I. Justice and Law.
JUSTICE is the constant and perpetual wish to render every one his due.
1. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.
2. Having explained these general terms, we think we shall commence our exposition of the law of the Roman people most advantageously, if we pursue at first a plain and easy path, and then proceed to explain particular details with the utmost care and exactness. For, if at the outset we overload the mind of the student, while yet new to the subject and unable to bear much, with a multitude and variety of topics, one of two things will happen---we shall either cause him wholly to abandon his studies, or, after great toil, and often after great distrust to himself (the most frequent stumbling block in the way of youth), we shall at last conduct him to the point, to which, if he had been led by an easier road, he might, without great labor, and without any distrust of his own powers, have been sooner conducted.
3. The maxims of law are these: to live honesty, to hurt no one, to give every one his due.
4. The study of law is divided into two branches; that of public and that of private law. Public law regards the government of the Roman empire; private law, the interest of the individuals. We are now to treat of the latter, which is composed of three elements, and consists of precepts belonging to the natural law, to the law of nations, and to the civil law.
1. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.
2. Having explained these general terms, we think we shall commence our exposition of the law of the Roman people most advantageously, if we pursue at first a plain and easy path, and then proceed to explain particular details with the utmost care and exactness. For, if at the outset we overload the mind of the student, while yet new to the subject and unable to bear much, with a multitude and variety of topics, one of two things will happen---we shall either cause him wholly to abandon his studies, or, after great toil, and often after great distrust to himself (the most frequent stumbling block in the way of youth), we shall at last conduct him to the point, to which, if he had been led by an easier road, he might, without great labor, and without any distrust of his own powers, have been sooner conducted.
3. The maxims of law are these: to live honesty, to hurt no one, to give every one his due.
4. The study of law is divided into two branches; that of public and that of private law. Public law regards the government of the Roman empire; private law, the interest of the individuals. We are now to treat of the latter, which is composed of three elements, and consists of precepts belonging to the natural law, to the law of nations, and to the civil law.
II. Natural, Common, and Civil Law.
The law of nature is that law which nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the earth, the air, or the water. Hence comes the union of the male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides men are considered as having knowledge of this law.
1. Civil law is thus distinguished from the law of nations. Every community governed by laws and customs uses partly its own law, partly laws common to all mankind. The law which a people makes for its own government belongs exclusively to that state and is called the civil law, as being the law of the particular state. But the law which natural reason appoints for all mankind obtains equally among all nations, because all nations make use of it. The people of Rome, then, are governed partly by their own laws, and partly by the laws which are common to all mankind. We will take notice of this distinction as occasion may arise.
2. Civil law takes its name from the state which it governs, as, for instance, from Athens; for it would be very proper to speak of the laws of Solon or Draco as the civil law of Athens. And thus the law which the Roman people make use of is called the civil law of the Romans, or that of the Quirites; for the Romans are called Quirites from Quirinum. But whenever we speak of civil law, without adding the name of any state, we mean our own law; just as the Greeks, when "the poet" is spoken of without any name being expressed, mean the great Homer, and we Romans mean Virgil.
The law of the nations is common to all mankind, for nations have established certain laws, as occasion and the necessities of human life required. Wars arose, and in their train followed captivity and then slavery, which is contrary to the law of nature; for by that law all men are originally born free. Further, by the law of nations almost all contracts were at first introduced, as, for instance, buying and selling, letting and hiring, partnership, deposits, loans returnable in kind, and very many others.
3. Our law is written and unwritten, just as among the Greeks some of their laws were written and others were not written. The written part consists of leges (lex), plebiscita, senatusconsulta, constitutiones of emperors, edicta of magistrates, and responsa of jurisprudents [i.e., jurists].
4. A lex is that which was enacted by the Roman people on its being proposed by a senatorian magistrate, as a consul. A plebiscitum is that which was enacted by the plebs on its being proposed by a plebeian magistrate, as a tribune. The plebs differ from the people as a species from its genus, for all the citizens, including patricians and senators, are comprehended in the populi (people); but the plebs only included citizens [who were] not patricians or senators. Plebiscita, after the Hortensian law had been passed, began to have the same force as leges.
5. A senatusconsultum is that which the senate commands or appoints: for, when the Roman people was so increased that it was difficult to assemble it together to pass laws, it seemed right that the senate should be consulted in place of the people.
