages that he thereby recovered, being in the nature of property, were recovered for his father. The son under power was recognized, then, as invested with a vindictive right, though not with a proprietary right. The actio injuriarum was one in bonum et aequum concepta (compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34 pr.), that is, the terms of the formula (conceptio) directed the judex to assess the damages not on any strict principle of law, but by his own sense of natural equity (aequum et bonum), and this form may have helped to make the action maintainable by one who was generally incompetent to sue. The interdict quod vi aut clam was maintainable by filiusfamilias on the same principle as the actio injuriarum, being a means of vindicating a dishonouring outrage inflicted on filiusfamilias by some violent disturbance of real immovable property in defiance of his prohibitio or summons to stay operations and let the matter ahide the result of a judicial trial. Cf. 4 §§ 138-170, comm. On the same principle a filiusfamilias disinherited or passed over in the will of his mother or maternal grandfather, as such disinheritance or pretermission was an implied imputation of turpitude or unworthiness and therefore dishonouring, might without the consent of his father (Dig. 5, 2, 22 pr.) vindicate his honour by impeaching the will of inofficiositas (immorality, or want of natural affection), although such querela inofficiosi testamenti, being an action having a right to property for its object, would not otherwise have been maintainable by a filiusfamilias. If the plaintiff filiusfamilias could show that the disinheritance or omission was not due to his own demerits, he invalidated the will by a fictitious presumption of the testator’s lunacy and made the testator intestate; and thus filiusfamilias vindicated his own character, though whatever share he recovered in the intestate succession vested in his father. Cf. 2 §§ 152-173, comm.; Inst. 2, 18.
The right of filiusfamilias to sue by actio commodati or depositi was founded on a different principle. Suppose that filiusfamilias had borrowed or hired a thing that he afterwards lent or deposited; his father, not being responsible for his son’s debts, would not be interested in the recovery of the thing, and therefore was not entitled to sue the depositary or borrower: the son, however, would be answerable to the original lender or letter, and accordingly was allowed to sue in his own name. To avoid, however, contravening the civil law by affirming a proprietary right vested in a filiusfamilias, he did not sue by a formula in jus concepta, i. e. of the form, si paret oportere, ‘if the plaintiff establish a right,’ but by a formula in factum, of the form, si paret factum esse, ‘if the plaintiff establish a fact.’ It is remarkable that Gaius instances precisely the actio commodati and the actio depositi as having two forms, one in jus and another in factum (4 § 47); and we may eonjecture that the latter was invented to be used under these very circumstances by filiusfamilias.
b. The latter periods of Roman law present a gradual emancipation of filiusfamilias by successive inventions of new kinds of peculium. As early as the time of Augustus filiusfamilias was allowed to dispose freely by will of his earnings in military service, castrense peculium, which came to be treated in all respects as his individual property, except that till the time of Justinian the rules of intestate succession did not apply to it. Filiifamilias in castrensi peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2. Subsequently to the time of Gaius, under Constantine and his successors, the earnings of filiifamilias in the civil service of the State, in holy orders, in the liberal professions, were assimilated to their earnings in the army, and came to be called peculium quasi castrense. Further, in the time of Constantine, it was also established that whatever came to the son from his mother or, as the law was under Justinian, from the maternal line, or from any source but the paternal estate (ex re patris), should be acquired for the father, and held by him only as a usufruct or life estate, while, subject to this, the son had the ownership of it (peculium adventicium). Peculium adventicium thus included everything acquired by the son which was not castrense peculium, nor quasi-castrense peculium, nor acquired by means of the father’s property (ex re patris). Only this latter peculium derived from the paternal estate continued, under the name of peculium profecticium, subject to the old rules, and belonged in absolute property to the father. Cf. 2 § 87, comm.; Inst. 2, 9, 1; 3, 19, 6; 4, 8, 7; 3, 10, 2, 28 pr.
The Gallic race, of which the Galatians were a branch, are mentioned by Caesar as having the institution of patria potestas: Viri in uxores, sicuti in liberos, vitae necisque habent potestatem, De Bello Gall. 6, 19. St. Paul in his Epistle to the Galatians may perhaps allude to the peculiarity of their law: ‘The heir, as long as he is a child, differeth nothing from a servant (slave), though he be lord of all’; 4, 1, though the Apostle seems to be directly referring to the cognate institution of guardianship.
§ 56. |—,|NA si ciues Romanas uxores duxerint, uel etiam Latinas peregrinasue cum quibus conubium habeant; cum enim conubium id efficiat, ut liberi patris condicionem sequantur, euenit ut non 〈solum〉 ciues Romani fiant, sed etiam in potestate patris sint.
Inst. 1, 10 pr.
§ 57. Unde et ueteranis quibusdam concedi solet principalibus constitutionibus conubium cum his Latinis peregrinisue quas primas post missionem uxores duxerint; et qui ex eo matrimonio nascuntur, et ciues Romani et in potestate parentum fiunt.
§ 58. | Non tamen omnes nobis uxores ducere licet; | nam a quarundam nuptiis abstinere debemus;
Inst. l. c.
§ 59. inter eas enim personas quae parentum liberorumue locum inter se optinent nuptiae contrahi non possunt, nec inter eas conubium est, ueluti inter patrem et filiam, uel inter matrem et filium, uel inter auum et neptem; et si tales personae inter se coierint, nefarias et incestas nuptias contraxisse dicuntur. et haec adeo ita sunt, ut quamuis per adoptionem parentum liberorumue loco sibi esse coeperint, non possint inter se matrimonio coniungi, in tantum, ut etiam dissoluta adoptione idem iuris maneat; itaque eam quae mihi per adoptionem filiae aut neptis loco esse coeperit non potero uxorem ducere, quamuis eam emancipauerim.
Inst. l. c.
§ 60. Inter eas quoque personas quae ex transuerso gradu cognatione iunguntur est quaedam similis obseruatio, sed non tanta.
§ 61. Sane inter fratrem et sororem prohibitae sunt nuptiae, siue eodem patre eademque matre nati fuerint, siue alterutro eorum: sed si qua per adoptionem soror mihi esse coeperit, quamdiu quidem constat adoptio, sane inter me et eam nuptiae non possunt consistere; cum uero per emancipationem adoptio dissoluta sit, potero eam uxorem ducere; sed et si ego emancipatus fuero, nihil inpedimento erit nuptiis.
§ 62. Fratris filiam uxorem ducere licet. idque primum in usum uenit, cum diuus Claudius Agrippinam fratris sui filiam uxorem duxisset; sororis uero filiam uxorem ducere non licet. et haec ita principalibus constitutionibus significantur. Item amitam et materteram uxorem ducere non licet.
Inst. 1, 10, 3-5.
§ 63. Item eam quae mihi quondam socrus aut nurus aut priuigna aut nouerca fuit. ideo autem diximus ‘quondam,’ quia si adhuc constant eae nuptiae, per quas talis adfinitas quaesita est, alia ratione mihi nupta esse non potest, quia neque eadem duobus nupta esse potest, neque idem duas uxores habere.
Inst. 1, 10, 6.
§ 64. Ergo si quis nefarias atque incestas nuptias contraxerit, neque uxorem habere uidetur neque liberos; itaque hi qui ex eo coitu nascuntur matrem quidem habere uidentur, patrem uero non utique: nec ob id in potestate eius 〈sunt, sed tales〉 sunt quales sunt hi quos mater uulgo concepit; nam et hi patrem habere non intelleguntur, cum is etiam incertus sit; unde solent spurii filii appellari, uel a Graeca uoce quasi σποράδην concepti, uel quasi sine patre filii.
Inst. 1, 10, 12.
§ 56. A Roman citizen contracts civil wedlock and begets children subject to his power when he takes to wife a citizen of Rome or a Latin or alien with whom a Roman has capacity of civil wedlock; for as civil wedlock has the effect of giving to the children the paternal condition, they become by birth not only citizens of Rome, but also subject to the power of the father.
§ 57. And for this purpose veterans often obtain by imperial constitution a power of civil wedlock with the first Latin or alien woman they take to wife after their discharge from service, and the children of such marriages are born citizens of Rome and subject to paternal power.
§ 58. But it is not any woman that can be taken to wife, for some marriages are prohibited.
§ 59. Persons related as ascendent and descendent are incapable of lawful marriage or civil wedlock, father and daughter, for instance, mother and son, grandfather and granddaughter; and if such relations unite, their unions are called incestuous and nefarious; and so absolute is the rule that merely adoptive ascendents and descendents are for ever prohibited from intermarriage, and dissolution of the adoption does not dissolve the prohibition: so that an adoptive daughter or granddaughter cannot be taken to wife even after emancipation.
§ 60. Collateral relatives also are subject to similar prohibitions, but not so stringent.
§ 61. Brother and sister, indeed, are prohibited from intermarriage whether they are born of the same father and mother or have only one parentin common: but though an adoptive sister cannot, during the subsistence of the adoption, become a man’s wife, yet if the adoption is dissolved by her emancipation, or if the man is emancipated, there is no impediment to their intermarriage.
§ 62. A man may marry his brother’s daughter, a practice first introduced when Claudiusmarried his brother’s daughter Agrippina, but may not marry his sister’s daughter, a distinction laid down in imperial constitutions, nor may he marry his father’s sister or his mother’s sister.
§ 63. He may not marry one who has been his wife’s mother or his son’s wife or his wife’s daughter or his father’s wife. I say, one who has been so allied, because during the continuance of the marriage that produced the alliance there would be another impediment to the union, for a man cannot have two wives nor a woman two husbands.
§ 64. A man who contracts a nefarious and incestuous marriage is not deemed to have either a wife or children; for the offspring of such a union are deemed to have a mother but no father, and therefore are not subject to paternal power; resembling children born in promiscuous intercourse, who are deemed to have no father, because their true father is uncertain, and who are called bastards either from the Greek word denoting illicit intercourse or because they are fatherless.
In any treatise on the law of marriage that we open we shall meet the expression, the marriage contract; and this suggests the inquiry, is marriage a contract, and, if so, to which class of Roman contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman marriage to be referred? Most writers assume that it was a Consensual contract, on the strength of texts like the following: Nuptias non concubitus sed consensus facit, Dig. 35, 1, 15. ‘Marriage does not depend on cohabitation, but on consent.’ Ortolan, however, remarks that consensual contracts could be formed by absent contractors, Inst. 3, 22, 2, whereas a marriage could not be contracted in the absence of the wife, Paul, 2, 19, 8; and shows that, besides the consent of the parties, delivery of possession of the wife to the husband was required, from which he infers that Roman marriage was not a Consensual but a Real contract. It is true that marriage might be contracted in the absence of the husband; but this was only under certain conditions, Dig. 23, 22, 5. ‘A man in his absence may marry by letter or message, provided the woman is led to his house: a woman in her absence cannot marry by letter or message, for the leading must be to the husband’s house, as the domicile of the married pair.’ And precisely the same conditions were sufficient in other cases to constitute delivery of possession, Dig. 41, 2, 18, 2. ‘If a vendor deposit any article in my house by my order, I have possession of it though I have never touched it.’ Consensus, then, in the above-quoted passage, is not opposed to delivery of possession, but to cohabitation, or to the use of certain words or certain documents, or to the solemn and graceful ceremonial with which custom surrounded the matrimonial union.
Real contracts, however, are executory on one side and executed on the other, whereas in the conjugal relation both parties are on the same footing in respect of execution; and we may ask whether marriage is a contract at all; whether it does not rather fall under the opposite category of alienation or conveyance. Instead of finding its analogon in locatio-conductio or societas (consensual contracts) or pignus or commodatum (real contracts), may we not rather, with Savigny, find it in transfer of dominion or other creations of real right, such as adoption, the concession of patria potestas, or emancipation? This seems the truer view, and if we use the expression, marriage contract, we must use the term contract not in a specific sense, as opposed to conveyance, but in the generic sense of bilateral disposition (as opposed to unilateral disposition, e.g. testation), a sense embracing both contract proper and conveyance, and extending beyond the sphere of Property into the relations of domestic life. Contract proper and conveyance, though generally contrasted in jurisprudence, have much in common. If contract in its narrower sense is defined to be the concurrence of two manifestations of will creating a jus in personam, and conveyance the concurrence of two manifestations of will creating a jus in rem, the concurrence of two manifestations of will creating a jus is an element common to both terms of the comparison, and this common element may be denominated in a generic sense a contract. Contract in the narrower sense may then be distinguished as an obligative contract and conveyance as a translative contract, and the latter head will include the contract of marriage, if we continue to employ this expression.
As in respect of property or dominion we find in Roman law the distinction of Quiritary and Bonitary, that is, of civil and gentile, ownership, so in respect of the conjugal relation we find the distinction of Roman or civil marriage (connubium, justae nuptiae, justum matrimonium) and gentile marriage (nuptiae, matrimonium), of which the former alone was valid at civil law (connubium est uxoris jure ducendae facultas, Ulpian, 5, 3; ‘connubium is the capacity of marriage valid by civil law’) and capable of producing patria potestas and agnatio, though the latter produced legitimate children (justi as opposed to naturales liberi) and cognatio or natural relationship.
Capacity of civil marriage (connubium) is (a) absolute and (b) relative. (a) Only citizens have the absolute capacity of civil marriage, and such Latins and aliens as are specially privileged, § 56: slaves are incapable both of civil and gentile marriage. (b) Capacity of civil marriage is, however, always relative to another person who forms the other party to the union. A citizen only has connubium with a citizen or with such Latins and aliens as are specially privileged; and, before the lex Papia Poppaea was passed, a freeborn citizen (ingenuus) had no connubium with a citizen by manumission (libertinus). Lege Papia cavetur omnibus ingenuis, praeter senatores eorumque liberos libertinam uxorem habere licere, Dig. 23, 2, 23. ‘The lex Papia permits all freeborn citizens, except senators and their children, to marry freedwomen.’
§§ 58-63. The prohibition of marriage between collateral relations, originally perhaps extended as far as there were legal names for the relationship, i. e. as far as the sixth degree, for Tacitus mentions that second cousins were once incapable of intermarriage, sobrinarum diu ignorata matrimonia, Ann. 12, 6; and Livy (20, see Hermes, 4, 372), in a fragment discovered by Krueger, expressly says that marriage was once restricted within this limit. ‘P. Coelius patricius primus adversus veterem morem intra septimum cognationis gradum duxit uxorem. Ob hoc M. Rutilius plebeius sponsam sibi praeripi novo exemplo nuptiarum dicens sedicionem populi concitavit adeo, ut patres territi in Capitolium perfugerent’ (cf. Karlowa, Röm. Rechtsg., p. 175); but though marriages within this limit may still have been regarded as contrary to religion (fas), the law (jus) was gradually relaxed. The prohibition was subsequently reduced to the fourth degree, i. e. to the intermarriage of first cousins (consobrini), Ulpian, 5, 6, with this restriction, however, that if one of the collaterals was only removed by one degree from the common ancestor (stipes communis), he was regarded as a quasi ascendent (loco parentis) and incapable of intermarriage at any degree: thus, a man could not marry his brother’s or sister’s granddaughter, though only related in the fourth degree, Cod. 5, 4, 17. Degrees in the direct line were reckoned by counting the generations or births to which a person owed his descent from an ancestor: thus, a man is one degree from his father, two from his grandfather: in the transverse or collateral line, by adding the degrees which separate each collateral from the common stock; thus, a man is two degrees from his sister, three from his niece.
Constantinus, a. d. 355, restored the ancient law and prohibited marriage with a brother’s daughter as incestuous, Cod. Theod. 3, 12, 1.
Affinity (affinitas) is the relationship of a person to the kin (cognates) of a spouse. The husband is allied to the kin of the wife, the wife to the kin of the husband; but there is no alliance between the kin of the husband and the kin of the wife. The following are some of the names given to these relationships. In the ascending line the father and mother of the wife or husband are socer and socrus (father-in-law, mother-in-law), and in relation to them the husband of the daughter and wife of the son are gener and nurus (son-in-law, daughter-in-law). In the descending line the children of the spouse are privignus and privigna (step-son, step-daughter), and in relation to them the husband of the mother and the wife of the father are vitricus and noverca (step-father and step-mother). In the collateral line the husband’s brother is levir (brother-in-law), the husband’s sister is glos (sister-in-law). Intermarriage with affines in the direct line, or their ascendents or descendents, was absolutely prohibited; collateral alliance appears to have been no impediment in the time of Gaius, but at a later period marriage with a deceased brother’s wife or a deceased wife’s sister was forbidden, Cod. Theod. 2, 3, 12; Cod. 5, 5, 5.
To the marriage of a filius- or filia-familias the consent of the father was required: but if he withheld it without a reason he could be compelled by the magistrate to give it, and, in the case of a daughter, to provide a dower, Dig. 23, 2, 19: one of several instances in which, as the condition of the validity of a title, when a voluntary action could not be obtained, the legislator substituted a compulsory action, instead of simply declaring the action unnecessary. See § 190, comm.
DE ERRORIS CAVSAE PROBATIONE.
§ 65. | Aliquando autem euenit ut liberi qui statim ut na|ti sunt parentum in potestate non fiant, ii postea tamen redigantur in potestatem.
Inst. 1, 10, 13.
§ 66.Veluti si Latinus ex lege Aelia Sentia uxore ducta filium procreauerit aut Latinum ex Latina aut ciuem Romanum ex ciue Romana, non habebit eum in potestate; sed si postea causa probata ius 〈Quiritium〉 consecutus fuerit, simul eum in potestate sua habere incipit.
§ 67. Item si ciuis Romanus Latinam aut peregrinam uxorem duxerit per ignorantiam, cum eam ciuem Romanam esse crederet, et filium procreauerit, hic non est in potestate eius, quia ne quidem ciuis Romanus est, sed aut Latinus aut peregrinus, id est eius condicionis cuius et mater fuerit, quia non aliter quisque ad patris condicionem accedit, quam si inter patrem et matrem eius conubium sit; sed ex senatusconsulto permittitur causam erroris probare, et ita uxor quoque et filius ad ciuitatem Romanam perueniunt, et ex eo tempore incipit filius in potestate patris esse. idem iuris est, si eam per ignorantiam uxorem duxerit quae dediticiorum numero est, nisi quod uxor non fit ciuis Romana.
§ 68. Item si ciuis Romana per errorem nupta sit peregrino tamquam ciui Romano, permittitur ei causam erroris probare, et ita filius quoque eius et maritus ad ciuitatem Romanam perueniunt, et aeque simul incipit filius in potestate patris esse. idem iuris est, si peregrino tamquam Latino ex lege Aelia Sentia nupta sit; nam et de hoc specialiter senatusconsulto cauetur. idem iuris est aliquatenus, si ei qui dediticiorum numero est tamquam ciui Romano aut Latino e lege Aelia Sentia nupta sit; nisi quod scilicet qui dediticiorum numero est, in sua condicione permanet, et ideo filius, quamuis fiat ciuis Romanus, in protestatem patris non redigitur.
§ 69. Item si Latina peregrino, cum eum Latinum esse crederet, 〈e lege Aelia Sentia〉 nupserit, potest ex senatusconsulto filio nato causam erroris probare, et ita omnes fiunt ciues Romani et filius in potestate patris esse incipit.
§ 70. Idem constitutum est, si Latinas per errorem peregrinam quasi Latinam aut ciuem Romanam e lege Aelia Sentia uxorem duxerit.
§ 71. Praeterea si ciuis Romanus, qui se credidisset Latinum esse, ob id Latinam 〈uxorem duxerit〉, permittitur ei filio nato erroris causam probare, tamquam 〈si〉 e lege Aelia Sentia uxorem duxisset. Item his qui cum ciues Romani essent, peregrinos se esse credidissent et peregrinas uxores duxissent, permittitur ex senatusconsulto filio nato causam erroris probare; quo facto fiet | uxor ciuis Romana et filius—non solum ad ciuita|tem Romanam peruenit, sed etiam in potestatem patris redigitur.
§ 72. Quaecumque de filio esse diximus, eadem et de filia dicta intellegemus.
§ 73. Et quantum ad erroris causam probandam attinet, nihil interest cuius aetatis filius sit | —|—|—,NA si minor anniculo sit filius filiaue, causa probari | non potest. nec me praeterit in aliquo rescripto diui Hadriani ita esse constitutum, tamquam quod ad erroris quoque | causam probandam—|—|—NAimperator—dedit.
§ 74. 〈Sed〉 si peregrinus ciuem Romanam uxorem duxerit, an ex senatusconsulto causam pro|bare possit, quaesitum est.—probare | causam non potest, quamuis ipse— — |NA hoc ei specialiter concessum est. sed cum peregrinus ciuem Romanam uxorem duxisset et filio nato alias ciuitatem Romanam consecutus esset, deinde cum quaereretur, an causam probare posset, rescripsit imperator Antoninus proinde posse eum causam probare, atque si peregrinus mansisset. ex quo colligimus etiam peregrinum causam probare posse.
§ 75. Ex his quae diximus apparet, siue ciuis Romanus peregrinam siue peregrinus ciuem Romanam uxorem duxerit, eum qui nascitur peregrinum esse. sed siquidem per errorem tale matrimonium contractum fuerit, emendari uitium eius ex senatusconsulto licet 〈secundum〉 ea quae superius diximus. si uero nullus error interuenerit, 〈sed〉 scientes suam condicionem ita coierint, nullo casu emendatur uitium eius matrimonii.
DE ERRORIS CAVSAE PROBATIONE.
§ 65. It sometimes happens that children when first born are not in their father’s power, but are subsequently brought under it.
§ 66. Thus, under the lex Aelia Sentia a Latin who marries and begets a son of Latin status by a Latin mother, or a citizen of Rome by a Roman mother, has not power over him; but on proof of his case as required by the statute, he becomes a Roman citizen along with his son, who is henceforth subject to his power.
§ 67. Again, if a Roman citizen marry a Latin or an alien woman, in a mistaken belief that she is a Roman citizen, the son whom he begets is not in his power, not indeed being born a Roman citizen, but a Latin or an alien, that is to say. of the same status as his mother, for a child is not born into the condition of his father unless his parents had capacity of civil marriage: but a senatus-consult allows the father to prove a cause of justifiable error, and then the wife and son become Roman citizens, and the son is thenceforth in the power of the father. The same relief is given when a Roman citizen under a like misconception marries a freedwoman having the status of a surrendered foe, except that the wife does not become a Roman citizen.
§ 68. Again, a female Roman citizen who marries an alien, believing him to be a Roman citizen, is permitted to prove a cause of justifiable error, and thereupon her son and husband become Roman citizens, and simultaneously the son becomes subject to the power of his father. Similar relief is given if she marry an alien as a Latin intending to comply with the conditions of the lex Aelia Sentia, for this case is specially provided for in the senatus consult. Similar relief is given to a certain extent if she marry a freedman having the status of a surrendered foe instead of a Roman citizen, or instead of a Latin, whom she intended to marry according to the provision of the lex Aelia Sentia, except that the freedman husband continues of the same status, and therefore the son. though he becomes a Roman citizen, does not fall under paternal power.
