sona. I. PERSONS. 37. The word persona had, in the usage of Roman law, a different meaning from that which we ordinarily Meaning of the word per- attach to the word person. It was employed to denote any being capable of having, and being subject to, rights. All men possessing a reasonable will would naturally be persona; but not all those who were physically speaking, men, were personæ. Slaves, for in stance, were not in a position to exercise their reason and will, and the law, therefore, refused to treat them as persona. On the other hand, many person had no physical existence. The law clothed certain abstract conceptions with an existence, and attached to them the capability of having and being subject to rights. The law, for instance, spoke of the State as a persona. It was treated as being capable of having rights, and of being subject to them. These rights really belonged to the men who composed the State, and they flowed from the constitution and position of associated individuals. But, in the theory and language of law, the rights of the whole community were referred to the State, to an abstract conception interposed between these rights and the individual members of the society. So, a corporation, or an ecclesiastical institution, was a persona, quite apart from the individual persone who formed the one and administered the other. Even the fiscus, or imperial treasury, as being the symbol of the abstract conception of the emperor's claims, was spoken of as a persona. Status. 38. The technical term for the position of an individual regarded as a legal person was status, and the constitutive elements of his status were liberty, First, he must be free. A slave had no rights. In the earlier days of Roman law, no one would have conceived this to be unnatural. But philosophy, and the study of morality, taught the latter jurists that the condition of a slave was a violation of natural law. It was not, however, necessary that citizenship, and membership in a family. Freedom. the person should have been born free (ingenuus); for the process of manumission placed the slave in some degree on a level with the freedman (libertinus, or if spoken of with reference to his master, libertus *). It depended on the mode and circumstance of his manumission whether he became at once a Roman citizen; but in whatever way he was enfranchised he still owed certain duties to his patron, and in certain cases his patron was his heir. Citizenship. 39. The second element of the status was citizenship. The Roman notion of the State was that of a compact privileged body separated off from the rest of the world by the exclusive possession of certain public and private rights. In the early times of Rome the cives, or members of the State, were divided into the two bodies of patres and plebeians, the former of whom had a public and sacred law peculiar to themselves, while they shared with the latter the system of private law. Beyond the State all were hostes and barbari. But as civilization progressed, the number of foreigners who resorted to Rome for trade, or were otherwise brought into friendly relations with citizens, was so great that they were looked upon as a distinct class, that of peregrini. To be a citizen was thenceforward not to be a peregrinus, the force of the one idea being brought out by the prominence of its opposite. A peregrinus was subject only to the jus gentium; citizens alone could claim the privileges of the jus Quiritium. But when her conquest placed Rome in new and varying relations with the nations of Italy, an intermediate position between the citizen and the peregrinus was accorded to the more privileged of the vanquished. Some of the rights of the citizen were given to them, and some were withheld. These peculiar rights of the citizen were summed up in the familiar term suffragium et honores, the right of voting and the capacity of holding magisterial offices, and in the terms connubium and commercium. Connubium is a term which The Latin for a freedman was libertinus: but libertus Titii is the Latin for the freedman of Titius. explains itself. The foundation of the Roman family was a marriage according to the jus Quiritium, and not to have the connubium was to be incapable of entering into the Roman family system. In the word commercium were included the power of holding property and making contracts 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 municipal constitution more or less connected with the supreme power of Rome. 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. Until 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 civilized 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 The family. rather than 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 an artificial 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 characterized 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 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 decendants 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 acquired for the father. In matters of public law the filiusfamilias laboured under no incapacities; he 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 Position of persons in * 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. 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 even over a portion of this property the head of the family possessed certain rights; and, so far as it went, it was a departure from the strict theory of law. 42. The distinction between the legal and the natural marriage is illustrated by its being possible for a Emancipation. member of the legal family to quit it and become an entire stranger 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 by 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 |