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QVIBUS MODIS IVS POTESTATIS SOLVATVR. - 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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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.