§ 69. Also a Latin freedwoman married according to the provision of the lex Aelia Sentia to an alien whom she believed to be a Latin, is permitted by the senatusconsult, on the birth of a son, to prove a cause of justifiable error, and thereupon they all become Roman citizens, and the son becomes subject to paternal power.
§ 70. Exactly the same relief is given if a Latin freedman mistakenly marry an alien woman believing her to be a Latin freedwoman, or a Roman citizen, when he intended to comply with the lex Aelia Sentia.
§ 71. Further, a Roman citizen who marries a Latin freedwoman, believing himself to be a Latin, is permitted on the birth of a son to prove the cause of his mistake as if he had married according to the provisions of the lex Aelia Sentia. So, too, a Roman citizen, who marries an alien, believing himself to be an alien, is permitted by the senatusconsult on the birth of a son to prove the cause of the mistake, and then the alien wife becomes a Roman citizen, and the son becomes a Roman citizen and subject to the power of the father.
§ 72. Whatever has been said of a son applies to a daughter.
§ 73. And as to the proof of the cause of error, the age of the son or daughter is immaterial, except that, if the marriage was contracted with an intention to satisfy the requirements of the lex Aelia Sentia, the child must be a year old before the cause can be proved. I am aware that a rescript of the late Emperor Hadrian speaks as if it was a condition of proof of the cause of error that the son must be a year old, but this is to be explained by the particular circumstances of the case in which this rescript was granted.
§ 74. It is a question whether an alien, who has married a Roman wife, can prove cause of error under the S. C. But when an alien, believed to be a Roman citizen, married a Roman wife, and subsequently to the birth of a son acquired Roman citizenship, on the question arising whether he could prove the cause of error, a rescript of Antoninus Pius decided that he was just as competent to prove as if he had continued an alien: from which may be gathered that an alien is competent to prove the cause of error.
§ 75. Hence it appears that a person born in marriage is an alien if his father was a Roman citizen and his mother an alien, or if his father was an alien and his mother a Roman citizen, though if the marriage was contracted under a mistake, a remedy is supplied by the S. C. as above explained. No relief is given in any case, where the parties did not contract marriage under an error, but were aware of their condition.
Mistake or error sometimes conferred a right which a party could not have acquired if he had not acted under a mistake. Thus, the lender of money to a filiusfamilias without the father’s consent had no legal claim to recover, unless he lent believing the borrower to be independent (sui juris), and possession could not mature by usucapion into ownership, unless it had a bona fide inception, i. e. unless it commenced in an honest misunderstanding. The relief of error had similarly important results in questions of status. Erroris causam probare seems to mean ‘to make good a title by error,’ i. e. to establish, as title (causa) to relief, a probabilis error or justa ignorantia; i. e. a mistake not due to negligence; for negligence would exclude from relief.
The subjection of a child to patria potestas by erroris causae probatio operated to invalidate a previously executed will, like the subsequent birth (agnatio) of a child in civil wedlock (suus postumus), 2 § 142.
DE STATV LIBERORVM.
§ 76. Loquimur autem de his scilicet, 〈inter〉 quos conubium non sit; nam alioquin si ciuis Romanus peregrinam cum qua ei conubium est uxorem duxerit, sicut supra quoque diximus, iustum matrimonium contrahitur; et tunc ex his qui nascitur ciuis Romanus est et in potestate patris erit.
§ 77. Item si ciuis Romana peregrino, cum quo ei conubium est, nupserit, peregrinum sane procreat et is iustus patris filius est, tamquam si ex peregrina eum procreasset. hoc tamen tempore 〈ex〉 senatusconsulto, quod auctore diuo Hadriano factum est, etiamsi non fuerit conubium inter ciuem Romanam et peregrinum, qui nascitur iustus patris filius est.
§ 78. Quod autem diximus inter ciuem Romanam peregrinumque—qui | nascitur peregrinum esse, lege Minicia cauetur,〈—〉 |NAest, ut s—parentis condicionem sequatur.|eadem lege enim ex diuerso cauetur, ut si peregrinam, cum qua ei conubium non sit, uxorem duxerit ciuis Romanus, peregrinus ex eo coitu nascatur. sed hoc maxime casu necessaria lex Minicia; nam remota ea lege diuersam condicionem sequi debebat, quia ex eis, inter quos non est conubium, qui nascitur iure gentium matris condicioni accedit. qua parte autem iubet lex ex ciue Romano et peregrina peregrinum nasci, superuacua uidetur; nam et remota ea lege hoc utique iure gentium | futurum erat.
§ 79. Adeo autem hoc ita est, ut —|—|—NAnon | solum exterae nationes et gentes, sed etiam qui Latini nominantur; sed ad alios Latinos pertinet qui proprios populos propriasque ciuitates habebant et erant peregrinorum numero.
§ 80. Eadem ratione ex contrario ex Latino et ciue Romana, siue ex lege Aelia Sentia siue aliter contractum fuerit matrimonium, ciuis Romanus nascitur. fuerunt tamen qui putauerunt ex lege Aelia Sentia contracto matrimonio Latinum nasci, quia uidetur eo casu per legem Aeliam Sentiam et Iuniam conubium inter eos dari, et semper conubium efficit, ut qui nascitur patris condicioni accedat; aliter uero contracto matrimonio eum qui nascitur iure gentium matris condicionem sequi et ob id esse ciuem Romanum. sed hoc iure utimur ex senatusconsulto, quo auctore diuo Hadriano significatur, ut quoquo modo ex Latino et ciue Romana natus ciuis Romanus nascatur.
§ 81. His conuenienter etiam illud senatusconsultum diuo Hadriano auctore significauit, ut 〈qui〉 ex Latino et peregrina, item contra 〈qui〉 ex peregrino et Latina nascitur, is matris condicionem sequatur.
§ 82. Illud quoque his consequens est, quod ex ancilla et libero iure gentium seruus nascitur, et contra ex libera et seruo liber nascitur.
§ 83. Animaduertere tamen debemus, ne iuris gentium regulam uel lex aliqua uel quod legis uicem optinet, aliquo casu commutauerit.
§ 84. Ecce enim ex senatusconsulto Claudiano poterat ciuis Romana quae alieno seruo uolente domino eius coiit, ipsa ex pactione libera permanere, sed seruum procreare; nam quod inter eam et dominum istius serui conuenerit, eo senatusconsulto ratum esse iubetur. sed postea diuus Hadrianus iniquitate rei et inelegantia iuris motus restituit iuris gentium regulam. ut cum ipsa mulier libera permaneat, liberum pariat.
§ 85. 〈Item e lege —〉 ex ancilla et libero poterant liberi nasci; nam ea lege cauetur, ut si quis cum aliena ancilla quam credebat liberam esse coierit, siquidem masculi nascantur, liberi sint, si uero feminae, ad eum pertineant cuius mater ancilla fuerit. sed et in hac specie diuus Vespasianus inelegantia iuris motus restituit iuris gentium regulam, ut omni modo, etiamsi masculi nascantur, serui sint eius cuius et mater fuerit.
§ 86. Sed illa pars eiusdem legis salua est, ut ex libera et seruo alieno, quem sciebat seruum esse, serui nascantur. itaque apud quos talis lex non est, qui nascitur iure gentium matris condicionem sequitur et ob id liber est.
§ 87. Quibus autem casibus matris et non patris condicionem sequitur qui nascitur, isdem casibus in potestate eum patris, etiamsi is ciuis Romanus sit, non esse plus quam manifestum est. et ideo superius rettulimus quibusdam casibus per errorem non iusto contracto matrimonio senatum interuenire et emendare uitium matrimonii, eoque modo plerumque efficere, ut in potestatem patris filius redigatur.
DE STATV LIBERORVM.
§ 76. It is to be remembered that we are speaking of a marriage between persons who have not the capacity of entering into a civil marriage with one another. When, however, a Roman citizen takes to wife an alien privileged as I described (§ 56), he contracts a civil marriage, and his son is born a Roman citizen and subject to his power.
§ 77. So if a female Roman citizen marry an alien with whom she has capacity of civil marriage, her son is an alien and a lawful son of his father, just as if his mother had been an alien. At the present day, by a senatusconsult passed on the proposition of the late Emperor Hadrian, even without civil marriage the offspring of a Roman woman and alien is a lawful son of his father.
§ 78. The rule we have stated that when a female Roman citizen marries an alien, the offspring is an alien, if there is no capacity of civil marriage between them, is enacted by the lex Minicia, which also provides that when a Roman citizen marries an alien woman, and there is no capacity of civil marriage between them, their offspring shall be an alien. This special enactment was required in the first case, as otherwise the child would follow the condition of the mother; for when there is no capacity of civil marriage between parents, their offspring belongs to the condition of his mother by jus gentium. But the part of this law which ordains that the offspring of a Roman citizen and an alien woman is an alien seems to be superfluous, since without any enactment this would be so under the rule of jus gentium.
§ 79. So much so that it is under this rule of jus gentium that the offspring of a Latin freedwoman by a Roman citizen with whom she has no capacity of civil marriage is a Latin, since the statute did not refer to those who are now designated Latins; for the Latins mentioned in the statute are Latins in another sense, Latins by race and members of a foreign state, that is to say, aliens.
§ 80. By the same principle, conversely, the son of a Latin and a Roman woman is by birth a Roman citizen, whether their marriage was contracted under the lex Aelia Sentia or otherwise. Some, however, thought that if the marriage was contracted in accordance with the lex Aelia Sentia, the offspring is a Latin by birth, because on this hypothesis the lex Aelia Sentia and Junia confer a capacity of civil marriage, and a civil marriage always transmits to the offspring the status of the father: if the marriage was otherwise contracted, they held the offspring acquires by jus gentium the status of his mother. However, the law on this point is now determined by the senatusconsult passed on the proposition of the late Emperor Hadrian, which enacts that the son of a Latin and a Roman woman is under every hypothesis a Roman citizen.
§ 81. Consistently herewith Hadrian’s senatusconsult provides that the offspring of the marriage of a Latin freedman with an alien woman or of an alien with a Latin freedwoman follows the mother’s condition.
§ 82. Consistently herewith the offspring of a female slave and a freeman is by jus gentium a slave, the offspring of a freewoman and a slave is free.
§ 83. We must observe, however, whether the jus gentium in any given instance is overruled by a statute or ordinance having the authority of a statute.
§ 84. For instance, the Sc. Claudianum permitted to a female citizen of Rome having intercourse with a slave with his owner’s consent, to continue herself in virtue of the agreement free, while she gave birth to a slave, her agreement to that effect with the owner being made valid by the senatusconsult. Subsequently, however, the late Emperor Hadrian was induced by the injustice and anomaly of the ordinance to re-establish the rule of jus gentium, that as the mother continues free the offspring follows her status.
§ 85. By a law (the name of which is unknown) the offspring of a female slave by a freeman might be free, for that law provided that the offspring of a freeman by another person’s female slave whom he believed to be free shall be free if they are male, but shall belong to their mother’s proprietor if they are female: but here too the late Emperor Vespasian was moved by the anomalous character of the rule to re-establish the canon of jus gentium, and declared that the offspring in every case, whether male or female, should be slaves and the property of their mother’s owner.
§ 86. But another clause of that law continues in force, providing that the offspring of a freewoman by another person’s slave whom she knows to be a slave are born slaves, though where this law is not established the offspring by jus gentium follow the mother’s condition and are free.
§ 87. When the child follows the mother’s condition instead of the father’s, it is obvious that he is not subject to the power of the father, even though the father is a Roman citizen: but in some cases, as I mentioned above (§ 67), when a mistake was the occasion of a non-civil marriage being contracted, the senate interferes and purges the defect of the marriage. and this generally has the effect of subjecting the son to the power of the father.
§§ 76, &c. The rules relating to the status of the offspring of parents of unequal status are at first sight chaotic and bewildering, but they are reducible to a few canons. The most general canon is the rule of jus gentium, that children follow the condition of the mother. This is subject to two exceptions.
1. Children born in civil wedlock follow the condition of the father. Cf. §§ 88, 89, 94.
2. Children born in gentile (lawful) wedlock of a Roman mother and alien father follow the condition of the father: this was a special enactment of the lex Minicia.
These rules are stated in the following passages: Lex naturae haec est ut qui nascitur sine legitimo matrimonio matrem sequatur nisi lex specialis aliud inducat, Dig. 1, 5, 24. ‘By the law of nature children not born in civil wedlock follow the status of the mother, in the absence of a special statute to the contrary.’ Connubio interveniente liberi semper patrem sequuntur: non interveniente connubio, matris conditioni accedunt, excepto eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex Minicia (in MS. Mensia) ex alterutro peregrino natum deterioris parentis conditionem sequi jubet, Ulpian, 5, 8. ‘In civil wedlock the children have the status of the father, in the absence of civil wedlock of the mother; except that the children of an alien father and Roman mother are aliens, as the lex Minicia makes the children aliens when either parent is an alien.’
The Sc. Claudianum introduced some special enactments respecting the intercourse of freewomen with slaves, which, however, were subsequently abolished.
a. If a freewoman had intercourse with a slave with the consent of his proprietor she retained her freedom, though degraded to the class of a freedwoman, but her issue was the slave of the proprietor. The slavery of the issue was abolished by Hadrian, § 84.
b. If a freewoman persisted in intercourse with the slave of another person against the will and in spite of the prohibition of the proprietor, after three denunciations on his part she was awarded to him by the magistrate as a slave, and her issue, whether born before or after the adjudication, became slaves of the same person, who also acquired her estate by a species of universal succession. Cf. §§ 91, 160. This terroristic law, which, from the minuteness with which the details are developed (Paulus, 2, 21), appears to have been often applied, was not abrogated till the time of Justinian, Inst. 3, 12, 1.
c. If a freeman had intercourse with a slave whom he supposed to be free by a law the title of which is lost, but which possibly may be the Sc. Claudianum, her male children were born into freedom. This relief of error was abolished by Vespasian as anomalous (inelegans), § 85.
§ 80. There was some ground for the view that a marriage under the lex Aelia Sentia, because it was statutory (regulated by statute), was therefore a civil marriage; and we may regard the senatusconsult of Hadrian, which denied its civil character, as not purely declaratory.
§ 88. Sed si ancilla ex ciue Romano conceperit, deinde manumissa ciuis Romana facta sit et tunc pariat, licet ciuis Romanus sit qui nascitur, sicut pater eius, non tamen in potestate patris est, quia neque ex iusto coitu conceptus est neque ex ullo senatusconsulto talis coitus quasi iustus constituitur.
§ 89. Quod autem placuit, si ancilla ex ciue Romano conceperit, deinde manumissa pepererit, qui nascitur liberum nasci, naturali ratione fit; nam hi qui illegitime concipiuntur, statum sumunt ex eo tempore quo nascuntur; itaque si ex libera nascuntur, liberi fiunt, nec interest ex quo mater eos conceperit, cum ancilla fuerit; at hi qui legitime concipiuntur ex conceptionis tempore statum sumunt.
§ 90. Itaque si cui mulieri ciui Romanae praegnati aqua et igni interdictum fuerit, eoque modo peregrina facta tunc pariat, conplures distinguunt et putant, siquidem ex iustis nuptiis conceperit, ciuem Romanum ex ea nasci, si uero uulgo conceperit, peregrinum ex ea nasci.
§ 91. Item si qua mulier ciuis Romana praegnas ex senatusconsulto Claudiano ancilla facta sit ob id, quod alieno seruo inuito et denuntiante domino eius 〈coierit〉, conplures distinguunt et existimant, siquidem ex iustis nuptiis conceptus sit, ciuem Romanum ex ea nasci, si uero uulgo conceptus sit, seruum nasci eius cuius mater facta esset ancilla.
§ 92. Peregrina quoque si uulgo conceperit, deinde ciuis Romana 〈fiat〉 et tunc pariat, ciuem Romanum parit; si uero ex peregrino secundum leges moresque peregrinorum conceperit, ita uidetur ex senatusconsulto quod auctore diuo Hadriano factum est ciuem Romanum parere, si et patri eius ciuitas Romana donetur.
§ 88. If a female slave conceive by a Roman citizen and become herself by manumission a Roman citizen before giving birth to a son, her son, though a Roman citizen like his father, is not in his father’s power, because he was not begotten in civil wedlock, and there is no senatusconsult which cures the defect of the intercourse in which he was begotten.
§ 89. The decision that when a female slave conceives by a Roman citizen and is manumitted before childbirth, her offspring is born free, is a rule of natural law; for in illegitimate or non-civil conception the status of the offspring depends on the moment of birth, and the mother’s freedom at the moment of birth makes the offspring free, and the status of the father is immaterial; but in statutory or civil conception the status of the child is determined by the time of conception.
§ 90. Accordingly, if a female citizen of Rome being pregnant is interdicted from fire and water, and becoming thus an alien gives birth to a child, many jurists distinguish and hold that her offspring is a Roman citizen if begotten in civil wedlock, but if in promiscuous intercourse, an alien.
§ 91. So if a female citizen of Rome being pregnant is reduced to slavery under the Sc. Claudianum for having intercourse with a slave in spite of the dissent and denunciation of his owner, many jurists make a distinction and hold that her offspring, if conceived in civil wedlock is a citizen of Rome, if conceived in illicit intercourse is a slave of the person who becomes proprietor of the mother.
§ 92. Also if an alien woman conceive in illicit intercourse and afterwards becomes a Roman citizen and gives birth to a child, the child is a Roman citizen; but if she conceived by an alien, to whom she was married in accordance with alien laws and customs, it seems that upon Hadrian’s senatusconsult her offspring is only born a Roman citizen, if the father also has acquired the Roman citizenship.
Supposing the status of a parent changes during the period of gestation (if, for instance, the mother is a slave at the time of conception and free at the time of birth), what effect has this on the status of the issue? The following rule was adopted: in cases where the child follows the status of the father, that is, when it is begotten in civil marriage, the status of the father at the time of conception determines the status of the child; where the child follows the status of the mother, that is, when it is begotten in gentile marriage or in promiscuous intercourse, the status of the child is determined by the status of the mother at the moment of birth. Ulpian, 5, 10. ‘Children born in civil wedlock have their status fixed at the time of conception; children born out of civil wedlock have their status fixed at the time of delivery.’ That is to say, the legal position of the issue is made to follow the analogy of its physical condition. The physical influence of the father terminates with conception: his subsequent health, life, or death, does not affect the physical state of the child; but the child is affected by every change in the physical condition of the mother, her health, life, or death, up to the moment of birth. In imitation of this analogy, the status of the child, when it depended on the status of the father, was not affected by any change in that status subsequent to the period of conception; but when it depended on the status of the mother it varied with every change in that status up to the moment of birth. By the time of Gaius, though the change is not mentioned in the text, this rule was modified in favour of liberty, and it was established that if the mother was free either at the date of conception or at the date of birth or at any intermediate period, the issue was born free. Si libera conceperit et ancilla facta peperit, liberum parit, id enim favor libertatis exposcit. Si ancilla conceperit et medio tempore manumissa sit, rursus facta ancilla peperit, liberum parit, media enim tempora libertati prodesse, non nocere etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr.
§ 88. The issue of a mother who was a slave at the date of conception but is a citizen at the date of birth, though it is born a Roman citizen, is not subject to patria potestas, because it does not satisfy the definition in § 55, liberi quos justis nuptiis procreavimus, ‘a child begotten in civil wedlock.’
§ 90. Aquae et ignis interdictio was originally a permission to avoid punishment under the penal code by voluntary exile. Subsequently it was employed as a punishment, and under the emperors assumed the form of deportatio in insulam. It was attended with confiscation of goods, and involved loss of civitas but not of libertas, §§ 128, 161.
§ 92. The offspring of a wedded mother who was an alien at the date of conception and is a citizen at the date of birth, according to the general rule of jus gentium, should be born a Roman citizen; but this would contravene the above-mentioned lex Minicia, which enacted that the issue of a marriage is an alien whenever either parent is an alien, § 78.
§ 93. Si peregrinus sibi liberisque suis ciuitatem Romanam petierit, non aliter filii in potestate eius fient, quam si imperator eos in potestatem redegerit; quod ita demum is facit, si causa cognita aestimauerit hoc filiis expedire. diligentius autem exactiusque causam cognoscit de inpuberibus absentibusque; et haec ita edicto diui Hadriani significantur.
§ 94. Item si quis cum uxore praegnate ciuitate Romana donatus sit, quamuis is qui nascitur, ut supra diximus, ciuis Romanus sit, tamen in potestate patris non fit; idque subscriptione diui Hadriani significatur; qua de causa qui intellegit uxorem suam esse praegnatem, dum ciuitatem sibi et uxori ab imperatore petit, simul ab eodem petere debet, ut eum qui natus erit in potestate sua habeat.
§ 95. Alia causa est eorum qui Latii iure cum liberis suis ad ciuitatem Romanam perueniunt; nam horum in potestate fiunt liberi. quod ius quibusdam peregrinis ciuitatibus datum est uel a populo Romano uel a senatu uel a Cae|sare.
§ 96. — aut maius est Lati|um aut minus: maius est Latium, cum et hi qui decuriones leguntur et ei qui honorem aliquem aut magistratum gerunt ciuitatem Romanam consecuntur; minus Latium est, cum hi tantum qui magistratum uel honorem gerunt ad ciuitatem Romanam perueniunt: idque conpluribus epistulis principum significatur.
§ 93. If an alien has obtained by petition for himself and his children a grant of Roman citizenship, the children do not fall under the power of the father except by express ordinance of the emperor, which he only makes if, on hearing the facts of the case, he deems it expedient for the interest of the children, and he makes a still more careful and minute inquiry if they are below the age of puberty and absent, as an ediot of the Emperor Hadrian intimates.
§ 94. Also if an alien and his pregnant wife receive a grant of Roman citizenship, the child, though a Roman citizen, as above mentioned, is not born in the power of his father according to a rescript of the late Emperor Hadrian; wherefore, if he knows his wife to be pregnant, an alien who petitions the emperor for Roman citizenship for himself and his wife ought at the same time to petition that his son may be subjected to his power.
§ 95. The rule is different for those who with their children are made Roman citizens by right of Latinity, for their children fall under their power; this right has been conceded to certain alien states either by the Roman people, or by the senate or by the emperor.
§ 96. The right of Latinity is either greater or lesser. Greater Latinity is the right whereby those who are chosen decuriones or hold some high office or magistracy acquire Roman citizenship: lesser Latinity is when only those who are magistrates or hold high office acquire Roman citizenship, a distinction intimated by several imperial rescripts.
