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(Nov. 31; C. x. 31. 66.) When under Justinian's legislation a child was released by attaining a dignity, he still, as in the older law, remained a member of his father's family, and enjoyed all his rights of succession and agnation. (Nov. 81. 2.)

Constantine changed the meaning of patricius, by making it a title of the highest honour conferred on persons who enjoyed the chief place in the emperor's esteem. The power of making patricii was, in general, used very sparingly by the emperors, and hence the title became an object of ambition even to foreign princes.

5. Si ab hostibus captus fuerit parens, quamvis servus hostium fiat, tamen pendet jus liberorum propter jus postliminii: quia hi, qui ab hostibus capti sunt, si reversi fuerint, omnia pristina jura recipiunt. Idcirco reversus et liberos habebit in potestate, quia postliminium fingit eum, qui captus est, semper in civitate fuisse: si vero ibi decesserit, exinde, ex quo captus est pater, filius sui juris fuisse videtur. Ipse quoque filius neposve si ab hostibus captus fuerit, similiter dicimus propter jus postliminii jus quoque potestatis parentis in suspenso esse. Dictum est autem postliminium a LIMINE et POST, et eum, qui ab hostibus captus in fines nostros postea pervenit, postliminio reversum recte dicimus. Nam limina sicut in domibus finem quendam faciunt, sic et imperii finem limen esse veteres voluerunt. Hinc et limes dictus est quasi finis quidam et terminus. Ab eo postliminum dictum, quia eodem limine revertebatur, quo amissus erat. Sed et qui victis hostibus recuperatur, postliminio rediisse existimatur.

5. If an ascendant is taken prisoner, although he becomes the slave of the enemy, yet his paternal power is only suspended, owing to the jus postliminii; for captives, when they return, are restored to all their former rights. Thus, on his return, the father will have his children in his power: for the postliminium supposes that the captive has never been absent. If, however, a prisoner dies in captivity, the son is considered to have been sui juris from the time when his father was taken prisoner. So, too, if a son, or grandson, is taken prisoner, the power of the ascendant, by means of the jus postliminii, is only in suspense. The term postliminium is derived from post and limen. We therefore say of a person taken by the enemy, and then returning into our territory, that he is come back by postliminium. just as the threshold forms the boundary of a house, so the ancients have termed the boundary of the empire a threshold. Whence limes, also, is derived, and is used to signify a boundary and limit. Thence comes the word postliminium, because the prisoner returned to the same limits whence he had been lost. The prisoner, also, who is retaken on the defeat of the enemy, is considered to have come back by postliminium.

GAI. i. 129; D. xlix. 15. 29. 3; D. xlix. 15. 26.

For,

By the jus postliminii, property taken in war, and retaken from the enemy, was restored to the original owners (see Bk. ii. Tit. 1. 17); and captives, on their return to their own country, were re-established in all their former rights. When the captive returned, all the time of his captivity was, in the eye of the law, blotted out, and he was exactly in the position he would have held if had not been taken captive. (D. xlix. 15. 21. 6.) The manner of his return was quite immaterial. Nihil interest quomodo captivus reversus est. (D. xlix. 15. 26.) When the father

returned, he resumed all his rights over his property, and his patria potestas over his children; when a child returned, he regained his rights of succession and agnation, and at the same time he fell again under the patria potestas of his father. (D. xlix. 15. 14.) If the captive did not return from captivity, the law considered him to have died at the moment of his captivity commencing, a point important with regard to testaments (see Bk. ii. Tit. 12. 5); and also as making children sui juris, and giving them all property acquired by them, from the time of the parent's captivity. Gaius says that in his time this point in favour of the children was not established (GAI..i. 129); but, at any rate, it was so when Ulpian wrote. (D. xlix. 15. 18.)

6. Præterea emancipatione quoque desinunt liberi in potestate parentum esse. Sed ea emancipatio antea quidem vel per antiquam legis observationem procedebat, quæ per imaginarias venditiones et intercedentes manumissiones celebrabatur, vel ex imperiali rescripto. Nostra autem providentia et hoc in melius per constitutionem reformavit, ut, fictione pristina explosa, recta via apud competentes judices vel magistratus parentes intrent et filios suos vel filias vel nepotes vel neptes ac deinceps sua manu dimitterent. Et tunc ex edicto prætoris in hujus filii vel filiæ, nepotis vel neptis bonis, qui vel quæ a parente manumissus vel manumissa fuerit, eadem jura præstantur parenti, quæ tribuuntur patrono in bonis liberti: et præterea si impubes sit filius vel filia vel ceteri, ipse parens ex manumissione tutelam ejus nanciscitur.

