the patrician family, and familia was the plebeian family. Each of these families had its peculiar organisation and followed a different private law. Amongst the patricians the paternal authority was simply the right of a guardian; the children were not like those of the plebeians, in mancipio, loco servorum; the family was united only by the tie of blood (gens, ingenui, gentiles). Amongst the plebeians it was the patria potestas, with its peculiar characteristic of absolute power, which served as the family tie; it was not blood but agnatio which created and constituted the relation of civil relationship. Hence the patricians had no agnati, they had merely gentiles. According to M. Guerard, the law of the Twelve Tables, by extending the plebeian system of agnatio to the patricians, put an end to the distinctions between the patrician and plebeian families in this respect, but for the future only. In each branch of a patrician gens the father was invested by the Twelve Tables with the patria potestas of the plebeians; his children, united thenceforth by the patria potestas, became agnati to each other. But it was impossible to establish any tie of agnatio between the different branches of the gens, inasmuch as their common author, who had died before the Twelve Tables were promulgated, had no patria potestas over the members of these gentes, and patria potestas could alone produce agnatio. The various gentes who were in this position remained united by the tie of gentilitas alone. Thus, suppose three brothers, whose ancestors had died before the law of the Twelve Tables were promulgated. These three brothers having become, by reason of that law, heads of so many families, would not be agnati of each other because their father never did have and never could have had patria potestas over them; they would never, therefore, have been able to succeed each other if the law of the Twelve Tables had called to the succession none but sui hæredes and agnati; and in case one of them had died intestate and without issue, the deceased would have had no successor unless the law had reserved a place in the order of the succession for the gentiles.

It follows that the provision si agnatus nec escit gentilis familiam nancitor was transitory. With each succeeding generation the number of agnati would, of course, increase in the familia which originally formed part of the gens, so that after two or three generations it would be extremely rare to find any citizen in one of these familia who, if he died without issue, would have no agnatus; so that the necessity of looking for a gentilis would occur very seldom. Besides, the number of the gentes was gradually diminishing, so that, according to Tacitus, at the close of the Republic, almost all the patrician families of the early times of Rome had become extinct. It is not surprising therefore, if in the time of Gaius the jus gentilicium had become obsolete.

TITLE III.-OF THE SENATUS-CONSULTUM TERTULLIANUM.

By the Twelve Tables, in which, not natural but civil relationship (agnatio) was the only thing regarded, neither mother nor children. succeeded each other, except in one case, viz., when a mother was subject to and a member of the family of her husband (in manu) (1). For the children being members of their father's family, and not of their mother's, were never her sui hæredes; and the woman continuing generally (and in later times always) a member of her father's family had no agnatio with her children, who were of their father's, that is, her husband's family. The Prætor, it is true, allowed the mother and her children to succeed each other, but only as the nearest cognati, by granting them possessio bonorum unde cognati; but the nearest cognatus came in only in the third order in default of sui hæredes and agnati.

§ 1. Pr. But this system was relaxed. Claudius first offered the hæreditas legitima (i.e., the right to succeed according to the Civil law as agnata), not to all, but to one mother in order to console her for the loss of her children. Later (§ 2) a senatus-consultum Tertullianum passed in the reign of Antoninus Pius (A.D. 158), gave generally a mother the right to succeed to her intestate child, provided that she had given birth to three children, and was a free-born woman, or to four if she was a freed-woman. But the Emperor sometimes granted the same privilege

(1) A woman passed into her husband's manus usu by cohabitation with the intention of forming a marriage; by confarreatio, a religious ceremony in which none but those to whom the jus sacrum was open could take part; and by coemptio, a fictitious sale, in which the wife was sold to the husband, and was classed as his daughter and the sister of her children. Gaius says (1, § 113), Women came in manum by coemptio by means of a mancipatio, that is, a fictitious sale, made in presence of not less than five witnesses being Roman citizens of full age and a salesman, besides the woman and the man into whose manus she is about to pass (§ 114). A woman may make a coemption (facere coemptionem) not only with her husband, but with a stranger; hence a coemptio is said to be made for the purpose of marriage, or for the purpose of a trust (fiducia), for she who makes a coemptio with her husband in order to assume in his family the position of a daughter, is said to have made a coemptio matrimonii causa; but she who makes a coemptio with her husband or with a stranger for any other purpose - as, for

instance, in order to get rid of a guardianship-is said to have made a coemptio for the sake of a trust (§ 115). It was done in this way.

