of the campaign, such as prize money, enemy's goods, as well as military pay, were also naturally included. Even an inheritance which fell to the soldier in consequence of his military associations, as, for instance, when left by a fellow-soldier, was included.

It was Constantine who first gave a precise legislative definition to a logical enlargement of the castrense peculium that had grown up in practice long before. Under Constantine and his successors, up to and including Justinian, the civil service of the State, especially that attached to the imperial court, was, for the purpose of conferring a right to independent ownership on a civil servant in his father's power, placed in exactly the same position as the Nov. (cxxiii. military service. Another extension, confirmed by Justinian's Novells, brought the service of the church as carried on by the regular ecclesiastical ministers, duly ordained, within the same category. This logical amplification of the castrense peculium was called the quasi-castrense peculium.

19).

With respect both to the castrense and the quasicastrense peculium, the son under his father's power had all the rights which he could have had if he were in the power of no one. He could exert all the rights of action necessary to protect it. It was liable to be resorted to for the satisfaction of his creditors, and, so far as it went, he could not benefit from the. Senatus consultum Macedonianum forbidding advances by usurers to sons in their father's power. He could bequeath the property by will, and at his father's death he had to make no account of it in settling about the father's estate with his brothers. The only claim of the father was to administer as trustee in guardianship if the son became insane, and, on the son dying intestate without children, to inherit the property.

The third head under which the son's private property falls, and which also was called peculium, comprised all the wealth which the son acquired otherwise than from military, civil, or ecclesiastical service as just described, or from hist

father's estate. This kind of peculium, which likewise seems to have been originally introduced by Constantine, included all property which came to the son from his mother, or blood relations; also all money settled on a first marriage of the son's father, when a second marriage took place; and, lastly, all property which came to the son, as it was said, by fortune's favour or by his 6 C. (vi. 60).

own exertions.

With respect to all this species of peculium, the son enjoyed only the ownership of the principal fund, while the father had the usufruct of the income or continuing proceeds. The father had the general management of the property, but without the right of selling, pledging, or in any way burdening the estate. If the son was of full age, and not at a distance, his consent was needed in incurring expenditure for the improvement of the estate. The only cases in which the property could be alienated by the son with the father's consent were, if the property could not be otherwise preserved, when the debt of a deceased person required to be sold in order to prevent loss, or when legacies left to the son could in no other way be turned to beneficial account. The son had a tacit charge of the nature of a mortgage on his father's property for the security of this peculium.

The father lost his rights in this peculium, or never acquired any, in a few special cases: as where the son entered on an inheritance left to him because of his father's refusal to enter; when the son obtained property on the express terms that the father should gain no interest in it; or, when the parents made an unjust divorce in consequence of which the mother's property passed to the children. The son, of course, in no case had a right to make a will with respect to this property, any more than with respect to other portions of his father's estate.

It remains to be noticed that it has been customary among the Middle Ages and modern jurists to distribute the whole of the different species of property enjoyable by a son, here enumerated under three heads, into two main divisions, the peculium paganum, or peculium belonging

T

to civil life; and the peculium castrense, or that belonging to military life. The former, again, has been distributed into the peculium profectitium (analogous to the dos profectitium), which came from the father, and the peculium adventitium, which (similar to the analogous sort of dower) came from other friends or relations. The peculium militare was distributed naturally into the castrense and quasi

castrence.

(3) THE EXTENSION OF THE FAMILY BY LEGITIMATION, ADOPTION, AND ARROGATION.

The peculiar institution of regulated concubinage, which was rather a deferential tribute to the antique dignity of the formal Roman marriage than a concession to libertinism, gave a special prominence at all times to the modes by which children, who had been born out of wedlock, could be brought under their father's power by legitimation. It being premised that only such children could be rendered legitimate as had for their mother a woman whose character was in no other respect assailable than because there was some legal defect or incapacity which had prevented a formal marriage, the following were, in Justinian's time, the three modes in which legitimation could be effected.

(1) By the subsequent marriage of the father and mother; (2) by presenting the child before the curia or senate of a provincial town; or by presenting a son to the curia, that is, by having him registered as willing to undertake the unpopular and burdensome function of a decurio, or marrying a daughter to a decurio; and (3) by a rescript of the emperor. Such a rescript could only be obtained on the father's express application, which, however, might be made by will. It would not be granted if the father had legitimate children living, or if, on legal and moral grounds, a marriage between the father and mother was not impossible.

The assent or ratification of the child was needed to give efficacy to the act of legitimation. The effect of the act was to put the legitimated child in all respects on

a par with the children born in wedlock, except, indeed, in the special case in which the legitimation was effected by presentation to the curia. In this case the child acquired no rights of succession to any other person Nov. (lxxxix. than his father.

4).

The adoption of children in the broader sense, which included that form of adoption (arrogatio) by which a son who was no longer under his father's power was brought under the power of a new father, fictitiously so called, was at all times a prominent feature in Roman law, and the rules regulating it vacillated very slightly during the thousand years which the true history of that law covers. Its fortunes are a proof that the Roman family was even still more a legal and political than a moral conception. The Prætor, indeed, had consistently struggled by his occasional, though increasingly steady and uniform, legislation to substitute at all points the claims of natural relations in the matter of succession for the claims of remote connections favoured by the letter of the older law. Justinian achieved the final triumph of the natural over the legal family by refusing to all adopting parents, other than a child's maternal grandfather (or paternal grandfather where the father was emancipated) or earlier ascendant, all rights of succession to the property of an adopted child, such rights being reserved for the natural parent just as if no adoption had taken place.

In former times, indeed, the severely legal conception of adoption was obtruded into prominence through the formality of the three-fold sale (mancipatio), by Gaius (i. 132, which alone the natural parent could exclude 134). his son from his family, and prepare the way for the final conveyance of him to the adopter. In the earlier empire, however, the mere decree of the local magistrate was sufficient to transfer a son from one family to another. It was said that adoption always "imitated nature;" and on this ground, while the adopted person might be introduced into the new family either as a son, a grandson, or a great grandson, he must at least be eighteen years younger than the adopting parent.

The adoption (arrogatio) of persons who were freed from their parents' control was at all times treated as a matter of more public concern than the other species of adoption, because of the rights of succession which might be involved. In earlier days the gens, and in imperial times the fiscus or State treasury, might be unwittingly deprived of their claims to succession or intestacy through an adoption of the sort known as arrogation, which in its etymology recalls the formal law of the comitia curiata, through which alone the proceeding could be sanctioned. The substitute for this in latter days and in Justinian's time was an imperial rescript. This was granted as of course, on application and on satisfactory reasons being given as to the transaction being bonâ fide and presumably advantageous to the person to be adopted. So far as Justinian had not abolished all the adopter's pecuniary claims, security had to be given to a public official (tabularius) that if the adopted person died before the age of puberty, his property would be restored to those who would have succeeded to it if no adoption had taken place. The adopter could only emancipate the adopted son on giving satisfactory reason for it, and surrendering all the son's property. If the new parent disinherited or emancipated him without good reason, he was bound to leave him a fourth part (quarta Antonina) of his estate, that is, over and above both the property which he originally brought to the adopting parent and the improvements in that property which he had effected for him.

§3.-Husband and Wife.

In the principal sources of Roman law, marriage is treated mainly as an avenue to the constitution of the patria potestas, and as such it occupies a most central position in the general account of legal institutions, even independently of those rights and duties of husband, wife, children, and relatives which sprang from the fact of marriage itself. Like other parts of the law regarding the