[ Commentary ]

§ 1.Jurisprudence treats exclusively of positive law: the exclusive origin of positive law is some positive enactment; the term positive enactment including both the express or direct enactments of the political sovereign, and the implied, indirect, circuitous enactments imported by the sovereign’s acquiescence in the ruling of subordinate authorities. (See Holland’s Jurisprudence, chs. 2-5.)

The rules and principles denoted by the terms praetor-made law, jurist-made law, judge-made law, are only law because they are impliedly adopted, confirmed, and ratified by the silent acquiescence of the sovereign.

The organ by which the jus gentium of the Romans was promulgated, which made it by indirect enactment a portion of Roman Positive law, was principally the Edict of the Praetor. The relations of Roman citizens with aliens (peregrini), that is, with the members of foreign states formerly subjugated by Rome and now living under the protection of Roman law, as well as of aliens in their intercourse with one another, became, about 242 b. c., so frequent as to be made subject to the jurisdiction of a special minister of justice called Praetor peregrinus, who, like the Praetor urbanus, published an annual edict announcing the principles on which justice would be administered. These principles composed jus gentium as opposed to jus civium. Jus gentium, that is to say, was not really, as Roman jurists imagined or represented, a collection of the principles common to the legislation of all nations, but a body of rules which the Roman praetor thought worthy to govern the intercourse of Roman citizens with the members of all, originally independent, but now subject, foreign nations.

Gradually the rules originating in this way were extended to the intercourse of citizens with citizens, in cases where the rigorous conditions of jus civile were not exactly satisfied, and so precepts of jus gentium were transferred from the edict of praetor peregrinus to the edict of praetor urbanus.

The portion of the edict most fertile in principles of jus gentium would be the clauses in which the praetor announced, as he did in some cases, that he would instruct the judex, whom he appointed to hear and determine a controversy, to govern himself by a consideration of what was aequum et bonum, i. e. by his views of equity and expediency: and if any of the oral formularies of the earliest system of procedure (legis actiones) contained these or equivalent terms, such formularies may be regarded as a source of jus gentium. It may be observed that Gaius does not, like some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3; Inst. 1, 2 pr.), make any distinction between jus gentium and jus naturale. There is nothing in his writings, as they have come down to us, to draw attention to the fact that the teaching of nature may not be in accordance with the practice of nations, as the institution of slavery showed.

Another organ of quasi publication, whereby the rules of jus gentium were transformed from ideal law to positive law—from laws of Utopia to laws of Rome—were the writings of the jurists, who, at first with the tacit, afterwards with the express permission of the legislature, engaged, nominally in interpreting, really in extending the law, about the time of Cicero (De Legibus, § 1, 5), transferred to the edict of the praetor the activity which they had formerly displayed in developing the law of the Twelve Tables and the statutes of the Comitia. By these means, supplemented and confirmed by statute law and custom, the jus gentium gradually increased in importance, and gave the Roman empire its universal law.

Jus civile, i. e. jus civium or law peculiar to citizens, was the law of the Twelve Tables, augmented by subsequent legislation, by juristic interpretation, and by consuetudinary law. The institutions of jus civile may be exemplified by such titles to property as Mancipatio and In Jure Cessio, contracts by the form of Nexum and Sponsio, title to intestate succession by Agnatio or civil relationship; while corresponding institutions of jus gentium were the acquisition of property by Tradition, contract by Stipulation without the solemn term Spondeo, title to intestate succession by Cognatio or natural relationship. Other departments of life were not subject to parallel institutes of jus civile and jus gentium, but the mutual relations of citizens with citizens as well as of citizens with aliens were exclusively controlled by jus gentium: e. g. the informal contracts called Consensual, such as buying and selling, letting and hiring, partnership; and the informal contracts called Real, such as the contract of loan for use or loan for consumption.

Titles to ownership (jus in rem), according to jus gentium, which ultimately superseded civil titles, are explained at x-large in Book II.

In respect of Obligation (jus in personam), jus gentium may be divided into two classes, according to the degree in which it was recognized by Civil law:—

A. A portion of jus gentium was recognized as a ground of Action. To this class belong (1) the simple or Formless contracts to which we have alluded, (2) obligations to indemnify grounded on delict, (3) rights quasi ex contractu to recover property when it has been lost by one side and gained by the other without any right to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on this obligation to restore (condictiones), although it was a species of naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris) as any in the Civil code. In these cases the obligatio, though naturalis as founded in jus gentium, yet, as actionable, was said to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1.

The two eminently Civil spheres of the law of obligation were (1) specialty or Formal contracts, and (2) penal suits. Yet even into these provinces jus gentium forced a partial entrance. We shall see that aliens could be parties to a Stipulatio or Verbal contract, though not by the Civil formulary, Spondeo 3 § 93; and to Transcriptio, at least of one kind, 3 § 133, which was a form of Literal contract; and could be made plaintiffs or defendants in penal suits by means of the employment of certain Fictions, 4 § 37. This, however, was rather the extension of jus civile to aliens than the intrusion of jus gentium into a Civil province.

B. Other rights and obligations of jus gentium were not admitted as direct grounds for maintaining an action, yet were otherwise noticed by the institutes of civil jurisprudence and indirectly enforced. Thus a merely naturalis obligatio, though not actionable, might (1) furnish a ground of an equitable defence (exceptio): for instance, on payment of a merely natural debt the receiver has a right of retention, and can bar the suit to recover it back as a payment made in error (condictio indebiti soluti) by pleading the naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a claim by Compensatio, 4 § 61, cross demand or set-off, of a debt that rests on merely naturalis obligatio, Dig. 40, 7, 20, 2: or a merely naturalis obligatio might (2) form the basis of an accessory obligation, such as Suretyship (fidejussio) 3 § 119 a, or Guaranty (constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr., or Novation, 3 § 176, Dig. 46, 2, 1, 1, all institutions, which are themselves direct grounds of action. Though these rights and obligations of natural law are imperfect (obligatio tantum naturalis) as not furnishing immediate grounds of action, yet, as being partially and indirectly enforced by Roman tribunals, they clearly compose a portion of Positive law. Cf. 3 §§ 88, 89 comm.

Edicts were legislative ordinances issued by the emperor in virtue of the jurisdiction appertaining to him as highest magistrate, and were analogous to the edicts of the praetors and aediles. In the time of Gaius they had only binding force during the life of the emperor who issued them, requiring the confirmation of his successor for their continuing validity; but from the reign of Diocletian, when the empire assumed an autocratic form, their duration ceased to be thus limited.

Decreta were judicial decisions made by the emperor as the highest appellate tribunal: or in virtue of his magisterial jurisdiction, and analogous to the extraordinaria cognitio of the praetor.

Epistolae or rescripta were answers to inquiries addressed to the emperor by private parties or by judges. They may be regarded as interpretations of law by the emperor as the most authoritative juris peritus. Cf. § 94 comm.

Some examples of direct legal changes made by early emperors are recorded, as the right conferred by the edict of Claudius mentioned in § 32 c of this book.

The words of Gaius explaining why constitutions had the force of law seem to be imperfect, and may be supplemented from Justinian, who openly asserts for himself absolute authority: Sed et quod principi placuit legis habet vigorem: cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in this and in the corresponding passage of the Digest (1, 4, 1) attributed to Ulpian, lex regia, in memory of the lex curiata, whereby the kings were invested with regal power. According to Cicero the king was proposed by the senate and elected by the Comitia Curiata, and the election was ratified in a second assembly presided over by the king: e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus adscivit, qui ut huc venit, quanquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit, De Republ. 2, 13. According to Mommsen and other modern writers, however, the later Roman idea, that the king was elected by the Comitia, is wrong, the lex curiata having been passed, not to elect a king, but merely to ratify a previous election or nomination. A lex curiata was also passed to confer on a Roman magistratus his imperium, and similarly the Roman emperor derived some of his powers from leges, but it seems a mistake to suppose that in the time of the principate a single lex gave him his entire authority. A fragment of a bronze tablet, on which was inscribed the lex investing Vespasian with sovereign powers, was discovered at Rome in the fourteenth century, and is still preserved in the Capitol.

All the higher magistrates of Rome were accustomed to issue edicts or proclamations. Thus the consuls convoked the comitia, the army, the senate, by edict: the censors proclaimed the approaching census by edict: the aediles issued regulations for the market by edict: and magistrates with jurisdiction published edicts announcing the rules they would observe in the administration of justice, the Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules being called Edicta urbana, while the Edicts of the governors of provinces were called Edicta provincialia. These edicts, besides being orally proclaimed, were written on white tablets (in albo) and suspended in the forum: apud forum palam ubi de plano legi possit, Probus, ‘in the forum in an open space where persons standing on the ground may read.’ Such an edict was always published on entering on office (est enim tibi jam, cum magistratum inieris et in concionem adscenderis, edicendum quae sis observaturus in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum perpetuum, as opposed to occasional proclamations, Edictum repentinum. A clause (pars, caput, clausula, edictum) retained from a former edict was called Edictum tralaticium, Gellius, 3, 18; and though doubtless the edicts gradually changed according to changing emergencies, each succeeding praetor with very slight modifications substantially reproduced the edict of his predecessor. In the reign of Hadrian the jurist Salvius Julianus, called by Justinian Praetoriani edicti ordinator, reduced the edict to its definite form, and if the yearly publication was not discontinued (cf. § 6, jus edicendi habent), at all events Julian’s co-ordination of Praetorian law was embodied in all subsequent publications. Such was the origin of jus honorarium (praetorium, aedilicium), as opposed to jus civile: and from what has preceded, it need hardly be stated that the antithesis, jus civile, jus honorarium, is to a great extent coincident with the antithesis, jus civile, jus gentium.

It may be observed that Gaius does not attribute to edicts the force of a statute: and this theoretical inferiority of jus honorarium had a vast influence in modelling the forms and proceedings of Roman jurisprudence. The remedy or redress administered to a plaintiff who based his claim on jus civile differed from that administered on an appeal to jus honorarium, as we shall see when we come to treat of Bonitary ownership, Bonorum possessio, Actio utilis, in factum, ficticia. This difference of remedy preserved jus civile pure and uncontaminated, or at least distinguishable from jus honorarium; but this perpetuation of the memory of the various origins of the law, like the analogous distinction of Equity and Common law in English jurisprudence, was purchased by sacrificing simplicity of rule and uniformity of process.

The legislative power of the popular assembly and the absence of legislative power in the senate and praetor were marked by a difference of style in the lex and plebiscite, edict, and decree of the senate: while the lex and plebiscite employed the imperative (damnas esto, jus potestasque esto, &c.), the resolutions of the senate scrupulously avoid the imperative and are clothed in the forms placere, censere, arbitrari, &c., as if they were rather recommendations than commands: and the edicts and the interdicts of the praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a milder form of imperative. Or to show that their force and operation is limited to his own tenure of office, they are expressed in the first person (actionem dabo, ratum habebo, vim fieri veto). Where he has authority to command he shows it by using the imperative, as in addressing the litigants (mittite ambo hominem, inite viam, redite, 4 § 13 comm.) or the judge (judex esto, condemnato, absolvito). Ihering, § 47.

In the first period of the empire, that is, in the first three centuries of our era, it was the policy of the emperors to maintain a certain show of republican institutions, and the administration of the empire was nominally divided between the princeps or emperor and the people as represented by the senate. Thus, at Rome there were two sets of magistrates, the old republican magistrates with little real power, consuls, praetors, tribunes, quaestors, in outward form elected by the people; and the imperial nominees with much greater real authority, under the name of praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum, praefectus annonae, praefectus aerario; for though nominally the people and princeps had their separate treasuries under the name of aerarium and fiscus, yet the treasury of the people was not managed by quaestors as in the time of the republic, but by an official appointed by the emperor. Similarly the provinces were divided between the people and the prince, the people administering those which were peaceful and unwarlike, the prince those which required the presence of an army. The governor of a province, whether of the people or the emperor, was called Praeses Provinciae. The Praeses of a popular province was a Proconsul, and the chief subordinate functionaries were Legati, to whom was delegated the civil jurisdiction, and quaestors, who exercised a jurisdiction corresponding to that of the aediles in Rome. The emperor himself was in theory the Proconsul of an imperial province; but the actual governor, co-ordinate with the Proconsul of a senatorial province, was the Legatus Caesaris, while the financial administration and fiscal jurisdiction were committed to a functionary called Procurator Caesaris, instead of the republican Quaestor. Sometimes the same person united the office of Procurator and Legatus, as, for instance, Pontius Pilate.

