The privileged position of the filiusfamilias miles in respect of his § 101. peculium castrense was established at a comparatively early date, viz. by Augustus. In the later Empire, after the reign of Diocletian, when the state had assumed the form of a bureaucratic monarchy, a filiusfamilias who held a public office was placed on a par with the filiusfamilias miles. Whatever he acquired in a public capacity as a civil servant, or an advocate, or a clergyman, was his peculium quasi castrense, and as such was governed by the same rules as applied to the peculium castrense of the filiusfamilias miles. The tendency of the legislation of the Emperor Constantine and his successors was to enlarge the proprietary capacity of the filiusfamilias and to allow him, on principle, to acquire any property whatever as his own. He was thus given, in the first instance, the right to hold 'bona materna' as his own, i.e. any property inherited by him from his mother. Afterwards he was given the same right in respect of the so-called 'bona materni generis,' and finally in respect of any sort of property acquired by him from a third party. All such property was comprehended under the general name of 'bona adventicia.' Whatever was acquired otherwise than 'ex re patris,' or as a peculium castrense or quasi castrense, was regarded as 'adventicium.' And the ownership of adventicia vested, not in the father, but in the filiusfamilias. The father however retained, as a remnant of his former rights, the usufruct, and the management of the bona adventicia. The powers of the filiusfamilias in respect of such property were therefore less complete than his powers in respect of bona castrensia or quasi castrensia. His inability to dispose of it inter vivos carried with it an inability to dispose of it by will. Not even with the assent of his father could the filiusfamilias validly dispose of bona adventicia by will. The term 'bona adventicia irregularia' was applied to adventicia over which the son had a right of management (though he could not dispose of them after his death) and also a right of user. Examples of bona adventicia irregularia would occur, if the person from whom the son acquired the property expressly excluded the father's usufruct and control, or if the son acquired property contrary to the wish of his father. § 101. § 102. Thus the only incapacity that continued to attach to a filiusfamilias in the law of Justinian was his inability to acquire property 'ex re patris,' i. e. from his own father. Whatever a father gave to his son-even though it were a peculium profecticium, or property over which the son was allowed full powers of disposition-remained in the ownership of the father. The son, however, was competent to deal with the peculium he had received and to bind his father by his contracts to the extent of such peculium (supra, p. 446). The peculium profecticium was a peculium of the old type: it illustrated the proprietary incapacity to which the filiusfamilias had formerly been subject and the slave-like position he had occupied. Conversely, the peculium castrense and quasi castrense and the bona adventicia were peculia of the new type: what they illustrated was not the ancient incapacity of the filiusfamilias, but rather the active proprietary capacity which the new law had gradually conferred upon him. L. II D. de castr. pec. (49, 17) (MACER): Castrense peculium est, quod a parentibus vel cognatis in militia agenti donatum est, vel quod ipse filiusfamilias in militia adquisivit, quod, nisi militaret, adquisiturus non fuisset. Nam quod erat et sine militia adquisiturus, id peculium ejus castrense non est. L. 2 D. de SC. Maced. (14, 6) (ULPIAN.): ... cum filiifamilias in castrensi peculio vice patrumfamiliarum fungantur. $102. The Extinction of Patria Potestas. Patria potestas was extinguished in certain cases in the interests of the child who was subject to it, viz. under the old law, when the child became a flamen Dialis or virgo Vestalis; under Justinian's law, when he attained to the dignity of a bishop or patricius. It was extinguished as a punishment for the father, if he exposed his child or prostituted his daughter. The death of the father only operated to free those who were subject to his immediate power; grandchildren by his son passed, on the death of their grandfather, under the power of their own father. Capitis deminutio media and maxima had the same effect as death (pp. 186, 187). The juristic act through which patria potestas was extinguished was emancipation. The father sold his son thrice into mancipium ; § 102. after each sale the fictitious vendee enfranchised the son by a manumissio vindicta, i.e. by means of an in jure cessio (supra, p. 173). The two manumissions which followed the first and the second mancipatio respectively, operated by virtue of the statute to make the son revert each time into the power of his father. The third manumission, the effect of which was to free the son (supra, p. 60), was the act of emancipation. Hence it was usual for the fictitious vendee to remancipate the son to the father after the third mancipatio, in order that the manumission which effected the emancipation might be performed by the father himself as 'parens manumissor.' In the case of a daughter or grandchild a single mancipatio was sufficient. This mancipatio was immediately followed (after the intervening remancipatio) by the act of manumission which effected the