If a woman wished to replace her present tutor, she made a coemptio or sold herself to a purchaser with the tutor's consent; then she was resold (remancipata) by the coemptionator, to whomsoever she chose, and being enfranchised by him by means of the vindicta had thenceforward as her tutor the man who enfranchised her, and he was called her tutor fiduciarius (§ 123). The difference between the coemptio and the mancipatio of women is this: the woman who has made a coemptio is not reduced to the condition of a slave, but men or women mancipated by their parents or by coemptionators, are reduced to the condition of slaves, so that those mancipated cannot accept a hæreditas or a legacy from the person who held them in mancipio, except they are commanded to be made free by the same testament which bequeaths the hæreditas or the legacy. The ground of difference is clear: persons are received into mancipium by parents and coemptionators by the same words as slaves which is not so in coemptio.

to mothers who had not had the required number. Theodosius (§ 4), and after him Justinian, made this privilege a general rule, and called the mother even of a single child to the succession.

§ 2. But the grandmother was not called to enjoy the same benefit, which was confined to the mother.

§ 6. Sometimes even the mother was deprived of the benefit of the senatus-consultum Tertullianum, for she could not succeed her child if it died under age, and she had neglected to demand a tutor for it, or to have a tutor, when excluded or excused, replaced within the year.

§ 3. According to this senatum-consultum the mother was reckoned amongst the agnati; consequently she came in only in default of sui hæredes, or of persons filling that rank. The mother did not succeed her deceased daughter if she left any children, though they were not sui hæredes; for the senatus-consultum Orphitianum interfered (see next title).

§ 3. When the child had become sui juris by emancipation (1), the mother was excluded by the father, whether he succeeded by the Civil Law as emancipator, or by the Prætorian law as son of the emancipating grandfather. But the mother excluded the emancipating grandfather, if he was alone, that is, if the father was dead: but if the father was alive, the grandfather succeeded, for if the mother had been preferred to the grandfather, she would herself have been excluded by the father, who in turn would have been excluded by the grandfather; and therefore, as the grandfather could not be excluded, it was simplest to say, that if the father was alive, the grandfather was preferred to the mother.

When the child had become sui juris without diminutio capitis, there were no male ancestors by the father's side; it might seem, then, that the mother, as the nearest agnati, should exclude all the other agnati ; nevertheless she came in after brothers, and jointly with sisters of the deceased, by the same father. If there were a brother, and one or more sisters all by the same father, they divided the succession between them to the exclusion of the mother.

The hæreditas devolved on the mother if those preferred to her refused; devolution was always allowed in this case.

Again, the effect of the senatus-consultum Tertullianum was sometimes suspended in favour of certain cognati. Thus, when there was a son or a daughter of the deceased in an adopted family at his death, or when the succession in question was that of a grandson who continued in the grandfather's family after the emancipation or adoption of his

(1) When the senatus-consultum was passed, the filii-familias had no hæreditas

legitima, therefore the child must be assumed to be sui juris.

father, this senatus-consultum did not apply, so that the mother, as cognata in the third order, succeeded jointly with the children in one case, and the father in the other; not, observe, to the hæreditas, but to the possessio bonorum, for they were all cognati of the first degree. But when there was an agnatus who would exclude all the cognati, i.e. (in the two supposed cases), the children and the father, the senatusconsultum applied, because these last could not be injured, and the mother was preferred to such agnatus.