As to the mode of collecting the opinions of the juris auctores no precise information has come down to us, but § 6 shows that the duty of the judex, in the not uncommon event of the authorities differing in their opinions on a case, was open to doubt, till Hadrian’s rescript allowed him under these circumstances to adopt the opinion he preferred. It may be gathered from the words ‘quorum omnium’ that all authorized jurists had to be consulted. The jus respondendi, as thus explained, may have continued in existence till the end of the third century, by which time the originative force of Roman jurisprudence had ceased. Instead of giving independent opinions jurists had become officials of the emperor, advising him in drawing rescripts and other affairs of imperial government. Legal authority rested in the writings of deceased juris auctores. (For a discussion of the causes of the decline of Roman Jurisprudence see Grueber’s Art. in Law Quarterly Review, vii. 70.) In the course of centuries the accumulation of juristic writings of co-ordinate authority was a serious embarrassment to the tribunals. To remedy this evil, a. d. 426, Valentinian III enacted what is called the law of citations, Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of any other jurists whom these writers quoted, provided that such quotations should be verified by reference to the original writings of these jurists (codicum collatione firmentur—on the question of the way of interpreting these words cf. Sohm, p. 122, n. 1, § 21). In case of a divergence of opinion, the authorities were to be counted, and the majority was to prevail. In case of an equal division of authorities, the voice of Papinian was to prevail. a. d. 533, Justinian published his Digest or Pandects, a compilation of extracts from the writings of the jurists, to which, subject to such modifications as his commissioners had made in them, he gives legislative authority. Every extract, accordingly, is called a lex, and the remainder of the writings of the jurists is pronounced to be absolutely void of authority. To prevent the recurrence of the evil which his codification was intended to remove, and confident in the lucidity and adequacy of his Digest and Code, which latter is a compilation of imperial statute law after the model of the Theodosian code, Justinian prohibits for the future the composition of any juristic treatise or commentary on the laws. If any one should disregard the prohibition, the books are to be destroyed and the author punished as guilty of forgery (falsitas), Cod. 1, 17, 2, 21. The constitutions enacted by Justinian subsequent to the publication of his code are called Novellae, Constitutiones or Novels.

We shall find frequent allusions, as we proceed in this treatise, to the existence of rival schools among the Roman juris auctores. This divergence of the schools dates from the first elevation of the jurist to a species of public functionary, namely, from the reign of Augustus, in whose time, as we have seen, certain jurists began to be invested by imperial diploma with a public authority. In his reign the rival oracles were M. Antistius Labeo and C. Ateius Capito: Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47. ‘The first founders of the two opposing sects.’ From Labeo’s works there are 61 extracts in the Digest, and Labeo is cited as an authority in the extracts from other jurists oftener than any one else except Salvius Julianus. From Sempronius Proculus, a disciple of Labeo, and of whom 37 fragments are preserved in the Digest, the school derived its name of Proculiani. Other noted jurists of this school were Pegasus, in the time of Vespasian; Celsus, in the time of Domitian, who gave rise to the proverb, responsio Celsina, a discourteous answer, and of whom 141 fragments are preserved; and Neratius, of whom 63 fragments are preserved. To the other school belonged Masurius Sabinus, who flourished under Tiberius and Nero, and from whom the sect were called Sabiniani. To the same school belonged Caius Cassius Longinus, who flourished under Nero and Vespasian, and from whom the sect are sometimes called Cassiani: Javolenus Priscus, of whom 206 fragments are preserved: Salvius Julianus, the famous Julian, above mentioned, of whom 456 fragments are preserved: Pomponius, of whom 578 fragments are preserved: Sextus Caecilius Africanus, celebrated for his obscurity, so that Africani lex in the language of lawyers meant lex difficilis, of whom 131 fragments are preserved: and, lastly, our author, Gaius, who flourished under Hadrian, Antoninus Pius, and Marcus Aurelius, and from whose writings 535 extracts are to be found in the Digest.

If we now inquire whether this divergence of schools was based on any difference of principle, the answer is, No: on none, at least, that modern commentators have succeeded in discovering: it was merely a difference on a multitude of isolated points of detail. We are told indeed that the founders were men of dissimilar characters and intellectual dispositions: that Labeo was characterized by boldness of logic and a spirit of innovation; while Capito rested on tradition and authority, and inclined to conservatism, Dig. 1, 2, 47; but it is altogether impossible to trace their opposing tendencies in the writings of their successors: and we must suppose that the intellectual impulse given by Labeo was communicated to the followers of both schools of jurisprudence. But though, as we have stated, no difference of principle was involved, each school was accustomed to follow its leaders or teachers (praeceptores) with much servility; and it is quite an exception to find, on a certain question, Cassius, a member of the Sabinian school, following the opinion of Labeo; while Proculus, who gave his name to Labeo’s school, preferred the opinion of Ofilius, the teacher of Capito, 3 § 140; Gaius too, who was a Sabinian, sometimes inclines to the opinion of the rival school; cf. 3, § 98. Controversies between the two schools are referred to by Gaius in the following passages of his Institutes: 1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98, 103, 141, 167-8, 177-8; 4, 78-9, 114, 170.

As long as these schools of law, which may have derived their constitution from the Greek schools of philosophy, existed, the office of President appears to have devolved by succession from one jurist to another. (For an account of this subject and references to the chief modern writers who have discussed it see Sohm, pp. 98, &c.)

We may briefly mention some of the most illustrious jurists who flourished somewhat later than Gaius. Aemilius Papinianus, who was probably a Syrian, lived in the time of Septimius Severus, and was murdered by the order of Caracalla: 601 extracts from his writings are contained in the Digest. It was perhaps to some extent due to the transcendent genius, or at least to the extraordinary reputation, of Papinian, which made him seem too great to be reckoned any man’s follower, that we cease about his time to hear of opposing schools of jurisprudence. Papinian appears to have accompanied Severus to York, fulfilling the important function of praefectus praetorio, so that England may claim some slight connexion with the brightest luminary of Roman law.

A disciple and colleague of Papinian, of Syrian origin, who likewise became praefectus praetorio, was Domitius Ulpianus, murdered by the praetorian soldiery, whose domination he resisted, in the presence of the Emperor Alexander Severus: 2464 fragments, composing about a third of the whole Digest, are taken from his writings. An epitome of his Liber Singularis Regularum is still extant in a manuscript of the Vatican Library, and is the work referred to when, without mentioning the Digest, we cite the authority of Ulpian.

Another disciple and colleague of Papinian was Julius Paulus, of whose writings 2081 fragments are preserved in the Digest, forming about a sixth of its mass. An epitome of his treatise called Sententiae Receptae is found, with the Epitome of Gaius, in the code of Alaric II, king of the Visigoths; and it is to this book that we refer when we simply cite the authority of Paulus.

A disciple of Ulpian’s was Herennius Modestinus, of whom 344 extracts are contained in the Digest. After Modestinus the lustre of Roman jurisprudence began to decline. (For a detailed account of the Roman jurists, see Roby’s Introduction to the Digest, chs. vi-xvi.)

Besides the sources of law enumerated by Gaius, the Institutes of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of consuetudinary or customary law (jus non scriptum, consensu receptum, moribus introductum). To this branch of law are referred, with other rules, the invalidity of donations between husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to make a will for his filiusfamilias who dies before the age of puberty (pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in Coemption and Adrogation, 3 § 82. See also 4 §§ 26, 27. We may suppose that Customary law, like Roman law in general, would fall into two divisions, jus civile and jus gentium, the former embracing what Roman writers sometimes speak of as mores majorum. Before the time of Gaius, however, most of Customary law must have been incorporated by statute, as in early times by the law of the Twelve Tables, or taken up into the edict of the praetor or the writings of the jurists, Cic. De Invent. 2, 22, 67; i.e. unwritten law must have changed its character and have been transformed into written law.

[ Commentary ]

§ 8. What are the leading divisions of law—what are the main masses into which legislation naturally breaks itself—what are the joints and articulations which separate the whole code into various subordinate codes, like the different limbs and members of an organic whole—what is the import of the Gaian division, adopted perhaps from previous writers, into jus personarum, jus rerum, jus actionum, or rather, to adhere to the classical phrases, jus ad personas pertinens, jus ad res pertinens, jus ad actiones pertinens?

By jus ad actiones pertinens, to begin with the easier part of the problem, there is no doubt that the inventor of the division intended to designate the law of PROCEDURE as opposed to the law of rights; the adjective code, to use Bentham’s phraseology, as opposed to the substantive code. There is as little doubt that in the Institutions of Gaius this design is not executed with precision, and that, instead of the law of procedure, the last portion of his treatise contains also to some extent the law of sanctioning rights, as opposed to the law of primary rights. (For the meaning of this distinction see Austin’s Jurisprudence, bk. 1.) Or perhaps we should say that the legislative provisions respecting Procedure have a double aspect: a purely formal aspect, so far as they give regularity and method to the enforcement of sanctioning rights; and a material aspect, so far as certain stages of procedure (e.g. litis contestatio and res judicata) operate like Dispositions or any other Titles to modify the substantive rights of the contending parties. Procedure, then, is treated of in these Institutions partly indeed in its formal character, but still more in its material character, i.e. so far as its incidents can be regarded as belonging to the substantive code.

It is more difficult to determine the principle of the other division, the relation of the law of Persons to the law of Things. They both deal with the rights and duties of persons in the ordinary modern acceptation of the word; why then, we may inquire, are certain rights and duties of persons separated from the rest and dealt with under the distinguishing category of jura personarum? It is not enough to say with Austin that the law of Things is the universal or general portion of the law, the law of Persons a particular and exceptional branch; that it is treated separately on account of no essential or characteristic difference, but merely because it is commodious to treat separately what is special and exceptional from what is general and universal. This answer furnishes no positive character of the law of Persons, but only the negative character of anomaly, i.e. of unlikeness to thex-large r portion of the law; but it would be difficult to show that the law of Persons is more exceptional, anomalous, eccentric, than the Civil dispositions as opposed to the Natural dispositions of the law of Things.

We must look to the details of the law of Persons, and observe whether its dispositions have any common character as contrasted with the dispositions of the law of Things. The law of Persons, in other words, the law of Status, classifies men as slaves and free, as citizens (privileged) and aliens (unprivileged), as paterfamilias (superior) and filiusfamilias (dependent). The law of Things looks at men as playing the parts of contractors or of neighbouring proprietors; in other words, the law of Persons considers men as UNEQUALS, the law of Things considers them as EQUALS: the one may be defined as the law of relations of inequality, the other as the law of relations of equality.

It may induce us to believe that the law of unequal relations and the law of equal relations is a fundamental division of the general code, if we consider how essential are the ideas of equality and inequality to the fundamental conception of law. If we ventured on a Platonic myth, we might say that Zeus, wishing to confer the greatest possible gift on the human race, took the most opposite and uncombinable things in the universe, Equality and Inequality, and, welding them together indissolubly, called the product by the name of political society or positive law.

The assumption will hardly be controverted, that in the relations of subject to subject, Positive law, like Ethical law, recognizes, as an ideal at least, the identity of the just (lawful) with the equal. Inequality, however, is no less essentially involved in positive law. We have seen that there is no right and no duty by positive law without a legislator and sovereign to whom the person owing the duty is in subjection. On the one side weakness, on the other irresistible power. Positive rights and duties, then, imply both the relation of subject to subject and the relation of subject to sovereign or wielder of the sanction, in other words, both the relation of equal to equal and the relation of unequal to unequal. It is the more surprising that Austin should apparently have failed to seize with precision this conception of the law of Persons, as he makes the remark, in which the whole truth seems implicitly contained, that the bulk of the law of Persons composes the Public, Political, or Constitutional code (jus publicum). Political society or government essentially implies subordination. It implies, on the one hand, sovereign power reposing in various legislative bodies, distributed, delegated, and vested in various corporations, magistrates, judges, and other functionaries; on the other hand, private persons or subjects subordinate to the sovereign power and to its delegates and ministers. The different forms of government are so many forms of subordination, so many relations of superior and inferior, that is, so many relations of unequals. Public law, then, is a law of Status, and the law of Persons or law of Status in the private code is the intrusion of a portion of the public code into the private code; or, in barbarous and semi-civilized legislations, the disfigurement of private law by the introduction of relations that properly belong to public law. For instance, the most salient institution of the ancient Roman law of Persons, the power of life and death over wife and child that vested in the father of the household, was the concession to a subject of an attribute that properly belongs to the sovereign or a public functionary. Another institution, slavery, placed one subject over another in the position of despotic sovereign. The relation of civis to peregrinus may be conjectured to have originally been that of patronus to cliens, that is to say, of political superior to political inferior.