6. That which seems good to the emperor has also the force of law; for the people, by the Lex Regia, which is passed to confer on him his power, make over to him their whole power and authority. Therefore whatever the emperor ordains by rescript, or decides in adjudging a cause, or lays down by edict, is unquestionably law; and it is these enactments of the emperor that are called constitutiones. Of these, some are personal, and are not to be drawn into precedent, such not being the intention of the emperor. Supposing the emperor has granted a favor to any man on account of his merit, or inflicted some punishment, or granted some extraordinary relief, the application of these acts does not extend beyond the particular individual. But the other constitutiones, being general, are undoubtedly binding on all.
7. The edicts of the praetors are also of great authority. These edicts are called the ius honorarium, because those who bear honors [i.e., offices] in the state, that is, the magistrates, have given them their sanction. The curule aediles also used to publish an edict relative to certain subjects, which edict also became a part of the ius honorarium.
8. The answers of the jurisprudenti are the decisions and opinions of persons who were authorized to determine the law. For anciently it was provided that there should be persons to interpret publicly the law, who were permitted by the emperor to give answers on questions of law. They were called jurisconsulti; and the authority of their decision and opinions, when they were all unanimous, was such, that the judge could not, according to the constitutiones, refuse to be guided by their answers.
9. The unwritten law is that which usage has established; for ancient customs, being sanctioned by the consent of those who adopt them, are like laws.
10. The civil law is not improperly divided into two kinds, for the division seems to have had its origin in the customs of the two states, Athens and Lacedaemon. For in these states it used to be the case, that the Lacedaemonians rather committed to memory what they observed as law, while the Athenians rather observed as law what they had consigned to writing, and included in the body of their laws.
11. The laws of nature, which all nations observe alike, being established by a divine providence, remain ever fixed and immutable. But the laws which every state has enacted, undergo frequent changes, either by the tacit consent of the people, or by a new law being subsequently passed.
1. Civil law is thus distinguished from the law of nations. Every community governed by laws and customs uses partly its own law, partly laws common to all mankind. The law which a people makes for its own government belongs exclusively to that state and is called the civil law, as being the law of the particular state. But the law which natural reason appoints for all mankind obtains equally among all nations, because all nations make use of it. The people of Rome, then, are governed partly by their own laws, and partly by the laws which are common to all mankind. We will take notice of this distinction as occasion may arise.
2. Civil law takes its name from the state which it governs, as, for instance, from Athens; for it would be very proper to speak of the laws of Solon or Draco as the civil law of Athens. And thus the law which the Roman people make use of is called the civil law of the Romans, or that of the Quirites; for the Romans are called Quirites from Quirinum. But whenever we speak of civil law, without adding the name of any state, we mean our own law; just as the Greeks, when "the poet" is spoken of without any name being expressed, mean the great Homer, and we Romans mean Virgil.
The law of the nations is common to all mankind, for nations have established certain laws, as occasion and the necessities of human life required. Wars arose, and in their train followed captivity and then slavery, which is contrary to the law of nature; for by that law all men are originally born free. Further, by the law of nations almost all contracts were at first introduced, as, for instance, buying and selling, letting and hiring, partnership, deposits, loans returnable in kind, and very many others.
3. Our law is written and unwritten, just as among the Greeks some of their laws were written and others were not written. The written part consists of leges (lex), plebiscita, senatusconsulta, constitutiones of emperors, edicta of magistrates, and responsa of jurisprudents [i.e., jurists].
4. A lex is that which was enacted by the Roman people on its being proposed by a senatorian magistrate, as a consul. A plebiscitum is that which was enacted by the plebs on its being proposed by a plebeian magistrate, as a tribune. The plebs differ from the people as a species from its genus, for all the citizens, including patricians and senators, are comprehended in the populi (people); but the plebs only included citizens [who were] not patricians or senators. Plebiscita, after the Hortensian law had been passed, began to have the same force as leges.
5. A senatusconsultum is that which the senate commands or appoints: for, when the Roman people was so increased that it was difficult to assemble it together to pass laws, it seemed right that the senate should be consulted in place of the people.