emancipation. The law of the later Empire introduced other and simpler forms of emancipation, viz. emancipation per rescriptum principis (the so-called 'emancipatio Anastasiana '), and emancipation by entry on the judicial records (the so-called 'emancipatio Justiniana'). His The child was no party to the act of emancipation. consent was not required. Nevertheless, if he protested, the emancipation was void, according to Justinian's law, except where it dissolved a mere adoptive relationship. Apart from the case of an impubes arrogatus (who could, in certain circumstances, insist upon being emancipated), a child in power was never entitled to demand an emancipation as a matter of right. Even when the child was grown up and held offices of dignity', he remained legally in the power of his father so long as the latter did not, of his own free will, dissolve the relationship. The paternal power of Roman law was a power existing entirely in the interests of the father. Its continuance depended accordingly, not on the child's need of protection and educational requirements, but simply on the life of the father. A different view has found expression in modern German law. According to the common German Pandect It was only by attaining to certain high dignities (see the beginning of this section) that a child was released from § 102. law, the paternal power was ipso jure extinguished as soon as the child became practically independent, i. e. as soon as he acquired what was called a 'separata oeconomia.' An emancipation of this kind was known as an 'emancipatio Saxonica.' The German Civil Code goes further still. By virtue of § 1626 of the Code the parental power ceases ipso facto the moment the child attains his majority. A child who was emancipated underwent capitis deminutio minima, because the effect of the emancipation was to separate the child from his previous agnatic relationship (p. 189). The emancipated child was the head of a new family. According to the civil law he had no relations, until he had made a new agnatic relationship for himself by begetting children after the emancipation. GAJ. Inst. I § 132: Praeterea emancipatione desinunt liberi in potestate parentum esse; sed filius quidem tribus mancipationibus, ceteri vero liberi, sive masculini sexus sive feminini, una mancipatione exeunt de parentum potestate. Lex enim XII tabularum tantum in persona filii de tribus mancipationibus loquitur his verbis: SI PATER FILIUM TER VENUMDUIT, A PATRE FILIUS LIBER ESTO. Eaque res ita agitur: mancipat pater filium alicui, is eum vindicta manumittit. Eo facto revertitur in potestatem patris. Is eum iterum mancipat, vel eidem vel alii: sed in usu est eidem mancipari. Isque eum postea similiter vindicta manumittit. Quo facto cum rursus in potestatem patris fuerit reversus, tertio pater eum mancipat, vel eidem vel alii: sed hoc in usu est ut eidem mancipetur: eaque mancipatione desinit in potestate patris esse. §§ 6. 7 I. h. t. (1, 12): Nostra autem providentia et hoc in melius per constitutionem reformavit, ut, fictione pristina explosa, recta via apud competentes judices vel magistratus parentes intrent et filios suos vel filias vel nepotes vel neptes ac deinceps sua manu dimitterent.-Admonendi autem sumus liberum esse arbitrium ei qui filium et ex eo nepotem vel neptem in potestate habebit, filium quidem de potestate dimittere, nepotem vero vel neptem retinere, et ex diverso filium quidem in potestate retinere, nepotem vero vel neptem manumittere, vel omnes sui juris efficere. L. 3 § 1 D. de capite minutis (4, 5) (PAULUS): Emancipato filio § 102. capitis minutio manifesto accidit, cum emancipari nemo possit nisi in imaginariam servilem causam deductus. ... III. GUARDIANSHIP. § 103. The Different Kinds of Guardianship. The power of a guardian is that form of family power which takes § 103. the place of paternal power when there is no one to exercise the latter. Roman law distinguished two kinds of guardianship, viz. tutela and cura. Tutor and curator were both alike charged with the care of the person as well as the property of the ward. The principle of the distinction, however, lay in the position which they respectively occupied in regard to the ward's property. The essence of tutela consists in the so-called 'auctoritatis interpositio,' i. e. in the assistance which the tutor is required to give in order to enable juristic acts to be concluded. If, namely, the tutor gives his consent immediately at 'the time of the conclusion of a juristic act, he thereby renders the ward capable of concluding the act himself. The principle of tutela is that it supplies a method by which a person whose capacity for juristic acts is imperfect is cured of his defective capacity. Auctoritatis interpositio may be accompanied by the right of 'gestio,' i. e. by the right to make all such dispositions on behalf of the ward as are necessary for the general management of the property, the right, in other words, to act as the representative of the ward; but such a right is in no way essential to tutela. Tutela was employed in two cases: first, in the case of impuberes (tutela impuberum); secondly, in the case of women (tutela mulierum). In the former the tutor had, in the latter he had not, the right of gestio. The essence of cura, on the other hand, consists in the right of gestio, i. e. in the right of the curator to deal with the ward's property in his (the ward's) stead. The purpose of a cura is to exclude |