The grant of civitas was either made to communities or to individuals. It was a lucrative source of revenue to the emperors. The fees to be paid were not small, Acts of the Apostles, 22, 28, and the new-made civis was regarded as a manumitted slave of the emperor, and was expected to remember the emperor in his will. The philosophic emperor, Marcus Aurelius, under whom Gaius flourished, granted Roman citizenship to all who were ready to pay the fees, data cunctis promiscue civitas Romana, Aurelius Victor, 16. Antoninus Caracalla, a. d. 212-217, after raising from one-twentieth to one-tenth the tax on manumissions and the testamentary succession and legacy duty, which was only levied on Roman citizens, exhausted for a time this source of revenue by conferring at a stroke Roman citizenship on every free subject of the empire: In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was not a general manumission of slaves nor an abolition of the status of Latin or alien, but a grant of citizenship to all existing Latins and aliens, imposing in effect a capitation tax on the individuals, and leaving those orders to be again replenished by subsequent manumissions of Latini and dediticii. The value of the privileges of civis Romanus was gradually declining. The political portions of civitas had been extinguished by the establishment of the empire, and Rome was destined at last to undergo the fate she had inflicted on so many other cities. She was sacked by Alaric, king of the Goths, a. d. 410. She was entered by Genseric, king of the Vandals, and, after a sack of fourteen days, left a heap of ruins, a. d. 455. The splendour of the title of civis Romanus was sadly dimmed before Justinian made it acquirable by every form of manumission.
§ 94. Subscriptio was an imperial rescript written under the petition to which it was an answer: a rescript written on a separate document was called epistola. The latter was addressed to public functionaries, the former to private individuals, and by its connexion with the petition enabled a tribunal to which it was submitted to investigate the truth of the allegations on which it was founded. Cf. § 5, comm.; and see Roby, Private Law, Intr. p. 6, n. 2.
The grant of patria potestas by the Emperor to the new-made citizen, § 93, may be assimilated to the legislative grant of patria potestas in adrogatio. Its different effects may be compared with the incidents of Naturalization and Denization in English law. Naturalization formerly only effected by act of parliament is retrospective, and puts an alien in exactly the same state as if he had been born in the king’s ligeance, and his son born before the naturalization may inherit: whereas the issue of a Denizen (an alien born who has obtained ex donatione regis letters patent to make him an English subject) cannot inherit to him, but his issue born after may. Blackstone.
§§ 95, 96. Before the recension of the text by Studemund Gaius was supposed to have defined greater Latinity in this section as the right whereby the magistrates of certain towns acquire the Roman franchise along with their wives and children, and lesser Latinity as the right whereby the magistrates themselves acquire the Roman franchise, but not their wives and children. The distinction made by Gaius between these two kinds of Latinity is not found in any other writer (cf. note to Muirhead’s Gaius, h. l.).
The name of a senate in a municipality was ordo decurionum or simply ordo or curia, its members being decuriones or curiales. The office of decurio, which was at one time a coveted distinction, became very burdensome; and in order to make it more acceptable, privileges were from time to time attached to it, as e. g. Latium majus, and in later times legitimatio per oblationem curiae (Inst. 1, 10, 13). (Dig. 50, 2 de decurionibus.)
It is to be noticed that the jus Latii could, according to Gaius, § 95, be constitutionally granted in three ways, either by the people itself (in Comitia), or by the senate (representing the people), or by the Emperor (in whom the power of the people was to a great extent vested).
§ 97. | Non solum tamen naturales liberi secundum ea quae | diximus in potestate nostra sunt, uerum et hi quos adoptamus.
Inst. 1, 11 pr.
§ 98. Adoptio autem duobus modis fit, aut populi auctoritate, aut imperio magistratus, ueluti praetoris.
Inst. 1, 11, 1.
§ 99. Populi auctoritate adoptamus eos qui sui iuris sunt; quae species adoptionis dicitur adrogatio, quia et is qui adoptat rogatur, id est interrogatur, an uelit eum quem adoptaturus sit iustum sibi filium esse; et is qui adoptatur rogatur an id fieri patiatur; et populus rogatur an id fieri iubeat. imperio magistratus adoptamus eos qui in potestate parentum sunt, siue primum gradum liberorum optineant, qualis est filius et filia, siue inferiorem, qualis est nepos neptis, pronepos proneptis.
Inst. l. c.
§ 100. Et quidem illa adoptio quae per populum fit nusquam nisi Romae fit; at haec etiam in prouinciis apud praesides earum fieri solet.
§ 101. Item per populum feminae non adoptantur, nam id magis placuit; apud praetorem uero uel in prouinciis apud proconsulem legatumue etiam feminae solent adoptari.
§ 102. Item inpuberem apud populum adoptari aliquando prohibitum est, aliquando permissum est; nunc ex epistula optimi imperatoris Antonini quam scripsit pontificibus, si iusta causa adoptionis esse uidebitur, cum quibusdam condicionibus permissum est. apud praetorem uero et in prouinciis apud proconsulem legatumue cuiuscumque aetatis〈personas〉 adoptare possumus.
Inst. 1, 11, 3.
§ 103. Illud utriusque adoptionis commune est, quod et hi qui generare non possunt, quales sunt spadones, adoptare possunt.
Inst. 1, 11, 9.
§ 104. Feminae uero nullo modo adoptare possunt, quia ne quidem naturales liberos in potestate habent.
Inst. 1, 11, 10.
§ 105. Item si quis per populum siue apud praetorem uel apud praesidem prouinciae adoptauerit, potest eundem alii in adoptionem dare.
§ 106. Sed et illa quaestio, an minor natu maiorem natu adoptare possit, utriusque adoptionis communis est.
§ 107. Illud proprium est eius adoptionis quae per populum fit, quod is qui liberos in potestate habet, si se adrogandum dederit, non solum ipse potestati adrogatoris subicitur, sed etiam liberi eius in eiusdem fiunt potestate tamquam nepotes.
Inst. 1, 11, 11.
§ 97. Not only natural children are subject, as mentioned, to paternal power, but also adoptive children.
§ 98. Adoption is of two forms, adoption by authority of the people and adoption by the executive command of a magistrate, as of the praetor.
§ 99. Authority of the people is required for the adoption of an independent person, and this form is called adrogation, because the adopter is interrogated whether he wishes to have the person adopted for his lawful son, the person adopted is interrogated whether he thereto consents, and the people (in comitia) is interrogated whether such is its command. The executive command of a magistrate is the proceeding for the adoption of a person subject to the power of an ascendent, whether a descendent in the first degree, as a son or daughter, or in a remoter degree, as a grandson or granddaughter, great-grandson or great-granddaughter.
§ 100. Adoption by vote of the people (in comitia) can only be solemnized at Rome, the other process is usually effected in the provinces in the court of the president.
§ 101. Adoption by vote of the people is inapplicable to females, as has finally been ruled; but females may be adopted by the other mode of adoption, at Rome in the court of the praetor, in provinces of the people it is usually effected in the court of the proconsul, in provinces of the emperor in the court of the legate.
§ 102. The legislative adoption of a child below the age of puberty by vote of the people was at one time prohibited, at another permitted; at the present day, by the epistle of the Emperor Antoninus addressed to the pontifices, on evidence of a just cause of adoption, it is permitted, subject to certain conditions. In the court of the praetor at Rome, in the court of the proconsul in a province of the people, and in the court of the legate in a province of the emperor, a person of any age may be adopted.
§ 103. Both forms of adoption agree in this point, that persons incapable of procreation by natural impotence are permitted to adopt.
§ 104. Women cannot adopt by either form of adoption, for even their natural children are not subject to their power.
§ 105. He who has adopted a person either by the vote of the people or by the authority of the praetor or of the president of a province, can transfer his adoptive son to another adoptive father.
§ 106. Whether a younger person can adopt an older is a disputed point in both forms of adoption.
§ 107. It is peculiar to adoption by the vote of the people that children in the power of the person adrogated, as well as their father, fall under the power of the adrogator, assuming the position of grandchildren.
Adrogation, or the adoption of an independent person (paterfamilias), reducing him to a dependent status (filiusfamilias), was a legislative act of the Comitia Curiata; but though, as representing the people, this assembly was legally omnipotent, it was unconstitutional to deprive a person either of the citizenship or of domestic independence without his own consent. We learn from Cicero the formula by which this assent was ascertained. De Domo, 29. ‘As it is an immemorial rule of law that no citizen of Rome shall be deprived of the independent position of paterfamilias or of citizenship against his will, as you have had occasion of learning by your own experience, for I suppose that, illegal as your adrogation was in all points, you at least were asked whether you consented to become subject to the adrogator’s power of life and death as if you were his son;—if you had opposed or been silent, and the thirty Curiae had nevertheless passed the law, tell me, would their enactment have had any binding force?’ The form in which the law was proposed to the legislative assembly is given by Gellius, 5, 19. ‘Adrogation is the subjection of an independent person with his own consent to the power of a superior, and is not transacted in the dark or without investigation. The Comitia Curiata, at which the College of Pontiffs is present, are convened, and examine whether the age of the adrogator does not rather qualify him for the natural procreation of children, and whether the estate of the adrogatus is not the object of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, the high pontiff, has to be taken by the adrogator. . . . Adrogation, the name given to this transmit into a strange family, is derived from the interrogation of the legislative body, which is in the following form: ‘May it please you to will and command that L. Valerius shall be as completely by law and statute the son of L. Titius as if he were born of L. Titius and his wife, and that L. Titius shall have power of life and death over L. Valerius as a father has over his son. Do you will and command as I have said, Quirites?’ Those who voted in affirmation of the measure proposed said (at least in other similar assemblies): Uti rogas; those who voted against it said: Antiquo. Women were originally incapable of being adrogated, § 101, because they were incapable of appearing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum communio est, Gellius, ibid.; but this incapacity vanished as soon as the lex Curiata, as form of adrogation, was superseded by imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21. Women, being incapable of exercising parental power, could not, properly speaking, adrogate, § 104; but they were permitted, under Diocletian a. d. 291, by quasi adrogation to establish the same legal relation as existed between a mother and her natural children, Cod. 8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth must have attained the age of puberty before he could be adrogated, § 102, and Gellius, ibid.: Sed adrogari non potest nisi jam vesticeps . . . quoniam tutoribus in pupillos tantam esse auctoritatem potestatemque fas non est, ut caput liberum fidei suae commissum alienae ditioni subiciant. ‘A youth cannot be adrogated before he has assumed the toga virilis, because a guardian has no authority or power to subject an independent person, with whose charge he is entrusted, to the domination of a stranger.’ The purple-edged praetexta was generally laid aside by boys along with the bulla aurea which they wore round their neck, on the first Liberalia, the 17th March, Ovid, Fasti, 3, 771, after the completion of their fourteenth year. Females did not lay aside the praetexta till their marriage. Antoninus Pius permitted the adrogation of youths below the age of puberty (impubes, investis) under certain conditions; e. g. the adrogator entered into a stipulation, originally with a public slave, in later times with a public notary (tabularius), in the event of the death of adrogatus before the age of puberty, to restore his estate to his natural heirs, and, in the event of emancipation, to adrogatus himself: and adrogatus became entitled to a fourth part of the estate of adrogator (called quarta Antonini), of which he could not be deprived by disinherison or by unmerited emancipation, § 102; cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only acquired a usufruct for life in the property, subject to which the adrogatus was owner of it; that is to say, the property of adrogatus was transformed by adrogation into peculium adventicium. Cf. 3, 84, comm.
The form of simple adoption is explained below, § 134, under the head of dissolution of patria potestas, for as patria potestas is vested by adoption in the adoptive father, so it is divested from the natural father.
The effect of adoption was much reduced by a constitution of Justinian. If the adoption was by an ascendent, maternal or paternal, it retained its old character: but if it was by a stranger it neither created nor extinguished patria potestas; it did not transfer the adopted son from his old family into a new family, and therefore it neither destroyed nor created any tie of agnation: its only effect was to give to the adopted son, in the event of intestacy, a claim against the estate of the intestate adoptive father; Cod. 8, 47, 10; Inst. 1, 11, 2 and 3, 1, 14.
§ 108.Nunc de his personis uideamus quae in manu nostra sunt. quod | et ipsum ius proprium ciuium Romanorum est.
§ 109. Sed in potestate quidem et masculi et feminae esse solent; in manum autem feminae tantum conueniunt.
§ 110. Olim itaque tribus modis in manum conueniebant, usu farreo coemptione.
§ 111. Usu in manum conueniebat quae anno continuo nupta perseuerabat; quia enim ueluti annua possessione usucapiebatur, in familiam uiri transibat filiaeque locum optinebat. itaque lege xii tabularum cautum est, ut si qua nollet eo modo in manum mariti conuenire, ea quotannis trinoctio abesset atque eo modo 〈usum〉 cuiusque anni interrumperet. sed hoc totum ius partim legibus sublatum est, partim ipsa desuetudine oblitteratum est.
§ 112. Farreo in manum conueniunt per quoddam genus sacrificii, quod Ioui Farreo fit; in quo farreus panis adhibetur, unde etiam confarreatio dicitur; conplura praeterea huius iuris ordinandi gratia cum certis et sollemnibus uerbis praesentibus decem testibus aguntur et fiunt. quod ius etiam nostris temporibus in usu est; nam flamines maiores, id est Diales Martiales Quirinales, item reges sacrorum nisi ex farreatis nati non leguntur; ac ne ipsi quidem sine confarreatione sacerdotium habere possunt.
§ 113. Coemptione uero in manum conueniunt per mancipationem, id est per quandam imaginariam uenditionem; nam adhibitis non minus quam v testibus ciuibus Romanis puberibus, item libripende, emit is mulierem, cuius in manum conuenit.
§ 114. Potest autem coemptionem facere mulier non solum cum marito suo, sed etiam cum extraneo; scilicet aut matrimonii causa facta coemptio dicitur aut fiduciae; quae enim cum marito suo facit coemptionem, 〈ut〉 apud eum filiae loco sit, dicitur matrimonii causa fecisse coemptionem; quae uero alterius rei causa facit coemptionem aut cum uiro suo aut cum extraneo, ueluti tutelae euitandae causa, dicitur fiduciae causa fecisse coemptionem:
§ 115. quod est tale: si qua uelit quos habet tutores deponere et alium nancisci, illis auctoribus coemptionem facit; deinde a coemptionatore remancipata ei cui ipsa uelit, et ab eo uindicta manumissa incipit eum habere tutorem, 〈a〉 quo manumissa est; qui tutor fiduciarius dicitur, sicut inferius apparebit.
§ 115 a. Olim etiam testamenti faciendi gratia fiduciaria fiebat coemptio; tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent remancipataeque et manumissae fuissent: sed hanc necessitatem coemptionis faciendae ex auctoritate diui Ha|driani senatus remisit.
§ 115 b. —|NA femina—fi|duciae causa cum uiro suo fecerit coemptionem, nihilo minus filiae loco incipit esse; nam si omnino qualibet ex causa uxor in manu uiri sit, placuit eam filiae iura nancisci.
§ 108. Let us next proceed to consider what persons are subject to the hand, which also relates to law quite peculiar to Roman citizens.
§ 109. Power is a right over males as well as females: hand relates exclusively to females.
§ 110. In former days there were three modes of becoming subject to hand, use, confarreation, coemption.
§ 111. Use invested the husband with right of hand after a whole year of unbroken cohabitation. Such annual possession operated a kind of usucapion, and brought the wife into the family of the husband, where it gave her the status of a daughter. Accordingly, the law of the Twelve Tables provided that a wife who wished to avoid subjection to the hand of the husband should annually absent herself three nights from his roof to bar the annual usucapion: but the whole of this law has been either partly abolished by statute, or partly obliterated by mere disuse.
§ 112. Confarreation, another mode in which subjection to hand originates, is a sacrifice offered to Jupiter Farreus, in which they use a cake of spelt, whence the ceremony derives its name, and various other acts and things are done and made in the solemnization of this disposition with a traditional form of words, in the presence of ten witnesses: and this law is still in use, for the functions of the greater flamens, that is, the flamens of Jove, of Mars, of Quirinus, and the duties of the ritual king, can only be performed by persons born in marriage solemnized by confarreation. Nor can such persons themselves hold a priestly office if they are not married by confarreation.
§ 113. In coemption the right of hand over a woman attaches to a person to whom she is conveyed by a mancipation or imaginary sale: for the man purchases the woman who comes into his power in the presence of at least five witnesses, citizens of Rome above the age of puberty, besides a balance holder.
§ 114. By coemption a woman may convey herself either to a husband or to a stranger, that is to say there are two forms of coemption, matrimonial and fiduciary. A coemption with a husband in order to acquire the status of daughter in his house is a matrimonial coemption: a coemption for another purpose, whether with a husband or with a stranger, for instance, for avoiding a guardianship, is a fiduciary coemption.
§ 115. This is accomplished by the following process: the woman who desires to set aside her present guardians and substitute another makes a coemption of herself to some one with their sanction: thereupon the party to this coemption remancipates her to the person intended to be substituted as guardian, and this person manumits her by the form of vindicta, and in virtue of this manumission becomes her guardian, being called a fiduciary guardian, as will hereafter be explained.
§ 115 a. In former times testamentary capacity was acquired by fiduciary coemption, for no woman was competent to dispose of her property by will, with the exception of certain persons, unless she had made a coemption, and had been remancipated and then manumitted: but this necessity of coemption was abolished by a senatusconsult made on the motion of Hadrian, of divine memory.
§ 115 b. Even if a woman makes only a fiduciary coemption with her husband, she acquires the status of his daughter, for it is held that from whatever cause a woman is in the hand of her husband, she acquires the position of his daughter.
In early Roman law a woman on marriage necessarily passed out of her own agnatic family into that of her husband, taking the place of a filiafamilias in it. If her husband was paterfamilias, she came into his hand, if he was filiusfamilias into that of his father. This power (manus) was the same in its nature as patria potestas. By manus the husband, or the husband’s father, had power of life and death over the wife, Livy, 39, 18; Tac. Ann. 13, 32; and all the property of the wife, even more absolutely than by the common law of English jurisprudence, vested in the husband or his paterfamilias, 2 § 98.
The patriarchs of the Roman nation could probably not conceive of the conjugal union as disjoined from manus. Yet at a very early period of Roman history these were recognized as separable, and in later times they were almost universally dissociated, and wedlock was unaccompanied by manus. In a marriage celebrated without confarreation and without coemption before the expiration of the first year of cohabitation, there was civil wedlock without manus, and the Twelve Tables provided a method (trinoctio abesse) by which this state could be indefinitely prolonged, § 111: and as soon as gentile marriages were recognized by the law the Romans were still more familiarized with the spectacle of lawful matrimony without manus. As the ages advanced the wife acquired more and more independence; manus was almost obsolete in the time of Gaius, and it has quite vanished from the legislation of Justinian. (For a detailed account of the law of marriage see Sohm, pp. 470-498.)
Confarreation was a form of marriage which made the issue eligible for certain high sacerdotal functions, and may therefore be regarded as characteristic of the patrician caste. Originally it probably produced marital power in its full extent; but when Augustus, b. c. 10, after a vacancy of seventy-five years, renewed the priesthood of Jove (flaminium diale) he limited by statute the legal effect of confarreation in that particular instance, § 136; and Tiberius, a.d. 23, extended the limitation to all future cases of confarreation, Tac. Ann. 4, 16. Henceforth it only operated a change of family in respect of sacred rites (sacra): the woman ceased to have the domestic gods and domestic worship of her father, and took in exchange the domestic gods and domestic worship of her husband. But in secular matters her family was unchanged: she remained, if filiafamilias, subject to patria potestas, and did not become quasi filiafamilias in the household of her husband: her old ties of agnation in her father’s family were not snapped, and no new ties of agnation in her husband’s family were acquired. Divorce (diffarreatio, Festus, s.v.) was almost impossible, and this indissolubility of the connexion contributed to the unpopularity of confarreatio. Moreover, it was a religious ceremonial, requiring the presence of the pontifex maximus and flamen dialis, and as such it vanished with vanishing paganism. The ten witnesses apparently represented the ten curiae of which the tribe was composed, or the ten gentes of which the curia was composed, or, if the decimal division continued further, the ten families of which the gens was composed.
The purchase of the wife by the husband, a widespread custom in a primitive state of society, was no doubt one of the ways in which Roman marriage originated. The exact nature of Coemption, in consequence of the defective state of the Veronese manuscript, must, however, remain a mystery. Coemption was a form of mancipation, § 113, but in virtue of the provision of the Twelve Tables, Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every mancipation depended on the mancipii lex, the accompanying nuncupation or verbal declaration of its condition, intentions, purposes; as in English conveyancing the nature of a grant is limited and determined by the habendum and tenendum of the deed. We are informed that in coemption, the formula was not the same as in other mancipations, § 123, but we are not informed what it was. Even in Cicero’s time many advocates were ignorant of the legal effect of a coemption because they were ignorant of the precise terms of the formula in which it was concluded, De Orat. 1, 56. The word itself may suggest a conjecture that it was a conveyance of the husband to the wife as well as of the wife to the husband; and this is supported by Servius on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who quoted apparently from Ulpian: ‘An ancient nuptial form wherein husband and wife made a mutual purchase, to bar the inference that the wife became a slave.’ Plutarch informs us that the wife asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest. Rom. 28: ‘Where thou art master, I am mistress.’ Boethius on Cicero, Topica, 3, 14, quoting from Ulpian, says: ‘The man and woman interrogated one another. He asked her if she wished to be mother of his household; she answered, Yes. She asked him if he wished to be father of her household; he answered, Yes. And thus the woman passed into the hand of the man, and was called the mother of his household, with the status of filiafamilias.’ According to Cicero, the wife was only called materfamilias when subject to hand: Genus est uxor; ejus duae formae; una matrumfamilias, eae sunt, quae in manum convenerunt, altera earum quae tantummodo uxores habentur, Top. 3, 14. Gellius says the same, 18, 6, 7: Tradiderunt matremfamilias appellatam esse eam solam quae in mariti manu mancipioque aut in ejus, in cujus maritus manu mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the title to a wife who has become subject to manus by coemption: Quae autem in manum per coemptionem convenerant, hae matresfamilias vocabantur, quae vero usu et farreatione, minime, ibid. However this may have been, in one sense the name was a misnomer, for a wife subject to hand was not sui juris (materfamilias), but alieni juris (filiafamilias): and that materfamilias denoted a woman sui juris, whether married or unmarried, as opposed to a filiafamilias or woman alieni juris, appears from Ulpian (4, 1): Sui juris sunt familiarum suarum principes, id est paterfamiliae itemque materfamiliae. (See Muirhead’s Roman Law, App. B.)
If the wife was subject to the power of her father, she required his sanction before she could make a coemption with her husband. If the wife was independent of parental control, she required the sanction of her guardians, who under the old law would have been her nearest agnates.
