VII.

DE LEGE FUFIA CANINIA SUBLATA.

Lege Fufia Caninia certus modus constitutus erat in servis testamento manumittendis. quam quasi libertatibus impedientem et quodammodo invidam tollendam esse censuimus, cum satis fuerat inhumanum vivos quidem licentiam habere totam suam familiam libertate donare, nisi alia causa impediat libertati, morientibus autem huiusmodi licentiam adimere.

VIII.

DE HIS QUI SUI VEL ALIENI IURIS SUNT.

nam quaedam

Sequitur de iure personarum alia divisio. personae sui iuris sunt, quaedam alieno iuri subiectae sunt: rursus earum, quae alieno iuri subiectae sunt, aliae in potestate parentum, aliae in potestate dominorum sunt. videamus itaque de his quae alieno iuri subiectae sunt: nam si cognoverimus, quae istae personae sint, simul intellegemus, quae sui iuris sunt. ac prius dispiciamus de his qui in potestate dominorum sunt.

Tit. VII. The lex Fufia Caninia (Gaius i. 42-46, Ulpian, reg. I. 24. 25, Paul. sent. rec. 4. 14) was passed in the reign of Augustus, about the same time as the lex Aelia Sentia (Suetonius, Octav. 40); its design was to put a check on the reckless testamentary manumissions by which testators sought to glorify themselves. It enacted that in future an owner of three slaves should be able by will to manumit only two; of from four to ten, only one half; of from eleven to thirty, only one third; of from thirty-one to one hundred, only a fourth; and of from one hundred and one to five hundred, only a fifth but in no case might more than a hundred be enfranchised in this way. The slaves whom the testator wished to manumit must be specified by name (Ulpian, reg. 1. 24), or by some adequate description: 'nominatim videntur liberi esse iussi, qui vel ex artificio, vel officio, vel quolibet alio modo evidenter denotati essent, veluti dispensator meus, cellarius meus, coquus meus, Pamphili servi mei filius' Dig. 40. 4. 24, Paul. sent. rec. 4. 14. I.

:

If the testator attempted to evade the statute by naming more than made up the number permitted, and arranging their names in a circle, liberty was denied them all, 'quia nullus ordo manumissionis invenitur' Gaius i. 46. For Justinian's repeal of the lex Fufia Caninia see Cod. 7. 3.

I

1 In potestate itaque dominorum sunt servi (quae quidem potestas iuris gentium est: nam apud omnes peraeque gentes

Tit. VIII. 1. For the rights of a master over his slaves see on Tit. 3. 2 supr.

Besides the public authority of the State over all men, free or slaves, who lived within its territory, the Roman law recognised certain powers resting purely on rules of the private code, and exercised by one man over others, free no less than unfree, in virtue of titles which carry us back to the very infancy of the people. The general term used to express this authority, which was invariably based on some family or quasifamily relation, was ius or potestas. A man was said to be sui iuris if he were not, alieni iuris if he were, subject to one or other of these forms of domestic control. One of them was the dominica potestas, upon which enough has been said already. With regard to free persons who were in some way or other legally dependent on a domestic superior, the term filius familias was used in a very general way to denote them all: 'nam civium Romanorum quidam sunt patresfamiliarum, alii filiifamiliarum, quaedam matresfamiliarum, quaedam filiaefamiliarum. Patresfamiliarum sunt, qui sunt suae potestatis, sive puberes, sive impuberes : simili modo matresfamiliarum. Filiifamiliarum et filiae, quae sunt in aliena potestate' Dig. i. 6. 4.

Justinian speaks of only one form of domestic authority over free persons, the patria potestas. When we turn to the passage in Gaius (i. 48, 49) which corresponds to this section of the Institutes, we find three : 'sed rursus earum personarum quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt.'

Manus was a power which could be exercised only by males over females, and which originally could be exercised only by husbands over their wives; later, women came to be in manu to men who were not their husbands, but in these cases the relation was merely momentary. The usual case is the manus of the husband, which in many of its incidents exactly resembled patria potestas; but as the moral relation of husband and wife is different from that between parent and child, there are points of contrast; e. g. though the wife in manu was said to be filiae loco, the husband had not, like the father, an absolute ius vitae necisque over her; he could inflict death only after a judicial consultation with other members of the family. In respect of property, however, a wife in manu and a child in power were on the same footing; all the wife's property went to the husband by a 'successio per universitatem' (Gaius iii. 80), and whatever she acquired subsequently she acquired for him (ib. ii. 90); her liability on contract is touched on in Gaius iv. 80.