6. That which seems good to the emperor has also the force of law; for the people, by the Lex Regia, which is passed to confer on him his power, make over to him their whole power and authority. Therefore whatever the emperor ordains by rescript, or decides in adjudging a cause, or lays down by edict, is unquestionably law; and it is these enactments of the emperor that are called constitutiones. Of these, some are personal, and are not to be drawn into precedent, such not being the intention of the emperor. Supposing the emperor has granted a favor to any man on account of his merit, or inflicted some punishment, or granted some extraordinary relief, the application of these acts does not extend beyond the particular individual. But the other constitutiones, being general, are undoubtedly binding on all.
7. The edicts of the praetors are also of great authority. These edicts are called the ius honorarium, because those who bear honors [i.e., offices] in the state, that is, the magistrates, have given them their sanction. The curule aediles also used to publish an edict relative to certain subjects, which edict also became a part of the ius honorarium.
8. The answers of the jurisprudenti are the decisions and opinions of persons who were authorized to determine the law. For anciently it was provided that there should be persons to interpret publicly the law, who were permitted by the emperor to give answers on questions of law. They were called jurisconsulti; and the authority of their decision and opinions, when they were all unanimous, was such, that the judge could not, according to the constitutiones, refuse to be guided by their answers.
9. The unwritten law is that which usage has established; for ancient customs, being sanctioned by the consent of those who adopt them, are like laws.
10. The civil law is not improperly divided into two kinds, for the division seems to have had its origin in the customs of the two states, Athens and Lacedaemon. For in these states it used to be the case, that the Lacedaemonians rather committed to memory what they observed as law, while the Athenians rather observed as law what they had consigned to writing, and included in the body of their laws.
11. The laws of nature, which all nations observe alike, being established by a divine providence, remain ever fixed and immutable. But the laws which every state has enacted, undergo frequent changes, either by the tacit consent of the people, or by a new law being subsequently passed.
III. The Law of Persons.
All our law relates either to persons, or to things, or to actions. Let us first speak of persons; as it is of little purpose to know the law, if we do not know the persons for whose sake the law was made. The chief division in the rights of persons is this: men are all either free or slaves.
1. Freedom, from which men are said to be free, is the natural power of doing what we each please, unless prevented by force or by law.
2. Slavery is an institution of the law of nations, by which one man is made the property of another, contrary to natural right.
3. Slaves are denominated servi, because generals order their captives to be sold, and thus preserve them, and do not put them to death. Slaves are also called mancipia, because they are taken from the enemy by the strong hand.
4. Slaves either are born or become so. They are born so when their mother is a slave; they become so either by the law of nations, that is, by captivity, or by the civil law, as when a free person, above the age of twenty, suffers himself to be sold, that he may share the price given for him.
5. In the condition of slaves there is no distinction; but there are many distinctions among free persons; for they are either born free, or have been set free.
1. Freedom, from which men are said to be free, is the natural power of doing what we each please, unless prevented by force or by law.
2. Slavery is an institution of the law of nations, by which one man is made the property of another, contrary to natural right.
3. Slaves are denominated servi, because generals order their captives to be sold, and thus preserve them, and do not put them to death. Slaves are also called mancipia, because they are taken from the enemy by the strong hand.
4. Slaves either are born or become so. They are born so when their mother is a slave; they become so either by the law of nations, that is, by captivity, or by the civil law, as when a free person, above the age of twenty, suffers himself to be sold, that he may share the price given for him.
5. In the condition of slaves there is no distinction; but there are many distinctions among free persons; for they are either born free, or have been set free.
IV. The Free-born.
A person is ingenuus who is free from the moment of his birth, by being born in matrimony, of parents who have been either both born free, or both made free, or one of whom has been born and the other made free; and when the mother is free, and the father a slave, the child nevertheless is born free; just as he is if his mother is free, and it is uncertain who is his father; for he had then no legal father. And it is sufficient if the mother is free at the time of the birth, although a slave when she conceived; and on the other hand, if she be free when she conceives, and is a slave when she gives birth to her child, yet the child is held to be born free; for the misfortune of the mother ought not to prejudice her unborn infant. The question hence arose, if a female slave with child is made free, but again becomes a slave before the child is born, whether the child is born free or a slave? Marcellus thinks it is born free, for it is sufficient for the unborn child, if the mother has been free, although only in the intermediate time; and this is true.
1. When a man has been born free he does not cease to be ingenuus, because he has been in the position of a slave, and has subsequently been enfranchised; for it has been often settled that enfranchisement does not prejudice the rights of birth.
1. When a man has been born free he does not cease to be ingenuus, because he has been in the position of a slave, and has subsequently been enfranchised; for it has been often settled that enfranchisement does not prejudice the rights of birth.
