selves or for others (1). Moreover, the persons nominated must be capable of filling a public office, for Tutela is one (2).

A filius-familias might be a tutor, for there was testamenti factio with filii-familias, though they acquired on behalf of their pater-familias; and there was capacity in them to fill public offices; for as to that, they were sui juris (D. 1. 6. 9).

§ 1. A slave could not be a tutor whilst he continued a slave, though there was testamenti factio with a slave, for he acquired on behalf of his master, yet he could fill no public office; but a man might nominate his own slave tutor by bequeathing to him his freedom. After Justinian's time, it was unnecessary to bequeath freedom expressly, for the act of nominating him tutor sufficiently proved the wish to enfranchise (3), since none but a freeman could be a tutor. But the nomination was void, if the testator named one of his slaves under the belief that he was free, because no intention to enfranchise could be presumed, when the slave was supposed to be already free. So it was, if the terms were cum liber erit (when he shall be free), for this negatived any intention to enfranchise.

§ 1. The slave of another might be named tutor if the terms were, when he shall be free (D. 26. 2. 10. 4); and this condition was implied, unless it appeared that the testator intended the nomination to be absolute, for then it was void.

§ 2. A lunatic (furiosus), or one under 25, might be a tutor; after the one had recovered his reason, and the other had attained 25. This condition was implied, until proof to the contrary was given.

§ 3. A tutor might be nominated absolutely or conditionally, until (ad) or to begin his duties from (ex) a limited period.

Moreover, the nomination of the tutor might precede the appointment (institutio) of the hæres. It is to be observed that every valid testament must contain an institutio hæredis. By the old law, all dispositions in the will prior to this were null; the Sabinians, therefore, held, that the nomination of tutor could not precede the institutio hæredis, but the Proculeians (G. 2. 231.) allowed an exception here, on the ground. that the nomination of a tutor takes nothing from the hæreditas (estate). and puts no charge upon the hæres; and Justinian, adopting this view, laid down the general rule that it did not matter whether a disposition in a testament occurred prior or subsequent to the institutio hæredis.

§ 4. A testator could not confine the guardianship (tutela) to one article, or to a special business, for that would have been at variance with the

(1) B. 2. t. 20. (Legacies.)

(2) Hence women could not be tutors, though, sometimes, by permission of the Emperor, they acted as such (D. 26. 1. 18).

(3) Prior to Justinian, freedom could

not have been directly given; but there would have been a fidei commissum, or trust, which would have bound the hæres institutus to enfranchise (C. 7. 5. 9).

very essence of the tutorial power, which was attached to the person, not to the property of the pupillus, for it was only as a necessary result of the tutor's protection over the person, that he extended his care over the property. But, if the pupillus had goods in different provinces, a tutor might be named for the property in each; this, however, is rather a division of the management than of the Tutela.

§ 5. If a tutor was named by a testator for his sons or daughters, he was tutor over children postumi, but not over grandchildren (nepotes); it was different where the term was liberi (issue); posteri (posterity), includes all the issue born or posthumous. The meaning, however, of these terms, varies with circumstances.

TITLE XV.—OF THE LEGAL GUARDIANSHIP OR TUTELA OF THE AGNATI,

§ 2. The Twelve Tables (V. fr. 6. p. 16) made the Agnati tutors, when the pater-familias died intestate as to tutors, i.e., made no testament at all, or none naming tutors; or when the tutor named died before the testator.

When the testament named the tutor for a future time (ex), or conditionally, the Agnati did not, in the meantime, assume the guardianship as tutores legitimi; it passed to a tutor dativus, i.e., a tutor named by the magistrate. In general, as long as there might be a tutor by a testament, there could be none by law (legitimus). If the testament named one for a limited time (ad), there would be tutors legitimi at the close thereof; for the pater-familias died intestate, in fact, as to the remaining time, i.e., until the pupillus reached maturity.

The Agnati of a pupillus were those who, at the time of the death of the pater-familias, were, together with the pupillus, in the power of the deceased.

The tie uniting persons under the potestas of a pater-familias was not quite severed by his death. All who became sui juris by the death of a pater-familias became each the head of a separate family (domus); but they continued to form one general family, the members of which were each and all Agnati (1).

This does not coincide with Justinian's definition of Agnati, for he says they are persons related to each other through males. But this

(1) Hence the double meaning of familia: nomen, the general family, was divisible into particular families, and these were again divisible. Thus the Cornelian family consisted of six particular families: that of the Scipios, Lentulus, Sylla, &c. That of the Scipios was subdivided into

four houses (domus), the heads of which were Scipio Africanus, Scipio Nasica, Scipio Hispanus, and Scipio Asiaticus. The members of these particular families were agnati to each other; for if the common ancestor had been alive, they would all have been subject to his power.

F

definition, though correct in so far as it excludes from the class of Agnati persons related through females (1), is too wide, since there may be persons related to me through males who are not my Agnati. For (§ 3) a man may cease to be Agnatus without ceasing to be Cognatus.

(T. 16, § 7). It must be observed that all the Agnati were not tutores legitimi at once. Tutela (like succession) went to the Agnatus or Agnati nearest in degree.

TITLE XVI.-OF DIMINUTIO CAPITIS.

Pr. Diminutio capitis is the loss of one of the elements which constitute the status of a Roman citizen. Now, of these elements, there were three: liberty, citizenship, and family (2); hence there were three diminutiones capitis: maxima (greatest), media (middle), and minima (least).

§ 1. Maxima diminutio capitis took place when a citizen lost his liberty. For the loss of that involved the other two, citizenship and family.