Government or positive law has usually commenced in the invasion by the stronger of the (moral) rights of the weaker; but so necessary is inequality to equality, or subordination to co-ordination, that the (moral) crimes of ancient conquerors are regarded with less aversion by philosophic historians, as being the indispensable antecedents of subsequent civilization. The beginnings, then, of positive law have been universally the less legitimate form of inequality, inequality between subject and subject, leaving its traces in dispositions of the civil code: but the advance of civilization is the gradual elimination of inequality from the law, until little remains but that between magistrate and private person, or sovereign and subject. Modern society has advanced so far on the path of equalization, in the recognition of all men as equal before the law, that the distinctions of status, as they existed in the Roman law of persons, are almost obliterated from the private code. Slavery has vanished; parental and marital power are of the mildest form; civilized countries accord the same rights to cives and peregrini; guardians (tutores) in modern jurisprudence, as in the later period of Roman law, are considered as discharging a public function, and accordingly the relation of guardian and ward may be regarded as a portion of the public code.

Before we terminate our general remarks on the nature of status, it is necessary to distinguish from the law of Persons a department of law with which, in consequence of a verbal ambiguity, it is sometimes confounded. Blackstone deserves credit for having recognized Public law as part of the law of Persons; but he also included under the law of Persons that department of primary rights to which belong the right of free locomotion, the right of using the bodily organs, the right to health, the right to reputation, and other rights which perhaps more commonly emerge in the redress meted out for their violation, that is, in the corresponding sanctioning rights, the right of redress for bodily violence, for false imprisonment, for bodily injury, for defamation, and the like. These, however, are not the special and exceptional rights of certain eminently privileged classes, but the ordinary rights of all the community, at least of all who live under the protection of the law; they belong to filiusfamilias as well as to paterfamilias, to peregrinus and latinus as well as to civis. The rights in question, that is to say, do not belong to the law of unequal rights, or the law of Persons, but to the law of equal rights, or the law of Things.

The anomalous institution of slavery, however, furnishes a ground for controverting this arrangement; for, as by this legalized iniquity of ancient law, the slave, living as he did, not so much under the protection as under the oppression of the law, was denuded of all legal rights, including those of which we speak, we cannot say that these rights belong to servus as well as to liber. The same, however, may be said of contract rights and rights of ownership, for the slave had neither part nor lot in these on his own account any more than in the right of a man to the use of his own limbs. In defining, therefore, jura rerum to be the equal rights of all, we must be understood to mean, of all who have any rights. Perhaps, indeed, instead of saying that jura rerum are the rights of men regarded as equal, it would be more exact to say, that while jus personarum regards exclusively the unequal capacities, that is, the unequal rights of persons, jus rerum treats of rights irrespectively both of the equality and the inequality of the persons in whom they are vested, leaving their equal or unequal distribution to be determined by jus personarum.

In order to mark the natural position of these rights in the civil code, I have avoided designating them, with Blackstone, by the name of Personal rights, a term which I am precluded from using by yet another reason. I have employed the terms Personal right and Real right to mark the antithesis of rights against a single debtor and rights against the universe. Now the rights in question are rights that imply a negative obligation incumbent on all the world, that is to say, in our sense of the words they are not Personal, but Real.

As contrasted with Acquired rights (Erworbene Rechte, jus quaesitum) they are called Birthrights or PRIMORDIAL rights (Urrechte), names which are open to objection, as they may seem to imply a superior dignity of these rights, or an independence, in contrast with other rights, of positive legislation, characters which the name is not intended to connote. For purposes of classification this branch of primary rights is of minor importance. Unlike Status, Dominion, Obligation, Primordial rights are not the ground of any primary division of the code. The actions founded on the infraction of Primordial rights partly belong to the civil code of obligation arising from Tort (e.g. actio injuriarum), partly and principally to the criminal code. (On the different interpretations which have been put on this threefold division of Private Law cf. Moyle’s Introduction to the Inst. Just.)

[ Commentary ]

§ 12. As Gaius has not marked very strongly the divisions of the present book, it may be worth while to consider what are the leading branches of the doctrine of Status. Status falls under three heads—liberty (libertas), citizenship (civitas), and domestic position (familia).

Under the first head, men are divided into free (liberi) and slaves (servi): the free, again, are either free by birth (ingenui) or by manumission (libertini). We have here, then, three classes to consider: ingenui, libertini, servi.

Under the second head men were originally divided into citizens (cives) and aliens (peregrini). The rights of citizens fall into two branches, political and civil, the former being electoral and legislative power (jus suffragii) and capacity for office (jus honorum); the latter relating to property (commercium) or to marriage (connubium). Aliens were of course devoid of the political portion of these rights (suffragium and honores); they were also devoid of proprietary and family rights as limited and protected by the jus civile (commercium and connubium), though they enjoyed corresponding rights under the jus gentium. At a subsequent period a third class were intercalated between cives and peregrini, namely, Latini, devoid of the political portion of the rights of citizenship, and enjoying only a portion of the private rights of citizenship, commercium without connubium. Here also, then, we have three classes, cives, Latini, peregrini.

The powers of the head of a family came to be distinguished by the terms potestas, manus, mancipium: potestas, however, was either potestas dominica, power over his slaves, or potestas patria, power over his children, which, at the period when Roman law is known to us, were different in kind; so that the rights of paterfamilias were really fourfold. Manus or marital power placed the wife on the footing of filiafamilias, which was the same as that of filiusfamilias. Paterfamilias had a legal power of selling (mancipare) his children into bondage; and mancipium, which is also a word used to denote a slave, designated the status of a filiusfamilias who had been sold by his parent as a bondsman to another paterfamilias. In respect of his purchaser, such a bondsman was assimilated to a slave: in respect of the rest of the world, he was free and a citizen, though probably his political capacities were suspended as long as his bondage (mancipii causa) lasted, § 116*. As slaves are treated of under the head of libertas, and the status of the wife (manus) was not legally distinguishable from that of the son, we may say, that in respect of domestic dependence or independence (familia), as well as in respect of libertas and civitas, men are divided into three classes,—paterfamilias, filiusfamilias, and Qui in mancipio est; paterfamilias alone being independent (sui juris), the other two being dependent (alieni juris) in unequal degrees.

These different classes are not examined by Gaius with equal minuteness. Under the first head he principally examines the libertini: the classes under the second head, cives, Latini, peregrini, are only noticed indirectly, i. e. so far as they present a type for the classification of libertini; and the bulk of the first book of the Institutions is devoted to domestic relations.

In modern jurisprudence, Status having disappeared, the law of domestic relations—the relation of husband to wife, parent to child, guardian to ward—constitutes the whole of that of which formerly it was only a part, the law of Persons. It differs from the rest of the civil code in that, while the relations of Property and Obligation are artificial and accidental, the relations governed by the code of the Family are natural, and essential to the existence of the human race: so much so that the principal relations of the family extend to the rest of the animal world, and the portion of the code relating to them is called by Ulpian pre-eminently jus Naturale, Dig. 1, 1, 3, Inst. 1, 2 pr. Secondly, whereas every feature of Property and Obligation is the creation of political law, Domestic life is only partially governed by political law, which leaves the greater portion of its rights and duties to be ruled by the less tangible dictates of the moral law.

The pure law of the Family, that is, when we exclude all consideration of Property and Obligation relating to property, is of very moderate compass: but with the pure code of the family it is convenient to aggregate what we may call with Savigny, Syst. § 57, the applied code of the Family, i.e. such of the laws of Property and Obligation as concern members of the family group—husband and wife, parent and child, guardian and ward. The main divisions then of the substantive code are Family law Pure and Applied; the law of Ownership; and the law of Obligation. If, in view of its importance, we separate from the law of Ownership the law of Rerum Universitates, confining the law of Ownership to the province of Res singulae, we may add to the three we have enumerated a fourth division, the law of Successions per universitatem. Sohm, § 29.

[ Commentary ]

§ 14. Peregrini dediticii. Cf. Livy 1, 38; Theoph. 1, 5, 3.

In manumission by Vindicta the State was represented by the praetor. The vindicta or festuca was a rod or staff, representing a lance, the symbol of dominion, with which the parties in a real action (vindicatio) touched the subject of litigation as they solemnly pronounced their claim, 4 § 16. Accordingly it was used in a suit respecting freedom (liberalis causa), for this, as status is a real right (jus in rem), was a form of real action, and was sometimes prosecuted by way of genuine litigation, sometimes was merely a solemn grant of liberty, that is, a species of alienation by surrender in the presence of the magistrate (in jure cessio). In a liberalis causa the slave to be manumitted, being the subject of the fictitious litigation, could not himself be a party, but was advocated by a vindex or adsertor libertatis, who in later times was usually represented by the praetor’s lictor. The adsertor grasping the slave with one of his hands, and touching him with the vindicta, asserted his freedom. The proprietor quitting his grasp of the slave (manu mittens) and confessing by silence or express declaration the justice of the claim, the magistrate pronounced the slave to be free. This procedure, which came to be much curtailed, belonging to the praetor’s voluntary, not his contentious, jurisdiction, did not require the praetor to be seated on his elevated platform in the comitium (pro tribunali), but might be transacted by him on the level ground (de plano); and as the mere presence of the praetor constituted a court (jus), he was usually seized upon for the purpose of manumissions as he was preparing to take a drive (gestatio), or to bathe, or to go to the theatre, § 20 (for the different accounts given of this mode of manumission see Roby, Private Law, 1, p. 26, n. 1).

In manumission by the Census the interests of the State were represented by the censor. Censu manumittebantur olim qui lustrali censu Romae jussu dominorum inter cives Romanos censum profitebantur, Ulpian, 1, 8. ‘Registry by the censor was an ancient mode of manumission by the quinquennial census at Rome when a slave at his master’s order declared his right to make his return of property (professio) on the register of Roman citizens.’ Ex jure civili potest esse contentio, quum quaeritur, is qui domini voluntate census sit, continuone an ubi lustrum conditum liber sit, Cic. De Orat. 1, 40. ‘It is a question of civil law, when a slave is registered with his owner’s sanction, whether his freedom dates from the actual inscription on the register or from the close of the censorial period.’ The census was a republican institution, which had been long obsolete when Gaius wrote. Ulpian, l. c., speaks of it as a thing of the past. Since the Christian era only three had been held, the last under Vespasian, a. d. 74.

Wills were originally executed at the Comitia calata, 2 § 101, where the dispositions of the testator, including his donations of freedom, received legislative sanction, being converted into a private law by the ratification of the sovereign assembly. When a new form of will was introduced, 2 § 102, testators retained their power of manumission, although the people here at the utmost were only symbolically represented by the witnesses of a mancipation. Bequests of liberty were either direct or indirect. A direct bequest of liberty (directo data libertas) made the manumitted slave a freedman of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect bequest, that is, a request to the heir to manumit the slave (fideicommissaria libertas), made the slave on manumission a freedman of the heir, 2 § 266.

Recuperators are judges not taken from the panel (album judicum); see Greenidge’s Legal Procedure of Cicero’s Time, p. 266.

When manumission was a purely private act, it could not confer Roman citizenship; it could only make a dediticius or a latinus.

The codex Alaricianus or Breviarium Alaricianum, a code promulgated a. d. 506 by Alaric II, king of the Visigoths of Spain and Gaul, contained, besides extracts from the codex Theodosianus (promulgated a. d. 438), a selection from the Sententiae of Paulus and an epitome of these Institutes of Gaius. From this epitome it appears that in the paragraphs now obliterated Gaius proceeded to explain the modes of private manumission by which a slave became Latinus Junianus, and instanced writing (per epistolam), attestation of witnesses (inter amicos), invitation of the slave to sit with other guests at the table of his master (convivii adhibitione).

