§ 22. GAJ. eod. III § 56: . . . admonendi sumus. . . eos, qui nunc Latini Juniani dicuntur, olim ex jure Quiritium servos fuisse, sed auxilio praetoris in libertatis forma servari solitos; unde etiam res eorum peculii jure ad patronos pertinere solita est; postea vero per legem Juniam eos omnes, quos praetor in libertate tuebatur, liberos esse coepisse et appellatos esse Latinos Junianos; Latinos ideo, quia lex eos liberos perinde esse voluit atque si essent cives Romani ingenui, qui ex urbe Roma in Latinas colonias deducti Latini coloniarii esse coeperunt.-Legis itaque Juniae lator... necessarium existimavit, ne beneficium istis datum in injuriam patronorum converteretur, cavere voluit, ut bona eorum proinde ad manumissores pertinerent, ac si lex lata non esset: itaque jure quodammodo peculii ad manumissores ea lege pertinent. § 23. § 23. Paterfamilias and Filiusfamilias, Every Roman citizen is either a paterfamilias or a filiusfamilias, according as he is free (homo sui juris) or not free from paternal power (homo alieni juris). Paterfamilias is the generic name for a homo sui juris, whether man or woman, child or adult, married or unmarried; filiusfamilias is the generic name for a homo alieni juris, whether son or daughter, grandson or granddaughter, and so on. As regards public law the distinction between paterfamilias and filiusfamilias is of no importance. A filiusfamilias, provided he has all other necessary qualifications, is as much entitled to vote in the comitia and to be elected consul as a paterfamilias. The effect of the distinction is confined to private law. True, the filiusfamilias is entitled to the jus commercii and jus connubii as much as the paterfamilias, for he is as much a Roman citizen as the paterfamilias. By civil law, therefore, the son can make contracts, acquire ownership', be instituted testamentary heir, contract a valid 1 Thus, he may use mancipatio, but not in jure cessio, because it was part of the procedure in in jure cessio (sup. p. 31) that the party should claim ownership in jure.' But according to the old law a filiusfamilias, being a homo alieni juris, is incapable of holding ownership (v. infra). marriage, &c. But whatever a filiusfamilias acquires he acquires for § 23. the paterfamilias. Whatever rights he acquires, be they rights of ownership or obligatory rights, nay, the very marital powers over his own wife and the paternal power over his own children vest not in him, but in his father. For according to early Roman law there exists in every Roman household but one ownership, one marital and one paternal power, viz. that of the paterfamilias. It is only the debts of a filiusfamilias which accrue, not to his father, but to himself. In other words, a filiusfamilias has passive, but no active proprietary capacity. But during the empire the filiusfamilias gradually acquired an active proprietary capacity. Soldiers were the first to obtain it. Whatever a filiusfamilias miles acquired as a soldier (bona castrensia), he acquired for himself and not for his father. Public officials were the next to obtain the same privilege. Whatever a filiusfamilias earned in the civil service, or as an advocate, or acquired by gift from the emperor (bona quasi castrensia), belonged to himself and not to his father. The capacity to acquire property was ultimately extended to every filiusfamilias. Whatever a filiusfamilias acquires not from his father, but from his mother or some stranger (bona adventicia), belongs to himself as owner, subject however to his father's right to manage it, and subject also to his father's usufruct therein. Thus, according to the law in Justinian's time, the only person from whom the filiusfamilias is unable to acquire anything is his father. Whatever a filiusfamilias receives from his father remains in the ownership of his father, even though the latter may allow him to dispose of the property (peculium profecticium). Cp. infra, § 88. L. 195 § 2 D. de V. S. (50, 16) (ULPIAN.): Pater autem familias appellatur, qui in domo dominium habet; recteque hoc nomine appellatur, quamvis filium non habeat: non enim solam personam ejus, sed et jus demonstramus. Denique et pupillum patremfamilias appellamus, et cum paterfamilias moritur, quotquot capita ei subjecta fuerint, singulas familias incipiunt habere; singuli enim patrumfamiliarum nomen subeunt. Idemque eveniet et in eo, qui emancipatus est: nam et hic sui juris effectus propriam familiam habet. § 23. GAJ. Inst. II § 87: Igitur, quod liberi nostri, quos in potestate habemus, . . . mancipio accipiunt vel ex traditione nanciscuntur, sive quid stipulentur vel ex aliqualibet causa adquirunt, id nobis adquiritur: ipse enim, qui in potestate nostra est, nihil suum habere potest. $ 24. 