§§ 4, 5. But Justinian altered the rights of the mother as defined by the senatus-consultum Tertullianum. By certain Constitutions a third was granted to mothers who had not the required number of children; and a third was withdrawn from those who had the requisite number, and given to certain agnati (1). Justinian abolished these distinctions, and declared that the mother should succeed to the whole, in preference to all the agnati, except those specified in the senatus-consultum Tertullianum, viz. the father, and brothers, and sisters by the same father, to whom the Emperor added brothers and sisters by the same mother. If there were any brothers or sisters, whether by the same father or not, Justinian admitted them along with the mother, and the succession was thus divided: if there were sisters only, the mother took half but if there were one or more brothers, either without or with sisters, the succession was divided per capita, and the mother had only an equal share with the others.

§ 7. By the senatus-consultum Tertullianum the mother succeeded to all her children, even though their father was uncertain (p. 24), and although not born in lawful wedlock.

TITLE IV.-OF THE SENATUS-CONSULTUM ORPHITIANUM.

Pr. On the other hand, the children were allowed to succeed their mother by the senatus-consultum Orphitianum (A.D. 178), the sons and daughters, whether subject or not to the power of another, were preferred to all the consanguinei and agnati of the deceased woman.

§ 1. They were also preferred to the mother of the deceased, but not by the senatus-consultum Orphitianum; for it called children to the mother's succession only where the old law excluded them, on the ground of their not being either sui hæredes or agnati of the deceased woman. Hence the children who succeeded by the senatus-consultum Orphitianum, and the mother who succeeded by the senatus-consultum

(1) The uncle, his sons, and grandsons.

Tertullianum, succeeded jointly. This joint succession was abolished by the Emperors Gratian, Valentinian, and Theodosius, who gave the preference to the children of the deceased woman.

§ 1. However, the grandchildren did not, like the children, succeed by this senatus-consultum Orphitianum. It called only the sons and daughters, and not the grandchildren. Later Constitutions, however, allowed the grandchildren to succeed their grandmother (B. 2, t. 1).

§ 2. The rights of succession allowed by the senatus-consulta Tertullianum and Orphitianum were not lost by the minima diminutio capitis (1); but there was a difference between new (nova) hæreditates, and those claimed under the Twelve Tables. The latter rested entirely on family rights, and were lost by the minima diminutio capitis; whereas the former, resting on ties of blood, survived the loss of family rights.

But

§ 3. Again, the senatus-consultum Orphitianum applied to children vulgo concepti, called spurii, for it allowed such children to succeed their mother, as it did those born in concubinage or in lawful wedlock. Justinian allowed one exception in the case of spurii born of a mother illustris who had other children born in lawful wedlock: such spurii were entitled to nothing from their mother, either by gift inter vivos, or by testament or ab intestato (2).

§ 4. If the hæreditas legitima was proffered to several jointly, and some either refused it, or died, or became incapable of succeeding before they accepted it, the portion thus unaccepted accrued to the cohæredes who accepted, or to the hæredes of such cohæredes as died after acceptance of hæreditas, and before the accruer or the jus accrescendi arose (B. 2, t. 20).

TITLE V.-OF THE SUCCESSION OF COGNATI.

Pr. The cognati succeeded in the third order, i.e., after the sui hæredes and those ranked as such, and after the agnati and those ranked with them. This order of cognati was created by the Prætors, in order to

(1) They were lost by the maxima or media; for no one could succeed even by these senatus-consulta unless he was a citizen, because the hæreditas was a civil right.

(2) The father, not the mother, had legitimate and natural children. When the bond of connection was civil, they were legitimate; when by blood they were natural children. Hence emancipation transformed legitimate into natural chil

dren, for they left their father's family: those born ex concubinatu became legitimate by legitimatio. But the mother

whose children were connected with her only by blood, had only natural children, who were all admitted by the Prætor to the possessio bonorum unde cognati; but when the civil law admitted them to the hæreditas, they were so far deemed legitimate.