In virtue of commercium, the Latinus Junianus was capable of Quiritary ownership, of civil acquisition and alienation (usucapio, mancipatio, in jure cessio), contract (obligatio), and action (vindicatio, condictio), like a Roman citizen; but in respect of testamentary succession his rights were very limited. He was said to have testamentary capacity (testamenti factio), Ulpian, 20, 8; but this only meant that he could perform the part of witness, or familiae emptor, or libripens (2 § 104), i. e. could assist another person to make a valid will; not that he could take under a will either as heir or as legatee, or could dispose of his own property by will, Ulpian, 20, 14. At his death all his property belonged to his patron, as if it were the peculium of a slave, 3 § 56. In fact, as Justinian says: Licet ut liberi vitam suam peragebant, attamen ipso ultimo spiritu simul animam atque libertatem amittebant, Inst. 3, 7, 4. ‘Though free in their lifetime, the same moment that deprived them of life reduced them to the condition of slaves.’

Although in the person of libertus himself, Latinitas retained many traces of its servile origin, yet it was not so for his posterity; these disabilities only attached to the original freedman, not to his issue. The son of the dediticius or Latinus Junianus, though reduced to absolute penury by the confiscation of the parental property to the patron, began, and continued, the world with the ordinary capacities, respectively, of peregrinus and Latinus coloniarius, and was under no legal obligations to the patron of his father.

Long before the time of Gaius, Latinitas or Latium had only a juristic, not an ethnographic signification. Cf. § 79. Soon after the Social War (b. c. 91) all Italy received the civitas Romana. Originally Gallia Cispadana (Southern Lombardy) had civitas Romana, while Gallia Transpadana (Northern Lombardy) had only Latinitas, but Gallia Transpadana afterwards obtained civitas. Latinitas was a definite juristic conception, and Latin status was conferred as a boon on many provincial towns and districts that had no connexion with Latium or its races. Vitellius is carped at by Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri, Hist. 3, 55). Hadrian made many similar grants (Latium multis civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See § 131 Comm.

[ Commentary ]

§ 29. This enactment is stated by Ulpian to belong to the lex Junia (Ulp. 3, 3), cf. § 18, comm.

Pronuntiaverit. The decision (sententia) of the judex in a judicium ordinarium was either condemnatio or absolutio of the defendant. In actions in which the case was left to the arbitrium of a judex this was apparently preceded by pronuntiatio, a declaration of the rights of the parties. This appears from the following, among other passages: Sed et si fundum vindicem meum esse, tuque confessus sis, perinde teneberis atque si dominii mei fundum esse pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter me et te controversia esset, juravero hereditatem meam esse, id consequi debeo quod haberem si secundum me de hereditate pronuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for the plaintiff, if the defendant obeyed the arbitrium or provisional order of the judex by making restitution, there was no subsequent condemnatio. Cf. 4 § 49. In the form of real action, called a praejudicium, that is, a preliminary issue of fact, the pronuntiatio formed the whole result of the trial, and was not followed by sententia. Similarly, when a Latinus laid his claim of Roman citizenship before the praetor under this enactment of the lex Aelia Sentia, the result of the extraordinaria cognitio of the praetor was merely a pronuntiatio without any subsequent decretum.

1. By erroris causae probatio, i.e. if Latinus marry Peregrina, believing her to be Latina or Civis, § 70; or Latina marry Peregrinus, believing him to be Latinus, § 69; or if Civis, believing himself to be Latinus or Peregrinus, marry Latina, § 71; or if Civis marry Peregrinus, believing him to be Civis or Latinus; or if Civis marry Latina or Peregrina, believing her to be Civis Romana, § 67; on birth of a child and on proof of this mistake, the Latinus or Latina and their offspring acquire the citizenship.

2. By magistracy in a Latin colony Latinus becomes Civis Romanus, §§ 95, 96.

3. By re-manumission (iteratio), i.e. on slaves under thirty when manumitted acquiring Latinity by one of the private modes of manumission, a subsequent manumission by one of the public modes, vindicta, censu, or testamento, converted them from Latini into Cives, § 35, and Ulp. 3, 4.

4. Under the lex Visellia above mentioned by six years’ service in the Roman guards (si inter vigiles Romae sex annos militaverit, Ulp. 3, 5). A decree of the senate made three years’ service a sufficient title, § 32 b. Compare the provision of 13 Geo. II, c. 3, whereby every foreign seaman who in time of war serves two years on board an English ship, and all foreign protestants serving two years in a military capacity in the American colonies, are naturalized.

5. Under a constitution of Nero by building a house in Rome (aedificio, Ulp. 3, 1), § 33.

6. Under an edict of Claudius by building a ship of 10,000 modii and importing corn to Rome for six years, § 32 c, Sueton. Claud., Ulp. 3, 6. Compare the English law by which all foreign protestants employed three years in the whale fishery are naturalized, except as to capacity for public office.

7. Under a constitution of Trajan by building a mill and bakehouse for the supply of Rome (pistrino, Ulp. 3, 1), § 34.

8. By bearing three children, Ulp. 3, 1.

9. By imperial grant (beneficio principali, Ulp. 3, 2). This and the previous mode of acquiring citizenship were perhaps mentioned by Gaius at the beginning of § 35.

Civitas Romana and Jus Quiritium are synonymous, but the former term was always used when citizenship was conferred on a Peregrinus, the latter generally when it was conferred on Latinus Junianus: e. g. Quare rogo, des ei civitatem, est enim peregrinae conditionis, manumissus a peregrina. . . . Idem rogo, des ius Quiritium libertis Antoniae Maximillae . . . quod a te, petente patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod et ius Quiritium libertis necessariae mihi feminae et civitatem Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid. 10, 5. Civitas Romana, however, was sometimes used in speaking of the enfranchisement of Latinus, as we see from § 28.

[ Commentary ]

§ 41. Justinian, having first reduced the age from 20 to 17, or the beginning of the eighteenth year (Inst. 1, 6, 7), finally permitted minors to enfranchise by will as soon as they could make a valid will, i. e. at the age of 14 (Novella, 119, 2). He mentions that the lowest class of freedmen (dediticia libertas) had long been obsolete, and formally abolished the second class (latina libertas), converting informal modes of making Latinus, such as per epistolam, inter amicos, into modes of making Civis Romanus, and declaring the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst. 1, 5.

[ Commentary ]

§ 47. The lex Fufia Caninia, passed under Augustus (Sueton. Aug. 40), to prevent the degradation of citizenship by testators abusing their testamentary right of manumission, was generally called the lex Furia Caninia before the manuscript of Gaius was re-examined by Studemund; it was abrogated by Justinian. See Inst. 1, 7. The clause of the lex Aelia Sentia referred to in the text was retained by Justinian. Inst. 1, 6 pr.

[ Commentary ]

§§ 52, 53. The condition of the slave was at its worst in the golden period of Roman history. As soon as Rome found her power irresistible she proceeded to conquer the world, and each stage of conquest was the reduction of a vast portion of mankind to slavery. 30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator, the captor of Tarentum; 150,000 Epirots by Paulus Aemilius, the subjugator of Epirus. Julius Caesar retrieved his shattered fortunes by enormous operations in the slave market during his campaign in Gaul. Thus, unfortunately for the slave, the slave market was continually glutted and slave life was cheap. The condition of the slave gradually but slowly improved under the emperors. The killing of the slave of another was not an offence under the lex Cornelia de sicariis itself, but by the interpretation of later times it was brought under this law. A lex Petronia of uncertain date, but which must have been passed before the destruction of Pompeii, a. d. 79, being mentioned in an inscription found there, required a slave-owner to obtain the permission of a magistrate before exposing a slave to be torn to pieces by wild beasts, and only allowed such permission to be granted for some offence committed by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master killing his own slaves who fell sick, and enacted that the exposure of a slave to perish in his sickness should operate as a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is said to have deprived proprietors of the power of putting slaves to death without a judicial sentence, Spartian, Had. 18 (but see on this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a master who killed his own slave to be responsible in the same way as if he had killed the slave of another, cf. § 53, 3 § 213, i. e. guilty of murder, and subject to the penalty of the lex Cornelia de sicariis. We read in Justinian’s Digest: Qui hominem occiderit punitur non habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2. The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be remembered, however, that none of these laws deprive the master of the right of punishing his slaves himself for domestic offences. Hadrian prohibited the castration of a slave, consenting or not consenting, under penalty of death, Dig. 48, 8, 4, 2. Antoninus Pius also protected slaves against cruelty and personal violation, Dig. 1, 6, 2, obliging the master, as we see by the text, to manumit them on account of his maltreatment. The Digest, 1, 6, 1, quoting § 53, after sine causa, interpolates, legibus cognita, thus placing slaves under the protection of the law, and almost recognizing in slaves some of the primordial rights of humanity, except that, as already observed, obligation does not necessarily imply a correlative right. Roman law to the end, unlike other legislations which have recognized forms of slavery, refused to admit any rights in the slave. Florentinus, however, not long after the time of Gaius, admitted that slavery, though an institution of jus gentium, was a violation of the law of nature. Servitus est constitutio juris gentium qua quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian says the same: Quod attinet ad jus civile, servi pro nullis habentur, non tamen et jure naturali; quia quod ad jus naturale attinet, omnes homines aequales sunt, Dig. 50, 17, 32. ‘Before the Civil law a slave is nothing, but not before the Natural law; for in the eye of Natural law all men are equal.’ The belief in a Natural law, more venerable than any Civil law, was very prevalent in the ancient world, and one of the principal contributions of Philosophy to civilization.

The absolute privation of all rights was sometimes expressed by saying that a slave has no persona, caput, or status: e. g. Servos quasi nec personam habentes, Nov. Theod. 17. Servus manumissus capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum servus manumittitur, quia servile caput nullum jus habet, ideo nec minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The word ‘persona,’ however, is sometimes applied to slaves; e. g. in personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput in the last but one of the above-quoted passages.

But though a Roman slave was incapable of being invested with rights for himself, yet he often filled positions of considerable importance both in public and private life and was allowed by his owner to hold a considerable peculium. It was because slaves were ordinarily employed as procuratores in commercial transactions, that Roman law failed to develop the principle of contractual agency, as it is understood in modern systems of jurisprudence.

[ Commentary ]

§ 55. The most peculiar portion of the Roman law of status is that which refers to patria potestas, or the relation of paterfamilias to filiusfamilias. Patria potestas was founded on consuetudinary law (cum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and may be considered under two heads, (1) as regarding the person of the son, (2) as regarding proprietary rights acquirable by the son.

1. Over the person of the child the father had originally a power of life and death. Patribus jus vitae in liberos necisque potestas olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parricidiis, enumerating the persons who could be guilty of parricide, or the murder of a blood relation, omits the father, Dig. 48, 9. Compare also the formula of Adrogatio, §§ 97-107, commentary. But in later times this power was withdrawn. Hadrian condemned to deportation a father who in the hunting-field killed his son who had committed adultery with his stepmother, Dig. 48, 9, 5. Constantine, a. d. 319, included killing by a father under the crime of parricide, Cod. 9, 17. Fathers retained the power of moderate chastisement, but severe punishment could only be inflicted by the magistrate, Cod. 8, 46, 3. Si atrocitas facti jus domesticae emendationis excedat, placet enormis delicti reos dedi judicum notioni, Cod. 9, 15. Trajan compelled a father to emancipate a son whom he treated with inhumanity, Dig. 37, 12, 5. It was originally at the option of the parent whether he would rear an infant or expose it to perish, but in later times such exposure was unlawful, as was declared by Valentinian, Valens, and Gratian, a. d. 374, Cod. 8, 51, 2.