§ 2. Media diminutio capitis took place when a citizen lost his citizenship but retained his liberty; as when a man was forbidden fire and water, or was deportatus in insulam. The loss of citizenship always involved the loss of family.

§ 3. Minima diminutio capitis took place when a citizen changed his family, but retained his liberty and citizenship; as when a pater-familias entered a family by adrogatio, or legitimatio, or when a filius-familias was emancipated or adopted (3).

The phrase diminutio capitis may be thus explained. Whenever a change of status took place, the family, the state, or body of freemen was diminished by a head. Now, what might properly have been said. of the state, was said of the individual, and the person causing the diminution was called capite minutus.

§ 4. The enfranchisement of a slave did not create a diminutio capitis, for the slave having no family (nullum caput), ceased to be under his master's power without causing any diminutio capitis.

(1) For the children of a woman, though she is a member of the same family with me are not members of it. They belong to their father's family (§ 1). Hence they are only my cognati.

(2) No citizen without liberty, citizenship, and family, of which he must be

either the chief or a member (D. 4. 5. 11). (3) In cases of maxima or media diminutio capitis, the status of a Roman citi

zen

was destroyed (amittitur, § 3); in minima diminutio capitis, it was continued, though modified by the family being changed (commutatur, § 3, t. 15).

§ 5. So when a senator was deprived of his dignity, it did not cause any diminutio capitis; dignities were mere accessories belonging to some persons and not to others, and were not essential to Roman citizenship.

§ 6. Any person who suffered diminutio capitis ceased to be Agnatus (1); for every member of the same family being agnatus to every other member, that title ceased to belong to any one who ceased to be a member, even by the minima diminutio capitis. But the title Cognatus being independent of family, did not cease to belong to one unless he suffered the maxima or media diminutio capitis; and then, only in this sense, that the tie of blood, which was strictly indissoluble, ceased to produce those civil consequences which were its ordinary result.

TITLE XVII.-OF THE LEGAL GUARDIANSHIP OF PATRONS.

The rules as to the legal guardianship (tutela legitima) of Agnati over boys emancipated under fourteen and girls emancipated under twelve, could not apply in case of a slave under age who became a freedman; for, having been a slave, the freedman could have no Agnati; but, in accordance with the spirit of the Twelve Tables, the patron and his children became the freedman's tutors.

We say the spirit of the law of the Twelve Tables, because that law contained no express provision as to the guardianship to be exercised by patrons but this guardianship, called legitima, was the effect of a construction founded on the spirit of the law, just as if such guardianship had been expressly ordained.-In case of Agnati, the nearest of them, who was called to the guardianship, was the successor to the estate of the pupillus, when he died. The Prudentes considered that the intention of the law was to impose the guardianship on him, who had hopes of succeeding to the estate of the pupillus, since he had an obvious interest in protecting it. Now the Twelve Tables (V. fr. 8) cast upon the patron, and then upon his children, the right to succeed his freedman who died intestate; therefore it was assumed to have the further intention of casting upon the same persons the guardianship.

It should be observed that the legal guardianship (tutela legitima) was always cast on the presumptive successor of the pupillus, except where he was incapable of exercising it, as in case of a woman, or a person under twenty-five.

(1) That is generally (plerumque, t. 15, §3). This Tribonian added, because after Anastasius one emancipated was still the

agnatus of his brothers and sisters, B. 3, t. 2.

TITLE XVIII.-OF THE LEGAL GUARDIANSHIP OF ANCESTORS.

The legal guardianship of a filius-familias emancipated under age was cast on the pater-familias, who emancipated the boy under fourteen, or a girl under twelve, over each of whom he had all the rights of a patron (B. i. t. 12).

TITLE XIX.-OF TUTELA FIDUCIARIA.

When the emancipating ancestor of an impubes died, leaving no tutor by his testament, the tutors of the emancipated impubes were the other filii-familias (males, and above twenty-five), who remained under the emancipator's power. This was the tutela fiduciaria.

To quote the words of Justinian, there is another tutela called fiduciaria: for if an ancestor emancipates his son, his daughter, his grandson, or his grand-daughter, or others, before they have attained full age, he becomes their tutor legitimus. And if this ancestor dies and leaves male issue they become tutores fiduciarii of their sons, brothers, sisters, or others. But when the patron who is the tutor legitimus of a freedman dies, his children become-not tutores fiduciarii, but-tutores legitimi of such freedman. The reason of this distinction is to be found in the fact that if the emancipated filius-familias of the deceased pater-familias had not been emancipated during the life of the pater-familias he would have become sui juris on the death of the pater-familias, and would not have fallen under the potestas of his brothers: hence the emancipated filius-familias is not under their tutela legitima. But the freedman, if he had remained a slave, would, on his master's death, have been under the potestas of the master's children.

It will be observed that Justinian makes the following objection: When the patron, being the tutor legitimus of his freedman, dies, the patron's children take his place as tutores legitimi. But when the emancipating ancestor of an emancipated filius-familias, being his tutor legitimus, dies, how is it that the children of the emancipating ancestor become tutores fiduciari, instead of becoming tutores legitimi? Justinian's answer to this question, besides proving nothing, is not applicable to every case. For suppose a grandson emancipated by his grandfather whilst the son remains a filius-familias. In this case, if the grandson had not been emancipated he would have fallen under the potestas of the son: and yet the son is not tutor legitimus, but tutor fiduciarius of his sonthe grandson of the emancipating ancestor. The true answer is, that the Twelve Tables made the patron and his children the successors to the