tatem servo dare non poterat. Quod non erat ferendum, si is, cui totorum bonorum in testamento dispositio data erat, uni servo libertatem dare non permittebatur. Quare nos similiter ei quemadmodum alias res ita et servos suos in ultima voluntate disponere, quemadmodum voluerit, permittimus, ut et libertatem eis possit præstare. Sed cum libertas inestimabilis est et propter hoc ante vicesimum ætatis annum antiquitas libertatem servo dari prohibebat : ideo nos, mediam quodammodo viam eligentes, non aliter minori viginti annis libertatem in testamento dare servo suo concedimus, nisi septimum et decimum annum impleverit et octavum decimum tetigerit. Cum enim antiquitas hujusmodi ætati et pro aliis postulare concessit, cur non etiam sui judicii stabilitas ita eos adjuvare credatur, ut et ad libertates dandas servis suis possint provenire?

a slave. This seemed intolerable:
that a man, permitted to dispose of
all his effects by testament, could not
enfranchise one single slave. We
therefore give him the power of dis-
posing, by testament, of his slaves,
as of all his other property, exactly
as he pleases, so as to be able also to
give them liberty. But as liberty is
of inestimable value, and our ancient
laws, therefore, prohibited any person,
under twenty years of age, to give
it to a slave, we adopt a middle
course, and only permit a person,
under twenty years of age, to confer
freedom on his slaves by testament,
if he has completed his seventeenth
and entered on his eighteenth year.
For since the ancient law permitted
persons at eighteen years
of age
to plead for others, why should
not their judgment be considered
sound enough to enable them to give
liberty to their own slaves?

GAI. i. 40.

The lex Elia Sentia required the manumission given by a minor to be given by the form of vindicta. This was held to exclude the minor from giving it by testament. Manumission was

something more than the disposal of a piece of property; it was the creation of a citizen, and thus might consistently be denied to minors whose power of disposing of property was unfettered. Justinian, nine years after the Institutes were published, abolished the distinction he establishes in the text, and allowed the minor to give liberty by testament at any time when he could make a testament at all by a Novel (119. 2), containing the words sancimus ut licentia pateat minoribus in ipso tempore, in quo eis de reliqua eorum substantia disponere permittitur, etiam servos suos in ultimis voluntatibus manumittere.

TIT. VII. DE LEGE FURIA CANINIA SUBLATA.

Lege Furia Caninia certus modus constitutus erat in servis testamento manumittendis. Quam quasi libertatibus impedientem et quodammodo invidam tollendam esse censuimus, cum satis fuerat inhumanum, vivos quidem licentiam habere totam suam familiam libertate donare, nisi alia causa impediat libertati, morientibus autem hujusmodi licentiam adimere.

The lex Furia Caninia imposed a limit on the number of slaves who could be manumitted by testament; but we have thought right to abolish this law as invidiously placing obstacles in the way of liberty. It seemed very unreasonable to allow persons, in their lifetime, to manumit all their slaves, if there is no special reason to prevent them, and yet to deprive the dying of the like power.

GAI. i. 42-46; C. vii. 3.

The lex Furia Caninia was made in the year A.D. 8, four years after the lex Elia Sentia. (SUET. Aug. 40.) Its object was to prevent the manumission of crowds of slaves enfranchised in order to gratify the vanity of testators, who wished their funeral train to be swollen with these witnesses to their liberality. It provided that the owner of two slaves might enfranchise both; of from two to ten, half; of from ten to thirty, one-third; of from thirty to one hundred, one-fourth; and of a larger number, onefifth; but in no case was the number enfranchised to exceed one hundred. The slaves to be manumitted were required to be designated by name. The citizenship was so worthless in the days of Justinian, that it mattered little how many slaves were made free; but in the days of Augustus, the distinction made between the living and the dying master, which Justinian calls satis inhumanum, was far from unreasonable. A master might well be trusted not to impoverish himself by reckless manumission during his life, and yet be denied the power of gratifying his vanity at the expense of his heir.

TIT. VIII. DE HIS, QUI SUI VEL ALIENI JURIS SUNT.

Sequitur de jure personarum alia divisio. Nam quædam personæ sui juris sunt, quædam alieno juri subjectæ sunt: rursus earum, quæ alieno juri subjectæ sunt, aliæ in potestate parentum, aliæ in potestate dominorum sunt. Videamus itaque de his, quæ alieno juri subjectæ sunt : nam si cognoverimus, quæ istæ personæ sint, simul intellegemus, quæ sui juris sunt. Ac prius dispiciamus de his, qui in potestate dominorum

sunt.