Originally also parents had the power of selling (mancipandi) their children into bondage, thus producing a capitis minutio, or degradation of status. The patriarchs of the Roman race may perhaps have been slave-dealers who, like some savage tribes in Africa and elsewhere, trafficked in the bodies of their own children, but we must note that the bondage into which a Roman father sold his children was, at least at the time at which this institution is known to us, a limited degree of subjection: the mancipation, which if made three times released a son from his father’s power according to a provision of the Twelve Tables, could only be made to another Roman citizen, and the bondsman continued to be liber and civis. And this power also was withdrawn in more civilized times. A law of Diocletian and Maximian, a. d. 294, declares the sale, donation, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript of one of the Antonines commences in the following terms, Cod. 7, 16, 1: ‘You are guilty, by your own admission, of an unlawful and disgraceful act, as you state that you sold your freeborn children.’ Justinian increased the penalties of the law against creditors who took possession of the freeborn child of a debtor as a security for a debt. He enacted that the creditor should forfeit the debt, should pay an equal sum to the child or parent, and in addition should undergo corporal punishment, Novella, 134, 7. In the time of Gaius, the only genuine sale of a child into bondage was in the case of noxal surrender, i. e. when a father sued for the delict of a child, in lieu of damages, surrendered his delinquent son or daughter as a bondsman (mancipium) to the plaintiff, § 140. The sale of the child in adoption and emancipation was merely fictitious; even noxal surrender was practically obsolete in the time of Justinian, by whom it was formally abolished, Inst. 4, 8, 7. Constantine, however, a. d. 329, in cases of extreme poverty permitted parents to sell their children immediately after birth (sanguinolentos), and this constitution was retained in the code of Justinian, Cod. 4, 43, 2.

2. In respect of property, filiusfamilias was capable of obligation but not of right; he could be debtor but not creditor; in any transaction where an independent person (sui juris) would have been creditor, filiusfamilias was merely a conduit-pipe through which a right vested in his father as creditor or proprietor. Even in domestic relations filiusfamilias could only figure as inferior, not as superior; he owed obedience, but could not exercise command (jus, in the special sense which it has in the phrases, sui juris, alieni juris); he could only be an instrument by which his father acquired a right of command. Thus, filiusfamilias had commercium, and could take by mancipatio, but the property he thus took vested in his father; he could make a valid contract, but the contractual right vested in his father; he had testamentifactio, that is, he could be witness, libripens, familiae emptor, but he could not make a will, for he had no property to leave; and if he took under a will as legatee or heir, the legacy or succession vested in his father: cf. 2 § 87, 3 § 163, comm. He had the other element of civitas, connubium; that is, he could contract a civil marriage and beget civil children; but the patria potestas over these children vested not in the father but in the grandfather, and if the marriage was accompanied with power of hand (manus), marital power over the wife, this vested not in the husband but in the husband’s father. Any property which the son was allowed by his father to manage was called his peculium, i. e. was held on the same terms as property which a slave administered by permission of his proprietor. In respect of debts which he incurred, the son did not act as conduit-pipe, but (except for a loan of money, which the Sc. Macedonianum made irrecoverable) was liable in his own person, Dig. 44, 7, 39. ‘A son under power incurs obligation by the same titles, and may be sued on the same grounds of action as an independent person.’ The same rule applied to the son as to the slave: Melior conditio nostra per servos fieri potest, deterior fieri non potest, Dig. 50, 17, 133. ‘The melioration of his proprietor’s condition is in the power of a slave, but not the deterioration.’

In his public functions, filiusfamilias was entirely beyond the sphere of patria potestas. Quod ad jus publicum attinet non sequitur jus potestatis, Dig. 36, 1, 14. Thus, a son could act as praetor or as judex in a suit to which his father was a party. He could even preside as magistrate over his own adoption or emancipation: Si consul vel praeses filiusfamilias sit, posse eum apud semetipsum vel emancipari vel in adoptionem dari constat, Dig. 1, 7, 3 (which makes it doubtful how far political functions were suspended even by the state of mancipium or bondage). He could also be appointed guardian (tutor), for guardianship (tutela) was held to be a public function, Dig. 1, 6, 9. ‘A filiusfamilias in his public relations is deemed independent, for instance, as magistrate or as guardian.’

The above-stated incapacities of filiusfamilias were subject, however, to certain exceptions and modifications, which may now be briefly considered.

a. In certain cases filiusfamilias had an anomalous right of suing in his own name (suo nomine), i. e. not merely as procurator or attorney of his father, and even in opposition to his father’s wishes, Dig. 44, 7, 9. ‘A filiusfamilias can only, according to Julian, sue in his own name for outrage, by interdict for violent or clandestine disturbance, for a deposit, and for a thing he has lent for use.’ These suits, which, in spite of the statement in the text, were not the only, though perhaps the oldest, actions maintainable by a person under power, deserve a brief explanation. Without the right to Honour, one of the primordial rights of humanity, a man is scarcely a freeman, and, accordingly, this right vests definitively in filiusfamilias, and does not again pass out of him to vest in his father. Any dishonouring outrage, therefore, gave filiusfamilias a right of bringing a civil action, called actio injuriarum, in his own name, though the paterfamilias as a rule maintained the action both on his own account and that of his son; if, however, he was unable to do so, or his character was dubious, the son could proceed by himself (cf. 3 § 221, and Dig. 47, 10, 17, 10, &c.), although any pecuniary damages that he thereby recovered, being in the nature of property, were recovered for his father. The son under power was recognized, then, as invested with a vindictive right, though not with a proprietary right. The actio injuriarum was one in bonum et aequum concepta (compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34 pr.), that is, the terms of the formula (conceptio) directed the judex to assess the damages not on any strict principle of law, but by his own sense of natural equity (aequum et bonum), and this form may have helped to make the action maintainable by one who was generally incompetent to sue. The interdict quod vi aut clam was maintainable by filiusfamilias on the same principle as the actio injuriarum, being a means of vindicating a dishonouring outrage inflicted on filiusfamilias by some violent disturbance of real immovable property in defiance of his prohibitio or summons to stay operations and let the matter ahide the result of a judicial trial. Cf. 4 §§ 138-170, comm. On the same principle a filiusfamilias disinherited or passed over in the will of his mother or maternal grandfather, as such disinheritance or pretermission was an implied imputation of turpitude or unworthiness and therefore dishonouring, might without the consent of his father (Dig. 5, 2, 22 pr.) vindicate his honour by impeaching the will of inofficiositas (immorality, or want of natural affection), although such querela inofficiosi testamenti, being an action having a right to property for its object, would not otherwise have been maintainable by a filiusfamilias. If the plaintiff filiusfamilias could show that the disinheritance or omission was not due to his own demerits, he invalidated the will by a fictitious presumption of the testator’s lunacy and made the testator intestate; and thus filiusfamilias vindicated his own character, though whatever share he recovered in the intestate succession vested in his father. Cf. 2 §§ 152-173, comm.; Inst. 2, 18.

The right of filiusfamilias to sue by actio commodati or depositi was founded on a different principle. Suppose that filiusfamilias had borrowed or hired a thing that he afterwards lent or deposited; his father, not being responsible for his son’s debts, would not be interested in the recovery of the thing, and therefore was not entitled to sue the depositary or borrower: the son, however, would be answerable to the original lender or letter, and accordingly was allowed to sue in his own name. To avoid, however, contravening the civil law by affirming a proprietary right vested in a filiusfamilias, he did not sue by a formula in jus concepta, i. e. of the form, si paret oportere, ‘if the plaintiff establish a right,’ but by a formula in factum, of the form, si paret factum esse, ‘if the plaintiff establish a fact.’ It is remarkable that Gaius instances precisely the actio commodati and the actio depositi as having two forms, one in jus and another in factum (4 § 47); and we may eonjecture that the latter was invented to be used under these very circumstances by filiusfamilias.

b. The latter periods of Roman law present a gradual emancipation of filiusfamilias by successive inventions of new kinds of peculium. As early as the time of Augustus filiusfamilias was allowed to dispose freely by will of his earnings in military service, castrense peculium, which came to be treated in all respects as his individual property, except that till the time of Justinian the rules of intestate succession did not apply to it. Filiifamilias in castrensi peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2. Subsequently to the time of Gaius, under Constantine and his successors, the earnings of filiifamilias in the civil service of the State, in holy orders, in the liberal professions, were assimilated to their earnings in the army, and came to be called peculium quasi castrense. Further, in the time of Constantine, it was also established that whatever came to the son from his mother or, as the law was under Justinian, from the maternal line, or from any source but the paternal estate (ex re patris), should be acquired for the father, and held by him only as a usufruct or life estate, while, subject to this, the son had the ownership of it (peculium adventicium). Peculium adventicium thus included everything acquired by the son which was not castrense peculium, nor quasi-castrense peculium, nor acquired by means of the father’s property (ex re patris). Only this latter peculium derived from the paternal estate continued, under the name of peculium profecticium, subject to the old rules, and belonged in absolute property to the father. Cf. 2 § 87, comm.; Inst. 2, 9, 1; 3, 19, 6; 4, 8, 7; 3, 10, 2, 28 pr.

The Gallic race, of which the Galatians were a branch, are mentioned by Caesar as having the institution of patria potestas: Viri in uxores, sicuti in liberos, vitae necisque habent potestatem, De Bello Gall. 6, 19. St. Paul in his Epistle to the Galatians may perhaps allude to the peculiarity of their law: ‘The heir, as long as he is a child, differeth nothing from a servant (slave), though he be lord of all’; 4, 1, though the Apostle seems to be directly referring to the cognate institution of guardianship.

[ Commentary ]

In any treatise on the law of marriage that we open we shall meet the expression, the marriage contract; and this suggests the inquiry, is marriage a contract, and, if so, to which class of Roman contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman marriage to be referred? Most writers assume that it was a Consensual contract, on the strength of texts like the following: Nuptias non concubitus sed consensus facit, Dig. 35, 1, 15. ‘Marriage does not depend on cohabitation, but on consent.’ Ortolan, however, remarks that consensual contracts could be formed by absent contractors, Inst. 3, 22, 2, whereas a marriage could not be contracted in the absence of the wife, Paul, 2, 19, 8; and shows that, besides the consent of the parties, delivery of possession of the wife to the husband was required, from which he infers that Roman marriage was not a Consensual but a Real contract. It is true that marriage might be contracted in the absence of the husband; but this was only under certain conditions, Dig. 23, 22, 5. ‘A man in his absence may marry by letter or message, provided the woman is led to his house: a woman in her absence cannot marry by letter or message, for the leading must be to the husband’s house, as the domicile of the married pair.’ And precisely the same conditions were sufficient in other cases to constitute delivery of possession, Dig. 41, 2, 18, 2. ‘If a vendor deposit any article in my house by my order, I have possession of it though I have never touched it.’ Consensus, then, in the above-quoted passage, is not opposed to delivery of possession, but to cohabitation, or to the use of certain words or certain documents, or to the solemn and graceful ceremonial with which custom surrounded the matrimonial union.

Real contracts, however, are executory on one side and executed on the other, whereas in the conjugal relation both parties are on the same footing in respect of execution; and we may ask whether marriage is a contract at all; whether it does not rather fall under the opposite category of alienation or conveyance. Instead of finding its analogon in locatio-conductio or societas (consensual contracts) or pignus or commodatum (real contracts), may we not rather, with Savigny, find it in transfer of dominion or other creations of real right, such as adoption, the concession of patria potestas, or emancipation? This seems the truer view, and if we use the expression, marriage contract, we must use the term contract not in a specific sense, as opposed to conveyance, but in the generic sense of bilateral disposition (as opposed to unilateral disposition, e.g. testation), a sense embracing both contract proper and conveyance, and extending beyond the sphere of Property into the relations of domestic life. Contract proper and conveyance, though generally contrasted in jurisprudence, have much in common. If contract in its narrower sense is defined to be the concurrence of two manifestations of will creating a jus in personam, and conveyance the concurrence of two manifestations of will creating a jus in rem, the concurrence of two manifestations of will creating a jus is an element common to both terms of the comparison, and this common element may be denominated in a generic sense a contract. Contract in the narrower sense may then be distinguished as an obligative contract and conveyance as a translative contract, and the latter head will include the contract of marriage, if we continue to employ this expression.