Coemption was sometimes employed for other purposes than matrimony, and was then called fiduciary coemption. Sometimes the intention was to extinguish the obligation of onerous sacred rites attached to the estate of an heiress: Jure consultorum ingenio senes ad coemptiones faciendas interimendorum sacrorum causa reperti sunt, Cic. Pro Murena, 12, § 27. ‘Juristic ingenuity invented coemptions with aged men for extinguishing sacred rites.’ Savigny (Verm. Schr. 1, 190) gives the following conjectural explanation of the process. The obligation to the sacra belonged to the Quiritary ownership of the universitas of the woman’s estate. This, by the effect of coemption, vested in the coemptionator, an old man approaching dissolution (senex coemptionalis), with whom a fictitious marriage was contracted, and who took the estate as universal successor. He forthwith dismissed the woman from his manus by remancipation and manumission: and then, according to covenant, restored to her the estate in portions; that is, released from the ritual obligations, which only attached to the universitas. On his death, as Quiritary owner of the empty universitas, the obligation to the rites was extinguished: for the succession (hereditas) to the coemptionator did not pass to the woman, as she by remancipation had ceased to be [such was the hypothesis of Savigny before the discovery of Gaius: instructed by Gaius we must rather say, as mere fiduciary coemption had not the effect of making her] his filiafamilias and sua heres. The phrase senex coemptionalis denotes a slave. From which it may be inferred that a slave, useless for any other purpose, and therefore very cheap, was sometimes bought and manumitted to serve as coemptionator. In such a case the whole transaction would be very inexpensive, if not very decorous. This mode of getting rid of sacred rites is compared by Ihering, § 58, with the institution of a slave as heir to bear the infamy of bankruptcy instead of the deceased testator, 2 § 154. Universal succession was an institution which Roman law only admitted in certain cases, 2 § 98, including the cases of Manus and Adrogatio. If universal succession was required for the purpose of extinguishing the obligation to sacred rites attaching to the estate of an heiress, we might have supposed that Adrogatio would have been a less offensive mockery than a fictitious marriage (fiduciary coemption); adrogatio, however, was inapplicable, because, as we have seen, up to a late period of Roman law women were incapable of being adrogated. Moreover, the Pontifices, who had a veto on adrogations, were not likely to lend themselves readily to the extinction of sacred rites. (Comments of other modern writers on this subject are noticed in Roby’s Roman Private Law, 1, 71, n. 1.)
At other times Coemption was employed to enable a woman to select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. ‘There are many wise legal provisions that juristic ingenuity has defeated and perverted. All women on account of their weakness of judgement were placed by our ancestors under a guardian’s control: jurists invented a kind of guardian subject to female dictation.’ (Cf. Sohm, 103, n. 2.)
The latest employment of Coemption enabled a woman to break the ties of agnation and thus acquire testamentary capacity, § 115 a; Cic. Top. 4, 18. The coemptionator (party to the coemption) in virtue of the manus thereby acquired was able, and by a fiducia or trust was bound, to sell the woman into bondage as if she were filiafamilias: accordingly he remancipated her to a third person, who by manumitting her in accordance with another fiducia became her patron, and as patron, in accordance with the Twelve Tables, §§ 165, 166, her statutory guardian (tutor legitimus), and, as having acted under a fiducia, her fiduciary guardian, § 115. It may occur to us that as coemptio required the sanction of a father or guardian, this process could not be of much use in getting rid of a guardian or defeating the claims of agnatic guardians to a woman’s intestate succession; but it must be remembered that the nearest agnate, who alone was heir and guardian, was a variable person, and that a given nearest agnate might be not indisposed to allow a woman to acquire the free disposition of her property and to defeat the claims of those who, after his death, would be nearest agnates and presumptive heirs. At all events, however indisposed the guardian might be to such a course, a period at last arrived when the auctoritas of the guardian, though still required as a formality, could be extorted, if not yielded voluntarily, by appeal to the magistrate, § 190.
Agnatic guardianship of female wards was abolished by a lex Claudia, § 171, and thus the woman would be free from the control of an interested guardian in the disposition of her property during her lifetime. She would still however have had little more than a life interest until she acquired the power of testation. For when wills could be only executed in the comitia, 2 § 101, she would be excluded from testation, as well as from adrogation, by exclusion from the comitia: and after the introduction of the mancipatory will she was still barred by her agnates’ indefeasible claims to her reversion. Agnation itself, however, was defeasible by means of coemptio and remancipatio and the consequent capitis minutio; and when the auctoritas of the guardian for these proceedings could be extorted, § 190, the woman had practically acquired power of testation, although its exercise was hampered by a tedious formality, which was not abolished by the emperor Claudius when he abolished agnatic guardianship. It was not till the senatusconsult of Hadrian that the rupture of the ties of agnation by means of coemptio ceased to be necessary to the validity of a woman’s will, § 115 a; 2 §§ 112, 118; though it had probably been previously a mere formality (the woman having power to extort at pleasure the auctoritas of the agnatic guardian) even before the time of Claudius. As we learn from the text coemption had not been required previously in the case of certain privileged women. Cf. §§ 145, 194; 3 § 44; Ulp. 29, 3.
§ 114. Fiducia was a declaration of the trusts of a mancipation, by which the party to whom the mancipation was made undertook to remancipate under certain conditions. Besides its use in coemption, it was employed, as we shall see presently, in emancipation and adoption, and was the earliest form of constituting the contracts of deposit and mortgage, 2 §§ 59, 60; 3 §§ 90, 91, comm.
The pactum fiduciae, or agreement by which the conditions or trusts were defined, must not be identified with nuncupatio. Nuncupatio forms an integral part of Mancipatio, and what was declared in it would constitute a title under the law of the Twelve Tables. Pactum fiduciae, on the other hand, never coalesces with Mancipatio, but remains a separate adjunct, originally only morally binding on the transferee, but afterwards forming an obligation of jus gentium, and affording ground to support a bonae fidei actio. Herein Mancipatio is contrasted with Tradition and the dispositions of natural law. Conventions accompanying Tradition unite with it, and form a single consolidated disposition; and the pacts annexed (pacta adjecta) to any contract of natural law (venditio, conductio, mandatum, &c.) become integral parts thereof, and are enforced by the action brought on the principal contract. Stipulatio, as a civil disposition, seems to have originally resembled Mancipation in this respect: at least it was a late period of the law when the rule was clearly established that: Pacta incontinenti facta stipulationi inesse creduntur, Dig. 12, 1, 40, i. e. Pacts made contemporaneously with a stipulation are deemed to be portions of the stipulation. Savigny, § 268. It is true that a Pactum adjectum respecting interest and annexed to the gentile disposition Mutuum could not be enforced by an action brought upon the Mutuum: but that was a consequence of the nature of the action (condictio certi) whereby Mutuum was enforced, and which could not embrace any sum beyond the original subject of the Mutuum; 3 §§ 90, 91, comm.
§ 116. Superest ut exponamus quae personae in mancipio sint.
§ 117. Omnes igitur liberorum personae siue masculini siue feminini sexus quae in potestate parentis sunt mancipari ab hoc eodem modo possunt, quo etiam serui mancipari possunt.
§ 118. Idem iuris est in earum personis quae in manu sunt; | —NA coemptionatoribus eodem modo possunt |—NAapud coemptionatorem fi|liae loco sit—nupta sit, — nihilo minus etiam quae ei nupta non sit nec ob id filiae loco sit, ab eo mancipari possit.
§ 118 a. Plerumque 〈uero tum〉 solum et a parentibus et a coemptionatoribus mancipantur, cum uelint parentes coemptionatoresque 〈ex〉 suo iure eas personas dimittere, sicut inferius euidentius apparebit.
§ 119. Est autem mancipatio, ut supra quoque diximus, imaginaria quaedam uenditio; quod et ipsum ius proprium ciuium Romanorum est, eaque res ita agitur: adhibitis non minus quam quinque testibus ciuibus Romanis puberibus et praeterea alio eiusdem condicionis, qui libram aeneam teneat, qui appellatur libripens, is qui mancipio accipit, aes tenens ita dicit: hvnc ego hominem ex ivre qviritivm mevm esse aio isqve mihi emptvs esto hoc aere aeneaqve libra; deinde aere percutit libram idque aes dat ei a quo mancipio accipit quasi pretii loco.
§ 120. Eo modo et seruiles et liberae personae mancipantur; animalia quoque quae mancipi sunt, quo in numero habentur boues, equi, muli, asini; item praedia tam urbana quam rustica quae et ipsa mancipi sunt, qualia sunt Italica, eodem modo solent mancipari.
§ 121. In eo solo praediorum mancipatio a ceterorum mancipatione differt, quod personae seruiles et liberae, item animalia quae mancipi sunt, nisi in praesentia sint, mancipari non possunt; adeo quidem, ut eum 〈qui〉 mancipio accipit, adprehendere id ipsum quod ei mancipio datur necesse sit; unde etiam mancipatio dicitur, quia manu res capitur; praedia uero absentia solent mancipari.
§ 122. Ideo autem aes et libra adhibetur, quia olim aereis tantum nummis utebantur, et erant asses, dupundii, semisses, quadrantes, nec ullus aureus uel argenteus nummus in usu erat, sicut ex lege xii tabularum intellegere possumus; eorumque nummorum uis et potestas non | in numero erat sed in pondere—as|ses librales erant, et dupundii—|;NA unde etiam dupundius dictus est quasi duo pondo, quod nomen adhuc in usu retinetur. semisses quoque et quadrantes pro rata scilicet portione ad pon|dus examinati erant —qui dabat olim | pecuniam, non numerabat eam, sed appendebat; unde serui quibus permittitur administratio pe|cuniae dispensatores appellati sunt et—|NA
§ 123. —coemptio|—NAa quidem quae coem|ptionem fac — seruilem condici|onem a—|NA mancipati mancipataeue seruorum loco con|stituuntur, adeo quidem, ut ab eo cuius in mancipio sunt neque hereditatem neque legata aliter capere possint, quam 〈si〉 simul eodem testamento liberi esse iubeantur sicut iuris est in persona seruorum. sed differentiae ratio manifesta est, cum a parentibus et a coemptionatoribus isdem uerbis mancipio accipiantur quibus serui; quod non similiter fit in coemptione.
§ 116. It remains to examine what persons are held in mancipation.
§ 117. All children, male or female, in the power of their father are liable to be mancipated by their father just as his slaves may be mancipated.
§ 118. A woman in the hand is subject to the same mode of alienation, and may be mancipated by the person who has acquired her by coemption just as a daughter may be mancipated by her father: and although the acquirer of her by coemption otherwise than for the purpose of marriage has not the power of a father over her, nevertheless, though he is not her husband, and therefore has not the status of a father, he can dispose of her by mancipation.
§ 118 a. Almost the sole occasion of mancipation by a parent or by the acquirer of a woman by coemption is when the parent or acquirer by coemption designs to liberate the person mancipated from his lawful control, as will presently be more fully explained.
§ 119. Mancipation, as before stated, is an imaginary sale, belonging to that part of the law which is peculiar to Roman citizens, and consists in the following process: in the presence of not fewer than five witnesses, citizens of Rome above the age of puberty, and another person of the same condition, who holds a bronze balance in his hands and is called the balance holder, the alienee holding a bronze ingot in his hand, pronounces the following words: This man I claim as belonging to me by right quirtary and be he (or, he is) purchased to me by this ingot and this scale of bronze. He then strikes the scale with the ingot, which he delivers to the mancipator as by way of purchase money.
§ 120. By this formality both slaves and free persons may be mancipated, and also such animals as are mancipable, namely, oxen, horses, mules, and asses: immovables also, urban and rustic, if mancipable, such as Italic lands and houses, are aliened by the same process.
§ 121. The only point wherein the mancipation of land and buildings differs from the mancipation of other things is this, that mancipable persons, whether slaves or free, and animals that are mancipable, must be present to be mancipated: it being necessary that the alienee should grasp the object to be mancipated with his hand, and from this manual prehension the name of mancipation is derived; whereas land and buildings may be mancipated at a distance from them.
§ 122. The reason of using a bronze ingot and a weighing scale is the fact that bronze was the only metal used in the ancient currency, which consisted of pieces called the as, the double as, the half as, the quarter as, and that gold and silver were not used as media of exchange, as appears by the law of the Twelve Tables: and the value of the pieces was not measured by number but by weight. Thus the as was a pound of bronze, the double as two pounds, whence its name (dupondius), which still survives; while the half as and quarter as were masses defined by weighing those respective fractions of a pound. Accordingly, money payments were not made by tale, but by weight, whence slaves entrusted with the administration of money have been called cashiers.
§ 123. If it is asked in what respect coemptive conveyance differs from mancipation, the answer is this, that coemption does not reduce to a servile condition, whereas mancipation reduces to so completely a servile condition that a person held in mancipation cannot take as heir or legatee under the will of the person to whom he is mancipated, unless he is enfranchised by such will, thus labouring under the same incapacity as a slave: the reason too of the difference is plain, as the form of words employed in mancipation by a parent or previous acquirer by coemption is identical with that used in the mancipation of slaves, but it is not so in coemptive conveyance.
In what respects did domestic bondage (mancipium or mancipii causa) differ from slavery (servitus)? Bondage was an institute of jus civile, slavery an institute of jus gentium, § 52. Bondage was the result of mancipation by a parent or coemptionator, and only a Roman citizen was capable of becoming a bondsman. The proprietor has possession of the slave, the lord has no possession of the bondsman, 2 § 90. The bondsman was civis Romanus, though what became of his political capacities during his bondage is uncertain; and he was liber, though alieni juris; he was free in respect of the rest of the world, he was only a bondsman in respect of the person in whose mancipium he was. Thus the status of mancipium was relative; a man could only be in mancipio in relation to a given domestic lord: whereas the status of slavery was absolute; a man might be a slave without an owner (servus sine domino): for instance, a person condemned for a capital crime, who was called the slave of punishment (servus poenae, Inst. 1, 12, 3), or a slave abandoned (derelictus) by his owner. Accordingly, falling into servitus was maxima capitis diminutio, while falling into mancipii causa was minima capitis diminutio, § 162. The bondsman had no proprietary rights against his superior, 2 § 86, but he had some of the primordial rights; for instance, he could sue his superior for outrage, § 141; and he was capable of civil wedlock and could beget Roman citizens, though during his bondage his patria potestas was in abeyance, § 135. Release from bondage, as from slavery, was by manumission, § 138, and the manumitter became the patron of the released person, §§ 166, 195 a, but the manumitted bondsman became ingenuus, whereas the manumitted slave became libertinus. Bondage did not exist in the time of Justinian.
§ 119. The libripens must not be dumb, Ulpian, 20, 7: probably because he had to utter the formula preserved by Festus, Raudusculo libram ferito, i. e. to invite the emptor to strike the scale with the ingot, in order to show by the ring that the metal was genuine. Ihering, § 46, n. 708.
§ 120. Praedia Italica. Under the first emperors the body of the Roman world consisted of three members, the imperial city, Rome, Italy, and the provinces, the two former being highly privileged in comparison with the third. After the Social War, 91-88 b. c., all Italy had acquired Roman citizenship, but Italic soil was not a purely local appellation, as jus Italicum was conceded to many provincial cities. Jus Italicum, or Italian privileges, implied (1) a free municipal constitution with elective magistrates (generally called duumviri juri dicundo) possessed of independent jurisdiction; and, what was still more important, (2) immunity from direct taxation, whether in the form of capitation tax (tributum capitis), imposed on all who were not holders of land (tributarii), or in the form of land tax (tributum agri), imposed on holders of land (possessores), and paid in provinces of the people to the aerarium under the name of stipendium, in provinces of the emperor to the fiscus under the name of tributum, 2 § 21. Italic soil was (3) subject to Quiritary ownership (dominium ex jure Quiritium) and acquirable and transferable by usucapion and mancipation. Under the later emperors, as early as the time of Diocletian, the Roman world was equalized, not by the elevation of the depressed members, but by depression of those formerly favoured: Italy was shorn of her privileges, and all the empire became provincial.
§ 122. Chemical analysis shows that the aes of which Roman coins consisted was bronze, a mixture of copper (cuprum), tin, and lead. [English bronze is an alloy composed of ninety-five parts of copper, four parts of tin, and one part of zinc.] Brass, a mixture of copper and calamine (cadmeia) or zinc, was called orichalcum. Silver currency was first introduced b. c. 269. The primitive system of currency was everywhere currency by weight, and every system of coinage was originally identical with a system of weights, the unit of value being the unit of weight of some selected metal (Jevons, Money, ch. 9). The pieces of which a currency by weight consists are not properly coins, for coins are ingots of which the weight and fineness are certified by the integrity of the designs impressed upon the surfaces of the metal (ibid. ch. 7). Money is legal tender (Mill, Pol. Econ. 12, 7). Legal tender is that which must be tendered by the debtor and accepted by the creditor in discharge of a debt; e. g. in England silver coin is a legal tender only to the amount of forty shillings in any one payment, bronze coins are a legal tender only to the aggregate amount of one shilling. Bank of England notes are a legal tender everywhere in England but at the bank, i. e. are there convertible into gold.
§ 123. As coemptio was a form of mancipatio, how does it happen that manus, the result of coemptio, differs from mancipium, the result of mancipatio? Because, Gaius answers, the formula of words used in the mancipatio that entered into coemptio was specifically different from the formula employed on other occasions of mancipation.
QVIBUS MODIS IVS POTESTATIS SOLVATVR.
§ 124. Videamus nunc quomodo hi qui alieno iuri subiecti sunt eo iure liberentur.
Inst. 1, 12pr.
§ 125. Ac prius de his dispiciamus qui in potestate sunt.
§ 126. Et quidem serui quemadmodum potestate liberentur, ex his intellegere possumus quae de seruis manumittendis superius exposuimus.
Inst. l. c.
§ 127. Hi uero qui in potestate parentis sunt, mortuo eo sui iuris fiunt. sed hoc distinctionem recipit; nam mortuo patre sane omni modo filii filiaeue sui iuris efficiuntur; mortuo uero auo non omni modo nepotes neptesue sui iuris fiunt, sed ita, si post mortem aui in patris sui potestatem recasuri non sunt. itaque si moriente auo pater eorum et uiuat et inpotestate patris 〈sui〉 fuerit, tunc post obitum aui in patris sui potestate fiunt; si uero is, quo tempore auus moritur, aut iam mortuus est aut exiit de potestate 〈patris, tunc hi, quia in potestatem〉 eius cadere non possunt, sui iuris fiunt.
Inst. l. c.
§ 128. Cum autem is cui ob aliquod maleficium ex lege Cornelia aqua et igni interdicitur ciuitatem Romanam amittat, sequitur ut, quia eo modo ex numero ciuium Romanorum tollitur, proinde ac mortuo eo desinant liberi in potestate eius esse; nec enim ratio patitur, ut peregrinae condicionis homo ciuem Romanum in potestate habeat. pari ratione et si ei qui in potestate parentis sit aqua et igni interdictum fuerit, desinit in potestate parentis esse, quia aeque ratio non patitur, ut peregrinae condicionis homo in potestate sit ciuis Romani parentis.
Inst. 1, 12, 1.
§ 129. Quodsi ab hostibus captus fuerit parens, quamuis seruus hostium fiat, tamen pendet ius liberorum propter ius postliminii, quo hi qui ab hostibus capti sunt, si reuersi fuerint, omnia pristina iura recipiunt; itaque reuersus habebit liberos in potestate. si uero illic mortuus sit, erunt quidem liberi sui iuris; sed utrum ex hoc tempore quo mortuus est apud hostes parens, an ex illo quo ab hostibus captus est, dubitari potest. ipse quoque filius neposue si ab hostibus captus fuerit, similiter dicemus propter ius postliminii potestatem quoque parentis in suspenso esse.
Inst. 1, 12, 5.
§ 130. Praeterea exeunt liberi uirilis sexus de parentis potestate si flamines Diales inaugurentur, et feminini sexus si uirgines Vestales capiantur.
§ 131. Olim quoque, quo tempore populus Romanus in Latinas regiones colonias deducebat, qui iussu parentis in coloniam Latinam nomen dedissent, desinebant in potestate parentis esse, quia efficerentur alterius ciuitatis ciues.
QVIBUS MODIS IVS POTESTATIS SOLVATVR.
§ 124. Let us now examine the modes whereby persons dependent on a superior are freed from their dependence.
§ 125. And, first, let us consider persons subject to power.
§ 126. How slaves are liberated may be intelligible from what we have explained above about servile manumission.
§ 127. Children under paternal power become independent at the parent’s death, subject, however, to this reservation: the death of a father always releases his sons and daughters from dependence: the death of a grandfather only releases his grandchildren from dependence, provided that it does not subject them to the power of their father: for if at the death of the grandfather the father is alive and in his power, the grandchildren, after the grandfather’s death, are in the power of the father; but if at the time of the grandfather’s death the father is dead or not subject to the grandfather, the grandchildren will not fall under his power, but become independent.
§ 128. As interdiction from fire and water for an offence against the Cornelian law involves loss of citizenship, such removal of a man from the list of Roman citizens operates, like his death, to liberate his children from his power, for it is inconsistent with civil law that an alien should exercise parental power over a citizen of Rome: conversely, the interdiction from fire and water of a person subject to parental power terminates the power of the parent, because it is a similar inconsistency that a person of alien status should be subject to the parental power of a Roman citizen.
§ 129. Though the hostile capture of the parent makes him a slave of the enemy, the status of his children is suspended by the jus postliminii, whereby on escape from captivity a man recovers all former rights: accordingly, if the father returns he will have his children in his power; if he dies in captivity his children will be independent, but whether their independence dates from the death of the parent or from his capture by the enemy may be disputed. Conversely, if a son or grandson is captured by the enemy, the power of his ascendent is also provisionally suspended by the jus postliminii.
§ 130. Further, a son is liberated from parental power by his inauguration as flamen of Jove, a daughter by her selection for the office of Vestal virgin.
§ 131. Formerly, too, when Rome used to send colonies into the Latin territory, a son who by his parents’ order enrolled his name in a colony ceased to be under parental power, since he was made a citizen of another state.
§ 128. Relegation was a milder form of punishment than deportation, and involved no loss of civitas nor of domestic rights, Inst. 1, 12, 2.
§ 129. Postliminium is the recovery of rights by a person returned from captivity, or the recovery of rights over a person or thing recovered from hostile possession. The word postliminium seems to be derived from pot, the root of potestas or possessio, and limen or stlimen = ligamen, and therefore would denote the bridging over of the interval of captivity by a fiction of continued capacity or possession, or a doorway is bridged over by a lintel (limen).
§ 130. In imitation of the ancient law Justinian enacted that certain dignities should release from patria potestas; for instance, patriciatus and the episcopate, the latter because it made a man spiritual father of all mankind, Novella, 81.
§ 131. The Latini or members of coloniae Latinae were an intermediate class between cives and peregrini. They differed from peregrini in that they had commercium, i. e. capacity of Quiritary ownership with its incidents, and they differed from cives in not having connubium, and consequently being incapable of patria potestas, Cic. Pro Caecina, 35. Cf. § 22, comm. A Roman citizen could only become a Latin with his own consent. Qui cives Romani in colonias Latinas proficiscebantur, fieri non poterant Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30. ‘Roman citizens who went to Latin colonies did not lose their citizenship without voluntary enrolment among the colonists.’ See also Cic. Pro Balbo, 11.
