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according to the Roman law, and also the testamenti factio, or power to make a will, and to accept property under one. By the jus Latinum and the jus Italicum various modifications of the different rights implied in the civitas were granted. The jus Latinum gave private rights to individuals, the jus Italicum gave public rights to towns. In some cases the jus Latinum gave the connubium and commercium; in some only the latter, in many only a portion of the latter, the testamenti factio, the power of making, or taking under, a testament, being withheld. The jus Italicum gave certain favoured towns a free municipal constitution, an immunity from direct taxation, and made the soil subject to Quiritarian ownership (see sec. 58). In the course of time other shades between the civis and the peregrinus were introduced, but all distinction between them was gradually swept away by the increasing recklessness with which the rights of citizenship were bestowed. At last Caracalla made all the free subjects of the empire citizens; and thenceforward the class of peregrini, properly speaking, ceased to exist. All the free inhabitants of the civilised world were cives, and beyond were nothing but barbari and hostes. 40. The Roman family, in the peculiar shape it assumed under
... the jus Quiritium, was modelled on a civil rather than The family.
ne family. on a natural basis. The tie which bound members of the same family was not that of blood; it was their common position in the midst of a peculiar system. For the formation of such a family, a legal marriage was an indispensable preliminary ; but it was only a preliminary, and the peculiar character of the family did not in any way flow from the tie. The head of the family was all in all. He did not so much represent as absorb in himself the subordinate members. He alone was sui juris, i.e. had an independent will; all the other members were alieni juris, their wills were not independent, but were only expressed through their chief. The paterfamilias, the head of the family, was said to have all the other members of his family in his power; and this power (patria potestas) was the foundation of all that peculiarly characterised the Roman family. At the head of the family stood the paterfamilias alone. Beneath him came his children, sons and daughters, and his wife, who, in order to preserve the symmetry of the system, was treated by law as a daughter.* If a daughter
• She was technically said to be in the manus of her husband ; and perhaps manus is the old word signifying the power of the paterfamilias, and potestas is only an expression of later Latin.
married, she left this family, and passed into the family of her husband; but if a son married, all his children were as much in the power of the paterfamilias as the son himself. Thus all the descendants through the male line were in the power of the same person. And it was this that constituted the link of family relationship between them, not the natural tie of blood. When the paterfamilias died, each of the sons became in his turn a paterfamilias; he was now sui juris, and all his own descendants through the male line were in his power. Each of the daughters, as long as she remained unmarried, was also sui juris; but directly she formed a legal marriage, and thereby entered into her husband's family, she passed into the power of another. Hence it was said that a woman was at once the beginning and end of her family, caput et finis familiæ suæ, for directly she attempted to continue it, she passed into another family.
41. Persons who were under the power of another could not hold or acquire any property of their own. All belonged to the paterfamilias; and whatever the son acquired was position acquired for the father. In matters of public law the persons in filiusfamilias laboured under no incapacities; he potesta could vote or hold a magistracy, but in all the relations of private law he was absolutely in his father's power. He could not make a will, for he had no property to dispose of; nor bring an action, for nothing was owing to him. But in all public relations, whenever this incapability of possessing property was not in question, the filiusfamilias had all the privileges of a citizen; he had, for instance, the connubium, and could contract a legal marriage; and the commercium, and could, therefore, be a witness in sale by mancipation, to which none except citizens could be witnesses. The indulgence of later times permitted the filiusfamilias to hold certain property apart from the paterfamilias, an indulgence first accorded as an encouragement to military service. But this was always treated as a notable departure from the strict theory of law.
42. The distinction between the legal and the natural family is illustrated by its being possible for a member of the Emancipalegal family to quit it and become an entire stranger tion. to it, and for an entire stranger to be admitted to it, and be as completely a member as if he were a son of the paterfamilias. The mode by which the change in either case was accomplished was by a fictitious sale. Every Roman citizen could sell himself
to another by the peculiar form of sale called mancipatio; and as the father possessed over the son the rights which a person sui juris possessed over himself, he sold the filiusfamilias to a nominal purchaser, who was supposed to buy the son. It was declared by the law of the Twelve Tables, that a son thrice sold hy his father should be free from his power, and the ceremony was therefore repeated three times, and the son was then emancipatus, or sold out of the family. When a stranger, being himself alieni juris, wished or was compelled to enter a family, the process was effected by adoption. Here again, then, was another sale, the paterfamilias of the family he quitted being the seller, and the paterfamilias of that he entered being the purchaser. If the stranger was sui juris, he entered his new family by arrogation, which in ancient times could only be effected by a vote in the comitia curiata, it being considered a matter of public policy to keep a watch over such a proceeding, lest the last of his gens should arrogate himself, and its sacra be lost. Much simpler modes for effecting arrogation, as well as for effecting emancipation and adoption, were employed in later times; and one of the most important changes in law introduced by Justinian was that by which he altered the character of adoption, and decreed that, unless the adopter was an ascendant, the person adopted should not pass out of his natural family.