As in respect of property or dominion we find in Roman law the distinction of Quiritary and Bonitary, that is, of civil and gentile, ownership, so in respect of the conjugal relation we find the distinction of Roman or civil marriage (connubium, justae nuptiae, justum matrimonium) and gentile marriage (nuptiae, matrimonium), of which the former alone was valid at civil law (connubium est uxoris jure ducendae facultas, Ulpian, 5, 3; ‘connubium is the capacity of marriage valid by civil law’) and capable of producing patria potestas and agnatio, though the latter produced legitimate children (justi as opposed to naturales liberi) and cognatio or natural relationship.

Capacity of civil marriage (connubium) is (a) absolute and (b) relative. (a) Only citizens have the absolute capacity of civil marriage, and such Latins and aliens as are specially privileged, § 56: slaves are incapable both of civil and gentile marriage. (b) Capacity of civil marriage is, however, always relative to another person who forms the other party to the union. A citizen only has connubium with a citizen or with such Latins and aliens as are specially privileged; and, before the lex Papia Poppaea was passed, a freeborn citizen (ingenuus) had no connubium with a citizen by manumission (libertinus). Lege Papia cavetur omnibus ingenuis, praeter senatores eorumque liberos libertinam uxorem habere licere, Dig. 23, 2, 23. ‘The lex Papia permits all freeborn citizens, except senators and their children, to marry freedwomen.’

Constantinus, a. d. 355, restored the ancient law and prohibited marriage with a brother’s daughter as incestuous, Cod. Theod. 3, 12, 1.

Affinity (affinitas) is the relationship of a person to the kin (cognates) of a spouse. The husband is allied to the kin of the wife, the wife to the kin of the husband; but there is no alliance between the kin of the husband and the kin of the wife. The following are some of the names given to these relationships. In the ascending line the father and mother of the wife or husband are socer and socrus (father-in-law, mother-in-law), and in relation to them the husband of the daughter and wife of the son are gener and nurus (son-in-law, daughter-in-law). In the descending line the children of the spouse are privignus and privigna (step-son, step-daughter), and in relation to them the husband of the mother and the wife of the father are vitricus and noverca (step-father and step-mother). In the collateral line the husband’s brother is levir (brother-in-law), the husband’s sister is glos (sister-in-law). Intermarriage with affines in the direct line, or their ascendents or descendents, was absolutely prohibited; collateral alliance appears to have been no impediment in the time of Gaius, but at a later period marriage with a deceased brother’s wife or a deceased wife’s sister was forbidden, Cod. Theod. 2, 3, 12; Cod. 5, 5, 5.

To the marriage of a filius- or filia-familias the consent of the father was required: but if he withheld it without a reason he could be compelled by the magistrate to give it, and, in the case of a daughter, to provide a dower, Dig. 23, 2, 19: one of several instances in which, as the condition of the validity of a title, when a voluntary action could not be obtained, the legislator substituted a compulsory action, instead of simply declaring the action unnecessary. See § 190, comm.

[ Commentary ]

Mistake or error sometimes conferred a right which a party could not have acquired if he had not acted under a mistake. Thus, the lender of money to a filiusfamilias without the father’s consent had no legal claim to recover, unless he lent believing the borrower to be independent (sui juris), and possession could not mature by usucapion into ownership, unless it had a bona fide inception, i. e. unless it commenced in an honest misunderstanding. The relief of error had similarly important results in questions of status. Erroris causam probare seems to mean ‘to make good a title by error,’ i. e. to establish, as title (causa) to relief, a probabilis error or justa ignorantia; i. e. a mistake not due to negligence; for negligence would exclude from relief.

The subjection of a child to patria potestas by erroris causae probatio operated to invalidate a previously executed will, like the subsequent birth (agnatio) of a child in civil wedlock (suus postumus), 2 § 142.

[ Commentary ]

§§ 76, &c. The rules relating to the status of the offspring of parents of unequal status are at first sight chaotic and bewildering, but they are reducible to a few canons. The most general canon is the rule of jus gentium, that children follow the condition of the mother. This is subject to two exceptions.

1. Children born in civil wedlock follow the condition of the father. Cf. §§ 88, 89, 94.

2. Children born in gentile (lawful) wedlock of a Roman mother and alien father follow the condition of the father: this was a special enactment of the lex Minicia.

These rules are stated in the following passages: Lex naturae haec est ut qui nascitur sine legitimo matrimonio matrem sequatur nisi lex specialis aliud inducat, Dig. 1, 5, 24. ‘By the law of nature children not born in civil wedlock follow the status of the mother, in the absence of a special statute to the contrary.’ Connubio interveniente liberi semper patrem sequuntur: non interveniente connubio, matris conditioni accedunt, excepto eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex Minicia (in MS. Mensia) ex alterutro peregrino natum deterioris parentis conditionem sequi jubet, Ulpian, 5, 8. ‘In civil wedlock the children have the status of the father, in the absence of civil wedlock of the mother; except that the children of an alien father and Roman mother are aliens, as the lex Minicia makes the children aliens when either parent is an alien.’

The Sc. Claudianum introduced some special enactments respecting the intercourse of freewomen with slaves, which, however, were subsequently abolished.

a. If a freewoman had intercourse with a slave with the consent of his proprietor she retained her freedom, though degraded to the class of a freedwoman, but her issue was the slave of the proprietor. The slavery of the issue was abolished by Hadrian, § 84.

b. If a freewoman persisted in intercourse with the slave of another person against the will and in spite of the prohibition of the proprietor, after three denunciations on his part she was awarded to him by the magistrate as a slave, and her issue, whether born before or after the adjudication, became slaves of the same person, who also acquired her estate by a species of universal succession. Cf. §§ 91, 160. This terroristic law, which, from the minuteness with which the details are developed (Paulus, 2, 21), appears to have been often applied, was not abrogated till the time of Justinian, Inst. 3, 12, 1.

c. If a freeman had intercourse with a slave whom he supposed to be free by a law the title of which is lost, but which possibly may be the Sc. Claudianum, her male children were born into freedom. This relief of error was abolished by Vespasian as anomalous (inelegans), § 85.

[ Commentary ]

Supposing the status of a parent changes during the period of gestation (if, for instance, the mother is a slave at the time of conception and free at the time of birth), what effect has this on the status of the issue? The following rule was adopted: in cases where the child follows the status of the father, that is, when it is begotten in civil marriage, the status of the father at the time of conception determines the status of the child; where the child follows the status of the mother, that is, when it is begotten in gentile marriage or in promiscuous intercourse, the status of the child is determined by the status of the mother at the moment of birth. Ulpian, 5, 10. ‘Children born in civil wedlock have their status fixed at the time of conception; children born out of civil wedlock have their status fixed at the time of delivery.’ That is to say, the legal position of the issue is made to follow the analogy of its physical condition. The physical influence of the father terminates with conception: his subsequent health, life, or death, does not affect the physical state of the child; but the child is affected by every change in the physical condition of the mother, her health, life, or death, up to the moment of birth. In imitation of this analogy, the status of the child, when it depended on the status of the father, was not affected by any change in that status subsequent to the period of conception; but when it depended on the status of the mother it varied with every change in that status up to the moment of birth. By the time of Gaius, though the change is not mentioned in the text, this rule was modified in favour of liberty, and it was established that if the mother was free either at the date of conception or at the date of birth or at any intermediate period, the issue was born free. Si libera conceperit et ancilla facta peperit, liberum parit, id enim favor libertatis exposcit. Si ancilla conceperit et medio tempore manumissa sit, rursus facta ancilla peperit, liberum parit, media enim tempora libertati prodesse, non nocere etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr.

[ Commentary ]

The grant of civitas was either made to communities or to individuals. It was a lucrative source of revenue to the emperors. The fees to be paid were not small, Acts of the Apostles, 22, 28, and the new-made civis was regarded as a manumitted slave of the emperor, and was expected to remember the emperor in his will. The philosophic emperor, Marcus Aurelius, under whom Gaius flourished, granted Roman citizenship to all who were ready to pay the fees, data cunctis promiscue civitas Romana, Aurelius Victor, 16. Antoninus Caracalla, a. d. 212-217, after raising from one-twentieth to one-tenth the tax on manumissions and the testamentary succession and legacy duty, which was only levied on Roman citizens, exhausted for a time this source of revenue by conferring at a stroke Roman citizenship on every free subject of the empire: In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was not a general manumission of slaves nor an abolition of the status of Latin or alien, but a grant of citizenship to all existing Latins and aliens, imposing in effect a capitation tax on the individuals, and leaving those orders to be again replenished by subsequent manumissions of Latini and dediticii. The value of the privileges of civis Romanus was gradually declining. The political portions of civitas had been extinguished by the establishment of the empire, and Rome was destined at last to undergo the fate she had inflicted on so many other cities. She was sacked by Alaric, king of the Goths, a. d. 410. She was entered by Genseric, king of the Vandals, and, after a sack of fourteen days, left a heap of ruins, a. d. 455. The splendour of the title of civis Romanus was sadly dimmed before Justinian made it acquirable by every form of manumission.

The grant of patria potestas by the Emperor to the new-made citizen, § 93, may be assimilated to the legislative grant of patria potestas in adrogatio. Its different effects may be compared with the incidents of Naturalization and Denization in English law. Naturalization formerly only effected by act of parliament is retrospective, and puts an alien in exactly the same state as if he had been born in the king’s ligeance, and his son born before the naturalization may inherit: whereas the issue of a Denizen (an alien born who has obtained ex donatione regis letters patent to make him an English subject) cannot inherit to him, but his issue born after may. Blackstone.

The name of a senate in a municipality was ordo decurionum or simply ordo or curia, its members being decuriones or curiales. The office of decurio, which was at one time a coveted distinction, became very burdensome; and in order to make it more acceptable, privileges were from time to time attached to it, as e. g. Latium majus, and in later times legitimatio per oblationem curiae (Inst. 1, 10, 13). (Dig. 50, 2 de decurionibus.)

It is to be noticed that the jus Latii could, according to Gaius, § 95, be constitutionally granted in three ways, either by the people itself (in Comitia), or by the senate (representing the people), or by the Emperor (in whom the power of the people was to a great extent vested).

[ Commentary ]

Adrogation, or the adoption of an independent person (paterfamilias), reducing him to a dependent status (filiusfamilias), was a legislative act of the Comitia Curiata; but though, as representing the people, this assembly was legally omnipotent, it was unconstitutional to deprive a person either of the citizenship or of domestic independence without his own consent. We learn from Cicero the formula by which this assent was ascertained. De Domo, 29. ‘As it is an immemorial rule of law that no citizen of Rome shall be deprived of the independent position of paterfamilias or of citizenship against his will, as you have had occasion of learning by your own experience, for I suppose that, illegal as your adrogation was in all points, you at least were asked whether you consented to become subject to the adrogator’s power of life and death as if you were his son;—if you had opposed or been silent, and the thirty Curiae had nevertheless passed the law, tell me, would their enactment have had any binding force?’ The form in which the law was proposed to the legislative assembly is given by Gellius, 5, 19. ‘Adrogation is the subjection of an independent person with his own consent to the power of a superior, and is not transacted in the dark or without investigation. The Comitia Curiata, at which the College of Pontiffs is present, are convened, and examine whether the age of the adrogator does not rather qualify him for the natural procreation of children, and whether the estate of the adrogatus is not the object of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, the high pontiff, has to be taken by the adrogator. . . . Adrogation, the name given to this transmit into a strange family, is derived from the interrogation of the legislative body, which is in the following form: ‘May it please you to will and command that L. Valerius shall be as completely by law and statute the son of L. Titius as if he were born of L. Titius and his wife, and that L. Titius shall have power of life and death over L. Valerius as a father has over his son. Do you will and command as I have said, Quirites?’ Those who voted in affirmation of the measure proposed said (at least in other similar assemblies): Uti rogas; those who voted against it said: Antiquo. Women were originally incapable of being adrogated, § 101, because they were incapable of appearing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum communio est, Gellius, ibid.; but this incapacity vanished as soon as the lex Curiata, as form of adrogation, was superseded by imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21. Women, being incapable of exercising parental power, could not, properly speaking, adrogate, § 104; but they were permitted, under Diocletian a. d. 291, by quasi adrogation to establish the same legal relation as existed between a mother and her natural children, Cod. 8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth must have attained the age of puberty before he could be adrogated, § 102, and Gellius, ibid.: Sed adrogari non potest nisi jam vesticeps . . . quoniam tutoribus in pupillos tantam esse auctoritatem potestatemque fas non est, ut caput liberum fidei suae commissum alienae ditioni subiciant. ‘A youth cannot be adrogated before he has assumed the toga virilis, because a guardian has no authority or power to subject an independent person, with whose charge he is entrusted, to the domination of a stranger.’ The purple-edged praetexta was generally laid aside by boys along with the bulla aurea which they wore round their neck, on the first Liberalia, the 17th March, Ovid, Fasti, 3, 771, after the completion of their fourteenth year. Females did not lay aside the praetexta till their marriage. Antoninus Pius permitted the adrogation of youths below the age of puberty (impubes, investis) under certain conditions; e. g. the adrogator entered into a stipulation, originally with a public slave, in later times with a public notary (tabularius), in the event of the death of adrogatus before the age of puberty, to restore his estate to his natural heirs, and, in the event of emancipation, to adrogatus himself: and adrogatus became entitled to a fourth part of the estate of adrogator (called quarta Antonini), of which he could not be deprived by disinherison or by unmerited emancipation, § 102; cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only acquired a usufruct for life in the property, subject to which the adrogatus was owner of it; that is to say, the property of adrogatus was transformed by adrogation into peculium adventicium. Cf. 3, 84, comm.

