of the adopting woman. In fact this was not properly adoption, for the woman gained nothing like patria potestas over the children.

§ 12. A freedman could be adopted only by his patron, if the patron had no posterity (C. 8, t. 48. 3). A slave being neither pater-familias nor filius-familias could not be adopted; the effect of his master adopting was to enfranchise him. Moreover, Justinian held that a master, by publicly calling a slave his "son," enfranchised him.

TITLE XII.-HOW THE PATRIA POTESTAS IS DISSOLVED.

Pr. The Patria Potestas was dissolved in two ways. 1. Involuntarily by the death of the pater-familias or filius-familias, or by the loss of liberty or of citizenship on the part of the pater-familias or filius-familias, or by the elevation of the filius-familias to certain dignities. 2. Voluntarily by consent of pater-familias and filiusfamilias, or by Emancipation, or by Adoption.

Pr. The death of the filius-familias put an end to the patria potestas as regarded himself, but the death of the pater-familias relieved from the potestas all the filii-familias. Each of them became sui juris (his own master) and head of a separate familia. But observe; on the death of the pater-familias, the filii-familias of the first degree always became sui juris, not those of a lower degree; on the grandfather's death, his grandchildren became subject to their father, assuming the father to have been subject to the deceased at the time of death. The grandfather's death, therefore, did not make the grandchildren sui juris, unless their father was then dead, or had by some means ceased to be of the family.

The loss of liberty or of citizenship had the same effect on the patria potestas, as death: the patria potestas was a civil right, and the mere fact, that a pater-familias or filius-familias had lost the character of citizen, made him dead to all civil rights. A fortiori, this was so on the loss of liberty, which involved the loss of all rights.

§ 3. One made servus pænæ (B. 1, t. 3) ceases to have his children in potestate.

A man ceased to be a Roman citizen and became a stranger1. When he settled in a foreign country with no intention to return. 2. When fire and water were forbidden him, in order to compel him to expatriate himself: for it was a principle, that citizenship could not be forced from a Roman; hence no violence was used, but, being deprived of the necessaries of life, he was obliged to leave. The prohibition of fire and water was replaced by deportatio to an island.

§ 1. But a deportatus could recover his rights of citizenship: when the Emperor recalled him; but this restored him to civil rights for the

future only, and did not reinstate him in those which he had lost by deportatio, unless, indeed, absolute restitution was granted (per omnia): for then he was reinstated in his original position, and in the patria potestas he had lost.

Deportatio must not be confounded with Relegatio.

§ 2. Relegatio (rarely a perpetual banishment) left the condemned the name of citizen, and all his rights as one of a family. Ovid, who was relegatus, said

"Nec mihi jus civis, nec mihi nomen abest."

§ 5. We have seen (t. 3) that captivity is one mode of losing liberty, but certain means were invented for doing away with its effect. Thus there was a legal fiction, viz., the jus postliminii (1), or right of return, by which a captive, if he escaped or was retaken from the enemy, was regarded as never having been in his power, and therefore, as having always had his civil rights (D. 49. t. 15. 26). During the father's captivity, the status of the children was in suspense; if he returned, they were considered as never having been out of his power; if he died, they became sui juris at the first moment of his captivity.

As to the dignities which put an end to the patria potestas-originally, none but that of Flamen or Vestal had this effect. According to the Institutes, § 4, if a filius-familias became a soldier or a senator or a consul, he still continued in patris potestate. But Justinian altered this. By a Constitution C. 12, t. 3. 5, the filii-familias raised to the Patriciate (2), which is the highest dignity, were freed, as soon as the imperial letters-patent were delivered, from the patria potestas. For it would be absurd, says Justinian, that a pater-familias should be able by means of emancipation to relieve a filius-familias from the bonds of his potestas, but that the Emperor should not have power to relieve from the potestas of another one whom he has chosen to be a "Father." Subsequently the same privilege was attached by Nov. 81 to the dignity of Bishop, Consul, and in short, to any which relieved a man from the duties of the Curia. Moreover, by special privilege, filii-familias who became sui juris by reason of dignities, retained their family rights, as was the general rule when filii-familias were emancipated before the death of the paterfamilias (3). These dignitaries continued agnati, and, when the paterfamilias died, succeeded him, and their children became their filii

(1) § 5. Limine post, because the frontier of the empire was a kind of threshold to which the captive came back.

(2) This was conferred by Constantine on eminent men chosen by him as privy councillors.

(3) When the patria potestas was dis

solved by the pater-familias' death, or by his losing his citizenship or liberty, the filii who became sui juris were still of the familia, which then consisted of several smaller familiæ, the tie of agnatio being still undissolved (t. 15, post).

familias, just as if they had then for the first time become sui juris (Nov. 81, c. 2).

§ 6. Emancipatio is a solemn act by which a pater-familias divests himself of his power over his filius-familias, so that he may become sui juris.

§ 6. The forms of Emancipatio were three. 1. The old Emancipation, which was by several mancipationes (1) followed by several enfranchisements. The only effect of mancipatio, or solemn sale, was to destroy the patria potestas and put the filius-familias in mancipio, which was a kind of slavery. It was the enfranchisement by the purchaser which made the filius-familias sui juris. As the enfranchiser acquired all rights of patronage (§ 6), the father, on occasion of the last mancipatio, added the trust clause (fiducia contracta), i.e., an express condition that the purchaser should remancipate the filius-familias to the pater-familias, so that, having ceased to be a pater-familias, and being only an ordinary purchaser (2) he might himself enfranchise his child, and so acquire the rights of patronage.