§ 132.Praeterea emancipatione desinunt liberi in potestate parentum esse. sed filius quidem tribus mancipationibus, ceteri uero liberi siue masculini sexus siue feminini una mancipatione exeunt de parentum potestate; lex enim xii tabularum tantum in persona filii de tribus mancipationibus loquitur his uerbis si pater filivm 〈ter〉 venvm dvit, a patre filivs liber esto.eaque res ita agitur: mancipat pater filium alicui; is eum uindicta manumittit; eo facto reuertitur in potestatem patris; is eum iterum mancipat uel eidem uel alii (sed in usu est eidem mancipari) isque eum postea similiter uindicta manumittit; eo facto rursus in potestatem patris reuertitur; tertio pater eum mancipat uel eidem uel alii (sed hoc in usu est, ut eidem mancipetur), eaque mancipatione desinit in potestate patris esse, etiamsi nondum manumissus sit sed adhuc in causa mancipii. si—|—|—NAmissi—|—NA (3 uersus in C legi nequeunt.)
Inst. 1, 12, 6; Epit. 1, 6, 3.
§ 132 a. —|—NApatrono in bonis liberti|—NA (3 uersus in C legi nequeunt.) —|—NAfeminae una | mancipatione exeunt de patris potestate—|—NAmanumissae fuerint s—|—|—|—NA
Inst. l. c.
§ 133.—Admonendi autem sumus liberum esse arbitrium et qui filium et ex eo nepotem in potestate habebit, filium quidem de potestate dimittere, nepotem uero in potestate retinere; uel ex diuerso filium quidem in potestate retinere, nepotem uero manumittere, uel omnes sui iuris efficere. eadem et de pronepote dicta esse intellegemus.—
Inst. 1, 12, 7; Gaius in Dig. 1, 7, 28.
§ 134. —|—NAet duae intercedentes manumissiones proinde fiunt, ac fieri solent cum ita eum pater de potestate dimittit, ut sui iuris efficiatur. deinde aut patri remancipatur, et ab eo is qui adoptat uindicat apud praetorem filium suum esse, et illo contra non uindicante 〈a〉 praetore uindicanti filius addicitur; aut non remancipatur patri, sed ab eo uindicat is qui adoptat, apud quem in tertia mancipatione est; sed sane commodius est patri remancipari: in ceteris uero liberorum personis seu masculini seu feminini sexus una scilicet mancipatio sufficit, et aut remancipantur parenti aut non remancipantur. Eadem et in prouinciis apud praesidem prouinciae solent fieri.
Inst. 1, 12, 8.
§ 135. Qui ex filio semel iterumue mancipato conceptus est, licet post tertiam mancipationem patris sui nascatur, tamen in aui potestate est, et ideo ab eo et emancipari et in adoptionem dari potest. At is qui ex eo filio conceptus est qui in tertia mancipatione est non nascitur in aui potestate. sed eum Labeo quidem existimat in eiusdem mancipio esse cuius et pater sit; utimur autem hoc iure, ut quamdiu pater eius in mancipio sit, pendeat ius eius; et siquidem pater eius ex mancipatione manumissus erit, cadat in eius potestatem; si uero is dum in mancipio sit decesserit, sui iuris fiat.
§ 135 a. | Eadem scilicet—|—NAnam | ut supra diximus, quod in filio faciunt tres manci|pationes, hoc facit una mancipatio in nepote.
§ 136. —|—|—|—NAMaximi et | Tuberonis cautum est, ut haec quod ad sacra tantum uideatur in manu esse, quod uero ad ceteras causas proinde habeatur, atque si in manum non conuenisset |—|—NA potestate parentis liberantur; nec in|terest, an in uiri sui manu sint an extranei, quamuis hae solae loco filiarum habeantur quae in uiri ma|nu sunt.
§ 132. Emancipation also liberates children from the power of the parent, a son being liberated by three mancipations, other issue, male or female, by a single mancipation; for the law of the Twelve Tables only mentions three mancipations in the case of the son, which it does in the following terms: If a father sell a son three times, the son shall be free from the father. The ceremony is as follows: the father mancipates his son to some one; the alienee manumits him by fictitious vindication, whereupon he reverts into the power of his father; the father again mancipates him to the same or a different alienee, usually to the same, who again manumits him by fictitious vindication, whereupon he reverts a second time into the power of his father; the father then mancipates him a third time to the same or a different alienee, usually to the same, and by this third mancipation the son ceases to be in the power of the father even before manumission, while still in the status of a person held in mancipation. [The alienee or fiduciary father should then remancipate him to the natural father, in order that thereupon the natural father by manumitting him may acquire the rights of patron instead of the fiduciary father.]
§ 132 a. A manumitter of a free person from the state of mancipium has the same rights to the succession of his property as a patron has in respect of the property of his freedman. Women and male grandsons by a son pass out of the power of their father or grandfather after one mancipation; but unless they are remancipated by their fiduciary father, and manumitted by their natural father, the latter has no rights of succession to their property.
§ 133. But it should be noticed that a grandfather who has both a son, and by his son a grandson, in his power, may either release his son from his power and retain the grandson, or retain the son and manumit the grandson, or emancipate both son and grandson; and a great grandfather has a similar latitude of choice.
§ 134. A father is also divested of power over his children by giving them in adoption. To give a son in adoption, the first stage is three mancipations and two intervening manumissions, as in emancipation; after this the son is either remancipated to the father, and by the adopter claimed as son from him by vindication before the praetor, and in default of counterclaim by the natural father is awarded by the praetor to the adoptive father as his son; or without remancipation to the natural father is directly claimed by the adoptive father by vindication from the alienee of the third mancipation (fiduciary father); but it is more convenient to interpose a remancipation to the natural father. In the case of other issue, male or female, a single mancipation suffices, with or without remancipation to the natural father. In the provinces a similar ceremony can be performed before the president of the province.
§ 135. A grandson begotten after the first or second mancipation of the son, though born after the third mancipation, is subject to the power of the grandfather, and may by him be given in adoption or emancipated: a grandson begotten after the third mancipation is not born in the power of the grandfather, but, according to Labeo, is born in mancipation to the person to whom his father is mancipated. The rule, however, which has obtained acceptance with us is, that so long as the father is in mancipation the status of the child is in suspension, and if the father is manumitted the child falls under his power; if the father dies in mancipation the child becomes independent.
§ 135 a. The rule is the same in the case of a child begotten of a grandson who has been once mancipated, but not yet manumitted; for, as before mentioned, the result of three mancipations of the son is obtained by a single mancipation of the grandson.
§ 136. A wife subjected to the hand of a husband by confarreation is not thereby freed from the power of her father; and this is declared by the senatusconsult of the consuls of Maximus and Tubero respecting the priestess of Jove, according to which she is only in the marital hand as far as the sacra are concerned, the status of the wife being unaffected in other respects by such subjection. Subjection to hand by coemption liberates from the power of the parent, and it is immaterial whether it is a coemption subjecting the woman to the hand of a husband or to the hand of a stranger, although the status of quasi daughter only belongs to a woman in the hand of a husband.
§ 132. The epitome of Gaius, 1, 6, 3, which throws light on this passage, mentions as present at an emancipation, besides the five witnesses and libripens, a seventh person called antestatus, who is also mentioned in the bronze tablet referred to in the remarks on pignus and fiducia. Book 3, §§ 90, 91, comm. His duty may have been to ask the witnesses whether they were bearing witness to the transaction (antestari). Cf. Roby, Private Law, pp. 180, n. 2, 423, n. 3.
The vindicta or wand used in manumission, as already stated, was the rod or verge symbolizing a lance carried by the parties in a real action, 4 § 13. The status of freedom (libertas) whether as opposed to slavery or to bondage (mancipii causa) was a real right (jus in rem). and therefore a subject to be contested in a vindicatio. Manumission by vindicta was a collusive vindicatio, in other words, an in jure cessio. Cf. Roby, 1, p. 26, n. 1.
The epitome of Gaius (l. c.) calls the person, to whom the son was mancipated by pater naturalis, pater fiduciarius, which implies that the mancipation was accompanied by a fiducia or declaration of trust. The trust would be that the pater fiduciarius should make default or confess in the subsequent in jure cessio.
§ 134. Assuming that in adoption, as in emancipation, the person to whom the son was mancipated was called pater fiduciarius, we find in adoption three fathers in the field, pater naturalis, pater fiduciarius, and pater adoptivus. Remancipation to the natural father added a stage to the process; but is described as more convenient, because it reduced the number of actors from three to two; for it enabled the part of pater fiduciarius to be played by pater adoptivus. It appears from § 135 (cf. however § 141) that though the status of bondage was purely formal, yet perhaps to give an air of reality to the drama, the status was sometimes made to have a certain duration. So when a prince is advanced from the rank of private to that of general, a certain interval is interposed between the intermediate promotions for the sake of decorum, though, the whole proceeding being unreal, all the steps, if the authorities were so disposed, might be compressed into a single day. Ihering, § 46.
The status of paterfamilias or of filiusfamilias being, like other kinds of status, a real right, the claim of a person as filiusfamilias was a matter to be contested in a real action or vindicatio brought against the person in whose possession he was. This would seem the more obvious in primitive times, when probably no distinction was made between patria potestas and dominica potestas, i. e. between paternal power and absolute proprietorship. Such vindicatio was sometimes a matter of contentious (not voluntary) jurisdiction, i. e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that the ground of making a claim of this kind must be particularly specified (adfecta causa) in the vindication. The ordinary mode of judicially determining the status of a child in case of dispute was by a praejudicium, 4 § 44, comm. The father could compel any one, who had possession of his child, to produce him by the interdictum de liberis exhibendis or de liberis ducendis 4 §§ 138-170, comm. In case of dispute between paterfamilias and filiusfamilias inter se, recourse might be had to the extraordinaria cognitio of the magistrate. Sohm’s Inst. § 101.
Justinian simplified the formalities of emancipation and adoption. He allowed the former to be accomplished by a simple declaration of the father before a competent judge or magistrate (Emancipatio Justinianea); and the latter after appearance of all the parties before such a judge, insinuatio, i. e. a memorandum of the transaction in the public records (actis intervenientibus) being in both cases required. Emancipation by imperial rescript had been previously instituted by the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript was required for effecting an arrogation.
In English law children are enfranchised, and the limited power of the father over their person and property is terminated by two events which did not operate emancipation in Roman law, marriage and arrival at years of discretion, that is, attainment of majority by the completion of twenty-one years of age. At these points, under English law, the empire of the father or other guardian gives place to the empire of reason; whereas neither marriage nor majority released the Roman son or daughter from potestas.
§ 136. Cf. §§ 108-115 b, comm. Q. Aelius Tubero and Paulus Fabius Maximus were consuls b. c. 11, the year in which the office of flamen dialis was re-established. This cannot therefore be the law a. d. 23 referred to by Tacitus, Ann. 4, 16 (see note to Muirhead’s Gaius).
§ 137.—|—|—|—NAmancipatione desinunt in manu esse, et si ex ea mancipatione manumissae fuerint sui iuris ef|ficiuntur.
§ 137 a. —quae—|—NAcogere coempti|onatorem potest, ut se remancipet, cui ipsa uel|it—nihilo magis potest cogere, quam et filia patrem. sed filia quidem nullo modo patrem potest cogere, etiamsi adoptiua sit; haec autem 〈uirum〉 repudio misso proinde conpellere potest, atque si ei numquam nupta fuisset.
§ 138. Ii qui in causa mancipii sunt, quia seruorum loco habentur, uindicta censu testamento manumissi sui iuris fiunt.
§ 139. Nec tamen in hoc casu lex Aelia Sentia locum habet. itaque nihil requirimus, cuius aetatis sit is qui manumittit et qui manumittitur; ac ne illud quidem, an patronum creditoremue manumissor habeat. ac ne numerus quidem lege Fufia Caninia finitus in his personis locum habet.
§ 140. Quin etiam inuito quoque eo cuius in mancipio sunt censu libertatem consequi possunt, excepto eo quem pater ea lege mancipio dedit ut sibi remancipetur; nam quodammodo tunc pater potestatem propriam reseruare sibi uidetur eo ipso, quod mancipio recipit. ac ne is quidem dicitur inuito eo cuius in mancipio est censu libertatem consequi, quem pater ex noxali causa [mancipio dedit], ueluti quod furti eius nomine damnatus est, [et eum] mancipio actori dedit; nam hunc actor pro pecunia habet.
§ 141. In summa admonendi sumus aduersus eos quos in mancipio habemus nihil nobis contumeliose facere licere: alioquin iniuriarum tenebimur. ac ne diu quidem in eo iure detinentur homines, sed plerumque hoc fit dicis gratia unomomento, nisi scilicet ex noxali causa mancipentur.
§ 137. A woman subjected to hand by coemption is, like a daughter, released therefrom by one mancipation, and on subsequent manumission becomes independent.
§ 137 a. Between a woman who has entered into a coemption with a stranger and a woman who has entered into a coemption with a husband there is this difference, that the former has the power of compelling the coemptionator to remancipate her to any one she pleases, whereas the latter cannot compel him to do this any more than a daughter can her father. A daughter, however, has no means of compelling her father to emancipate her even if she is only such by adoption, whereas a wife by sending a message of divorce can compel her husband to release her from his hand, just as if they had never been married.
§ 138. As persons in mancipation are in the position of slaves, manumission by fictitious vindication, by entry on the censor’s register, by testamentary disposition, are the modes by which they acquire independence.
§ 139. But to them the lex Aelia Sentia has no application: no age of the person manumitting or the person manumitted is required; the manumission is subject to no proviso against fraud on the rights of patron or creditors, nor even to the numerical limitation of the lex Fufia Caninia.
§ 140. But even though the assent of the holder in mancipation is withheld, freedom may be acquired by entry on the register of the censor, except when a son has been mancipated by a father with a condition of remancipation, then the father is deemed to have reserved in a way his own power in consequence of the condition that he is to have him back in mancipation; nor can liberty be acquired without the assent of the holder in mancipation by entry on the censor’s register when a delinquent son has been surrendered by his father in consequence of a noxal suit; when, for instance, the father has been condemned in an action for a theft committed by the son, and has by mancipation surrendered his son to the plaintiff, for in this case the plaintiff holds him in lieu of pecuniary damages.
§ 141. Finally, it is to be observed that contumelious treatment of a person held in mancipation is not permitted, but renders liable to an action of outrage; and the status generally is not persistent, but merely formal and momentary, except when it is the consequence of surrender in lieu of damages in an action of trespass.
§ 137. Dissolution of marriage (divortium) could be effected either by the consent of both parties or by the act of one. The message of repudiation (repudium) contained the formula, Tuas res tibi habeto, ‘Take away thy property.’ Mimam illam suam suas res sibi habere jussit, claves ademit, exegit, Cic. Phil. 2, 28. ‘The actress was ordered to pack, deprived of the keys, turned out of the house.’ The lex Julia de adulteriis prescribed a form for repudium, and required the message to be delivered by a freedman of the family, in the presence of seven witnesses above the age of puberty and citizens of Rome. The party who made a causeless repudium, or whose misconduct justified a repudium, was punished by pecuniary losses in respect of dos and propternuptial donations. After much veering legislation under the Christian Emperors, Justinian enacted that a man or woman who divorced without a cause should retire to a cloister and forfeit all his or her estate, one moiety to his or her successors, and the other moiety to the cloister. Nov. 134, 11. But it was not till later times that the Church succeeded in making marriage indissoluble by law.
§ 140. Ihering, § 32, infers from this that the census, like a year of jubilee, freed all but noxal and fictitious bondsmen at the end of five years: and that the Twelve Tables, in limiting a father to three mancipations, disabled him from selling the services of his son for more than fifteen years. As to noxal surrender of filiifamilias see 4 §§ 75-81.
§ 141. Whereas no injuria could be done to a slave. 4 § 222.
§ 142. Transeamus nunc ad aliam diuisionem. nam ex his personis quae neque in potestate neque in manu neque in mancipio sunt quaedam uel in tutela sunt uel in curatione, quaedam neutro iure tenentur. uideamus igitur quae in tutela quae in curatione sint; ita enim intellegemus ceteras personas quae neutro iure tenentur.
Inst. 1, 13 pr.
§ 143. Ac prius dispiciamus de his quae in tutela sunt.
Inst. l. c.
§ 144. Permissum est itaque parentibus liberis quos in potestate sua habent testamento tutores dare. masculini quidem sexus inpuberibus, 〈feminini autem sexus cuiuscumque aetatis sint, et tum quo〉que, cum nuptae sint. ueteres enim uoluerunt feminas, etiamsi perfectae aetatis sint, propter animi leuitatem in tutela esse.
Inst. 1, 13, 3.
§ 145. Itaque si quis filio filiaeque testamento tutorem dederit et ambo ad pubertatem peruenerint, filius quidem desinit habere tutorem, filia uero nihilo minus in tutela permanet; tantum enim ex lege Iulia et Papia Poppaea iure liberorum tutela liberantur feminae. loquimur autem exceptis uirginibus Vestalibus quas etiam ueteres in honorem sacerdotii liberas esse uoluerunt, itaque etiam legexii tabularum cautum est.
Inst. l. c.
§ 146. Nepotibus autem neptibusque ita demum possumus testamento tutores dare, si post mortem nostram in patris sui potestatem [iure] recasuri non sint. itaque si filius meus mortis meae tempore in potestate mea sit, nepotes ex eo non poterunt ex testamento meo habere tutorem, quamuis in potestate mea fuerint; scilicet quia mortuo me in patris sui potestate futuri sunt.
Inst. l. c.
§ 147. Cum tamen in conpluribus aliis causis postumi pro iam natis habeantur, et in hac causa placuit non minus postumis quam iam natis testamento tutores dari posse, si modo in ea causa sint, ut si uiuis nobis nascantur, in potestate nostra fiant. hos 〈enim〉 etiam heredes instituere possumus, cum extraneous postumos heredes instituere permissum non sit.
Inst. 1, 13, 4.
§ 148. 〈Vxori〉 quae in manu est proinde ac filiae, item nurui quae in filii manu est proinde ac nepti tutor dari potest.
§ 149. Rectissime autem tutor sic dari potest: l. titivm liberis meis tvtorem do. sed et si ita scriptum sit liberis meis uel vxori meae titivs tvtor esto, recte datus intellegitur.
§ 150. In persona tamen uxoris quae in manu est recepta est etiam tutoris optio, id est ut liceat ei permittere quem uelit ipsa tutorem sibi optare, hoc modo: titiae vxori meae tvtoris optionem do. quo casu licet uxori 〈tutorem optare〉 uel in omnes res uel in unam forte aut duas.
§ 151. Ceterum aut plena optio datur aut angusta.
§ 152. Plena ita dari solet, ut proxime supra diximus. angusta ita dari solet—titiae vxori meae tvtoris optionem dvmtaxat semel do, aut dvmtaxat bis do.
§ 153. Quae optiones plurimum inter se differunt. nam quae plenam optionem habet potest semel et bis et ter et saepius tutorem optare; quae uero angustam habet optionem, si dumtaxat semel data est optio, amplius quam semel optare non potest; si dumtaxat bis, amplius quam bis optandi facultatem non habet.
§ 154. Vocantur autem hi qui nominatim testamento tutores dantur datiui, qui ex optione sumuntur optiui.
§ 142. Let us now proceed to another classification: persons not subject to power, nor to hand, nor held in mancipation, may still be subject either to tutelary guardianship or to curatorship, or may be exempt from both forms of control. We will first examine what persons are subject to tutelary guardianship and curatorship, and thus we shall know who are exempt from both kinds of control.
§ 143. And first of persons subject to tutelary guardianship or tutelage.
§ 144. The law allows a parent to appoint guardians in his will for the children in his power, below the age of puberty, if they are males; whatever their age, and notwithstanding their marriage, if they are females; for, according to our ancestors, even women who have attained their majority, on account of their levity of disposition, require to be kept in tutelage.
§ 145. Accordingly, when a brother and sister have a testamentary guardian, on attaining the age of puberty the brother ceases to be a ward, but the sister continues, for it is only under the lex Julia and Papia Poppaea by title of maternity that women are emancipated from tutelage; except in the case of vestal virgins, for these, even in our ancestors’ opinion, are entitled on account of the dignity of their sacerdotal function to be free from control, and so the law of the Twelve Tables enacted.
§ 146. A grandson or grand-daughter can only receive a testamentary guardian provided the death of the testator does not bring them under parental power. Accordingly, if at the time of the grandfather’s death the father was in the grandfather’s power, the grandchildren, though in the grandfather’s power, cannot have a testamentary guardian, because his death leaves them in the power of the father.
§ 147. As in many other matters after-born children are treated on the footing of children born before the execution of the will, so it is ruled that after-born children, as well as children born before the will was made, may have guardians therein appointed, provided that if born in the testator’s lifetime they would be subject to his power [and self-successors], for such after-born children may be instituted heirs, but not afterborn strangers.
§ 148. A wife in the testator’s hand may receive a testamentary guardian as if she were a daughter, and a son’s wife in the son’s hand as if she were a granddaughter.
§ 149. The most regular form of appointing a guardian is in the following terms: ‘I appoint Lucius Titius guardian to my children’; the form, ‘Be Lucius Titius guardian to my children’—or, ‘to my wife’—is also valid.
§ 150. To a wife in his hand a testator is permitted to devise the selection of her guardian, that is, he may authorize her to choose whom she pleases, in the following terms: ‘To Titia my wife I devise the selection of her guardian’; whereupon she may nominate either a general guardian or a guardian for certain specified matters.
§ 151. The option of a guardian may be limited or unlimited.
§ 152. Unlimited option is usually devised in the form above mentioned; limited option in the following terms: ‘To Titia my wife I devise not more than one option’—or, ‘not more than two options—of a guardian.’
§ 153. The effect of these forms is very different: unlimited option is a power of choosing a guardian an indefinite number of times; limited option is the right of a single choice, or of two choices, as may happen.
§ 154. A guardian actually nominated by the will of the testator is called a dative guardian; one taken by selection (of the widow) is called an optative guardian.
Having examined those inferiorities of legal capacity which constituted a status, we now proceed to examine certain cases of incapacity of acting independently which, though analogous to the former as belonging to the sphere of unequal rights, were not included by the Romans under the denomination of status. The inferiorities of capacity in infancy, minority, tutelary wardship, curatel, were different in character and not so considerable as those which we have hitherto examined. The diminution of rights in a lapse from independence to curatel was less than the least capitis minutio, and accordingly a prodigal who was interdicted from the administration of his estate and subjected to the control of a curator, was not said to undergo a status mutatio: his patrimony still vested in him, though he was deprived of its administration; whereas adrogatio and in manum conventio divested a person of the capacity of ownership and active obligation: inferior status, in a word, is incapacity of right; wardship and curatel are only incapacities of disposition.
