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Jus liberorum. 65

(193.) Aput peregrinos non similiter, ut aput nos, in tutela sunt feminae; set tamen plerumque quasi in tutela sunt: nt ecce lex Bithynorum, si quú/ mulier contrahat, maritum auctorem esse iu¿et aut ñlium eius puberem.

194. Tutela autem liberantur ingenuae quidem trium liberorum iure, libertinae vero quattuor, si in patroni liberorumve eius legitima tutela sin/. nam et ceterae quae alterius generis tutores habent, velut Atilianos aut fiduciarios, trium liberorum iure liberantur. (195.) Potest autem pluribus modis libertina. alterius generis habere, veluti si a femina manumissa sit: tunc enim e lege Atilia petere debet tutorem, vel in provincia e lege lulia et Titiz.: nam patronae tutelam libertorum suorum libertarumve gerere non possunt. Sed et si sit a masculo manumissa, et auctore eo coemptionem fecerit, deinde remancipata et manumissa sit, patronum quidem habere tutorem desinit, incipit autem habere eum tutorem a quo manumissa est, qui fiduciarius

in tutelage as they are with us: but yet they are generally in a position analogous to tutelage; for instance, a law of the Bithynians orders that if a woman make any contract, her husband or son over the age of puberty shall authorize it.

194. Freeborn women are freed from tutelage by prerogative of three children; freedwomen by that of four1, if they be in the legitimate tutelage of a patron or his children. For the other freedwomen who have tutors of another kind, as Atilian or fiduciary, are also freed by the prerogative of three children. 195. Now a freedwoman may in various ways have tutors of a different kind (from legitimate), for instance if she have been manumitted by a woman; for then she must apply for a tutor in accordance with the Lex Atilia, or in the provinces in accordance with the Lex Julia et Titia: for patronesses cannot hold the tutelage of their freedmen or freedwomen. Besides, if she have been manumitted by a man, and with his authorization have made a coemptio, and then been remancipated anil manumitted, she ceases to have her patron as tutor, and begins to have as tutor him by whom she was manumitted, and such an one is called a fiduciary tutor*. Likewise, if a patron

1 This privilege was conferred by the Lex Papia Poppaea, A. V. 10. » 1. из.


66 Puberty.

dicitur. Item si patronztf sive filius eius in adoptionem se dedit, debet sibi e lege Atilia vel Titia. tutorem petere. Similiter ex nsdem legibus petere debet tutorem liberta, si patronus decedit nec ullum virilis sexus liberorum in familia relinquit.

196. Masculi quando puberes esse coeperint, tutela liberantur. Puberem autem Sabinus quidem el Cassius ceterique nostri praeceptores Aim esse putant qui habitu corporis pubertatem ostendi/, hoc est qui generare potest; sed in his qui pubescere non possunt, quales sunt spadones, eam aetatem esse spectandam, cuius aetatis puberes fiunt. sed diversae sofolae auctores annis putant pubertatem aestimandam, id est eum puberem esse existimandum, qui xim annos explevit— [24 lineae.]

or his son have given himself in adoption, she ought to apply for a tutor for herself in accordance with the Leges Atilia and Titia. So also a freedwoman ought to apply for a tutor under these same laws, if her patron die and leave in his family no descendant of the male sex.

196. Males are freed from tutelage when they have attained the age of puberty 1. Now Sabinus and Cassius and the rest of our authorities" think that a person is of the age of puberty who shows puberty by the development of his body, that is, who can procreate: but that with regard to those who cannot attain to puberty, such as eunuchs-born, the age is to be regarded at which persons (generally) attain to puberty. But the authors of the opposite school think that puberty should be reckoned by age, i. e. that a person is to be regarded as having attained to puberty who has completed his fourteenth year3

1 Ulpian, XI. «8. the letter permitted. Much has been

2 Gaius was a disciple of the two written on the distinctions between great lawyers Sabinus and Cassius. the two sects, and their influences Theauthoritiesoftheoppositeschool, on the laws and jurisprudence of to whom he here refers, were Pro- Rome: among the leading authorities culus and his followers. are Gravina, de Ortu et Prog. Jur.

It is scarcely necessary to remind Civ. § 45; Hoffman's Historia Juris,

the reader that the Sabinians, as Pt. I. p. 312; Mascow, de scctis Sab.

that school was called, were distin- etProc.; Hugo, Rechtsgeschichte, trans

guished by their preference for a lated into French by Jourdan, Tom.

strict and close adherence to the II. §§ 324—329. Gibbon, c. 44. letter of the law; the Proculians for 3 Fourteenth year if a male, twelfth

their decided inclination for a broader ifafemale. Just. I. 22. interpretationthan strict adherenceto

Satisdations of tutors and curators. 67

197. aetatem pervenen/ in qua res suas tueri

-posAt. idem aput peregrinas gentes custodiri superius indicavimus. (198.) Ex iisdem causis et in provinciis a Praesi<#bus earum curatores dari voluit.

199. Ne tamen et pupillorum et eorum qui in curatione sunt negotia a tutoribus curatoribusque consumantur aut deminuantur, curat Praetor, ut et tutores et curatores eo nomine satisdent. (200.) Set hoc non est perpetuum. az.m et tutores testamento dati satisdare non coguntur, qma fides eorum et diligentia ab ipso testatore probata est; ct c«ratores ad quos non e lege curatio pertinet, srt qui vel a Consule vel a Praetore vel a Praeside provincia<? dantur, plerumque non coguntur satisdare, scil/cet quia satis idonei electi sunt.