The form of simple adoption is explained below, § 134, under the head of dissolution of patria potestas, for as patria potestas is vested by adoption in the adoptive father, so it is divested from the natural father.

The effect of adoption was much reduced by a constitution of Justinian. If the adoption was by an ascendent, maternal or paternal, it retained its old character: but if it was by a stranger it neither created nor extinguished patria potestas; it did not transfer the adopted son from his old family into a new family, and therefore it neither destroyed nor created any tie of agnation: its only effect was to give to the adopted son, in the event of intestacy, a claim against the estate of the intestate adoptive father; Cod. 8, 47, 10; Inst. 1, 11, 2 and 3, 1, 14.

[ Commentary ]

In early Roman law a woman on marriage necessarily passed out of her own agnatic family into that of her husband, taking the place of a filiafamilias in it. If her husband was paterfamilias, she came into his hand, if he was filiusfamilias into that of his father. This power (manus) was the same in its nature as patria potestas. By manus the husband, or the husband’s father, had power of life and death over the wife, Livy, 39, 18; Tac. Ann. 13, 32; and all the property of the wife, even more absolutely than by the common law of English jurisprudence, vested in the husband or his paterfamilias, 2 § 98.

The patriarchs of the Roman nation could probably not conceive of the conjugal union as disjoined from manus. Yet at a very early period of Roman history these were recognized as separable, and in later times they were almost universally dissociated, and wedlock was unaccompanied by manus. In a marriage celebrated without confarreation and without coemption before the expiration of the first year of cohabitation, there was civil wedlock without manus, and the Twelve Tables provided a method (trinoctio abesse) by which this state could be indefinitely prolonged, § 111: and as soon as gentile marriages were recognized by the law the Romans were still more familiarized with the spectacle of lawful matrimony without manus. As the ages advanced the wife acquired more and more independence; manus was almost obsolete in the time of Gaius, and it has quite vanished from the legislation of Justinian. (For a detailed account of the law of marriage see Sohm, pp. 470-498.)

Confarreation was a form of marriage which made the issue eligible for certain high sacerdotal functions, and may therefore be regarded as characteristic of the patrician caste. Originally it probably produced marital power in its full extent; but when Augustus, b. c. 10, after a vacancy of seventy-five years, renewed the priesthood of Jove (flaminium diale) he limited by statute the legal effect of confarreation in that particular instance, § 136; and Tiberius, a.d. 23, extended the limitation to all future cases of confarreation, Tac. Ann. 4, 16. Henceforth it only operated a change of family in respect of sacred rites (sacra): the woman ceased to have the domestic gods and domestic worship of her father, and took in exchange the domestic gods and domestic worship of her husband. But in secular matters her family was unchanged: she remained, if filiafamilias, subject to patria potestas, and did not become quasi filiafamilias in the household of her husband: her old ties of agnation in her father’s family were not snapped, and no new ties of agnation in her husband’s family were acquired. Divorce (diffarreatio, Festus, s.v.) was almost impossible, and this indissolubility of the connexion contributed to the unpopularity of confarreatio. Moreover, it was a religious ceremonial, requiring the presence of the pontifex maximus and flamen dialis, and as such it vanished with vanishing paganism. The ten witnesses apparently represented the ten curiae of which the tribe was composed, or the ten gentes of which the curia was composed, or, if the decimal division continued further, the ten families of which the gens was composed.

The purchase of the wife by the husband, a widespread custom in a primitive state of society, was no doubt one of the ways in which Roman marriage originated. The exact nature of Coemption, in consequence of the defective state of the Veronese manuscript, must, however, remain a mystery. Coemption was a form of mancipation, § 113, but in virtue of the provision of the Twelve Tables, Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every mancipation depended on the mancipii lex, the accompanying nuncupation or verbal declaration of its condition, intentions, purposes; as in English conveyancing the nature of a grant is limited and determined by the habendum and tenendum of the deed. We are informed that in coemption, the formula was not the same as in other mancipations, § 123, but we are not informed what it was. Even in Cicero’s time many advocates were ignorant of the legal effect of a coemption because they were ignorant of the precise terms of the formula in which it was concluded, De Orat. 1, 56. The word itself may suggest a conjecture that it was a conveyance of the husband to the wife as well as of the wife to the husband; and this is supported by Servius on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who quoted apparently from Ulpian: ‘An ancient nuptial form wherein husband and wife made a mutual purchase, to bar the inference that the wife became a slave.’ Plutarch informs us that the wife asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest. Rom. 28: ‘Where thou art master, I am mistress.’ Boethius on Cicero, Topica, 3, 14, quoting from Ulpian, says: ‘The man and woman interrogated one another. He asked her if she wished to be mother of his household; she answered, Yes. She asked him if he wished to be father of her household; he answered, Yes. And thus the woman passed into the hand of the man, and was called the mother of his household, with the status of filiafamilias.’ According to Cicero, the wife was only called materfamilias when subject to hand: Genus est uxor; ejus duae formae; una matrumfamilias, eae sunt, quae in manum convenerunt, altera earum quae tantummodo uxores habentur, Top. 3, 14. Gellius says the same, 18, 6, 7: Tradiderunt matremfamilias appellatam esse eam solam quae in mariti manu mancipioque aut in ejus, in cujus maritus manu mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the title to a wife who has become subject to manus by coemption: Quae autem in manum per coemptionem convenerant, hae matresfamilias vocabantur, quae vero usu et farreatione, minime, ibid. However this may have been, in one sense the name was a misnomer, for a wife subject to hand was not sui juris (materfamilias), but alieni juris (filiafamilias): and that materfamilias denoted a woman sui juris, whether married or unmarried, as opposed to a filiafamilias or woman alieni juris, appears from Ulpian (4, 1): Sui juris sunt familiarum suarum principes, id est paterfamiliae itemque materfamiliae. (See Muirhead’s Roman Law, App. B.)

If the wife was subject to the power of her father, she required his sanction before she could make a coemption with her husband. If the wife was independent of parental control, she required the sanction of her guardians, who under the old law would have been her nearest agnates.

Coemption was sometimes employed for other purposes than matrimony, and was then called fiduciary coemption. Sometimes the intention was to extinguish the obligation of onerous sacred rites attached to the estate of an heiress: Jure consultorum ingenio senes ad coemptiones faciendas interimendorum sacrorum causa reperti sunt, Cic. Pro Murena, 12, § 27. ‘Juristic ingenuity invented coemptions with aged men for extinguishing sacred rites.’ Savigny (Verm. Schr. 1, 190) gives the following conjectural explanation of the process. The obligation to the sacra belonged to the Quiritary ownership of the universitas of the woman’s estate. This, by the effect of coemption, vested in the coemptionator, an old man approaching dissolution (senex coemptionalis), with whom a fictitious marriage was contracted, and who took the estate as universal successor. He forthwith dismissed the woman from his manus by remancipation and manumission: and then, according to covenant, restored to her the estate in portions; that is, released from the ritual obligations, which only attached to the universitas. On his death, as Quiritary owner of the empty universitas, the obligation to the rites was extinguished: for the succession (hereditas) to the coemptionator did not pass to the woman, as she by remancipation had ceased to be [such was the hypothesis of Savigny before the discovery of Gaius: instructed by Gaius we must rather say, as mere fiduciary coemption had not the effect of making her] his filiafamilias and sua heres. The phrase senex coemptionalis denotes a slave. From which it may be inferred that a slave, useless for any other purpose, and therefore very cheap, was sometimes bought and manumitted to serve as coemptionator. In such a case the whole transaction would be very inexpensive, if not very decorous. This mode of getting rid of sacred rites is compared by Ihering, § 58, with the institution of a slave as heir to bear the infamy of bankruptcy instead of the deceased testator, 2 § 154. Universal succession was an institution which Roman law only admitted in certain cases, 2 § 98, including the cases of Manus and Adrogatio. If universal succession was required for the purpose of extinguishing the obligation to sacred rites attaching to the estate of an heiress, we might have supposed that Adrogatio would have been a less offensive mockery than a fictitious marriage (fiduciary coemption); adrogatio, however, was inapplicable, because, as we have seen, up to a late period of Roman law women were incapable of being adrogated. Moreover, the Pontifices, who had a veto on adrogations, were not likely to lend themselves readily to the extinction of sacred rites. (Comments of other modern writers on this subject are noticed in Roby’s Roman Private Law, 1, 71, n. 1.)

At other times Coemption was employed to enable a woman to select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. ‘There are many wise legal provisions that juristic ingenuity has defeated and perverted. All women on account of their weakness of judgement were placed by our ancestors under a guardian’s control: jurists invented a kind of guardian subject to female dictation.’ (Cf. Sohm, 103, n. 2.)

The latest employment of Coemption enabled a woman to break the ties of agnation and thus acquire testamentary capacity, § 115 a; Cic. Top. 4, 18. The coemptionator (party to the coemption) in virtue of the manus thereby acquired was able, and by a fiducia or trust was bound, to sell the woman into bondage as if she were filiafamilias: accordingly he remancipated her to a third person, who by manumitting her in accordance with another fiducia became her patron, and as patron, in accordance with the Twelve Tables, §§ 165, 166, her statutory guardian (tutor legitimus), and, as having acted under a fiducia, her fiduciary guardian, § 115. It may occur to us that as coemptio required the sanction of a father or guardian, this process could not be of much use in getting rid of a guardian or defeating the claims of agnatic guardians to a woman’s intestate succession; but it must be remembered that the nearest agnate, who alone was heir and guardian, was a variable person, and that a given nearest agnate might be not indisposed to allow a woman to acquire the free disposition of her property and to defeat the claims of those who, after his death, would be nearest agnates and presumptive heirs. At all events, however indisposed the guardian might be to such a course, a period at last arrived when the auctoritas of the guardian, though still required as a formality, could be extorted, if not yielded voluntarily, by appeal to the magistrate, § 190.

Agnatic guardianship of female wards was abolished by a lex Claudia, § 171, and thus the woman would be free from the control of an interested guardian in the disposition of her property during her lifetime. She would still however have had little more than a life interest until she acquired the power of testation. For when wills could be only executed in the comitia, 2 § 101, she would be excluded from testation, as well as from adrogation, by exclusion from the comitia: and after the introduction of the mancipatory will she was still barred by her agnates’ indefeasible claims to her reversion. Agnation itself, however, was defeasible by means of coemptio and remancipatio and the consequent capitis minutio; and when the auctoritas of the guardian for these proceedings could be extorted, § 190, the woman had practically acquired power of testation, although its exercise was hampered by a tedious formality, which was not abolished by the emperor Claudius when he abolished agnatic guardianship. It was not till the senatusconsult of Hadrian that the rupture of the ties of agnation by means of coemptio ceased to be necessary to the validity of a woman’s will, § 115 a; 2 §§ 112, 118; though it had probably been previously a mere formality (the woman having power to extort at pleasure the auctoritas of the agnatic guardian) even before the time of Claudius. As we learn from the text coemption had not been required previously in the case of certain privileged women. Cf. §§ 145, 194; 3 § 44; Ulp. 29, 3.