Guardianship is thus defined: Est autem tutela, ut Servius definit, jus ac potestas in capite libero, ad tuendum eum qui propter aetatem se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1. ‘Guardianship is a right and power over an independent person conferred or authorized by the Civil law for the protection of one who is incapacitated by age for self-defence.’ The duties of the guardian related both to the person and to the property of the ward. In respect of his person, the guardian was charged with the care of his nurture and education: in respect of his property, the guardian’s function was distinguished as either exclusive administration or concurrent interposition of authority (rem gerere et auctoritatem interponere). Up to the age of seven the ward was called infans, 3 § 109, and during this period the guardian acted alone (administratio, negotiorum gestio); after the completion of seven years until the age of puberty (fourteen for males, as the time was ultimately fixed, twelve for females) the ward acted, and the guardian concurrently gave his sanction (auctoritas). The sanction of the guardian was a legal act of a highly formal character (actus legitimus), by which such legal acts of his ward, as would otherwise have been imperfect, obtained validity. Accordingly the guardian could not give his sanction by letter or through an agent, but had to be present himself for the purpose at the time when the act of the ward was executed, so that he might be a subsidiary party to it. Inst. 1, 21, 2 Tutor autem statim in ipso negotio praesens debet auctor fieri, si hoc pupillo prodesse existimaverit. post tempus vero aut per epistulam interposita auctoritas nihil agit.
The sanction of the guardian was necessary whenever the act of the ward was one which might possibly entail loss, but not otherwise. Cf. 2 §§ 80-85, Inst. l. c. pr. and 1 Auctoritas autem tutoris in quibusdam causis necessaria pupillis est, in quibusdam non est necessaria. ut ecce si quid dari sibi stipulentur, non est necessaria tutoris auctoritas: quod si aliis pupilli promittant, necessaria est: namque placuit meliorem quidem suam condicionem licere eis facere etiam sine tutoris auctoritate, deteriorem autem non aliter quam tutore auctore. unde in his causis, ex quibus mutuae obligationes nascuntur, in emptionibus venditionibus, . . . si tutoris auctoritas non interveniat, ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli non obligantur In respect of administration of property the guardian incurred a quasi-contractual obligation, and was accordingly liable to the judicium or actio tutelae.
In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were in their case confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190.
§ 147. For an account of the different classes of Postumi see 2 § 130, comm.
§ 148. In filii manu must be regarded as an inaccurate expression: for filiusfamilias was incapable of all civil rights, including manus, and could only serve as a conduit-pipe by which the right of manus vested in his father.
§ 154. In the Code and Digest of Justinian the term tutor dativus is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5; Dig. 46, 6, 7.
DE LEGITIMA AGNATORVM TVTELA.
§ 155. Quibus testamento quidem tutor datus non sit, iis ex lege xii 〈tabularum〉 agnati sunt tutores, qui uocantur legitimi.
Inst. 1, 15 pr.
§ 156. Sunt autem agnati per uirilis sexus personas cognatione iuncti, quasi a patre cognati, ueluti frater eodem patre natus, fratris filius neposue ex eo, item patruus et patrui filius et nepos ex eo. at hi qui per feminini sexus personas cognatione coniunguntur non sunt agnati, sed alias naturali iure cognati. itaque inter auunculum et sororis filium non agnatio est, sed cognatio. item amitae, materterae filius non est mihi agnatus, sed cognatus, et inuicem scilicet ego illi eodem iure coniungor, quia qui nascuntur patris, non matris familiam secuntur.
Inst. 1, 15, 1.
§ 157.Et olim quidem, quantum ad legem xii tabularum attinet, etiam feminae agnatos habebant tutores. sed postea lex Claudia lata est quae, quod ad feminas attinet, 〈agnatorum〉 tutelas sustulit; itaque masculus quidem inpubes fratrem puberem aut patruum habet tutorem, femina uero talem habere tutorem non potest.
§ 158. Sed agnationis quidem ius capitis deminutione perimitur, cognationis uero ius eo modo non commutatur, quia ciuilis ratio ciuilia quidem iura corrumpere potest, naturalia uero non potest.
Inst. 1, 15, 3.
DE LEGITIMA AGNATORVM TVTELA.
§ 155. In default of a testamentary guardian the statute of the Twelve Tables assigns the guardianship to the nearest agnates, who are hence called statutory guardians.
§ 156. Agnates (3 § 10) are persons related through males, that is, through their male ascendents: as a brother by the same father, such brother’s son or son’s son; a father’s brother, his son or son’s son. Persons related through female ascendents are not agnates but simply cognates. Thus, between an uncle and his sister’s son there is not agnation, but cognation: so the son of my aunt, whether she is my father’s sister, or my mother’s sister, is not my agnate, but my cognate, and vice versa; for children are members of their father’s family, not of their mother’s.
§ 157. In former times, the statute of the Twelve Tables made females as well as males wards of their agnates: subsequently a law of the Emperor Claudius abolished this wardship in the case of females: accordingly, a male below the age of puberty has his brother above the age of puberty or his paternal uncle for guardian, but a female cannot have such a guardian.
§ 158.Capitis deminutio extinguishes rights by agnation, while it leaves unaffected rights by cognation, because civil changes can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale).
§ 156. As to this definition of agnati see Moyle’s note to Inst. 1, 15, 1. The maxim here enunciated is calculated to give a false idea of the relation of the institutes of jus gentium to those of jus civile. Title by cognation is just as much an institute of positive law as title by agnation, though cognation, or blood-relationship, is in itself a natural and permanent tie, while agnation is an artificial one, and therefore only occasional. The synthesis of title and right in jus civile may be freakish and capricious, while that in jus gentium may be reasonable and expedient; but both are equally positive institutions, and both are equally mutable and liable to be overruled. Accordingly, the specious-sounding maxim, that revolutions in status or civil condition cannot affect such rights as are annexed to natural titles, crumbles away as soon as we examine it, for we find that it only holds good of the most insignificant change, the minima capitis minutio, 3 § 27, and that maxima and media capitis minutio extinguish title by cognation, which belongs to jus gentium, as well as title by agnation, which belongs to jus civile. Inst. 1, 16, 6.
The truth is, that the effects of a collision of Civil and Natural law fall under two very different classes, which it is important to distinguish.
1. If the command of the civil lawgiver, under the sway of motives financial, political, ethical, or religious, is highly imperious and absolutely compulsive, all natural titles with which it may come in conflict are absolutely void and inoperative: e. g. the Sc. Velleianum, prohibiting suretyship of women, allowed no naturalis obligatio to be produced by any such suretyship: and so with the laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and absolute, it may deprive any conflicting natural title of plenary force, and yet leave to it a naturalis obligatio capable of acquiring efficacy by some machinery of positive law; e. g. the Sc. Macedonianum, prohibiting money loans to a filiusfamilias without the sanction of his father, made them irrecoverable by action, and yet the courts recognized in the borrowing filiusfamilias a naturalis obligatio, which was capable of novation, Dig. 46, 2, 19, and a bar to recovery back (condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.
When Justinian consolidated the law of intestate succession and made the right of succession depend on cognation instead of agnation, he made a corresponding change in the obligation of guardianship, which henceforth devolved on cognates instead of agnates, women as formerly, with the exception of mothers and grandmothers, being excluded from the office, Nov. 118, 5.
DE CAPITIS MINVTIONE.
§ 159. Est autem capitis deminutio prioris status permutatio. eaque tribus modis accidit: nam aut maxima est capitis deminutio, aut minor quam quidam mediam uocant, aut minima.
Inst. 1, 16 pr.
§ 160. Maxima est capitis deminutio, cum aliquis simul et ciuitatem et libertatem amittit; quae accidit incensis, qui ex forma censuali uenire iubentur; quod ius p—|—NA ex lege —|—NA qui contra eam legem in urbe Roma do|micilium habuerint; item feminae quae ex senatusconsulto Claudiano ancillae fiunt eorum dominorum quibus inuitis et denuntiantibus cum seruis eorum coierint.
Inst. 1, 16, 1.
§ 161. Minor siue media est capitis deminutio, cum ciuitas amittitur, libertas retinetur; quod accidit ei cui aqua et igni interdictum fuerit.
Inst. 1, 16, 2.
§ 162. Minima est capitis deminutio, cum et ciuitas et libertas retinetur, sed status hominis commutatur; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur quique ex mancipatione manumittuntur; adeo quidem, ut quotiens quisque mancipetur aut manumittatur, totiens capite deminuatur.
Inst. 1, 16, 3.
§ 163. Nec solum maioribus 〈capitis〉 deminutionibus ius agnationis corrumpitur, sed etiam minima; et ideo si ex duobus liberis alterum pater emancipauerit, post obitum eius neuter alteri agnationis iure tutor esse poterit.
§ 164. Cum autem ad agnatos tutela pertineat, non simul ad omnes pertinet, sed ad eos tantum qui proximo gradu sunt.
DE CAPITIS MINVTIONE.
§ 159.Capitis deminutio is a change of a former status which occurs in three ways, i. e. it is either greatest, minor or mediate, or least.
§ 160. The greatest capitis deminutio is the simultaneous loss of citizenship and freedom, which happens to those who having evaded inscription on the censorial register are sold into slavery according to the regulations of the census, also under the — law when persons in violation of it make Rome their place of residence, and also under the Sc. Claudianum in case of persistent intercourse on the part of a free woman with another person’s slave in spite of the dissent and denunciation of the owner.
§ 161. Minor or intermediate loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water.
§ 162. There is the least capitis deminutio retaining citizenship and freedom when a man’s position in the family only is changed, which occurs in adoption, coemption, and in the case of those given in mancipium to be afterwards manumitted, so that after each successive mancipation and manumission a capitis deminutio takes place.
§ 163. Not only by the two greater losses of status are rights of agnation extinguished, but also by the least: accordingly, if one of two children is emancipated, the elder cannot on the father’s decease be guardian to the younger by right of agnation.
§ 164. When agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree.
§ 160. Ulpian also refers to the penalty incurred by incensi (11, 11 cum incensus aliquis venierit; cf. Cic. Pro Caec. 34, 99). The lex, the name of which is now illegible, may possibly be the lex Aelia Sentia, which by one of its provisions recalled into slavery dediticii, who resided in Rome or within a certain distance from it (§ 27), though there is the difficulty that it would be inaccurate to speak of such freedmen suffering loss of citizenship as well as liberty. Other grounds of reducing to slavery existed at various times, as surrender by the pater patratus to a foreign state for an offence against international law, Livy, 5, 36, or evasion of military service (populus quum eum vendidit qui miles factus non est, Cic. Pro Caec. 34, 11; Ulp. 11, 11), or capture by the enemy, § 129, or condemnation for a capital crime, which made the convict a slave of punishment (servus poenae, Inst. 1, 16, 1), i. e. reduced him to penal servitude, or condemnation of a freedman for ingratitude towards his patron (libertus ingratus circa patronum condemnatus, ibid.) whereupon he forfeited his freedom, or collusion of a freeman in consenting to be sold as a slave on condition of sharing the purchase-money (cum liber homo, major viginti annis, ad pretium participandum sese venundari passus est, Inst. 1, 3, 4). After the price had been paid, the vendor disappeared, the supposed slave recovered his liberty by a liberalis causa, and the purchaser was left without his slave and without his money. The praetor, to check this fraud, allowed the purchaser to defend himself by exceptio doli, and senatusconsulta subsequently enacted, that if the person sold was twenty years old at the time of the sale or partition of the price, he should really become the slave of the purchaser, Dig. 40, 12, 7 pr. 1.
The libertus ingratus would exemplify a fall from the condition of libertinus to that of servus; any of the other instances might be a case of a fall from ingenuus to servus; the fall from ingenuus to libertinus would also be an analogous kind of degradation. Thus by the Sc. Claudianum a freewoman (ingenua) who had commerce with a slave with the consent of his proprietor procreated slaves without forfeiting her own freedom, § 84; she lost status, however, for she became the freedwoman of the proprietor, Paulus, 4, 10, 2; Tac. Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes, civis, latinus, peregrinus, so there are three possible degradations, the fall from civis to Latinus, instanced in the emigrant to a Latin colony, § 131; the fall from civis to peregrinus, instanced in the interdiction or deportation of a civis; and the fall from Latinus to peregrinus, instanced when the same events happened to Latinus. A lapse from liber to servus was a dissolution of marriage, for servus was incapable of matrimony: a lapse from civis to Latinus or peregrinus was a dissolution of civil wedlock (connubium), for this could only subsist between cives; but if both parties consented, they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1. The confiscation of property or universal succession of the fiscus, which accompanied greatest and minor loss of status, was not an incident of the latter kind of capitis minutio (e.g. it did not happen when civis became Latinus by emigration; and an alien, as a citizen became by deportation, was capable of holding property), but was a special provision of the criminal code. (For an account of the different Roman forms of banishment see Mommsen, Rom. Strafr. 5, pt. 7.)
The political elements of civitas, suffragium and honores, were forfeited by infamy (infamia) or loss of civic honour (existimatio); and hence arises the question whether infamia is to be regarded as a capitis minutio (see, on this subject, Greenidge, Infamia).
Austin, in laying the bases of jurisprudence, has referred to the law of honour to illustrate the difference of positive law from all law not positive; but in Rome the law of honour, as the law of religion in most modern states, was partially taken up into positive legislation. The public sentiments of esteem and disesteem, that is to say, were armed with political sanctions, and thus certain proceedings were discouraged which were not otherwise prohibited by positive law, and the due application of these sanctions was the function of a special organ appointed by the legislator. This organ was the censor, who had both a discretionary power of branding a man with ignominy by an annotation against his name in the civic register (notatio, subscriptio censoria), and, as revisor of the lists of the senate, the knights, and the tribes, enforced the disabilities of infamy by removing the infamous person from any of those bodies. As the Comitia Centuriata, as well as the Comitia Tributa, had in later times been connected with the division into tribes, the tribeless man (aerarius) forfeited his vote and became incapable of military service, Livy, 7, 2. These graver consequences of infamy were not in the discretion of the censor, but governed by strict rules of consuetudinary law (jus moribus introductum). The law of infamia, as established by the censor, came to be also recognized by the praetor in his edict (cf. Dig. 3, 1, 1, 8 Qui edicto praetoris ut infames notantur), who made infamy not only a consequence of condemnation in any criminal trial (publicum judicium), but also of condemnation in certain civil actions founded on delict, such as theft, rapine, outrage, fraud; or on certain contracts, such as partnership, agency (mandatum), deposit; or on quasi contract, such as guardianship; or of insolvency (bona possessa, proscripta, vendita); or, without any judicial condemnation, was annexed to certain violations of the marriage laws, such as bigamy or the marriage of a widow before the termination of her year of mourning, and to the pursuit of certain professions, such as that of stage-player or gladiator. In some of these latter instances consuetudinary law, as above intimated, inflicted positive sanctions on acts that originally had only been prohibited by the law of honour. In view of these consequences, infamia may at one time have been regarded as capitis minutio. Cicero pro Quinctio speaks of a suit involving existimatio as a causa capitis (cf. pro Rosc. Com. 6), and Tertullian, the father of the Church, who was noted for his knowledge of Roman law, and possibly was identical with the jurist of that name, of whom five fragments are preserved in the Digest, speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos manifeste damnant ignominia et capitis deminutio. But the political rights of civitas had ceased to be of importance under the emperors, and we are expressly told in the Digest that only death or loss of citizenship can be understood to affect a man’s caput, Modestinus in Dig. 50, 16, 103.
Besides extinguishing the political or public elements of civitas, infamia affected to a certain extent its private elements, both commercium and connubium; the former, as we shall see, in respect of the office of cognitor, 4 § 124 (cf. Dig. 3, 1, de postulando), and the latter in respect of the disabilities of celibacy under the lex Julia, which were not removed by marriage with an infamis. Both these classes of disability had practically vanished even before they were abolished in the time of Justinian.
This seems the proper place to notice certain inequalities of condition, analogous to the old distinctions of status, which grew up subsequently to the time of Gaius in the later ages of Rome, and some of which survived the fall of the Roman empire. From the establishment of the empire the army was caressed by each succeeding despot, and privileges of various kinds were so accumulated on the military service, that the relation of the soldiery to the rest of the world very much resembled the ancient relation of Romanus to peregrinus. The pre-eminence of the military caste was the result of elevation; other unprivileged castes were created by depression. As the new religion grew to political power, zealous legislators were eager to promote its ascendency by the means of political sanctions. Pagans, Jews, heretics, apostates, protestants, papists, were successively frowned upon by the legislator, and for a long season subjected to incapacities and disabilities as great as, or greater than, those which weighed upon infames: until by a change in political conceptions these inequalities of right have been again levelled and almost obliterated in most of the codes of modern Europe. See also the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three classes, (1) sui juris, or paterfamilias and materfamilias; (2) filiusfamilias and filiafamilias; and (3) mancipium: but there are only two possible degradations, (1) from sui juris to alieni juris, which occurs in adrogation and the in manum conventio of a woman previously independent; and (2) from filius- or filiafamilias to mancipium, which occurs in noxal surrender, in emancipation, in adoption as implying mancipation, and in the remancipation of a woman by her husband or the person who held her in manu in virtue of a fiduciary coemption. The descent from sui juris to mancipium cannot occur, because the only persons capable of passing into the condition of mancipium by the process of mancipation were filius- and filiafamilias and women in manu, i. e. persons already alieni juris.
In the exposition of capitis minutio, and particularly of the third and last kind, I have adopted the theory of Savigny as being the most tenable, and forming the most harmonious system of legal conceptions. I must now briefly notice an opposing theory, and the objections that may be raised against that of Savigny. Some expositors hold that capitis minutio minima did not necessarily and essentially involve any degradation, any downward step on the ladder of status, but might be merely a horizontal movement on the same platform, a transit from family to family, a disruption of the ties of agnation, a cessation of membership in a given civil group. (See on this subject Dr. Moyle’s Excursus, Inst. Bk. 1, and Professor Goudy’s App. to Muirhead’s Roman Law, second ed., p. 426, where Mommsen’s explanation is given.) This opinion is founded on the authority of Paulus, undeniably an eminent juris auctor, who defines the least diminution of head as follows: Dig. 4, 5, 11. ‘Capital diminution is of three orders, greatest, minor, least; as there are three things that we have, liberty, citizenship, family. The universal loss of freedom, citizenship, family, is the greatest capital diminution; loss of citizenship while liberty is retained is minor capital diminution; when liberty and citizenship are retained, and family only is changed, there is the least capital diminution.’ Consistently with this definition Paulus affirms that the children of adrogatus suffer capitis minutio minima: Dig. 4, 5, 3 pr. ‘The children who follow an adrogated parent suffer capital diminution, as they are dependent and have changed family’: here, then, if Paulus is right, we have capitis minutio without any degradation, any loss of rank; for the children of adrogatus have the same status of filiifamilias after their father’s adrogation as they had before, although in a different family. The proposition, however, that the children of adrogatus suffer capitis minutio is not confirmed by any other jurist, and Savigny supposes that the doctrine was peculiar to Paulus, and was in fact inaccurate. Another objection to the theory of Savigny, though not so serious as the opposing authority of Paulus, is presented by the operation of in manum conventio.
When an independent woman made a coemption she undoubtedly declined in status, as before coemption she was sui juris, and after coemption she is filiafamilias. But a filiafamilias who made a coemption apparently suffered no degradation: the definitive result of the coemption leaves her, as before, filiafamilias, and that, apparently, without having passed through any lower stage; for Gaius expressly says that the lex mancipii, or formula of mancipation in coemption, was not calculated to reduce the woman to a servile condition, § 123. Gaius tells us, however, that coemption operates a capitis minutio, § 162, without limiting the effect to the case of a woman sui juris. The operation of coemption to produce capitis minutio is also mentioned by Ulpian, and again without any express limitation to the case of an independent woman: 11, 13. ‘There is least capital diminution when both citizenship and freedom are unimpaired, and only position in household life is changed, as occurs in adoption and subjection to hand.’ If filiafamilias underwent capitis minutio when she made a coemption, her case disproves our theory that all capitis minutio requires degradation: but Savigny assumes that, though in these passages there is no express limitation to the case of independent women, yet this limitation must be understood; and there is nothing outrageous in this supposition.
While, however, these objections to the hypothesis of Savigny are doubtless serious, on the other hand they are compensated by legal facts which seem absolutely irreconcilable with the adverse hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gellius, 1, 12. ‘As soon as a vestal virgin is selected and conducted to the shrine of Vesta and delivered to the pontifices, she instantaneously, without emancipation and without capital diminution, is freed from parental power and acquires testamentary capacity. . . . . Moreover, in the commentary of Labeo on the Twelve Tables it is stated that a vestal virgin is neither heiress-at-law to any one who dies intestate nor, if she herself die intestate, leaves any heir-at-law, and that in this event her property lapses to the state.’ For Flamen Dialis, see 3 § 114. If mere transit from a family and ceasing to belong to a given group of agnates constituted capitis minutio, and was its definition, then the vestal virgin must inevitably have suffered capitis minutio; the fact that she did not, in spite of leaving her family and snapping the agnatic tie, is at once conceivable, on the supposition that there is no capitis minutio without degradation.
Unless capitis minutio minima involved a downward step on the stair of status, it has no analogy to the other forms of capitis minutio, and it is not obvious why it should have the same generic appellation, or why it should be handled in the same department of the code. The rupture of the ties of agnation, extinguishing rights of intestate succession, might be a loss, but it was not a loss from inferiority of privilege; it was a loss of an equal among equals; it was more like the loss of dos which a husband might incur by divorce of his wife, or an heir by neglecting to accept a succession within the appointed period (cretio), 2 § 164; neither of which persons were said to undergo capitis minutio, because neither of them suffered a reduction of the universitas juris called status.
On the whole, then, Savigny seems justified in considering the definition given by Paulus and his statement respecting the children of adrogatus as inexact. Paulus himself, in speaking of emancipation, implies the true conditions of capitis minutio: Dig. 4, 5, 3 Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit nisi in imaginariam servilem causam deductus; aliter atque cum servus manumittitur, quia servile caput nullum jus habet ideoque nec minui potest.
Although rupture of the ties, and forfeiture of the rights, or release from the duties, of agnation, were not the essence of capitis minutio minima, yet they were among its principal consequences. The capite minutus lost his claim as suus heres at civil law, that is, his right to succeed to an intestate ascendent, or to be instituted heir in his will or formally disinherited. These effects of capitis minutio were, however, counteracted to some extent by jus praetorium or the legislation of the praetor (bonorum possessio unde liberi: and contra tabulas). He also lost his right as legitimus heres at civil law, that is, his right to succeed as nearest agnate to an intestate collateral; and here the praetor only so far interposed to assist the capite minutus, as, in default of all persons entitled as nearest agnates, to call him to the succession in the inferior order of cognates (bonorum possessio unde cognati). The collateral civil heir was called legitimus heres (statutory heir) because his title was founded on the statutes of the Twelve Tables, which, in default of self-successors, called the nearest collateral agnates to the succession. Subsequent statutes created certain quasi agnates or persons entitled to succeed in the same order as if they were agnates, who hence were also called legitimi heredes; e. g. children entitled to succeed to an intestate mother under the Sc. Orphitianum, and mothers entitled to succeed to intestate children under the Sc. Tertullianum. The effect of capitis minutio in extinguishing title to succeed was confined to legitimus heres created by the Twelve Tables, and did not extend to the legitimus heres created by these subsequent statutes.