Let us,

We now come to another division relative to the rights of persons; for some persons are sui juris, some are subject to the power of others. Of those, again, who are subject to others, some are in the power of ascendants, others in that of masters. then, treat of those who are subject to others; for, when we have ascertained who these are, we shall at the same time discover who are sui juris. And first let us consider those who are in the power of masters. GAI. i. 48. 51.

Justinian now passes to the division of persons as members of a family. The head of a Roman family exercised supreme authority over his wife, his children, his children's children, and his slaves. (See Introd. sec. 40.) He was their owner as well as their master. He alone was sui juris, and all the other members of the family were alieni juris, for they belonged to him. The whole group, that is, the head and those in his power, were the familia. The head was the paterfamilias, a term not expressive of paternity (D. 1. 16. 195. 2), but merely signifying a person who was not under the power of another, and who, consequently, might have others under his power. An unmarried woman whose father was dead, was said to be a materfamilias, a term which, in this sense, is only the feminine form of paterfamilias. She was sui juris, and might have slaves, though of course she could have

no power over persons freeborn. For if she married, her children were in her husband's power, not in hers. (See Introd. sec. 40.) The word familia was used in so many different senses, that it may be as well to collect them here, before entering on the subject of family relations. Familia is used to mean,-1. All persons of the blood of the same ancestor; 2. The head of the family and all those in his power whether slaves or free; 3. All connected by agnation (see Introd. sec. 45); 4. The slaves of one man; 5. The property of a paterfamilias, of whatever sort. The word is fully explained in a fragment of Ulpian. (D. 1. 16. 195.) Gaius, from whom much of this section is borrowed, says,— Rursus earum personarum quæ alieno juri subjecta sunt, aliæ in potestate, aliæ in manu, alia in mancipio sunt (i. 49). The persons in manu were those wives who passed through the particular forms of marriage which placed a wife in the position of a daughter to her own husband; that is, the religious ceremony of confarreatio, the fictitious sale coemptio, and usus, or cohabitation unbroken by an absence of three nights in the year. (See Introd. sec. 46.) Persons in mancipio were those sold by the head of their family, or by themselves with the form of mancipatio. (See Introd. sec. 42.) They were said to be servorum loco (not servi) with reference to the purchaser, but as to other persons they were free. Such sales were merely fictitious, except in the early days of Rome. The subjection in manu had ceased before the time of Justinian, and he did away with the last traces of that in mancipio. (See Tit. 12. 6.)

1. In potestate itaque dominorum sunt servi. Quæ quidem potestas juris gentium est: nam apud omnes peræque gentes animadvertere possumus, dominis in servos vitæ necisque potestatem esse, et quodcumque perservum adquiritur, id domino adquiritur.

1. Slaves are in the power of masters, a power derived from the law of nations for among all nations it may be remarked that masters have the power of life and death over their slaves, and that everything acquired by the slave is acquired for the mas

ter.

GAI. i. 52.

The power of the master over his slaves was spoken of as the dominica potestas. The origin of this power has been already ascribed to the jus gentium. (Tit. 3. 2.)

2. Sed hoc tempore nullis hominibus, qui sub imperio nostro sunt, licet sine causa legibus cognita et supra modum in servos suos sævire. Nam ex constitutione divi Pii Antonini qui sine causa servum suum occiderit, non minus puniri jubetur, quam qui servum alienum occiderit. Sed et major asperitas dominorum ejusdem principis constitutione coercetur. Nam consultus a quibusdam præsidibus provinciarum de his servis, qui ad ædem sacram vel ad statuas principum

2. But at the present day no persons under our rule may use violence towards their slaves, without a reason recognised by the law, or ever to an extreme extent. For, by a constitution of the Emperor Antoninus Pius, he who without any reason kills his own slave, is to be punished equally with one who has killed the slave of another. The excessive severity of masters is also restrained by another constitution of the same emperor. For, when consulted by certain governors of provinces on the subject of slaves, who fly for

confugiunt, præcepit, ut si intolerabilis videatur dominorum sævitia, cogantur servos bonis condicionibus vendere, ut pretium dominis daretur et recte; expedit enim rei publicæ, ne quis re sua male utatur. Cujus rescripti ad Ælium Marcianum emissi verba hæc sunt: 'Dominorum quidem potestatem in suos servos illibatam esse oportet nec cuiquam hominum jus suum detrahi. Sed dominorum interest, ne auxilium contra sævitiam vel famem vel intolerabilem injuriam denegetur his, qui juste deprecantur. Ideoque cognosce de querellis eorum, qui ex familia Julii Sabini ad statuam confugerunt, et si vel durius habitos, quam æquum est, vel infami injuria affectos cognoveris, veniri jube, ita ut in potestatem domini non revertantur. Qui Sabinus, si meæ constitutioni fraudem fecerit, sciet, me admissum severius exsecuturum."

