but solely on that of the other inheritors of the property. The patron could furthermore exact from his client, either by simple agreement or by mere promise confirmed by oath, special engagements to render him and his family services of various kinds, and even to make him or them stated presents. A distinction was drawn between "official" services, which were held merely to testify affection and respect, and industrial services having a pecuni- D. (xxxvii. 14, ary value. The latter alone could be imposed 15). D. 1, 2, in favour of the patron's personal relations. 3, 4, 5). The By the special favour of the emperor, freedmen could acquire all the rights of freeborn citizens signified by the privilege of wearing the gold ring, a privilege formally conceded only to officers of State or to senators. rights, however, of the patron could, even in this case, only be extinguished on the patron's consent being obtained, the emperor thereupon making a special grant in the freedman's favour of what was called "restituD. (xl. 10, 11). tion of natal rights." By the latest legislation of Justinian, the patron could confer on his freedman the honorary rights attributed to the wearing of a gold ring by formally declaring him a Roman citizen. But still, as under the older law, the distinction remained little more than honorary, and left the claims of the patron Nov. (lxxviii.). intact. § 2. Children and Descendants. (1) AS REGARDS THE PERSON. The power of the head of the household over his children and children's children, natural and adopted, was in many respects more complicated in character than that over his slaves, and underwent many modifications in the direction of freedom to which the other institution was a stranger. The power related either to the person of him who was the subject of it-who may be conveniently designated here throughout as the "son," unless a daughter or grandson is specially mentioned-or to his property. According to the very earliest law of which we have any knowledge, the power of the father over his legitimate children, not adopted by another, knew no limit. The father was sole lawgiver, judge, and, if need were, executioner. There is no doubt that, up to very late days in the history of the empire, the theory that the father had the right of putting his children to death and, a fortiori, of punishing, and even of torturing them at his caprice, was still formally recognized. The first legislative restriction on this plenary right of the father is contained in a constitution of Valentinian and Valens (cir. 364-375), which forbade the exercise of the right of domestic chastisement beyond a limit, not very definitely described as in immensum, where the atrocity of an offence seemed to be inadequately reached by this domestic jurisdiction. Those guilty of an offence exceeding the bounds (enormis delicti reos), were to be handed over to C. (ix. 15). public justice. Even under Constantine, however, a constitution was made which reappears in Justinian's Code, 2 C. (iv. 43). preserving and indeed reviving with amendments the antique practice of selling children. A general principle affirmed by Diocletian was still maintained that no valid title could be given by parents on a sale, gift, pledge, or other conveyance of their children; but the law of Constantine introduced an exception in the case of new-born children, sold through want. In this case, the purchaser acquired the right to the child's services, but the vendor or the child himself, or any one else, could redeem him and reinstate him in his civil rights on offering a fitting price, or providing a slave or free labourer of equal value. Justinian finally, in alluding to the practice, once said to have existed, of a father surrendering his child,—as at all times he could surrender his slave,-to an injured person, by way of compensation for an injury inflicted by the child, repudiates it on the ground of its flagrant inhumanity and immorality, especially 7 J. (iv. 8). in the case of daughters. He preserves the institution as affecting a slave, who was said to be given up as a noxa. The offence was called a noxia, and the action for obtaining such compensation a noxalis actio. The various degrees of offence which a son might be guilty of towards his father, with the corresponding domestic penalties, seem to be marked in a law of Alexander Severus, embodied in Justinian's Code. The law seems to point to the fact that the father was expected to exert his personal influence in controlling the son's conduct with. respect to property. The words are as follows: "If your son is in your power, he cannot part with property acquired from you. If he does not recognize the dutiful obligations owing to his father, there is nothing to prevent you punishing him in the exercise of your parental power. If he persists in the same contumacious conduct, you can resort to severer remedial measures. You may further take him. before the president of the district, who will pronounce a sentence such as will meet your wishes." A constitution of Diocletian and Maximian further 3 C. (viii. 47). laid down that the governor of the province would compel a son not only to show his father due reverence but to supply him with the necessaries of life. About the father's control over the son's person, and his claims to formal respect and submission, a conflict naturally presented itself in certain of the emergencies of civil life between the position of the son in his family and his position as a citizen, and perhaps even a public official,—in the State. It was here, indeed, that the legal situation of a son was most noticeably contrasted with that of a slave. It was discussed at one time rather as a theoretical than a practical question, whether a father who was a proconsul ought to make the customary obeisance in the street on meeting his son, who was Aulus Gellius, a consul; and the better opinion seemed to be N. A. (ii. 2). that he ought. The principle was that the private relationship gave way to the public one, but only within the precisely ascertained limits to which the public relationship necessarily extended. The private relationship, again, in no way affected the inherent legal capacity of the son, except so far as the father's rights invaded, or, as it were, competed with, those of the son. Originally, no doubt, before the individualizing tendencies of advancing law had rescued the son,—as also even the wife,-from the sort of legal confusion which, in earlier times, is presented by the natural family group, an identity or unity of person between the son and father was for legal purposes habitually presupposed. A shadow of this long fixed conception is preserved in such passages as the following from Paulus, embodied in the 16 D. (xlvii. 2). Digest. "That a father cannot sue his son for theft is not so much the result of a legal prohibition as of essential natural impediments; because we can no more. sue those who are in our power than we can sue ourselves." Justinian's Code further says that "father and son are by nature almost understood to be one and the 11 C. (vi. 26). same person." System des Savigny has aptly and succinctly described the son's legal position in reference to his father and to others. "The son lacks the capacity, in matters of private legal relationship, to exercise any power or authority, while in every other relationship his capacity is unrestricted. Furthermore, the defective capacity is not to be treated as an inherent want in the child himself, but merely as a consequence of the rule of law by which the father acquires the benefit of all the rights which spring from the son's acts." To put the matter briefly, the position of the son was only affected by the father's power for the purposes of private law but not of public. He had all the rights of civic intercourse for purposes of industry, trade, and marriage, that is, the commercium and connubium, but he could only exercise these rights under certain limitations. For instance, he could be a witness to a will, but could not make one; he could be sued for his debts, but not sue. (2) AS REGARDS PROPERTY. The property of the son in his father's control was either of exactly the same nature as the slave's peculium; or, though also called peculium, was, in fact, a distinctly different species of wealth, over which the son could legally exercise greater or less powers of independent management, free from his father's general influence, though not free from all present or ulterior rights of the father to cooperation in legal acts, to ownership in the principal, to usufruct of the proceeds, or to hereditary succession. In the time of Justinian, the private property of a son in his father's power might be classed under three heads, each of which was regulated by different rules. The first head included the peculium, strictly so called,— a portion of the estate of the head of the household, in analogy with the slave's peculium, which he, of his own free will, granted to his slave or son to be temporarily managed for him. He alone could draw any advantage from the permanent increase or improvement of the principal fund. The second head under which the son's property was comprised included that important species of private estate, which, under the names of castrense peculium and quasicastrense peculium, had been gradually called into being by a succession of enactments of the Emperor Augustus, and had gone so far that it constituted the son an independent proprietor and entirely liberated him from the parental control. At first, under the name of castrense peculium, this species of property was strictly limited to all those goods and materials of wealth in which a soldier, on entering upon a campaign, and throughout the campaign, might be supposed to have a paramount interest; thus, there would be included in such property all gifts presented by sons, father, mother, relations, or friends for the purpose of fitting him out for going to join the army. All proceeds |