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invitas obligare nobis possumus, praeterquam si Praetor aditus permittit.

pel to furnish vadimonium to us against their will, save in cases where the Praetor allows them to be brought before him'.

1 That is to say, in order to secure their attendance at the trial by means of a vadimonium the plaintiff

must first obtain leave from the Praetor to summon them for the preliminary proceedings.

APPENDIX.

APPENDIX.

(A). On Potestas, Dominium, Manus, and Mancipium.

Potestas means primarily right or domination over oneself or something external to oneself. In many passages of the sources it is used as synonymous with jus, and as equivalent to full and complete ownership.

The only place in the fragments of the XII. Tables where the word occurs is the following: "Si furiosus est, adgnatorum gentiliumque in eo pecuniaque ejus potestas esto" (Tab. 5, 1. 7); and what is there denoted by it is evidently a power of superintendence and direction. We may conclude then that potestas was not the archaic word expressing the combination of positive rights and authority possessed by the head of the household, the paterfamilias. Maine thinks that manus was the old word expressing this and all the other notions subsequently marked with the separate and distinctive appellations of dominium, potestas, mancipium, and manus. But whatever was the archaic term, and whether there was one at all or not, potestas in the classical jurists is the word used to express the rights and authority exercised by the paterfamilias over the persons of the familia, just as dominium denotes his power over the inanimate or unintelligent components of the same.

Mancipium, which originally means hand-taking (manu capere), is in its technical sense connected with a particular form of transfer called mancipatio, and stands in the sources, 1st, for the mancipatio itself (see Gaius, IV. 131); 2nd, for the rights thereby acquired; 3rd, for the object of the mancipatio, the thing to be transferred; 4th, for a particular kind of transferable objects, viz. slaves, to whom it is applied, so says a law of the Digest (D. I. 5. 4. 3), because "ab hostibus manu capiuntur;" although the more probable reason for the application of the term is to be found in the fact that slaves were viewed by the Roman lawyers as mere things, and so capable of transfer from hand to hand.

The importance of the term mancipium, so far as regards the historical aspect of Roman law, lies in the fact that from its connection with the word manus we gather a correct idea of the ancient notion of property, which was in effect the dominion over those things only that could be and were actually transferred from hand to hand.

As potestas came gradually to bear a restricted meaning in the law sources, and instead of being a general term for authority of any kind began to signify authority over persons only, and those too such alone as were in the familia of the possessor of the potestas; so mancipium became a technical term implying the power exercised over free persons whose services had been transferred by mancipatio; and manus, originally almost identical with mancipium, was limited to the one case of power over a wife.

On the subject of mancipium read Mühlenbruch's Appendix on I. 12, in Heineccius' Syntagma, pp. 159, 160.

(B). On Arrogation and Adoption.

The process of arrogatio resembled the passing of a lex, and took place at the Comitia Curiata. Legislative sanction was required for so solemn an act as the absorption of the family of the arrogatus in that of the arrogans (see I. 107) for two reasons: firstly, because the maintenance of a family and its sacred rites was viewed as a matter of religion and as influencing the prosperity of the state; secondly, because the populus claimed a right of succession to all vacant inheritances as "parens omnium" (Tac. Ann. III. 28), and arrogation naturally prevented vacancies occurring.

This method of adoption per populum was practised long after the empire was established. In Cicero's time it seems to have been frequently employed, and in the Pro Domo, c. 29, we have a passage containing the form of words used: "Credo enim, quanquam in illâ adoptione legitime factum est nihil, tamen te esse interrogatum, Auctorne esses, ut in te P. Fonteius vitae necisque potestatem haberet, ut in filio." Augustus, Nero, and other emperors, adopted in this form, viz. by order of the populus; nor was it till after Galba's time that it fell into disuse, as is evident from the speech which Tacitus puts into that emperor's mouth: "Si te privatus lege curiata apud pontifices, ut moris est, adoptarem, &c." (Hist. I. 15.)

Adoption, or rather arrogation, by imperial rescript afterwards replaced the older method. The reader desirous of further information on this topic, the principal interest of which lies in its relation to the history of social life in ancient Rome, is referred to Heineccius' Syntagma, I. XI. pp. 143-152, Mühlenbruch's edition, and Sandars' Justinian, pp. 114, 115.

(C). On Tutors.

Tutors may be thus tabulated according to their species:

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V.

(4) Praetorii, §§ 176–184.

Dativi (a magistratibus dati) { (8) Atiliani, §§ 185-187.

Tutela was exercised over minors or women. Those under tutela were placed in that position because, either as a matter of fact or of implication of law, they were incapable of exercising the legal rights which appertained to them as persons sui juris. In Gaius' time the notion that women were incapable at any age of managing their affairs was exploded (§ 190), and therefore the tutor of a woman, in many cases, had to interpose his auctoritas at the woman's command, and not at his own discretion. (Ulpian, XI. 27.) In the case of a minor the tutor's power to compel either acts or forbearances was unlimited; an "actio tutelae", however, to be brought by his ward on attaining puberty, hung over him, and constrained him to act for

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