Manus could arise in three ways, Gaius i. 110: by confarreatio, a religious ceremony in the presence of ten witnesses; by coemptio, a sale by the woman of herself before five witnesses and a libripens; and by usus, continuous residence of the woman beneath her husband's roof for one year; absence for three nights in the year (per trinoctium) saved

animadvertere possumus dominis in servos vitae necisque potestatem esse) et quodcumque per servum adquiritur, id domino adquiritur. Sed hoc tempore nullis hominibus, qui 2 sub imperio nostro sunt, licet sine causa legibus cognita et supra modum in servos suos saevire. nam ex constitutione divi Pii Antonini qui sine causa servum suum occiderit, non minus puniri iubetur, quam qui servum alienum occiderit. her her freedom. Though manus per usum was not unknown in Cicero's time (pro Flacco 34, cited by Mr. Poste in his note on this subject) it had become obsolete by that of Gaius, who says (i. 111) 'sed hoc totum ius partim legibus sublatum est, partim ipsa desuetudine obliteratum est.' Confarreatio, on the other hand, was still practised in Gaius' age ('nam flamines maiores, id est, Diales, Martiales, Quirinales, sicut reges sacrorum, nisi sint confarreatis nuptiis nati, inaugurari non videmus' i. 112); but a law passed under Tiberius, A. D. 23, had enacted that a woman married by confarreatio should in future pass into her husband's manus only sacrorum causa; i. e., as Mr. Poste says, it only operated a change of family in respect of sacred rites; the woman ceased to have the domestic gods and worship of her father, and took in exchange those of her husband. But in secular matters her family was unchanged; she remained, if filiafamilias, subject to patria potestas, and did not become quasi-filiafamilias in the household of her husband: her old ties of agnation in her father's family were not snapped, and no new ties of agnation in her husband's family were acquired. Of course the whole institution passed away with the acceptance of Christianity as the national religion, if not before. Coemption was employed either for marriage, or for certain anomalous purposes, e. g. to extinguish the obligation of onerous sacred rites attached to the estate of an heiress, or to enable a woman to select her own guardian, or to break the ties of agnation, and thus become capable of making a will; see Mr. Poste on Gaius i. 108-115. Manus, though mentioned in the Vatican Fragments (General Introd. p. 61 supr.), had ceased to exist in any form before Justinian, in whose compilations it is not so much as referred to.

Mancipium (Gaius i. 116-123) was a form of legal control which arose from a man's right to sell free persons in his potestas or manus by mancipation; a person thus sold was said to be in mancipio to the purchaser. The features in which his position differed from that of a slave are pointed out by Mr. Poste on the sections of Gaius referred to. Whatever the free person in mancipio acquired belonged to his superior, except perhaps possession, as he himself was not possessed, Gaius ii. 90. Mancipium was not uncommon in Gaius' time; it was a comparatively permanent status in cases of 'noxae datio' (Gaius iv. 79), but a merely temporary and fictitious one in emancipations and adoptions. Justinian completely altered the form of the two latter, and abolished the noxal surrender of free persons (Bk. iv. 8. 7 inf.), so that in his system mancipium altogether disappears.

sed et maior asperitas dominorum eiusdem principis constitutione coercetur. nam consultus a quibusdam praesidibus provinciarum de his servis, qui ad aedem sacram vel ad statuas principum confugiunt, praecepit ut, si intolerabilis videatur dominorum saevitia, cogantur servos bonis condicionibus vendere, ut pretium dominis daretur, et recte: expedit enim rei publicae, ne quis re sua male utatur. cuius rescripti ad Aelium Marcianum emissi verba haec sunt: 'Dominorum quidem potestatem in suos servos illibatam esse oportet nec cuiquam hominum ius suum detrahi. sed dominorum interest, ne auxilium contra saevitiam vel famem vel intolerabilem iniuriam denegetur his qui iuste deprecantur. ideoque cognosce de querellis eorum, qui ex familia Iulii Sabini ad statuam confugerunt, et si vel durius habitos, quam aequum est, vel infami iniuria affectos cognoveris, veniri iube, ita ut in potestatem domini non revertantur. qui Sabinus, si meae constitutioni fraudem fecerit, sciet me admissum severius exsecuturum.'