6. Children, also, cease to be under the power of their ascendants by emancipation. Formerly emancipation was effected, either by adopting the process of the ancient law, consisting of imaginary sales, each followed by a manumission, or by imperial rescript; but we, in our wisdom, have introduced a reform on this point by one of our constitutions. The old fictitious process is now done away with, and ascendants may now appear directly before a proper judge or magistrate, and free from their power their children, or grandchildren, or other descendants. And then, according to the prætorian edict, the ascendant has the same rights over the goods of those whom he emancipates, as the patron has over the goods of his freedman. And further, if the child or children emancipated are within the age of puberty, the ascendant, by the emancipation, becomes their tutor.

GAI. i. 132. 134; D. xxxvii. 12. 1; D. xxvi. 4. 3. 10; C. viii. 49. 5. 6.

We have no trace of any other form of giving freedom, in early times, than that of emancipation. In the law of the Twelve Tables we find it laid down, 'Si pater filium ter venumduit (sells), liber esto. The father might sell his son, and he would then be in the mancipium of the purchaser; but when the purchaser freed him, the son would fall again under his father's power. This might happen over and over again; but the Twelve Tables, whether making a new enactment, or sanctioning an old custom, declared that after a third sale the father's power was extinguished for ever. This may perhaps have been originally intended as a kind of check on the father abusing his power of selling his son, and have been afterwards used as a means of giving freedom by a fictitious sale; or it may have been expressly enacted in the Twelve Tables to extinguish all doubts whether the custom of freeing from a father's power by three sales was valid. In the

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form the fictitious sale took in the times of historical certainty, the father three times sold his son to a fictitious purchaser, who, between the first and the second sale, and also between the second and the third, manumitted the son, i.e. discharged him from his power as a master which he had acquired by the sale. After the third sale, the son was in the mancipium of the fictitious purchaser, and if this purchaser had manumitted him, he would have been the son's patron. But as the father generally wished to be the patron of his son, the relation giving him, among other things, the right of succeeding to the son if intestate and childless, the purchaser, instead of manumitting him, resold (remancipavit) him to the father, who then himself manumitted him, and became his patron. In cases where the fictitious purchaser manumitted the third time, he was considered as a trustee for the father of all the rights of patronage. Originally, an express contract was made, contracta fiducia, to bind the purchaser to remancipate or to manumit, reserving the rights of patronage to the father, as the case might be; but in later times the purchaser was considered bound by an implied contract, and the prætorian edict, as we learn from the text, secured to the father in all cases the rights of patronage.

6

As the law of the Twelve Tables spoke only of a son, it was considered by a strict interpretation of the term, son,' that one sale instead of three was sufficient in the case of a daughter or grandchild. (G. i. 132.)

Anastasius introduced a new mode of freeing the child from the power of the father. The emperor issued, in cases where he thought it proper, a rescript authorising the emancipation; and this rescript being registered by a magistrate, the process was complete. (C. viii. 49. 5.)

Justinian, in giving the greatest possible facility to emancipation, preserved all the effects which the process had had under the old system of fictitious sales. Both under his system and that of Anastasius, a child could be emancipated in his absence, which was not possible in the times when the old forms of manumission were strictly observed.

7. Admonendi autem sumus, liberum esse arbitrium ei, qui filium et ex eo nepotem vel neptem in potestate habebit, filium quidem de potestate dimittere, nepotem vero vel neptem retinere et ex diverso filium quidem in potestate retinere, nepotem vero vel neptem manumittere (eadem et de pronepote vel pronepte dicta esse intellegantur) vel omnes sui juris efficere.

8. Sed et si pater filium, quem in potestate habet, avo vel proavo naturali secundum nostras consti

7. It is also to be observed, that a person having in his power a son, and by that son a grandson or granddaughter, may emancipate his son, and retain in his power his grandson or granddaughter; or, conversely, he may emancipate his grandson or granddaughter, and retain his son in his power; and the same may be understood as said of a great-grandson, or a great-granddaughter: or he may make them all sui juris.

8. If a father has a son in his power, and gives him in adoption to the son's natural grandfather or great

tutiones super his habitas in adoptionem dederit, id est si hoc ipsum, actis intervenientibus, apud competentem judicem manifestavit, præsente eo, qui adoptatur, et non contradicente nec non eo, qui adoptat, solvitur quidem jus potestatis patris naturalis, transit autem in hujusmodi parentem adoptivum, in cujus persona adoptionem plenissimam esse antea diximus.

grandfather, in conformity with our constitutions enacted on this subject, that is, if he declares his intention in a formal act before a competent judge, in the presence and without the dissent of the person adopted, and also in the presence of the person who adopts, then the right of paternal power is extinguished as to the natural father, and passes from him to the adoptive father; with regard to whom, as we have before observed, adoption preserves all its effects.