197 1 shall have arrived at the age at which he can

take care of his own affairs. That the same rule is observed among foreign nations we have stated above*. 198. Under the same circumstances he ordained that curators should be given in the provinces also by the governors thereof.

199. To prevent, however, the property of pupils and of those who are in curation from being wasted or diminished by tutors and curators, the Praetor provides that both tutors and curators shall furnish sureties3 as to this matter. 200. But this rule is not of universal application. For, firstly, tutors given by testament are not compelled to furnish sureties, because their integrity and carefulness are borne witness to by the testator himself: and, secondly, curators to whom the curation does not come by virtue of a lex, but who are appointed either by a Consul, or a Praetor, or a governor of a province, are in most cases not compelled to furnish sureties, for the reason, obviously, that men suitable for the office are selected.

1 As the laws relating to curators to act), and continues till the ward

are to be found in Just. Inst. 1. 23 and is 25.

Ulpian, Xii., it is sufficient to ob- 2 I. 189.

serve that a tutor has authority over * Satisdare = to find sureties (third

the person as well as the property parties), and not to enter into a

of his ward, whilst the curator is personal bond. The law as to sure

only concerned with the property: ties {sponsores, fidepromissores and

and that the office of the latter fidejussores) will be found in III. 115

begins when the ward attains the —I27,andiv. 88—102. age of 14 (when the tutor ccases

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1. Superiore commentario de iure pcrsonarum exposuimus; modo videamus de rebus: quae vel in nostro patrimonio sunt, vel extra nostrum patrimonium habentur.

2. Summa itaque rerum divisw in duos articulos deducitur: nam aliae sunt divini iuris, aiiae humani.

3. Divini iuris sunt velu/i res sacra< ? et religiosae. (4.) Sacrae sunt quae D/is superis consecratae sunt; religiosae, quae Diis manibus relictae sunt. (5.) Sed sacrum quidem

1. In the preceding commentary we have treated of the law of persons: now let us consider as to things: which are either within our patrimony or without it.

2. The chief division of things, then, is reduced to two heads: for some things are divinijuris, others humani juris1.

3. Of the divini juris class are things sacred or religious. 4. Things sacred2 are those which are consecrated to the Gods above: things religious those which are given up to the Gods below. 5. Now land is considered sacred when made so by au

1 It will be observed that the divi- Res divini juris form only a part of sions of things given in §§ 1, 2 are res extra patrimonium. Thus we not coincident but disparate divisions. may tabulate:—

A. In patrimonioRes singulorum.

B. Extra patrimonium—(1) Res communes. Of which the use

is common to all the world; theproprie-
tas belongs to none.

(2) Res publicae: of which the use is
common to all the members of a state;
the proprietas is in the state.

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(3) Res universitatis; belonging to a
corporation. /

(4) Things consecrated: 1
(a) Res sanctae. I
(/3) Res religiosae.
(■}) Res sacrae.

1 See Festus Sh£ veib. saccr.


Res divini juris: res humani juris. 69

sohvax exw/umotor auctoritate -populi Romani fieri; consecratur enim lege de ea re lata aut senatusconsulto fatfo.

6. Religiosum vero nostra voluntate facimus mortuum inferentes in locum nostrum, si modo eius mortui funus ad nos pertineat. (7.) Set in provinciali solo placet plerisque solum rdigiosum non fieri, quia in co solo dominium populi Romani est vel Caesaris, nos autem possessionem tantum et «sumfructum habere videmur. utique tamen eiusmodi locus, licet non sit religiosus, pro religioso habetur, quia etiam quod in provinciis non ex auctoritate populi Romani coarecratum est, proprie sacrum non est, tamen pro sacro habetur.

8. Sanctae quoque res, velu/ muri et portae, quodammodo divini iuris sunt.

9. Quod autem divini iuris est, id nullius in bonis est: id vero quod humani iuris est plcrumque alicuius in ionis est: potest autem et nullius in bonis esse. nam res hereditariae, antequam

thority of the Roman people: for it is consecrated by the passing of a lex or the making of a senatusconsultum in respect of it. 6. On the other hand, we make ground religious of our own free will by conveying a corpse into a place which is our own property, provided only that the burial of the corpse devolves on us. 7. But it has been generally held that in provincial land a place cannot be made religious, because in such land the ownership belongs to the Roman people or to Caesar1, and we are considered to have only the possession and usufruct*. Still, however, such a place, although it be not religious, is considered as religious, because that also which is consecrated in the provinces, not by authority of the Roman people, is strictly speaking not sacred, and yet is regarded as sacred.

8. Hallowed things also, for instance walls and gates, arein some degree divinijuris.

9. Now that which is divinijuris is the property of no one; whilst that which is humani juris is generally the property of some one, although it may be the property of no one. For the items of an inheritance, before some one becomes heir3,

1 See note on I. 6. Perry, § 13.

2 See Long's Introduction to Ci- 3 The heir instituted in the will

cero's orations De Lege Agrarid; becomes heir only by entering upon

Savigny, On Possession, translated by the office and duties, therefore in the

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