childlessness. Caelibes, i. e. persons who are unmarried without § 86. just cause, and orbi, i. e. childless persons, are incapacitated (incapaces) from taking any property under a will (inf. § 101 II. 2), either totally (as in the case of caelibes) or partially (as in the case of orbi). In order, moreover, to be able to take all the property given her by a will a woman must have the 'jus trium vel quatuor liberorum,' a right which, however, she may also acquire as a privilege by imperial grant. A testamentary gift to an incapax becomes caducum,' and, as such, may be claimed by the persons taking a benefit under the will who have children, or in default of such persons by the treasury (caducorum vindicatio). The penalties on celibacy and childlessness were abolished by enactments of Constantine and subsequent emperors; Justinian did away with the above-mentioned prohibitions on intermarriages. GAJ. Inst. II § 286: Caelibes per . . . legem Juliam hereditates ULP. tit. 17 § 1: Quod quis sibi testamento relictum, ita ut jure II. PATRIA POTESTAS. §87. The Modes in which Patria Polestas originates. Patria potestas is acquired by virtue either of a rule of law or of a § 87. juristic act. It is acquired by virtue of a rule of law, firstly, over children begotten in lawful wedlock (not over the offspring of a concubine), secondly, by the legitimation of children not begotten in wedlock-whether such legitimation be effected 'per subsequens matrimonium,' or 'per rescriptum principis.' Patria potestas may, Сс § 87. moreover, be artificially created in Roman law by means of a juristic act, viz. adoption. Adoption may be either of a paterfamilias, in which case it is called 'arrogatio,' or of a filiusfamilias, in which case we call it adoption, in the narrower sense of the term. In either case the person adopted undergoes capitis deminutio minima, because he changes his agnatic family (p. 125). 1. Arrogatio. According to the old law every arrogatio required a preliminary enquiry by the pontifices and a decree of the comitia curiata. At a subsequent period arrogationes were frequently effected by means of an imperial rescript, and this was the only method in ordinary use in the later stages of Roman law. At no time, however, could an arrogatio be effected by a mere private juristic act. A change of family relations such as is involved in arrogatio is a matter of public concern. Hence the necessity for ceremonies of a public character. No one, however, could be adopted by arrogatio in the comitia curiata, unless he was himself capable of expressing his consent to the act in the popular assembly. Since every arrogatus is a party to the act of arrogatio in the comitia, he must necessarily be qualified to participate in such act in the comitia curiata. Consequently there can be no arrogatio of an impubes or of a woman. An impubes is altogether incapacitated from giving any valid assent, and women are incapable of appearing in the popular assembly. Antoninus Pius, however, permitted the arrogatio of an impubes under certain conditions, viz. that it should prove to be for the benefit of the impubes, that it should be agreed to by all his guardians, and that finally the pater arrogans should give security that, if the arrogatus died within the age of puberty, he would restore his property to such persons as, but for the arrogatio, would have been entitled to succeed him on his death. The arrogatio confers on the impubes, during impuberty, an indefeasible right to one-fourth share of the property left by the pater arrogans on his death (the so-called As to the meaning of the terms paterfamilias (homo sui juris) and filiusfamilias (homo alieni juris: a son, daughter, grandchild in paternal power) cp. sup. p. 120. 'quarta divi Pii'). In acquiring power over the person of the § 87. arrogatus, the pater arrogans, at the same time, acquires his property?, and power over all those who are themselves in the power of the arrogatus. 2. Adoption. Like arrogatio, adoption (in the narrower sense of the term) probably required originally the assent of all the gentes expressed in the comitia curiata. But subsequently to the Twelve Tables a private juristic act was developed for the purpose of effecting such adoptions. The Twelve Tables provided that, if a father sold his son thrice into bondage, the patria potestas should be thereby extinguished. Just as this rule had supplied a device for accomplishing the emancipation of a filiusfamilias (sup. p. 32), so it might be utilized for the purpose of effecting a datio in adoptionem. The father sells his son thrice by mancipatio into bondage (mancipium, inf. p. 390). The fictitious vendee manumits the son after the first and second sale (manumissio vindicta, i. e. by means of in jure cessio, sup. p. 110). The third sale is not followed by a further