PART II. THE SUBSTANCE OF ROMAN LAW IN THE TIME OF JUSTINIAN. CHAPTER I. OF THE GENERAL SUBJECT-MATTERS AND MATERIAL OF THE LAWS LAWS (PERSONS, THINGS, ACTS, RIGHTS, AND REMEDIES). § 1-Of Persons.. A person, for purposes of jurisprudence, is a human being looked upon as capable of being invested with legal rights, or as liable to perform legal duties. Thus, a human being who is in a condition of absolute slavery, or who is, by way of punishment, permanently deprived of all freedom of action and claim to legal redress, or who, as an alien or outlaw, is for the time without such freedom and such claim, would not be reckoned as a legal person. The amount, indeed, of a person's duties and claims may be,as in the case of a slave, or (in some countries and periods) a woman, or a young child, or a lunatic, or a prisoner,extremely minute, and the ascertainment of this amount belongs to the part of the law which deals with the special relationship and situation of persons in society (see chap. iv.). But at the outset of a legal system it is necessary to determine the marks of true legal personality, in the sense above given, and what are the signs of the beginning and ending of that personality. It may be noted here that, for some purposes, human beings are treated as things, the objects of rights, and not as persons; as where a man can bring an action for the illegal detention of, or injury done to, his servant, apprentice, ward, wife, or child. So also, as will appear below, a thing, or assemblage of things, sometimes has impressed upon it the character of legal personality and is ranked, in common with certain recognized assemblages of human beings, as an "artificial" or "fictitious " person, in opposition to "natural" persons. This is really a device of legal logic, because, for example, it was (in Roman law) held more convenient to designate the imperial treasury (fiscus), and the innumerable things forming part of an inheritance, as a single person, and to impute to that person the rights and duties appropriate to personality, than to adopt some other hypothesis which might be still more far-fetched and circuitous and less manageable in practice. The following were, in Justinian's time, the chief circumstances by reference to which the personality (either total or partial) of a human being was tested : To understand the relevancy of all these circumstances it must be supposed that all the rights and duties which, taken together, constitute legal personality, form an integral whole or type which is always in the jurist's eye, though, owing to accidental or temporary facts, this type may not be completely exhibited in any particular case. Certain facts intervene by which complete personality is mutilated or suspended. The terms status and caput were used (not very precisely) to express the rights and duties, the presence of which determined personality. Status was the more general term, and even included the rights and duties of a slave-such as they were in imperial times—and D. (i. 5). of a lunatic. Caput denoted certain of the rights and duties inherent in personality of the most ideal and complete kind, and which loss of citizenship L. 20, D. i. 5), (minor vel medla capitis diminutio) or, still more, Austin's lect. loss of freedom (maxima capitis diminutio) would xli., xlii. impair. Even the fact of passing out of a family by "emancipation," or into a family by "arrogation," occasioned such a disruption of the previous legal situation as to bring about a minute loss of caput (minima J. (i. 16). capitis diminutio). Thus neither of the terms status and caput meant any determinate set of rights and duties, but merely loosely described classes of important rights and duties, of which the latter were more valuable, and therefore less widely diffused than the former. (1) BIRTH. L. 9, D. (xxxv. 2). In order to have legal personality, a child must come into the world alive, even though it die instantly, or have no capacity of surviving long. L.3, C. (vi. 29). L. 231, D. (1. The child must have a true human form, though 16). this is consistent with its exhibiting in its L. 38, D. (1. structure freaks of nature, if they are not "contrary to nature." For many purposes, where the child's own interest is concerned, the date of birth reckons from the time of its conception. (2) CONTINUANCE IN LIFE. AGE. 16). `L. 56, D. (vii. There was a general presumption that human life was a hundred years long, and this seems to have been the basis of certain laws of prescription. 1). But the fact of death had always to be posi- L.23, pr. C.(i. tively proved. When a parent and child died by 2). a common accident, the parent was presumed to have died. after or before the child, according as the child was at the time, under or over the age of puberty (fourteen L. 9, § 4, D. years of age). This sort of presumption was (xxxiv. 5). not extended to any similar case. In the event of one dying when in the enemy's hands L. 18, D. (xxxiv. 5). as a prisoner of war, the date of death was taken to be that of the original capture. If the prisoner returned alive he was treated, so far as was possible, as having been throughout in possession of all his original rights (postliminium). L. 5. J. (i. 12). L. 18, C. (vi. L. 3, C. (v.60). The acquisition of the full rights and duties of personality depended on the accomplishment of a certain amount of physical development, and the rights and duties were, in fact, portioned out according as successive stages in this development were attained. The most clearly marked and decisive of these stages are infancy, ending at seven years of age; * puberty, definitely fixed by Justinian at twelve years of age for girls and fourteen years of age for boys; and majority, fixed at twenty-five years of age. For some purposes other intermediate stages were noticed, as that of proximity to infancy, proximity to puberty, and some other more definite ages between puberty and majority, as those of seventeen, eighteen, and twenty. The periods of proximity to infancy and to puberty were not very precisely ascertained, and were, in fact, only noticed in the practical administration of justice where the interests of the person concerned in the special case seemed to render it expedient. 4). In some cases young men of the age of twenty, and young women of the age of eighteen, if their character was good and the occasion plausible, could be put in the same legal situation as to managing their proC. (ii. 45). perty (but not as to alienating or mortgaging it) as those of full age. They were said to obtain “indulgence" for their age (venia ætatis). The recognition of these legal disabilities, incident to certain definite periods of life, must be distinguished from the general exercise of the prætor's function, by which, in case of ignorance, or fraud, or violence, he rescinded acts done and restored the parties to their original situation. The opportunity for the exercise of this function was naturally presented most * See "Unterholzner" in Zeitschrift für geschichtliche Rechtswissenschaft, PP. 44-53. frequently in the case of the young. Special legislation also protected the young, such as the senatus D. (iv. 6). consultum Macedonianum, by which relief was A.D. 46. given to those who, being expectant heirs, had D. (iv. 6). bound themselves by various debts in their C. (iv. 28). parents' lifetime. For some purposes the period of old age was definitely assigned; thus, generally speaking, and in default of some special reason to the contrary, a man who was more than sixty years old could not adopt a person subject L. 15, D. (i. 7). at the time to no one else's power; and a person who had completed his seventieth year could excuse himself from becoming a guardian and undertaking other public functions. (3) HEALTH. L. 3, D. (i. 6). A certain average condition of physical and mental health was presupposed for the exercise of the legal rights and the discharge of the legal duties which personality implies. This condition might, however, in particular cases, be absent; and in a greater or less degree, and permanently or temporarily, absent. The illness might thus be either bodily or mental, so far as a distinction could be drawn between these two classes of complaints. If bodily, it might involve a congenital, or, at least, a permanent disability, such as malformation, blindness, or being deaf and dumb, or maimed for life; or it might be merely temporary, as a fever. If mental (furor), the disease might be permanent, or admit of lucid intervals. Two general consequences resulted from diseases of all sorts so long as they lasted, and to the extent that actual incapacity followed from them. One was the invalidity of the patients' legal acts, or rather of those acts which otherwise would have had a legal import. The other consequence was the appointment of a guardian to the patients' property. Some diseases, as fevers, were specially characterized as being of a kind to interrupt legal proceedings (morbus sonticus). Besides the con- L. 60, D. dition of recognized mental incapacity, there (xlii. 1). L. 2, C. (iv. 38). |