2. The Anastasian Emancipation, introduced by Anastasius. It consisted in obtaining an imperial rescript, authorizing the emancipation, which was to be registered and deposited with the proper officer. In this way a filius-familias might be emancipated in his absence, which could not be done by the old form per æs et libram, since the purchaser had to lay hold of the thing (C. viii. t. 49. 5).

3. The Justinian emancipation, a mere declaration of the paterfamilias before the magistrate, no leave being required for the purpose (recta via). (C. viii. t. 49. 6.) § 6. (et tunc). The last had the same effect as the other two. The pater-familias had the rights of a patron, just as in the case of a mancipatio, contracta fiducia.

But the emancipatus might lose the benefits of emancipatio by ingratitude, just as a freedman did those of enfranchisement.

Adoption might be said to extinguish patria potestas whenever it transferred the adopted filius-familias from the potestas of his paterfamilias to that of the adopter: in case of adrogatio, this happened to the children of the adrogatus, and, in adoptio (proper), when the adopter was an ancestor of the adopted.

9. If a child was the legitimate son of a filius-familias who had been emancipated or given for adoption, that child belonged to the familia of him who was his pater-familias at the time of conception.

(1) Vide t. 9. Hence emancipatio. (2) For the filius-familias was not then under patria potestas; that expired by the first or third mancipatio; he was in mancipio. The object of all the forms was to substitute for patria potestas, mancipium,

a species of potestas dissoluble by enfranchisement. Mancipatio had by this time become a fiction, and was only retained as a form in emancipation and adoption. Justinian put an end to it, even as a form (ride 3rd form).

Therefore a filius-familias conceived before, but born after emancipation, was of his grandfather's familia; if conceived after emancipation he was of his father's familia.

A pater-familias, when he emancipated his son or gave him for adoption, might retain his grandson in his potestas, and vice versa. §§ 7, 8: nor did the grandfather need his son's consent in order to emancipate his grandson, or to give him for adoption; but there could be neither emancipation nor adoption without the consent, express or tacit, of the person to be emancipated or adopted.

§ 10. As a general rule (ullo pene modo) a filius-familias could not compel a pater-familias to surrender his potestas; but there were exceptions. 1. One adrogatus under age might claim emancipation, if on reaching puberty he showed that the adrogatio was not for his benefit (D. 1.7.33). 2. So might children who had been ill treated by their father; and, 3. So might a daughter who had been prostituted by her father against her will (C. 11. 40. 6).

TITLE XIII.—OF TUTELA (GUARDIANSHIP).

Pr. Persons sui juris were divided into, 1. Those in Tutela; 2. Those in Curatela; 3. Those neither in Tutela nor in Curatela.

§ 1. Tutela is the power (vis ac potestas) over a liberum caput (free person), granted or permitted by the Civil Law for the protection of one who, because of his years, cannot protect himself.

Liberum caput may be defined to be a person not subject to potestas either dominica or patria. None but those who were impuberes (under fourteen in the case of males, under twelve in the case of females) and who were also sui juris were subject to Tutela, and they were called Pupilli.

We say granted or permitted to mark the distinction between tutela legitima conferred by the law, and tutela testamentaria, conferred by testament and permitted by law. Besides these two kinds, created by the Twelve Tables, there was a third kind conferred by certain magistrates, called Atiliana, or dativa.

Tutela was said to be granted or permitted by the Civil Law, because the Civil Law had its own rules as to guardianship, though in truth it was a doctrine of the Jus Gentium: for natural reason shows the obvious convenience of placing one, who cannot protect himself, under the guardianship of another (1).

The definition of Tutela says for the protection, &c., to show that

(1) Formerly the Romans had a peculiar tutela based on political grounds, viz., over

women of full age and sui juris.-Gaius 1, S$ 149, 153.

guardianship, unlike patria potestas, existed only for the benefit of the person subject to it. The patria potestas gave the father whatever the son acquired, stripped the son of all rights, and made him, in some respects, part of his father's property: this power, therefore, was chiefly for the father's benefit; but tutela, though it conferred on the tutor a power to direct and administer, gave him no rights of property, over either the person or the goods of the pupillus (tutores quasi tuitores, § 2).

§ 3. None but patres-familias could nominate tutors by testament, and they could do so only over such impuberes under their potestas as on their death would become sui juris; for persons sui juris were the only persons who had tutors. Unless, therefore, my son is emancipated, I cannot nominate tutors for my grandchildren by him, though they are under my potestas, for at my death they must be under their father's · potestas.

§ 4. A pater-familias might nominate by testament a tutor for postumi, i.e., filii-familias born after his death. For though postumi were held to be uncertain persons, and therefore could not be the objects of a testamentary gift (vide tit. Legacies), children were often (compluribus) regarded as born, although only conceived. The pater-familias could therefore nominate a tutor by testament for a postumus, whenever he could do so for a born child, i.e. where, had the postumus been born during the testator's life, he would have been immediately under the potestas of the testator; and this is what the text means, when it says, that these postumi, supposing them to be born, must be sui hæredes (1).

§ 5. When a pater-familias nominated by testament a tutor for his emancipated filius-familias over whom he had no potestas the nomination was null, but it was confirmed by the magistrate, without inquiry. So it was, when such act of nomination was void for want of form. When the nomination was by any person, not the pater-familias, it might be confirmed by the magistrate, but only after inquiry, and provided the testator who nominated had appointed the pupillus his hæres (D. 26. 3. 4).

TITLE XIV.-OF THOSE WHO MIGHT BE NOMINATED TUTORS BY
TESTAMENT.

Pr. No person could be nominated tutor by testament, except those with whom the testator had testamenti factio, i.e., persons to whom a testator might make a bequest, which they might acquire for them

(1) That is, persons subject to the power of the pater-familias, and who were at the same time his successors, because they were

subject directly to him, as in the case of the grandson whose father has been emancipated.