act of manumission-the effect of which would be to emancipate the son (inf. p. 393)-but by the act of adoption in the form of an in jure cessio. That is to say, the adoptive father raises a fictitious 'vindicatio in patriam potestatem' before the praetor; the fictitious defendant either confesses or makes default, and the praetor thereupon awards the child to the fictitious plaintiff as his son (addictio). For the purposes of this last in jure cessio it was usual for the 2 According to the civil law arrogatio extinguished the contractual debts of the arrogatus (p. 125). The praetor however gave an in integrum restitutio by granting an actio ficticia against the arrogatus on a fiction that no arrogatio had ever taken place. If the pater arrogans declined to take upon himself the liabilities of the arrogatus (the latter having of course ceased to have any assets himself) the praetor ordered bankruptcy proceedings to be taken in respect of such property as would have belonged to the arrogatus had no capitis diminutio taken place. Cp. p. 369. the fact that the private act of ' datio in "This is a reasonable inference from Cp. § 87. fictitious vendee first to remancipate the child to the father after the third mancipatio, the result being that the father himself was made the fictitious defendant in the datio in adoptionem, and consequently effected the adoption by means of his own confessio in jure. If the person to be adopted was a daughter or grandchild, a single sale was sufficient to extinguish the patria potestas, and the first mancipation was therefore immediately followed, not indeed by an act of manumission-which would have operated to emancipate the child-but by the act of adoption. The law of the later empire abolished these complicated ceremonies, and allowed adoptions to be accomplished by means of an agreement between the two fathers duly declared before the court in the presence of the child. The child himself is here no party to the transaction by which he is given in adoption. There are therefore no such obstacles as we found in the case of arrogatio to prevent an impubes or daughter from being adopted. The consent of the adopted child is unnecessary. No adoption, however, is valid, if it is protested against by a child who is legally capable of willing. Under Justinian adoption, in the narrower sense of the term, ceases to produce patria potestas. Datio in adoptionem, according to Justinian's law, does not operate, in a general way, to produce the relations of father and child, but merely confers on the adopted child the same rights of succession as against the deceased adoptive father as though he were his real child (so-called 'adoptio minus plena'). It is only when the adoptive parent is a natural ascendant (e. g. the grandfather) of the child that datio in adoptionem continues to produce the full effect which formerly attached to it (so-called adoptio plena"). As regards arrogatio, however, its effect was not altered by Justinian. Women are incapable of adopting. From the time of Diocletian women whose children have died are allowed to adopt by virtue of a rescriptum principis ; but the only effect of this so-called adoption is to create mutual rights of intestate succession as between the adoptive mother on the one hand, and the adopted child and his descendants on the other hand. pr. I. de adopt. (1, 11): Non solum tamen naturales liberi § 87. § 3 eod. Cum autem impubes per principale rescriptum adro- §88. The Effect of Patria Potestas. The patria potestas of the old civil law confers on the father an§ 88. $88. absolute power over those who are subject to his control, i. e. his children, the children of his sons, and his wife in manu. He has the power of life and death (jus vitae ac necis) and the power of selling into bondage. The only actual check on his absolute authority lay, on the one hand, in the influence exerted by the relations in the family council (which custom required him to appeal to in cases of gravity) and, on the other hand, in the fear of a 'nota censoria' and the spiritual punishment which was threatened in the event of an abuse of his power. Sales into bondage, where the member of a family was treated as a mere chattel representing a certain money value, must have been of tolerably frequent occurrence. An attempt to check such sales is found as early as the Twelve Tables, which contain a penal provision to the effect that a father who sells his son thrice into bondage shall be punished by forfeiting his patria potestas (sup. p. 32). In later times the mancipatio of a filiusfamilias was, as a rule, only employed for the purpose of a fictitious sale in effecting an adoption (sup. p. 387) or emancipation (inf. p. 393). Genuine sales of children only occurred in cases of noxae datio, and so far as such sales applied to filii |