IX.

DE PATRIA POTESTATE.

In potestate nostra sunt liberi nostri, quos ex iustis nuptiis

Tit. IX. The children born of lawful wedlock between an independent citizen and a woman with whom he had connubium were born in his potestas; and unless he died first, or they were voluntarily released by him, they remained under it, with trifling exceptions, to the day of their death. The peculiarity of this, as compared with other peoples, is noticed by many writers (Gaius i. 55; cf. Sextus Empir. Pyrrhon. iii. 24 οἵ τε ̔Ρωμαίων νομοθέται τοὺς παῖδας ὑποχειρίους καὶ δούλους τῶν πατέρων κελεύουσιν εἶναι . . . παρ' ἑτέροις δὲ ὡς τυραννικὸν τοῦτο ἐκβέβληται, Servius ad Verg. Aen. xi. 143 'filii in potestate patris . . . servi loco'). What is strange about it is not so much its stringency, as its survival, through centuries of legal history, to the time of Justinian, and its deliberate perpetuation in his legislation. This is explained in some degree by the Roman aversion to any change in old established custom which the advance in social conditions did not render absolutely necessary; still more by the fact that the patria potestas of the sixth century of our own era was a very different institution from that of the earlier period; the rights of the father over the person of the child had been largely curtailed by both law and custom, and by the development of the different kinds of peculium (Bk. ii. 9. 1, and notes, inf.), the position of the son in respect of property and contract had been largely assimilated to that of

procreaverimus. Nuptiae autem sive matrimonium est viri et 1 mulieris coniunctio, individuam consuetudinem vitae continens.

an independent person. But without doubt the chief reason why it had never been found necessary to cut short, by legislative interference, the duration of patria potestas at puberty or majority was the fact that to public matters it had no relation whatever. In respect of all public functions the filiusfamilias was an independent person in the field of private law he was incapable of right, or power, or authority on his own account, but in all other matters he was as capable of right as his father: 'filiusfamilias in publicis causis loco patrisfamilias habetur, si magistratum gerat, vel si tutor detur' Dig. 36. 13. 5, 'quod ad ius publicum attinet, non sequitur ius potestatis' ib. 14; cf. Maine's Ancient Law p. 139.

At first, perhaps, there was little to distinguish the power of a father over his children from that of a master over his slaves, except the fact that the filiusfamilias was always recognised as a 'persona ;' accordingly, though his pater could sell him, the purchaser could not own him as he could own a slave, but could only hold him in mancipio. The absolute control which the father possessed over him is best appreciated by considering the former's powers over his person, and the son's own position in respect of property, contract, and capacity to sue.

Originally the paterfamilias had ius vitae necisque over those in his power, so that, as Mr. Poste remarks, the lex Pompeia de parricidiis, B. C. 52 (Bk. iv. 18. 6 inf.) omits the father from the list of persons who could be guilty of 'parricide': a fortiori, he possessed the right of uncontrolled corporal chastisement. But under the Empire these powers had dwindled to the mere right of bringing serious domestic offences under the cognisance of the magistrate, though in trifling matters the father might still take the law into his own hands. The killing of a child was first made 'parricide' by Constantine; in the time of Hadrian a father who had acted thus under great provocation had been deported to an island. From Plautus (Plut. Amphitruo. i. 3. 3) it seems to have then been common for parents to expose their infants to perish of cold and hunger; this was strictly prohibited A. D. 374 (Cod. 8. 52. 2) and a law of Diocletian and Maximian forbade children to be sold, pledged, or given away by their pater, though Constantine permitted their sale immediately after birth in cases of extreme poverty, reserving, however, an equity of redemption' which could in no way be forfeited. Justinian (Nov. 134. 7) found it necessary to repeat the prohibition of childpledging, and increased the penalties against creditors who attempted to enforce rights thus acquired; his abolition of noxal surrender of filiifamilias has been noticed on Tit. 8 pr. supr. So, too, the pater could originally marry his son or daughter to whomsoever he pleased, and divorce them at pleasure, besides transferring them to another family by adoption; 'but later in the imperial period the privilege of dictating marriage had declined into a conditional veto; and adoption itself, destined to lose almost all its ancient importance in the reformed