Besides the effects of capitis minutio which followed logically from its consisting in a degradation or fall in status, and from its involving elimination from a given family or a certain circle of agnates, it had certain other abnormal or arbitrary consequences—consequences, that is, which may have once been explicable on known maxims of the civil law, but which are now inexplicable, whose rationale had perhaps been lost even in the classical period, and is certainly now past conjecture. Such is the rule, that capitis minutio minima of an independent person extinguished the debts of capite minutus. It is true that the injustice operated by this rule of civil law in the case of adrogatio was counteracted by the interposition of the praetor, but, as at civil law filiusfamilias, though incapable of rights, was capable of obligations, it is not obvious why even at civil law a man’s debts should have been cancelled by his degradation from the status of paterfamilias to that of filiusfamilias. 3 § 84, comm.; 4 § 38.
DE LEGITIMA PATRONORVM TVTELA.
§ 164 a.
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§ 165. Ex eadem lege xii tabularum libertarum et inpuberum libertorum tutela ad patronos liberosque eorum pertinet. quae et ipsa tutela legitima uocatur, non quia nominatim ea lege de hac tutela cauetur, sed quia proinde accepta est per interpretationem, atque si uerbis legis introducta esset. eo enim ipso, quod hereditates libertorum libertarumque, si intestati decessissent, iusserat lex ad patronos liberosue eorum pertinere, crediderunt ueteres uoluisse legem etiam tutelas ad eos pertinere, quia et agnatos, quos ad hereditatem uocauit, eosdem et tutores esse iusserat.
Inst. 1, 17 pr.
§ 166. Exemplo patronorum receptae 〈sunt et aliae tutelae, quae et ipsae legitimae uocantur. nam si quis filium nepotemue ex filio et deinceps inpuberes, aut filiam neptemue ex filio et deinceps tam puberes quam inpuberes alteri ea lege mancipio dederit, ut sibi remanciparentur, remancipatosque manumiserit, legitimus eorum tutor erit.〉
Inst. 1, 18.
§ 166 a. [de fidvciaria tvtela.] Sunt et aliae tutelae, quae fiduciariae uocantur, id est quae ideo nobis conpetunt, quia liberum caput mancipatum nobis uel a parente uel a coemptionatore manumiserimus.
Inst. 1, 19.
§ 167. Sed Latinarum et Latinorum inpuberum tutela non omni modo ad manumissores eorum pertinet, sed ad eos quorum ante manumissionem 〈ex iure Quiritium fuerunt; unde si ancilla〉 ex iure Quiritium tua sit, in bonis mea, a me quidem solo, non etiam a te manumissa, Latina fieri potest, et bona eius ad me pertinent, sed eius tutela tibi conpetit; nam ita lege Iunia cauetur; itaque si ab eo, cuius et in bonis et ex iure Quiritium ancilla fuerit, facta sit Latina, ad eundem et bona et tutela pertinent.
DE CESSICIA TVTELA.
§ 168. Agnatis et patronis et liberorum capitum manumissoribus permissum est feminarum tutelam alii in iure cedere; pupillorum autem tutelam non est permissum cedere, quia non uidetur onerosa, cum tempore pubertatis finiatur.
§ 169. Is autem, cui ceditur tutela, cessicius tutor uocatur.
§ 170. Quo mortuo aut capite deminuto reuertitur ad eum tutorem tutela qui cessit; ipse quoque qui cessit si mortuus aut capite deminutus sit, a cessicio tutela discedit et reuertitur ad eum, qui post eum qui cesserat secundum gradum in ea tutela habuerit.
§ 171. Sed quantum ad agnatos pertinet, nihil hoc tempore de cessicia tutela quaeritur, cum agnatorum tutulae in feminis lege Claudia sublatae sint.
§ 172. Sed fiduciarios quoque quidam putauerunt cedendae tutelae ius non habere, cum ipsi se oneri subiecerint. quod etsi placeat, in parente tamen, qui filiam neptemue aut proneptem alteri ea lege mancipio dedit, ut sibi remanciparetur, remancipatamque manumisit, idem dici non debet, cum is et legitimus tutor habeatur, et non minus huic quam patronis honor praestandus sit.
DE LEGITIMA PATRONORVM TVTELA.
§ 165. The same statute of the Twelve Tables assigns the guardianship of freedwomen and of freedmen below the age of puberty to the patron and the patron’s children, and this guardianship, like that of agnates, is called statutory guardianship, not that it is anywhere expressly enacted in the Twelve Tables, but because the interpretation has procured for it as much reception as it would have obtained from express enactment; for the fact that the statute gave the succession of a freedman or freedwoman, when they die intestate, to the patron and patron’s children, was deemed by the lawyers of the republic (veteres) a proof that it intended to give them the guardianship also, because the Tables, when they call agnates to succeed to the inheritance, likewise confer on them the guardianship.
§ 166. The analogy of the patron guardian led in its turn to the establishment of other guardianships also called statutory. Thus when a person mancipates to another, on condition of remancipation to himself, either a son or grandson through a son, who are below the age of puberty, or a daughter or granddaughter through a son of whatever age they may be, he becomes their statutory guardian when he manumits them after remancipation.
§ 166 a.Concerning Fiduciary Guardianship.
But there are other kinds of guardianship, called fiduciary, which arise when a free person has been mancipated by his parent or coemptionator to an alienee and manumitted by the latter.
§ 167. The guardianship of Latins, male or female, below the age of puberty, does not necessarily belong to their manumitter, but on whoever before manumission was their quiritary owner. Accordingly, a female slave belonging to you as quiritary owner, to me as bonitary owner, if manumitted by me without your joining in the manumission, becomes a Latin, and her property belongs to me, but her guardianship to you, by the enactment of the lex Junia. If the slave is made a Latin by one who combines the character of bonitary and quiritary owner, both her effects, and the guardianship of her, belong to one and the same person.
DE CESSICIA TVTELA.
§ 168. Statutory guardians, whether agnates or patrons, and manumitters of free persons, are permitted to transfer the guardianship of a female ward by surrender before a magistrate; the guardianship of a male ward is not allowed to be transferred, because it is not considered onerous, being terminated by the ward’s attaining the age of puberty.
§ 169. The surrenderee of a guardianship is called a cessionary guardian.
§ 170. On his death or loss of status the guardianship reverts to the surrenderor, and on the surrenderor’s death or loss of status it is devested from the cessionary and reverts to the person entitled after the surrenderor.
§ 171. As far, however, as agnates are concerned, in the present day there is no such thing as cessionary guardianship, for agnatic guardianship over female wards was abolished by the lex Claudia.
§ 172. Fiduciary guardians, according to some, are also disabled from transferring their guardianship, having voluntarily undertaken the burden; but although this is the better opinion, yet a parent who has mancipated a daughter, granddaughter, or great-granddaughter, with a condition of remancipation to himself, and manumitted her after remancipation, should be excepted from the rule, for he is ranked with statutory guardians, and has the same privilege as the patron of a manumitted slave.
§ 164 a. As in default of agnates the inheritance by the law of the Twelve Tables devolved on the gens it may be inferred by the reasoning adopted in § 165 that the guardianship passed to it also. So it is probable that at the beginning of the lacuna Gaius made mention of the statutory guardianship of the Gentiles, and that this is the passage on the subject referred to in 3, 17. As to the nature of the gens, see Introduction.
§ 166 a. Cf. §§ 115, 175, 195 a.
§ 167. It seems anomalous that a Latin, i.e. a non-civis, should have been a subject of wardship: for as tutela is an institute of jus civile (§§ 142, comm., 189), i.e. jus civium, we should have expected that, as in the case of patria potestas, both pater and filius must be cives Romani, § 128, so here both parties, the ward as well as the guardian, must of necessity be cives Romani. The anomaly, however, was expressly enacted by the lex Junia: which further departed from the law of the Twelve Tables by separating the guardianship from the right of succession; for it gave the guardianship to the person who before the manumission had been quiritary owner, but the right of succession to the person who had previously been bonitary owner. Latinus was not only capable of being a ward, but also of being a guardian, Fragmenta Vaticana, 193; that is, though he was incapable of being a testamentary guardian, § 23, he could, it would seem, be made a tutor dativus, that is, appointed by a magistrate, § 185.
§ 168. In later Roman law, when the interest of the ward and not that of the agnates was principally regarded, guardianship became inalienable. Similarly in English jurisprudence guardianship is said not to be capable of assignment or transfer, because it is not a right but a duty.
DE PETENDO ALIO TVTORE.
§ 173. Praeterea senatusconsulto mulieribus permissum est in absentis tutoris locum alium petere; quo petito prior desinit; nec interest quam longe absit is tutor.
§ 174. Sed excipitur, ne in absentis patroni locum liceat libertae tutorem petere.
§ 175. Patroni autem loco habemus etiam parentem, qui ex eo, quod ipse sibi remancipatam filiam neptemue aut proneptem manumisit, legitimam tutelam nactus est. 〈sed〉 huius quidem liberi fiduciarii tutoris loco numerantur; patroni autem liberi eandem tutelam adipiscuntur, quam et pater eorum habuit.
§ 176. Sed aliquando etiam in patroni absentis locum permittitur tutorem petere, ueluti ad hereditatem adeundam.
§ 177. Idem senatus censuit et in persona pupilli patroni filii.
§ 178. Nam et lege Iulia de maritandis ordinibus ei, quae in legitima tutela pupilli sit, permittitur dotis constituendae gratia a praetore urbano tutorem petere.
§ 179. Sane patroni filius etiamsi inpubes sit, libertae efficietur tutor, quamquam in nulla re auctor fieri potest, cum ipsi nibil permissum sit sine tutoris auctoritate agere.
§ 180. Item si qua in tutela legitima furiosi aut muti sit, permittitur ei senatusconsulto dotis constituendae gratia tutorem petere.
§ 181. Quibus casibus saluam manere tutelam patrono patronique filio manifestum est.
§ 182. Praeterea senatus censuit, ut si tutor pupilli pupillaeue suspectus a tutela remotus sit, siue ex iusta causa fuerit excusatus, in locum eius alius tutor detur, quo facto prior tutor amittit tutelam.
§ 183. Haec omnia similiter et Romae et in prouinciis obseruantur, scilicet 〈ut Romae a praetore〉 et in prouinciis a praeside prouinciae tutor peti debeat.
§ 184. Olim cum legis actiones in usu erant, etiam ex illa causa tutor dabatur, si inter tutorem et mulierem pupillumue lege agendum erat; nam quia ipse tutor in re sua auctor esse non poterat, alius dabatur, quo auctore legis actio perageretur; qui dicebatur praetorius tutor, quia a praetore urbano dabatur. sed post sublatas legis actiones quidam putant hanc speciem dandi tutoris in usu esse desiisse, aliis autem placet adhuc in usu esse, si legitimo iudicio agatur.
Ulp. 11, 24; Inst. 1, 21, 3.
DE PETENDO ALIO TVTORE.
§ 173. Moreover, a decree of the senate permits female wards to demand a substitute in the place of an absent guardian, who is thus superseded: and the distance of his residence from her domicil [provided it amounts to absence] is immaterial.
§ 174. But an exception is made in favour of an absent patron, who cannot be superseded on the application of a freedwoman.
§ 175. Ranked with patrons is the parent who by mancipation, remancipation, and manumission of a daughter, granddaughter, or great-granddaughter, has become her statutory guardian. His sons only rank as fiduciary guardians, unlike a patron’s sons, who succeed to the same form of guardianship as vested in their father.
§ 176. For a special and limited purpose the senate permits even the place of a patron in his absence to be filled by a substitute; for instance, to authorize the acceptance of an inheritance.
§ 177. The senatusconsult gives similar permission when a patron’s son is himself a ward.
§ 178. For likewise the lex Julia, regulating the marriages of the various orders, permitted a woman whose statutory guardian was himself a ward to apply to the praetor of the city to appoint a guardian for the purpose of constituting her dower.
§ 179. For a patron’s son even before the age of puberty is a freedwoman’s guardian, although unable to authorize any proceeding, being himself disabled from acting without his guardian’s authorization.
§ 180. Also a woman whose statutory guardian is a lunatic or dumb is permitted by the senatusconsult, for the purpose of settling her dower, to apply for a substitutive guardian.
§ 181. In which cases the continued guardianship of the patron or patron’s son is undisputed.
§ 182. The senate further decreed that if the guardian of a male or female ward is suspected of misconduct and removed from office, or if he alleges valid grounds for declining to act and is relieved of his functions, a substitute shall be appointed by the magistrate, and on his appointment the office of the former guardian shall determine.
§ 183. These rules are in force both in Rome and in the provinces, but in Rome application for the appointment of a tutor must be made to the praetor; in the provinces, to the governor of the province.
§ 184. During the era of litigation by statute-process [4 § 10], another cause of appointing a substitute was the imminence of statute-process between the guardian and the woman or ward; for as the guardian could not give his authority in respect of his own suit, another guardian was appointed to authorize the proceedings in the action, who was called a praetorian guardian, because he was appointed by the praetor of the city. But some hold that since the abolition of statute-process this mode of appointing a guardian ceased to be used, others maintain that it is still the practice on the occasion of a statutory suit (4 § 103).
§ 173. Cf. Ulp. 11, 22. The name and date of this senatusconsultum cannot be ascertained.
§ 178. Gaius, as already stated, wrote a special treatise or commentary on this important law relating to marriage.
§ 179. The law was changed by Justinian, who enacted that no one could become guardian who had not attained his majority, i. e. completed twenty-five years of age, Inst. 1, 25, 13; Cod. 5, 30, 5. The fact of not having attained this age had previously been ground of excuse.
§ 182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the removal of the guardian from his office could be maintained by any person in the interest of the ward. If removed on account of fraud the guardian was infamis, but not so if it was simply for negligence.
§ 183. The ambiguity of the Latin language leaves it doubtful whether in the foregoing paragraphs, §§ 173, 176, 180, 182, Gaius refers to one or several senatusconsults. From Dig. 26, 1, 17, however, it appears that, complura senatusconsulta facta sunt ut in locum furiosi et muti et surdi tutoris alii tutores dentur: i. e. the subject often occupied the attention of the senate. The reason was that the lex Atilia, presently mentioned, had received, after the wont of the ancient jurists, a strictly literal interpretation, and was not deemed to authorize the substitution of a guardian when the existing guardian was incapacitated.
DE ATILIANO TVTORE, ET EO QVI EX LEGE IVLIA ET TITIA DATVR.
§ 185. Si cui nullus omnino tutor sit, ei datur in urbe Roma ex lege Atilia a praetore urbano et maiore parte tribunorum plebis, qui Atilianus tutor uocatur; in prouinciis uero a praesidibus prouinciarum 〈ex〉 lege Iulia et Titia.
Inst. 1, 20 pr.
§ 186. Et ideo si cui testamento tutor sub condicione aut ex die certo datus sit, quamdiu condicio aut dies pendet, tutor dari potest; item si pure datus fuerit, quamdiu nemo heres existat, tamdiu ex his legibus tutor petendus est; qui desinit tutor esse, posteaquam aliquis ex testamento tutor esse coeperit.
Inst. 1, 20, 1.
§ 187. Ab hostibus quoque tutore capto ex his legibus tutor peti debet; qui desinit tutor esse, si is qui captus est in ciuitatem reuersus fuerit: nam reuersus recipit tutelam iure postliminii.
Inst. 1, 20, 2.
§ 188. Ex his apparet, quot sint species tutelarum. si uero quaeramus in quot genera hae species diducantur, longa erit disputatio; nam de ea re ualde ueteres dubitauerunt, nosque diligentius hunc tractatum executi sumus et in edicti interpretatione et in his libris quos ex Q. Mucio fecimus. hoc tantisper sufficit admonuisse, quod quidam quinque genera esse dixerunt, ut Q. Mucius; alii tria, ut Ser. Sulpicius; alii duo, ut Labeo; alii tot genera esse crediderunt, quot etiam species essent.
DE ATILIANO TVTORE, ET EO QVI EX LEGE IVLIA ET TITIA DATVR.
§ 185. Failing every other form of guardian, at Rome a guardian is appointed under the lex Atilia by the praetor of the city and the major part of the tribunes of the people, called an Atilian guardian: in the provinces, a guardian is appointed by the president of the province under the lex Julia and Titia.
§ 186. Accordingly, on the appointment of a testamentary guardian subject to a condition, or on an appointment which is not to commence till after a certain time, during the pendency of the condition and before the time has come, a substitute is appointed by these magistrates; also, when the appointment of a testamentary guardian is not subject to a condition, so long as no heir has entered under the will, a temporary guardian may be obtained under those statutes, whose office will determine as soon as the guardian becomes entitled under the will.
§ 187. On the hostile capture of a guardian the same statutes regulate the appointment of a substitute to continue in office until the return of the captive; for if the captive returns he recovers the guardianship in virtue of his rehabilitation.
§ 188. The foregoing statement shows the various forms of guardian: the question of the number of orders to which these forms may be reduced involves a long discussion, for it is a point on which the ancient jurists differed greatly; and as I have examined it at length, both in my interpretation of the edict and in my commentary on Quintus Mucius, for the present occasion it may suffice to observe that some, as Quintus Mucius, make five orders; others, as Servius Sulpicius, three; others, as Labeo, two; others make as many orders as there are forms of guardian.
§ 188. In the time of Justinian there were three forms of guardian,—testamentary, or appointed by will; statutory, or prescribed by the law in case of intestacy; and magisterial (dativus), or appointed by the magistrate, in default of a testamentary or statutory guardian. The other forms of guardian had become obsolete, except a kind of fiduciary one, Inst. 1, 19, in consequence of the change in legislation.
For an account of Q. Mucius Scaevola (Consul b. c. 95) and Servius Sulpicius Rufus (Consul b. c. 51), who may be regarded as the fathers of Roman jurisprudence, see Roby, Intr. to Justinian’s Digest, pp. cvi and cxi.
DE MVLIERVM TVTELA.
§ 189. Sed inpuberes quidem in tutela esse omnium ciuitatium iure contingit, quia id naturali rationi conueniens est, ut is qui perfectae aetatis non sit, alterius tutela regatur. nec fere ulla ciuitas est, in qua non licet parentibus liberis suis inpuberibus testamento tutorem dare; quamuis, ut supra diximus, soli ciues Romani uideantur liberos suos in potestate habere.
Inst. 1, 20, 6.
§ 190. Feminas uero perfectae aetatis in tutela esse fere nulla pretiosa ratio suasisse uidetur; nam quae uulgo creditur, quia leuitate animi plerumque decipiuntur et aequum erat eas tutorum auctoritate regi, magis speciosa uidetur quam uera; mulieres enim, quae perfectae aetatis sunt, ipsae sibi negotia tractant et in quibusdam causis dicis gratia tutor interponit auctoritatem suam, saepe etiam inuitus auctor fieri a praetore cogitur.
§ 191. Unde cum tutore nullum ex tutela iudicium mulieri datur; at ubi pupillorum pupillarumue negotia tutores tractant, ei post pubertatem tutelae iudicio rationem reddunt.
§ 192. Sane patronorum et parentum legitimae tutelae uim aliquam habere intelleguntur eo, quod hi neque ad testamentum faciendum neque ad res mancipi alienandas neque ad obligationes suscipiendas auctores fieri coguntur, praeterquam si magna causa alienandarum rerum mancipi obligationisque suscipiendae interueniat; eaque omnia ipsorum causa constituta sunt, ut, quia ad eos intestatarum mortuarum hereditates pertinent, neque per testamentum excludantur ab hereditate neque alienatis pretiosioribus rebus susceptoque aere alieno minus locuples ad eos hereditas perueniat.
§ 193. Apud peregrinos non similiter ut apud nos in tutela sunt feminae; sed tamen plerumque quasi in tutela sunt; ut ecce lex Bithynorum, si quid mulier contrahat, maritum auctorem esse iubet aut filium eius puberem.
DE MVLIERVM TVTELA.
§ 189. The wardship of children under the age of puberty is part of the law of every state, for it is a dictate of natural reason that persons of immature years should be under the guardianship of another, in fact there is scarcely any state which does not permit a parent to nominate a testamentary guardian for his children under the age of puberty, though, as we have before stated, only citizens of Rome appear to be invested with parental power.
§ 190. But why women of full age should continue in wardship there appears to be no valid reason; for the common allegation, that on account of levity of disposition they are readily deceived, and that it is therefore right that they should be controlled by the sanctionary power of a guardian, seems rather specious than true, for women of full age administer their own property, and it is a mere formality that in some transactions their guardian interposes his sanction; and in these cases he is frequently compelled against his own will to give his sanction.
§ 191. Accordingly, a woman has not the tutelary action against her guardian; whereas since the guardians of youthful wards, both male and female, administer their wards’ property, they are liable to be sued on account of such administration when the ward has come to the age of puberty.
§ 192. The statutory guardianship of patrons and parents is not purely ineffective, as they cannot be compelled to give their sanction to a will or to the alienation of mancipable property, or to the undertaking of obligations, unless there are very weighty reasons for the obligation or the alienation; but this rule is in their own interest as heirs of intestacy, and is designed to prevent their loss of the estate by testamentary disposition, or the diminution of its value by debt or by alienation of a considerable portion.
§ 193. In other countries, though not under the same tutelage as at Rome, women are generally subject to a quasi tutelage: for instance, the law of Bithynia requires the contract of a woman to be sanctioned by her husband or by a son above the age of puberty.
As women were capable of administration, the functions of the guardian, which in the case of infants were either administrative or sanctionative, in the case of women were confined to sanctioning. Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt: mulierum autem tutores auctoritatem dumtaxat interponunt, Ulp. 11, 25. It is transparent that the wardship of women after full age was not designed to protect their own interests, but those of their heirs apparent, their agnates. Originally the authorization of the guardian was not sufficient to validate the will of an independent woman: it was necessary that she should first break the ties of agnation, and separate from her family by means of a coemption (with her guardian’s sanction) and subsequent remancipation and manumission. She then, with the sanction of the manumissor, in his character of fiduciary guardian, could make a valid will. In the time of Gaius, Hadrian having abolished the necessity of coemption, to make a valid will an independent woman only required the sanction of her guardian, 2 § 112, and Claudius, as we have seen, had put an end to agnatic guardianship, § 171.