C. viii. 47. 11.

The adoptive father could not acquire any patria potestas by fictitious sales; he could only extinguish that of the natural father. In order to gain it himself, he had recourse to another fictitious process, called in jure cessio. He claimed the child as his before a magistrate, and the natural father not withstanding the claim, the child was given into the patria potestas of the adoptive For the change made by Justinian in the law of adoption,

see Tit. 11. 1.

9. Illud autem scire oportet, quod, si nurus tua ex filio tuo conceperit et filium postea emancipaveris vel in adoptionem dederis prægnante nuru tua, nihilo minus quod ex ea nascitur, in potestate tua nascitur : quod si post emancipationem vel adoptionem fuerit conceptum, patris sui emancipati vel avi adoptivi potestati subicitur : et quod neque naturales liberi neque adoptivi ullo pæne modo possunt cogere parentem de potestate sua eos dimittere.

9. It must be observed, that, if your daughter-in-law conceives by your son, and if during her pregnancy you emancipate your son, or give him in adoption, the child will be born in your power; but if the child is conceived subsequently to the emancipation or adoption, he is born in the power of his emancipated father, or his adoptive grandfather. Children, natural or adoptive, have no means, or almost none, of compelling their parents to free them from their power.

GAI. i. 135. 137; D. i. 7. 31. 33.

The rights of a child were always determined by reference to the moment of conception, not of birth, when he was born in justo matrimonio, because he then followed the condition of his father. But when he followed the condition of his mother, as he did when he was born out of justum matrimonium, reference was had to the time of his birth (G. i. 89), or, in the later law, to the time of his conception, of his birth, or to any intermediate time, as might be most favourable to him. (See Tit. 4. pr.)

The exceptional cases alluded to in the words neque ullo pane modo only occurred where the father attempted to make a base use of his power over his children, or abandoned them (C. xi. 40. 6; viii. 52. 2); or when a person, arrogated under the age of puberty, on attaining that age, compelled his adoptive father to emancipate him. (D. i. 7. 33.)

TIT. XIII. DE TUTELIS.

Transeamus nunc ad aliam divisionem. Nam ex his personis, quæ in potestate non sunt, quædam vel in tutela sunt vel in curatione, quædam neutro jure tenentur. Videamus igitur de his, quæ in tutela vel in curatione sunt: ita enim intellegemus ceteras personas, quæ neutro jure tenentur. Ac prius dispiciamus de his, quæ in tutela

sunt.

Let us now proceed to another division. Of those who are not in the power of an ascendant, some are under a tutor, some under a curator, some under neither. Let us treat, then, of those persons who are under a tutor or curator; for we shall thus ascertain who are they who are not subject to either. And first of persons under a tutor.

GAI. i. 142. 143.

This is rather a subdivision of persons sui juris than another division of persons generally. There were some persons who were exempt from the patria potestas, and yet required constant protection and assistance. When this arose from youth, or, in the old law of Rome, from the incapacity supposed always to attach to females (propter animi levitatem, GAI. i. 144), the protector was called a tutor; when it arose from mental incapacity, he was called a curator. The two offices greatly resembled each other; but there was one leading distinction between them. The tutor was said to be given to the person; he not only administered the property of the pupil, but he also supplied what was wanting to complete the pupil's legal character. The curator was said to be given to the property: his duty was exclusively to see that the person under his care did not waste his goods. (See Introd. sec. 43.)

1. Est autem tutela, ut Servius definivit, jus ac potestas in capite libero ad tuendum eum, qui propter ætatem se defendere nequit, jure civili data ac permissa.

1. Tutelage, as Servius has defined it, is an authority and power over a free person, given and permitted by the civil law, in order to protect one whose tender years prevent him defending himself.

D. xxvi. 1. 1.

By a free person is meant here one sui juris. The power of a tutor (potestas) was either given (data) by the civil law, when it devolved on the next of kin, or allowed (permissa) by that law, when it was conferred by testament.

2. Tutores autem sunt, qui eam vim ac potestatem habent, exque re ipsa nomen ceperunt. Itaque appellantur tutores quasi tuitores atque defensores, sicut æditui dicuntur, qui ædes tuentur.

2. Tutors are those who have this authority and power, and they take their name from the nature of their office; for they are called tutors, as being protectors (tuitores) and defenders; just as those who have the care of the sacred edifices, are called æditui.

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