24. Capitis Deminutio. Capitis deminutio is the destruction of the 'caput' or legal personality. Capitis deminutio, so to speak, wipes out the former individual and puts a new one in his place, and between the old and the new individual there is, legally speaking, nothing in common. A juristic personality may be thus destroyed in one of three ways: (1) by loss of the status libertatis. This is the capitis deminutio maxima ; (2) by loss of the status civitatis. This is the capitis deminutio media (magna); (3) by severance from the agnatic family. This entails capitis de minutio minima. Capitis deminutio maxima means the loss of a man's entire juristic personality. Capitis deminutio media and minima merely mean the loss of the particular juristic personality which a man has hitherto possessed. To undergo capitis deminutio maxima is to forfeit one's liberty. A Roman civis may, like others, become a slave, e. g. if he is condemned for a crime, or taken a prisoner of war. If, however, a Roman citizen returns from captivity, he becomes, at the moment of his return, a Roman citizen again and recovers all those rights which he had forfeited by his capitis deminutio in just the same manner as though he had never lost them. He becomes once more the paterfamilias of his children, the owner of his property, the creditor of his debtors, and so on. In a word, he becomes the subject of all the legal relations which his captivity had extinguished for him, to the same extent as though he had never been a prisoner of war at all. This is the nature of the so-called 'jus postliminii.' Let us suppose, however, that the Roman civis in question does not § 24. return, but dies in captivity. At the time of his death he is clearly not a civis Romanus, but a slave. Is then the will which he executed at home, before he was taken prisoner, void or not? And, to go a step further, since a slave cannot have any heirs, can he (the prisoner) have heirs or not? All these difficulties were solved by the so-called 'fictio legis Corneliae,' by which a Roman civis, dying in captivity, is assumed by a fiction to have died a Roman citizen; consequently (argued the jurists), he shall be deemed to have died at the very moment of being taken prisoner. § 5. I. quib. mod. jus pot. solv. (1, 12): Postliminium fingit eum, qui captus est, semper in civitate fuisse. L. 16 D. de captiv. (49, 15) (ULPIAN.): Retro creditur in civitate fuisse, qui ab hostibus advenit. L. 12 D. qui test. fac. (28, 1) (JULIAN.): Lege Cornelia testamenta eorum, qui in hostium potestate decesserint, perinde confirmantur, ac si hi, qui ea fecissent, in hostium potestatem non pervenissent; et hereditas ex his eodem modo ad unumquemque pertinet. L. 18 D. de captiv. (49, 15) (ULPIAN.): In omnibus partibus juris is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est. Capitis deminutio media (or magna) is loss of citizenship unaccompanied by loss of liberty; it occurs e. g. when a Roman citizen emigrates to a Latin colony. But in Justinian's time, since every member of the Roman empire who was free was, at the same time, a Roman citizen, media capitis deminutio is only possible in the case of banishment, i. e. expulsion from membership of the empire'. § 2. I. de cap. min. (1, 16): Minor sive media est capitis deminutio, cum civitas quidem amittitur, libertas vero retinetur. Quod accidit ei, cui aqua et igni interdictum fuerit, vel ei, qui in insulam deportatus est. 1 Cp. J. M. Hartmann, De exilio apud Romanos, dissertatio inauguralis (Berolini, 1887). The same writer in § 24, Severance from one's agnatic family also operates as a capitis deminutio (viz. minima), a destruction of one's personality. For it is in the family that the essence and force of a legal personality lie. To change one's family, therefore, is to change one's personality; it means the destruction of the old personality and the birth of a new one. The word 'family,' however, in the legal signification of the term, means, according to the civil law of Rome, something very different from what we are accustomed to associate with the term. By family we mean the aggregate of all persons who are connected by ties of blood-relationship, the aggregate of all members of one and the same stock. But a Roman family, within the meaning of the jus civile, means the aggregate of all those who belong to one and the same household, who are subject to one and the same 'domestic power' (patria potestas), or, at any rate would be thus subject, if the common ancestor were still living. This is what is meant by the term 'agnatio.' And the civil law recognizes no other kind of relationship but agnatio; it knows nothing of cognatio or blood-relationship. Thus the family of the Roman civil law means the agnatic family (v. infra, § 78). A peculiar characteristic of this agnatic family is that it can be changed. Blood-relationship cannot be destroyed, and a cognatic family, or family in the modern sense, does not admit of change. But a person can separate himself from an agnatic family, because he can separate himself from the household, i. e. from the community of those who stand under the same patria potestas. And this is what happens to a daughter who contracts a marriage and thereby enters the marital (i.e. domestic) power (manus) of her husband ('in manum conventio'), or of the person under whose patria potestas her husband stands. Having passed from one patria potestas to another, she has thereby changed her family (her agnatic family, namely); she has changed her entire circle of relations (agnatic relations, namely); in a word, she has undergone a complete change of personality. The same thing happens to a filiusfamilias, when his father sells him into bondage (mancipium, § 88), or gives him in adoption (datio in adoptionem); and again to a person sui juris, when he suffers himself to be adopted by another (arrogatio); |