The pactum fiduciae, or agreement by which the conditions or trusts were defined, must not be identified with nuncupatio. Nuncupatio forms an integral part of Mancipatio, and what was declared in it would constitute a title under the law of the Twelve Tables. Pactum fiduciae, on the other hand, never coalesces with Mancipatio, but remains a separate adjunct, originally only morally binding on the transferee, but afterwards forming an obligation of jus gentium, and affording ground to support a bonae fidei actio. Herein Mancipatio is contrasted with Tradition and the dispositions of natural law. Conventions accompanying Tradition unite with it, and form a single consolidated disposition; and the pacts annexed (pacta adjecta) to any contract of natural law (venditio, conductio, mandatum, &c.) become integral parts thereof, and are enforced by the action brought on the principal contract. Stipulatio, as a civil disposition, seems to have originally resembled Mancipation in this respect: at least it was a late period of the law when the rule was clearly established that: Pacta incontinenti facta stipulationi inesse creduntur, Dig. 12, 1, 40, i. e. Pacts made contemporaneously with a stipulation are deemed to be portions of the stipulation. Savigny, § 268. It is true that a Pactum adjectum respecting interest and annexed to the gentile disposition Mutuum could not be enforced by an action brought upon the Mutuum: but that was a consequence of the nature of the action (condictio certi) whereby Mutuum was enforced, and which could not embrace any sum beyond the original subject of the Mutuum; 3 §§ 90, 91, comm.

[ Commentary ]

In what respects did domestic bondage (mancipium or mancipii causa) differ from slavery (servitus)? Bondage was an institute of jus civile, slavery an institute of jus gentium, § 52. Bondage was the result of mancipation by a parent or coemptionator, and only a Roman citizen was capable of becoming a bondsman. The proprietor has possession of the slave, the lord has no possession of the bondsman, 2 § 90. The bondsman was civis Romanus, though what became of his political capacities during his bondage is uncertain; and he was liber, though alieni juris; he was free in respect of the rest of the world, he was only a bondsman in respect of the person in whose mancipium he was. Thus the status of mancipium was relative; a man could only be in mancipio in relation to a given domestic lord: whereas the status of slavery was absolute; a man might be a slave without an owner (servus sine domino): for instance, a person condemned for a capital crime, who was called the slave of punishment (servus poenae, Inst. 1, 12, 3), or a slave abandoned (derelictus) by his owner. Accordingly, falling into servitus was maxima capitis diminutio, while falling into mancipii causa was minima capitis diminutio, § 162. The bondsman had no proprietary rights against his superior, 2 § 86, but he had some of the primordial rights; for instance, he could sue his superior for outrage, § 141; and he was capable of civil wedlock and could beget Roman citizens, though during his bondage his patria potestas was in abeyance, § 135. Release from bondage, as from slavery, was by manumission, § 138, and the manumitter became the patron of the released person, §§ 166, 195 a, but the manumitted bondsman became ingenuus, whereas the manumitted slave became libertinus. Bondage did not exist in the time of Justinian.

[ Commentary ]

§ 128. Relegation was a milder form of punishment than deportation, and involved no loss of civitas nor of domestic rights, Inst. 1, 12, 2.

[ Commentary ]

§ 132. The epitome of Gaius, 1, 6, 3, which throws light on this passage, mentions as present at an emancipation, besides the five witnesses and libripens, a seventh person called antestatus, who is also mentioned in the bronze tablet referred to in the remarks on pignus and fiducia. Book 3, §§ 90, 91, comm. His duty may have been to ask the witnesses whether they were bearing witness to the transaction (antestari). Cf. Roby, Private Law, pp. 180, n. 2, 423, n. 3.

The vindicta or wand used in manumission, as already stated, was the rod or verge symbolizing a lance carried by the parties in a real action, 4 § 13. The status of freedom (libertas) whether as opposed to slavery or to bondage (mancipii causa) was a real right (jus in rem). and therefore a subject to be contested in a vindicatio. Manumission by vindicta was a collusive vindicatio, in other words, an in jure cessio. Cf. Roby, 1, p. 26, n. 1.

The epitome of Gaius (l. c.) calls the person, to whom the son was mancipated by pater naturalis, pater fiduciarius, which implies that the mancipation was accompanied by a fiducia or declaration of trust. The trust would be that the pater fiduciarius should make default or confess in the subsequent in jure cessio.

The status of paterfamilias or of filiusfamilias being, like other kinds of status, a real right, the claim of a person as filiusfamilias was a matter to be contested in a real action or vindicatio brought against the person in whose possession he was. This would seem the more obvious in primitive times, when probably no distinction was made between patria potestas and dominica potestas, i. e. between paternal power and absolute proprietorship. Such vindicatio was sometimes a matter of contentious (not voluntary) jurisdiction, i. e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that the ground of making a claim of this kind must be particularly specified (adfecta causa) in the vindication. The ordinary mode of judicially determining the status of a child in case of dispute was by a praejudicium, 4 § 44, comm. The father could compel any one, who had possession of his child, to produce him by the interdictum de liberis exhibendis or de liberis ducendis 4 §§ 138-170, comm. In case of dispute between paterfamilias and filiusfamilias inter se, recourse might be had to the extraordinaria cognitio of the magistrate. Sohm’s Inst. § 101.

Justinian simplified the formalities of emancipation and adoption. He allowed the former to be accomplished by a simple declaration of the father before a competent judge or magistrate (Emancipatio Justinianea); and the latter after appearance of all the parties before such a judge, insinuatio, i. e. a memorandum of the transaction in the public records (actis intervenientibus) being in both cases required. Emancipation by imperial rescript had been previously instituted by the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript was required for effecting an arrogation.

In English law children are enfranchised, and the limited power of the father over their person and property is terminated by two events which did not operate emancipation in Roman law, marriage and arrival at years of discretion, that is, attainment of majority by the completion of twenty-one years of age. At these points, under English law, the empire of the father or other guardian gives place to the empire of reason; whereas neither marriage nor majority released the Roman son or daughter from potestas.

[ Commentary ]

§ 137. Dissolution of marriage (divortium) could be effected either by the consent of both parties or by the act of one. The message of repudiation (repudium) contained the formula, Tuas res tibi habeto, ‘Take away thy property.’ Mimam illam suam suas res sibi habere jussit, claves ademit, exegit, Cic. Phil. 2, 28. ‘The actress was ordered to pack, deprived of the keys, turned out of the house.’ The lex Julia de adulteriis prescribed a form for repudium, and required the message to be delivered by a freedman of the family, in the presence of seven witnesses above the age of puberty and citizens of Rome. The party who made a causeless repudium, or whose misconduct justified a repudium, was punished by pecuniary losses in respect of dos and propternuptial donations. After much veering legislation under the Christian Emperors, Justinian enacted that a man or woman who divorced without a cause should retire to a cloister and forfeit all his or her estate, one moiety to his or her successors, and the other moiety to the cloister. Nov. 134, 11. But it was not till later times that the Church succeeded in making marriage indissoluble by law.

[ Commentary ]

Having examined those inferiorities of legal capacity which constituted a status, we now proceed to examine certain cases of incapacity of acting independently which, though analogous to the former as belonging to the sphere of unequal rights, were not included by the Romans under the denomination of status. The inferiorities of capacity in infancy, minority, tutelary wardship, curatel, were different in character and not so considerable as those which we have hitherto examined. The diminution of rights in a lapse from independence to curatel was less than the least capitis minutio, and accordingly a prodigal who was interdicted from the administration of his estate and subjected to the control of a curator, was not said to undergo a status mutatio: his patrimony still vested in him, though he was deprived of its administration; whereas adrogatio and in manum conventio divested a person of the capacity of ownership and active obligation: inferior status, in a word, is incapacity of right; wardship and curatel are only incapacities of disposition.

Guardianship is thus defined: Est autem tutela, ut Servius definit, jus ac potestas in capite libero, ad tuendum eum qui propter aetatem se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1. ‘Guardianship is a right and power over an independent person conferred or authorized by the Civil law for the protection of one who is incapacitated by age for self-defence.’ The duties of the guardian related both to the person and to the property of the ward. In respect of his person, the guardian was charged with the care of his nurture and education: in respect of his property, the guardian’s function was distinguished as either exclusive administration or concurrent interposition of authority (rem gerere et auctoritatem interponere). Up to the age of seven the ward was called infans, 3 § 109, and during this period the guardian acted alone (administratio, negotiorum gestio); after the completion of seven years until the age of puberty (fourteen for males, as the time was ultimately fixed, twelve for females) the ward acted, and the guardian concurrently gave his sanction (auctoritas). The sanction of the guardian was a legal act of a highly formal character (actus legitimus), by which such legal acts of his ward, as would otherwise have been imperfect, obtained validity. Accordingly the guardian could not give his sanction by letter or through an agent, but had to be present himself for the purpose at the time when the act of the ward was executed, so that he might be a subsidiary party to it. Inst. 1, 21, 2 Tutor autem statim in ipso negotio praesens debet auctor fieri, si hoc pupillo prodesse existimaverit. post tempus vero aut per epistulam interposita auctoritas nihil agit.

The sanction of the guardian was necessary whenever the act of the ward was one which might possibly entail loss, but not otherwise. Cf. 2 §§ 80-85, Inst. l. c. pr. and 1 Auctoritas autem tutoris in quibusdam causis necessaria pupillis est, in quibusdam non est necessaria. ut ecce si quid dari sibi stipulentur, non est necessaria tutoris auctoritas: quod si aliis pupilli promittant, necessaria est: namque placuit meliorem quidem suam condicionem licere eis facere etiam sine tutoris auctoritate, deteriorem autem non aliter quam tutore auctore. unde in his causis, ex quibus mutuae obligationes nascuntur, in emptionibus venditionibus, . . . si tutoris auctoritas non interveniat, ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli non obligantur In respect of administration of property the guardian incurred a quasi-contractual obligation, and was accordingly liable to the judicium or actio tutelae.

In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were in their case confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190.

[ Commentary ]

§ 156. As to this definition of agnati see Moyle’s note to Inst. 1, 15, 1. The maxim here enunciated is calculated to give a false idea of the relation of the institutes of jus gentium to those of jus civile. Title by cognation is just as much an institute of positive law as title by agnation, though cognation, or blood-relationship, is in itself a natural and permanent tie, while agnation is an artificial one, and therefore only occasional. The synthesis of title and right in jus civile may be freakish and capricious, while that in jus gentium may be reasonable and expedient; but both are equally positive institutions, and both are equally mutable and liable to be overruled. Accordingly, the specious-sounding maxim, that revolutions in status or civil condition cannot affect such rights as are annexed to natural titles, crumbles away as soon as we examine it, for we find that it only holds good of the most insignificant change, the minima capitis minutio, 3 § 27, and that maxima and media capitis minutio extinguish title by cognation, which belongs to jus gentium, as well as title by agnation, which belongs to jus civile. Inst. 1, 16, 6.

The truth is, that the effects of a collision of Civil and Natural law fall under two very different classes, which it is important to distinguish.

1. If the command of the civil lawgiver, under the sway of motives financial, political, ethical, or religious, is highly imperious and absolutely compulsive, all natural titles with which it may come in conflict are absolutely void and inoperative: e. g. the Sc. Velleianum, prohibiting suretyship of women, allowed no naturalis obligatio to be produced by any such suretyship: and so with the laws prohibiting gambling and usury.

2. If the command of the civil law is less peremptory and absolute, it may deprive any conflicting natural title of plenary force, and yet leave to it a naturalis obligatio capable of acquiring efficacy by some machinery of positive law; e. g. the Sc. Macedonianum, prohibiting money loans to a filiusfamilias without the sanction of his father, made them irrecoverable by action, and yet the courts recognized in the borrowing filiusfamilias a naturalis obligatio, which was capable of novation, Dig. 46, 2, 19, and a bar to recovery back (condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.

When Justinian consolidated the law of intestate succession and made the right of succession depend on cognation instead of agnation, he made a corresponding change in the obligation of guardianship, which henceforth devolved on cognates instead of agnates, women as formerly, with the exception of mothers and grandmothers, being excluded from the office, Nov. 118, 5.