43. A person might be sui juris, and be in possession of every Tutors and right, and yet be unable, through some imperfection, Curators. to exercise the rights he possessed. A child, for instance, was not only not able to conduct his affairs with discretion, but he was unable to understand, perhaps to speak, the forms necessary to be expressly pronounced in almost every legal transaction. A tutor was therefore appointed, who, until the child attained the age of puberty, supplied this defect of his ward, or, as he was called, his pupil. And this is the Roman notion of a tutor: he was a person who supplied something that was wanting, who filled up the measure of his pupil's persona.* He of course took care of the person and property of the child; but this was only an accessory of his position; his primary office was to supply
• Persona has in Roman law a double signification. It meant a person in the sense used above in sec. 37. It also meant all or some of the capacities attaching to a person. The persona (taken generally) of a person was thus the sum total of all his legal capacities, and the same person as a husband or father had the persona mariti or patris.
by his auctoritas* what the pupil fell short of. So, too, in the old law, unmarried women, of whatever age, remained in the tutelage of their relations. Further, a person might be sui juris, and be of an age to exercise his rights, and yet it might be necessary to insure that he did not hurt himself and his family by the mode in which he exercised them. In such cases, a curator was appointed, whose duty it was to look after his property. This curator had a perfectly different office from a tutor; in technical language, the tutor was said to be appointed to the person, the curator to the property. The curator was only appointed as a check to prevent pecuniary loss. Curators were also appointed to watch over the interests of insane persons, and of persons notoriously prodigal, as well as of those who had attained the age of puberty, but were under the age of twenty-five.
44. While the head of a family lived, all those who were in his power were connected together by the tie of subjection to the power of the same person. The ague tie was called agnatio, and the persons so mutually connected were agnati to each other. When the paterfamilias died the tie of agnatio still subsisted. Each of those who, by his death, became sui juris, became the head of a new family; but still they and their descendants were agnati to each other so long as they did not by emancipation or by adoption, or, in the case of women, by marriage, leave their original family. All those, in short, who would have been agnati to each other if the life of the original paterfamilias had been prolonged, were agnati at any distance of time, however great, after his death. A number of distinct families might thus, when looked on as connected by agnatio, be spoken of as one family; for they were all portions of the family of a deceased paterfamilias.
45. Beyond the circle of the agnati, the ancient patrician had that of the gens. They were nearer to him than those who were only related to him by blood. If a patri- Gent cian died intestate, in default of agnati, his gentiles, the men of his gens, were his heirs. He was placed in the midst of two artificial circles, shutting out the natural circle of blood relations; while the plebeian, unless he happened to belong to one of the few plebeian gentes, and, when the system of gentes had faded away, the
* The derivation of auctoritas should never be lost sight of. When one person increased, augebat, what another had, so as to fill up a deficiency, this increasing or filling up was called auctoritas.
patrician also, acknowledged the ties of blood as next to that of
agnatio. All those who were connected together by Cognati.
the ties of blood were cognati. It was the tendency of the later Roman legislation to give greater and greater weight to the ties of blood, and to substitute a natural, for an artificial,
system of family relationship. Lastly, the cognati of Affines.
each of the parties to a marriage were said to be affines to the other party.
46. We have spoken as if the wife had been always in the Position of the manus, or power, of her husband. And this was so,
wife. probably, in the strict theory of the Roman family, and in the practice of early times. The tie of marriage was formed among the patricians by the ceremony of confarreatio, in which none could partake except those who had the privileges of the jus sacrum; and apparently the mere fact of going through the ceremony placed a wife in the manus of her husband. The plebeians had no corresponding ceremony; and in order that, when two persons came together in marriage, the wife should be in the power of the husband, she was sold to the husband by the father, a process which was termed coemptio, or if she remained with her husband a year, then the power over her was acquired by usus, that is, by the uninterrupted lapse of time. If, however, she absented herself for three nights in the year, this prevented her falling into the husband's power. Perhaps, at all times, at least in plebeian families, a woman could so marry as not to fall into the manus of her husband ; and in later times such marriages formed the rule. It made no difference in other relations of the family whether the wife was in the power of the husband or not. Supposing she and her husband had the connubium, that is, were capable of intermarrying, all the usual incidents of a marriage, such as the patria potestas, attached to the connection. If a man
and a woman entered into a permanent connection
* without marriage (concubinatus), their children were naturales liberi, and were so far favoured by the later law as to be capable of being placed in the position of children sprung from a legal marriage, by the process of legitimatio. After the time of Constantine they might be made legitimate by the subsequent marriage of their parents. In all unions of the sexes, other than a legal marriage, the children followed the condition of their mother: being free, that is, if she was free, and slaves if she was a slave. The union of slaves was called contubernium ;