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(A). On Potestas, Dominium, Mantes, 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 Miihlenbruch's Appendix on I. 12, in Heineccius' Syntagma, pp. 159, 160.
(В). On Arrogation and Adoption.
The process of arrogatio resembled the passing of a lex, and took place at the Comida Curíata. 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. 20, we have a passage containing the form of words used : "Credo enim, quanquam in ilia adoptione legitime factum est nihil, tamen te esse interrogatum, Auctome 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 morís est, adoptarem, &c." (Hist. 1. 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—151, Mühlenbruch's edition, and Sandars' Justinian, pp. 114, 115.
(7) Agnati, § 155.
Ill Fidu'" J W Manumissores liberarum personarum, § 166.
'" j (ij) Liberi quasi-patronorum, § 175.
IV. Cessicii (в), § 168.
V. Dativi (a magistrate dati) j [J %££ f /¿^
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
On Tutors. 349
the ward's benefit (§ 191). When the tutela was exercised over a woman for the benefit of tutor and ward at once, in the case, that is to say, of the two latter of the three classes of tutelae legitimae above, we are told that the tutor had great power to compel forbearances (§ 192), but we are not told whether he could insist on acts, e. g. whether he could compel the purchase of land, as well as stop the sale of land; but the absence of mention of this, the greater power of the two, would imply that he had not got it, as the tutor of a minor had. The tutelae legitimae of the agnati over women were abolished in Gaius' time, previously the same remarks would have applied to them.
A. Tutores testamentara were allowed by the law of the Twelve Tables: "uti legassit super pecunia tutelave suae rei ita jus esto." Hence this class might be called legitimi equally with the succeeding, but to avoid confusion the two are marked by different appellations.
B. Tutores legitimi are of three kinds :—
I. The agnati of one to whom the paterfamilias had appointed no testamentary guardian. The clause of the Twelve Tables which authorized the agnati to act is lost, but Gaius is explicit in his statement that their authority is based on the Tables (§ 155).
II. Thepatroni and their children (§ 165); by implication arising from the wording of the Tables. The son very properly succeeds his father as tutor, since if there had been no manumission he would have succeeded him as dominus, and therefore he fairly inherits the rights reserved out of the dominium.
III. The manumittor of a free-born person, when that manumittor was the paterfamilias himself (§ 175). If, however, the manumittor were a stranger, he would not be a tutor legitimus, but only a tutor fiduciarius (§ 166): and again, the children of a tutor legitimus of this class, which we may call the class of quasi-patroni, would be tutoresfiduciarii (§ 175). The father is allowed to have tutela legitima, because when he mancipates the son as a preliminary to emancipation by himself, he is regarded as retaining in some degree his potestas (§ 140), and although emancipation dissolves the potestas, yet the tutela is, in reference to the father's intent, allowed to be of the highest kind—legitima. When, however, the father is dead this reason no longer operates, and the tutela of the brother of the emancipatus is only fiduciaria; for if at the father's death both sons had been in potestas, after the death each would have been independent of the other, and therefore although the tutela must be kept up (for the son of a manumittor succeeds to his father's position as patronus or quasi patronus, and consequently to the tutorship attached to that character), yet the tutela is altered in kind to meet the equity of the case. Whether the tutela is of one character or the other is no matter of indifference if the manumitted person be a woman, for, as above observed, the coercive powers of a tutor legitimus were great, and those of a tutor fiduciarius nil.
C. Tutores fiduciarii are of two kinds :—
I. Manumittors of free persons mancipated to them by a parent or coemptionator. Such persons have only the tutorship of the nominal character, because when mancipation is made to a stranger for purposes of manumission, the law implies a trust that the manumittor will not use his position for his own profit (§ 141).
II. Children of quasi-patroni, whose case we have discussed just above.