refuge either to temples, or the statues of the emperors, he decided that if the severity of masters should appear excessive, they might be compelled to make sale of their slaves upon equitable terms, so that the masters might receive the value; and this was a very wise decision, as it concerns the public good, that no one should misuse his own property. The following are the terms of this rescript of Antoninus, which was sent to lius Marcianus. 'The power of masters over their slaves ought to be preserved unimpaired, nor ought any man to be deprived of his right. But it is for the interest of all masters themselves, that relief prayed on good grounds against cruelty, the denial of sustenance, or any other intolerable injury, should not be refused. Examine, therefore, into the complaints of the slaves who have fled from the house of Julius Sabinus, and taken refuge at the statue of the emperor; and, if you find that they have been too harshly treated, or wantonly disgraced, order them to be sold, so that they may not fall again under the power of their master; and, if Sabinus attempt to evade my constitution, I would have him know, that I shall severely punish his disobedience.'

GAI. i. 53; D. i. 6. 2.

The lex Cornelia de Sicariis, passed by Sylla, B.C. 82, made killing the slave of another person punishable as homicide, with death or exile (D. ix. 2. 23. 9); and the text tells us that the provisions of this law were extended by the Emperor Antoninus Pius to the case of a master killing his own slave. The lex Petronia (D. xlviii. 8. 11. 2), passed in the time of one of the early emperors, forbade masters to expose their slaves to contests with wild beasts. Hadrian required the sanction of a magistrate in all cases before death was inflicted. (SPART. in Hadr. cap. 18; D. i. 6. 2.) Constantine only permitted moderate corporal chastisement to be inflicted, and Justinian in the Code retains his enactment. (C. ix. 14.)

Justinian does not notice the corresponding changes which the clemency of later times worked in the control of the master over the slave's property; according to the usage of these times this property, called peculium, belonged, in fact, though not in law, to the slave, and he often purchased his liberty with it. (TACIT. Ann. xiv. 42; D. xv. 1. 53.)

TIT. IX. DE PATRIA POTESTATE.

In potestate nostra sunt liberi

Our children, begotten in lawful

nostri, quos ex justis nuptiis pro- marriage, are in our power. creaverimus.

GAI. i. 55.

The patria potestas differed originally little, if at all, from | the dominica potestas. If the sense of ownership was not so complete in the former, it was probably limited more by natural feeling than by law. The father could sell, expose, or put to death his children. Time, however, ameliorated the position of the child, and all that was left was a power to inflict moderate chastisement (C. viii. 47. 31), and to sell at the time of birth in cases of extreme necessity. (C. iv. 43. 1.) Constantine condemned the father who killed his child to the punishment of a parricide. (C. ix. 17. 1.) The sale of a child was in general fictitious, and only formed the mode by which the child was released from the father's power.

Like that of the slave, the child's property was only a peculium, belonging strictly to the father; and whatever the son in potestate acquired was acquired for the father, although the son could not make his father's position worse, and the father was not liable for the debts and engagements of the son. But under the early emperors a change was made, and the son had complete ownership in property acquired in war (castrense peculium); Constantine made a further exception of property acquired in employments about the court (quasi-castrense peculium) (see Bk. ii. 9, and Introd. sec. 41); and Justinian only permitted the father to have the usufruct during his life of everything coming to the son in any way except from the father himself. (Bk. ii. 9.) The meaning of justa nuptiæ will appear in the next Title. Neither age nor marriage, nor anything except emancipation, terminated the power of a father over his son. As we learn from Tit. 12. 4, the filiusfamilias might rise to the highest public dignities, even that of consul, and yet he would remain in the power of his father. If a daughter married in manu, she passed from her father's power into that of her husband.

1. Nuptiæ autem sive matrimonium est viri et mulieris conjunctio, individuam consuetudinem vitæ continens.

1. Marriage, or matrimony, is a joining together of a man and woman, carrying with it a mode of life in which they are inseparable. D. xxiii. 2. 1.

Nuptia is properly the ceremonies attending the formation of the legal tie, and matrimonium is the tie itself; but the jurists use the two terms quite indifferently, as, for instance, Modestinus says, 'nuptiæ sunt conjunctio maris et femina.' (D. xxiii. 2. 1.)

The individua consuetudo vitæ implied a community of rank