When a woman was liberated from the administrative control of her guardian, and the guardian had no longer any interest in the succession to her property, the simplest course would have been to declare her dispositions valid without his sanction—to declare her no longer a ward. But with characteristic conservatism of forms, Roman law, to avoid the open change, declared the auctoritas still necessary, but made it compulsory instead of voluntary—gave the ward a power of extorting it from the guardian, 2 §§ 80-85. So the act whereby a testamentary heir accepts an inheritance was originally absolutely voluntary: but when trusts (fidei commissa) were introduced, and the heir as trustee or fiduciarius by groundlessly refusing to make the necessary aditio, which in this case was the merest form, could produce intestacy, and thus deprive the beneficiary, fidecommissarius, or cestui que trust of the provision destined for him by the bounty of the testator: instead of declaring the aditio of the heres unnecessary to the acquisition of the fortune by fideicommissarius; or that in such a case the beneficiary should be deemed to be a direct substitutus of the heres; or that the vexatious refusal of the heres should be deemed to be an aditio and restitutio; the legislator ordained that the heres should be compelled to make aditio in order to complete the title, 2 § 258, comm. Again, the terms of the security given by the guardian (rem pupilli salvam fore) against dilapidation of the estate of the ward made the responsibility of the guardian depend on his actual administration; so that he was not responsible if the estate went to ruin in consequence of his total abstention from the performance of his duties. To protect the ward against this contingency, instead of altering the formula of the satisdatio, and making the liability of the guardian depend on his appointment and not on his acting; the law compelled him to proceed to some act of guardianship, in order to bring him under the unchanged terms of his security; Dig. 46, 6, 4, 3. In all these and other cases a compulsory act was substituted for a voluntary act for the sake of giving the law an outward appearance of continuity. At last, at some period before the epoch of Justinian, the tutelage of women above the age of puberty had ceased in form as well as in substance, and no sanction of a guardian, whether voluntary or compulsory, was required.
It is to be observed, that as women were gradually enfranchised from their disabilities, they also forfeited some of their original privileges. It was a rule of the administration of justice that while error of fact might be pleaded to defend a person against the consequences of his own acts or omissions, no one should be allowed to allege an error of law, Dig. 22, 6, 9 pr. An exception however was made in favour of minors, of soldiers, of the utterly uneducated (rustici), and of women. Against their ignorance of rules of law, particularly those rules of jus civile which are not, like rules of jus gentium or naturale, the almost self-evident dictates of reason and common sense, they were relieved by a branch of the praetor’s extraordinary jurisdiction, called in integrum restitutio, a power of cancellation and rescission, in cases of manifest collision between law and equity; §§ 197-200, comm. This privilege of women was partially abrogated by a constitution of the Emperor Leo, a. d. 472; Cod. 1, 18, 13. ‘To prevent the indiscriminate revocation by women of all their contracts on the ground of omission of error, be it enacted, that ignorance of law, whereby a woman is damnified in her right or property, shall only be a title to relief in those cases where previous statutes have sanctioned such relief.’
From § 189 it might appear that Gaius referred the institution of guardianship to the code of jus gentium. We have, however, quoted from the Institutes, §§ 142, 154, comm., a passage which ascribes it to jus civile: and, indeed, no institution confined in its operation almost entirely to cives, can be supposed to belong to jus gentium or natural law. Moreover, the law of guardianship has been most variable, not only if we look to different countries, but also if we look at different periods in the same country; and the praetor or chancellor or other authority that has had the supervision of guardians has always exercised a great latitude of discretion; features which again forbid us to ascribe the rules of wardship to any comparatively immutable code of nature. Tutela was in fact an old Roman institution, by which the gens or familia maintained control in its own interest over its weaker members, who were not subject to patria potestas. It is possible that this control was at first exclusively exercised by the gens, in whom the ownership of all land occupied by the gentiles may have been vested, and that agnatic as well as testamentary guardianship was first instituted by the law of the Twelve Tables, whereby patricians and plebeians were put on an equality in respect of private rights. That the gens was in the habit of taking charge in some way of lunatics and insane persons we know from the words of the Twelve Tables, which have come down to us—‘Si furiosus exit, ast ei custos ne exit, adgnatûm gentiliumque in eo pecuniaque eius potestas est.’ Cf. Muirhead, Roman Law, §§ 26, 28.
QVIBVS MODIS TVTELA FINIATVR.
§ 194. Tutela autem liberantur ingenuae quidem trium 〈liberorum iure libertinae uero quattuor, si in patroni〉 liberorumue eius legitima tutela sint; nam ceterae quae alterius generis tutores habent, [uelut Atilianos aut fiduciarios,] trium liberorum iure tutela liberantur.
§ 195. Potest autem pluribus modis libertina alterius generis 〈tutorem〉 habere, ueluti si a femina manumissa sit; tunc enim e lege Atilia petere debet tutorem, uel in prouinc〈iis e lege Iul〉ia et Titia; nam in patronae tutela esse non potest.
§ 195 a. Item si 〈a〉 masculo manumissa 〈fuerit〉 et auctore eo coemptionem fecerit, deinde remancipata et manumissa sit, patronum quidem habere tutorem desinit, incipit autem habere eum tutorem a quo manumissa est, qui fiduciarius dicitur.
§ 195 b. Item si patronus eiusue filius in adoptionem se dedit, debet liberta e lege Atilia uel Iulia et Titia tutorem petere.
§ 195 c. Similiter ex isdem legibus petere debet tutorem liberta, si patronus decesserit nec ullum uirilis sexus liberorum in familia reliquerit.
§ 196. Masculi autem cum puberes esse coeperint, tutela liberantur. puberem autem Sabinus quidem et Cassius ceterique nostri praeceptores eum esse putant, qui habitu corporis pubertatem ostendit, id est eum qui generare potest; sed in his qui pubescere non possunt, quales sunt spadones, eam aetatem esse spectandam, cuius aetatis puberes fiunt; sed diuersae scholae auctores annis putant pubertatem aestimandam, id est eum puberem esse existimant qui xiiii annos expleuit.—|NA
Inst. 1, 22 pr.
QVIBVS MODIS TVTELA FINIATVR.
§ 194. Guardianship is terminated for a freeborn woman by title of being mother of three children, for a freedwoman if under statutory guardianship of her patron or his children by being mother of four children: those who have other kinds of guardians, Atilian or fiduciary, for instance, are liberated from wardship by being mothers of three children.
§ 195. There are various ways by which a freedwoman may have other kinds of guardians: for instance in case of her manumission by a woman, when she must request a guardian under the lex Atilia, or, in the provinces, under the lex Julia and Titia, since a female patron cannot be her guardian.
§ 195 a. Also on manumission by a male, if with his sanction she makes a coemption, and then is remancipated and manumitted, for the patron then ceases to be guardian, and is replaced by the second manumitter, who is called a fiduciary guardian.
§ 195 b. Also on the adrogation of her patron or his son she must demand a guardian under the lex Atilia or Titia.
§ 195 c. Similarly in compliance with the same laws she must demand a guardian on the decease of her patron without leaving any male descendant in the family.
§ 196. For males the attainment of the age of puberty is a release from wardship. Puberty, according to Sabinus and Cassius and the other authorities of my school, depends on physical development, that is, on capacity of generation; or in case of impotence, eunuchs for instance, on the completion of the age which usually implies capacity of generation. The other school hold that puberty is to be exclusively measured by age, that is to say, that it should always be deemed to be attained on the completion by a male of his fourteenth year.
§ 196. All jurists agreed that in the case of impotence, whether natural or acquired, some fixed date must be assumed as the conventional period of puberty. The Sabinian rule appears to be preserved in a passage of Paulus: Spadones eo tempore testamentum facere possunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4 a, 2. Fourteen was assumed to be the average age of puberty; but it was too early, even in the southern climes subject to Roman legislation, for a minority of constitutions which advance more slowly to maturity. Eighteen was supposed to be sufficiently postponed to include most of these cases of retarded development. We have already, in treating of adrogation, § 106, commentary, met with the phrase, plena pubertas, denoting eighteen years of age.
(25 uersus in C legi nequeunt)
§ 197. — aetatem peruenerit, in qua res suas tueri possit; sicut apud peregrinas gentes custodiri superius indicauimus.
Inst. 1, 2, 3.
§ 198. Ex isdem causis et in prouinciis a praesidibus earum curatores dari solent.
Inst. l. c.
DE SATISDATIONE TVTORVM VEL CVRATORVM.
§ 199. Ne tamen et pupillorum et eorum qui in curatione sunt negotia a tutoribus curatoribusque consumantur aut deminuantur, curat praetor, ut et tutores 〈et〉 curatores eo nomine satisdent.
Inst. 1, 24 pr.
§ 200. Sed hoc non est perpetuum; nam et tutores testamento dati satisdare non coguntur, quia fides eorum et diligentia ab ipso testatore probata est; et curatores, ad quos non e lege curatio pertinet, sed 〈qui〉 uel a consule uel a praeside prouinciae dantur, plerumque non coguntur satisdare, scilicet quia satis honesti electi sunt.
Inst. l. c.
§ 197. After release from tutelary guardianship the estate of a minor is managed by a curator until he reaches the age at which he is competent to attend to his own affairs, and the same rule obtains in other nations, as we have already mentioned.
§ 198. Under similar circumstances the president of a province appoints a curator.
DE SATISDATIONE TVTORVM VEL CVRATORVM.
§ 199. To protect tutelary wards and those having a curator from the destruction or waste of their property by their guardians and curators, it is the function of the praetor to require such guardians and curators to give security for due administration.
§ 200. But this is not without exception, for testamentary guardians are not compelled to give security, as their integrity and vigilance have been approved by the testator; and curators who have not been appointed by any statute, but by the nomination of a consul or praetor or president of a province, are generally not required to give security, their selection being deemed sufficient evidence of their trustworthiness.
§ 197. In English jurisprudence there is no distinction corresponding to that between tutor and curator, impubes (pupillus) and minor (adolescens). Infant and minor are in English synonymous; guardianship continues to the attainment of majority, i. e. to the completion of twenty-one years of age; and after that the young of both sexes are considered to be capable of taking care of themselves, and are free from further control. At Rome wardship (tutela) ceased at puberty, or, as the law came to be defined, at the age of fourteen for males and twelve for females, ages at which the young manifestly continue to stand in need of guidance and protection, though according to Roman law they were then fully competent to administer their own property, and to dispose of it by will.
Such protection was provided for them partly by two statutes, partly by praetorian legislation. (1) The lex Plaetoria, or Laetoria, was as old as Plautus, who about 186 b. c. makes a youth exclaim: Lex me perdit quinavicenaria; metuunt credere omnes, Pseudolus, 303. ‘The statute with its five and twenty years prevents my getting credit.’ It made a crimmal offence, and subject to a criminal prosecution (judicium publicum, Cic. de Nat. Deor. 3, 30), what Cicero calls circumscriptio adolescentium, De Off. 3, 15; i. e. over-reaching and circumventing persons below the age of twenty-five. Such is Savigny’s interpretation of judicium publicum. Vermischte Schriften, 18. Ihering maintains that judicium publicum denotes in this passage not a criminal prosecution but an actio popularis; i. e. a civil action that could be instituted not only by the Minor but by a common Informer: and he quotes Dig. 26, 10, 1, 6 (cf. Inst. 1, 26, 3) Consequens est ut videamus qui possunt suspectos (tutores) postulare, et sciendum est quasi publicam esse hanc actionem, hoc est, omnibus patere. Dig. 12, 2, 30, 3, where quasi publica actio means an action similar to actio popularis, Geist des Romischen Rechts, § 52, nn. 158, 159. The circumscription of a minor, like fraudulent mal-administration by a guardian, rendered the person convicted thereof infamis. A contractor with a minor might secure himself against the penalties of the law, if a curator were nominated by the praetor to advise the minor in respect of the special transaction.
(2) As the lex Plaetoria was only applicable in cases of fraud (dolus malus, Cic. de Off. 3, 15), the protection it gave to minors was inadequate: accordingly, the praetor, besides allowing a minor to set up the plea of minority when sued in an action, proclaimed in his edict that he would relieve minors who had been damaged in consequence of inexperience and improvidence by rescission and cancellation of the proceeding (in integrum restitutio). To obtain this relief it was not necessary to prove any fraud on the part of the person who contracted with the minor.
(3) A person who wished to bring an action against a minor could compel him to obtain from the praetor a curator for the purpose of defending the particular suit; whose office ceased as soon as the special litigation terminated. Marcus Aurelius, under whom Gaius flourished, enacted that any minor who chose should be able to obtain from the praetor a general curator (generalis curator), who then should be charged with the general administration (generalis administratio) of his estate, Capitolinus, 10. In view of this option of the minor, Justinian could still say: Inviti adolescentes curatores non accipiunt praeterquam ad litem, Inst. 1, 23, 2. ‘Unless they choose, minors need not have a curator, except for a suit.’ A minor who had a curator could not aliene without the consent of his curator: he could incur an obligation without the consent of his curator, subject to his right of in integrum restitutio, though, unless he had a curator, persons would not be very willing to contract with him. Even the existence of a curator did not deprive the minor of his right of restitution, but of course it could not be obtained so readily as when he acted without the advice of a curator. The praetor allowed actiones utiles against a curator, corresponding to those to which a tutor was subject.
The tutor and curator were entirely separate functionaries: when women were under perpetual tutelage, a woman might have both a tutor and a curator. The curator of a minor must be distinguished from an agent (procurator), a person invested with certain rights and duties, which will be explained when we examine the different kinds of contract. An agent is governed by the instructions (mandatum) of his principal: a minor is under the direction of his curator: the employment of an agent is a private matter, purely voluntary on the part of the principal; the curator, like the tutor, holds a public function, and having one is in some cases involuntary on the part of the minor.
How exactly the lacuna in § 197 should be filled up is doubtful. We do not know what is the previous passage referred to.
Besides minors, lunatics and prodigals of whatever age were committed to the charge of curators. The cura of lunatics and prodigals is, indeed, older than that of minors, being regulated by the Twelve Tables, which directed that the nearest agnate should be curator of a lunatic, and manage the estate of an interdicted prodigal. In later times it was usual for the praetor or praeses provinciae to appoint a curator after inquest (ex inquisitione). Paulus has preserved the form of words in which the prodigal was interdicted: 3, 4 a, 7. ‘By custom the praetor interdicts a prodigal from the administration of his property in the following terms: As thy profligacy is wasting the estate of thy father and ancestors, and bringing thy children to destitution, I therefore interdict thee from the control of thy patrimony, and from all disposition of property.’
In integrum restitutio, a branch of the praetor’s equitable jurisdiction, and one of the most remarkable cases of his cognitio extraordinaria, has been mentioned more than once, and deserves here a brief explanation. Restituere in a general sense denotes any undoing of a wrong, any replacement of a person or his right in his or its original condition, whether by the voluntary act of the wrongdoer, or after action brought, and then either at the invitation of the judge (in virtue of the clause, ni restituat, 4 § 47), or in execution of a judicial sentence. But in the phrase we are examining it denotes the act, not of a private party, but of a magisterial authority. In integrum restitutio is the restitution by the praetor of a person to his original legal condition, in cases when some injury has been done to him by operation of law. The interposition in such cases of the highest Roman minister of justice bears some analogy to the use made of the prerogative of the Crown in our own early legal history. The function of thus overruling the law where it collided with equity was only confided to the highest magisterial authority, and even in his hands was governed by the principle that he was only supposed to act in a ministerial, not in a legislative capacity. Five grounds or titles (justae causae) to extraordinary relief (extraordinarium auxilium) were recognized and enumerated in the edict, Dig. 4, 1: intimidation (metus), fraud (dolus malus), absence, error, minority (aetatis infirmitas). Two, however, of these titles, fraud and intimidation, had additional remedies in the ordinary course of procedure (ordo judiciorum), where they were recognized as grounds of exception and personal action. Thus we find that a praetor called Octavius introduced the actio and exceptio metus mentioned by Cicero, Verr. 2, 3, 65, where the actio metus is called Formula Octaviana, and that the famous Aquilius Gallus, the colleague of Cicero, introduced the exceptio and the actio doli, Cic. de Natura Deorum, 3, 30.
The chronological order of the remedy by Action and the remedy by Restitution, like that of the historical relation of interdict to action, is disputed. Savigny, §§ 112, 191, 199, holds that the remedy by Restitution was older than the remedy by Action; while Vangerow, § 185, holds that the remedy by Action was older than the remedy by Restitution. As remedies they were very different in character, the effect of a grant of restitution being simply to reinstate a person in a legal right, which he had lost, not to give him damages on account of the violation of a right.
There are three conditions of Restitution: (1) The first condition is a Laesion by the operation of law, i. e. a disadvantageous change in civil rights or obligations brought about by some omission or disposition of the person who claims relief. This disadvantage may either consist in positive loss of acquired property, or in missing a gain which would not have involved, on the part of another, a positive loss of acquired property. An instance of such a laesion would be the loss of property by omitting to interrupt a usucapio or by omitting to claim an inheritance, or by making some omission in procedure. Cf. 4 § 57.
(2) A second condition is some special or abnormal position of the person who claims relief when such special circumstance is the cause of the loss which he has suffered. Thus a minor may be relieved against an injudicious bargain, but not against the casual destruction of the thing he has purchased, for this loss was not occasioned by his minority or inexperience. Such abnormal positions (justae causae) are compulsion, fraud, minority, absence, error.
(3) A third condition of relief is the absence of various disentitling circumstances. Thus relief is granted against the effect of legal dispositions and omissions, but not against the effect of delicts. Again the extraordinary relief of in integrum restitutio is not granted when the courts of law can administer an adequate remedy.
Originally capitis minutio of a defendant was ground for a restitution, 3 § 84; but this ceased at an early period to be anything more than a formal case of restitution; for rescission of the adrogation, adoption, emancipation, whereby a person’s debts were extinguished, was granted as a matter of course without any previous investigation (causae cognitio), and without any period of prescription like that which limited the right to pray for restitution.
This was, originally, annus utilis, and in the time of Justinian, quadriennium continuum or four calendar years, which begin to run, not from the date of the Laesion, but from the termination of the Causa, i. e. the abnormal position—minority, absence, compulsion, deception, error—whereby the Laesion was occasioned. Such at least is Savigny’s and Windscheid’s opinion. Vangerow holds that, except in Minority and Absence, prescription begins to run from the date of Laesion, 4 §§ 110-113, comm.
Of the five titles to restitution that we have enumerated, four, namely, intimidation, fraud, absence, error, implying equality of rights in all parties, belong to the law of Things or actions; title by minority, implying a privileged class or inequality of rights, belongs to the law of Persons.
As we shall have occasion in the next book, §§ 1-14, comm., to use the expression Rerum universitas, it may seem appropriate, before we quit the law of Persons, to give some explanation of the contrasted term, Personarum universitas. A University of persons in the private code is a fictitious or juristic person, composed generally by the union of a number of individuals, and capable like a natural individual (singularis persona) of the various rights and duties of property, that is to say, of potestas, patronatus, dominium, servitus, obligatio; and the power of suing and being sued (cf. Sohm, §§ 37, 38).
Some Universities have a visible existence or representation in a number of individual members, and are then called Corporations. An essential incident of Corporations is that their rights are not vested in the aggregate of individuals, but in the ideal whole, regarded as distinct from the members of which it is composed. Examples of such Corporations are municipalities (civitas, municipium, respublica, communitas), colleges of priests, of Vestal Virgins, corporations of subordinate officials, e. g. lictors, notaries (scribae, decuriae), industrial guilds, e. g. smiths, bakers, potters, shipowners, mining companies (aurifodinarum, argentifodinarum, salinarum, societas), contractors for the revenue (vectigalium publicorum societas), social clubs (sodalitates, sodalitia), friendly societies (tenuiorum collegia) (cf. Mommsen, de Collegiis et sodaliciis Romanorum; Karlowa, Rom. Rechtsg. 2 § 2).
Other juristic persons, not so visibly embodied in any natural individuals, e. g. temples, churches, hospitals, almshouses, or any other beneficent aims personified, are called by civilians, not Corporations, but Foundations.
The state, though not strictly speaking a juristic person, as invested with rights of property, was called in the time of the republic Aerarium. Under the first emperors, when the public treasure was divided between the emperor and the senate, the senate, as in a proprietary position representing the republic, was called Aerarium, while the treasury of the emperor was called Fiscus. At an uncertain date, but after the time of M. Aurelius, when all power was undisguisedly absorbed by the emperor, and the public chests were united, the terms Aerarium and Fiscus lost their distinctive meanings, and we find them used convertibly in the compilations of Justinian. The Fiscus, as a proprietary unit, came to have a special legal status and to be invested with peculiar privileges.
Juristic persons, though invested with rights of property, being mere fictions or ideal unities, are, strictly speaking, incapable of making a declaration of intention; for how can a fiction have an intention? It is true that slaves could acquire property and active obligations for their proprietors; but a slave could not aliene property, nor be himself subject to a civil obligation, nor be a party to a suit: and therefore Universities could not make such dispositions by means of their slaves. In this respect they resemble infants and lunatics; and as infants and lunatics must be represented by their guardians and curators, so juristic persons must be represented by the agents designated and defined by their constitution. The temporary representative of a Corporation, for the purpose of suing and being sued, was called Actor; a permanent representative for this purpose was called Syndicus, Gaius in Dig. 3, 4, 1. The constitutions of juristic persons are too various to admit of any general definition. But a juristic person was only bound by the act of its representative, in so far as such juristic person was benefited thereby. Dig. 12, 1, 27.
Although a Universitas is said to hold common property, the relation of the members of a Universitas must not be identified with that of Co-proprietors (communio). A co-proprietor is the separate proprietor of an undivided ideal portion, which he can aliene, mortgage, and otherwise dispose of; and which, by requiring a partition (actio communi dividundo), he can always reduce to a real portion: whereas the whole of the common property can only be dealt with if the co-proprietors are unanimous. Members of a Universitas, on the contrary, cannot demand a partition; and dispositions of the property of the Universitas can only be made by the vote of a majority, sometimes only by a majority of two-thirds of the members.
Every juristic person was originally incapable of being instituted heir, as Pliny mentions in the case of municipalities: Nec heredem institui nec praecipere posse rempublicam constat, Epist. 5, 7. ‘Neither an inheritance nor a legacy by praeceptio (which implies that the legatee is also heir, 2 § 217) can be left to a municipality.’ Juristic persons were not, as is sometimes stated by Roman jurists, subject to this incapacity simply because, owing to the idea of an artificial person not having yet been distinctly formed, they were regarded as personae incertae, 2 § 238, but also because, being fictions, they were incapable of entering on an inheritance (aditio), which involves acceptance on the part of the heir, and excludes representation. First the senate, disregarding this difficulty, allowed municipalities to be instituted heirs by their own liberti, Ulpian 22, 5: and subsequently the Emperor Leo, a. d. 469, gave to municipalities the capacity of being instituted her by any testator, Cod. 6, 24, 12. No general enactment extended this capacity to all Corporations, but some received it as a special privilege.
Originally municipalities, like other juristic persons, were incapable of taking bequests (legata), but subsequently they were declared capable by Nerva and Hadrian, Ulpian 24, 28; 2 § 195: and this capacity was extended to Collegia, Templa and Churches, Dig. 34, 5, 20. Towns were also capable of taking successions by fideicommissum, Ulpian 22, 5.
Under Christian legislation Pious Foundations (pia corpora) were made capable of taking hereditas and legatum: and testamentary dispositions of hereditas and legatum, that would otherwise have been void by the rule avoiding devises to incerta persona, e. g. a devise to the poor of a town who, not forming a corporation, were not persona certa, acquired validity from the pious purpose of the disposition.
The origin and extinction of Universitates, Collegia, &c. required the assent of the Emperor. The special privileges and incapacities which we have indicated, by their analogy to status, may perhaps justify the mention of Universities in the law of Persons. Savigny, §§ 85-102.