V. Freedmen.
Freedmen are those who have been manumitted from just servitude. Manumission is the process of freeing from "the hand." For while any one is in slavery, he is under "the hand" and power of another, but by manumission he is freed from this power. This institution took its rise from the law of nations; for by the law of nature all men were born free; and manumission was not heard of, as slavery was unknown. But when slavery came in by the law of nations, the boon of manumission followed. And whereas all were denominated by the one natural name of "men," the law of nations introduced a division into three kinds of men, namely, freemen, and in opposition to them, slaves; and thirdly, freedmen who had ceased to be slaves.
1. Manumission is effected in various ways; either in the face of the Church, according to the imperial constitutiones, or by vindicta, or in the presence of friends, or by letter, or by testament, or by any other expression of a man's last will. And a slave may also gain his freedom in many other ways, introduced by the constitutiones of former emperors, and by our own.
2. Slaves may be manumitted by their masters at any time; even when the magistrate is only passing along, as when a praetor, or praeses, or proconsul is going to the baths, or the theater.
3. Freedmen were formerly divided into three classes. For those who were manumitted sometimes obtained a complete liberty, and became Roman citizens; sometimes a less complete, and became Latini under the lex Julia Norbana; and sometimes a liberty still inferior, and became dedititii, by the lex Aelia Sentia. But this lowest class, that of the dedititii, has long disappeared, and the title of Latinus become rare; and so in our benevolence, which leads us to complete and improve everything, we have introduced a great reform by two constitutiones, which re-established the ancient usage; for in the infancy of the state there was but one liberty, the same for the enfranchised slave as for the person who manumitted him; excepting, indeed, that the person manumitted was freeborn. We have abolished the class of dedititii by a constitutio published among our decisions, by which, at the suggestion of the eminent Tribonian, quaestor, we have put an end to difficulties arising from the ancient law. We have also, at his suggestion, done away with the Latini Juniani, and everything relating to them, by another constitutio, one of the most remarkable of our imperial constitutiones. We have made all freedmen whatsoever Roman citizens, without any distinction as to the age of the slave, or the interest of the manumittor, or the mode of manumission. We have also introduced many new methods by which slaves may become Roman citizens, the only kind of liberty that now exists.
1. Manumission is effected in various ways; either in the face of the Church, according to the imperial constitutiones, or by vindicta, or in the presence of friends, or by letter, or by testament, or by any other expression of a man's last will. And a slave may also gain his freedom in many other ways, introduced by the constitutiones of former emperors, and by our own.
2. Slaves may be manumitted by their masters at any time; even when the magistrate is only passing along, as when a praetor, or praeses, or proconsul is going to the baths, or the theater.
3. Freedmen were formerly divided into three classes. For those who were manumitted sometimes obtained a complete liberty, and became Roman citizens; sometimes a less complete, and became Latini under the lex Julia Norbana; and sometimes a liberty still inferior, and became dedititii, by the lex Aelia Sentia. But this lowest class, that of the dedititii, has long disappeared, and the title of Latinus become rare; and so in our benevolence, which leads us to complete and improve everything, we have introduced a great reform by two constitutiones, which re-established the ancient usage; for in the infancy of the state there was but one liberty, the same for the enfranchised slave as for the person who manumitted him; excepting, indeed, that the person manumitted was freeborn. We have abolished the class of dedititii by a constitutio published among our decisions, by which, at the suggestion of the eminent Tribonian, quaestor, we have put an end to difficulties arising from the ancient law. We have also, at his suggestion, done away with the Latini Juniani, and everything relating to them, by another constitutio, one of the most remarkable of our imperial constitutiones. We have made all freedmen whatsoever Roman citizens, without any distinction as to the age of the slave, or the interest of the manumittor, or the mode of manumission. We have also introduced many new methods by which slaves may become Roman citizens, the only kind of liberty that now exists.
VIII. Slaves.
We now come to another division relative to the rights of persons; for some persons are independent, some are subject to the power of others. Of those, again, who are subject to others, some are in the power of parents, others in that of masters. Let us first treat of those who are subject to others; for, when we have ascertained who these are, we shall at the same time discover who are independent. And first let us consider those who are in the power of masters.
1. Slaves are in the power of masters, a power derived from the law of nations: for among all nations it may be remarked that masters have the power of life and death over their slaves, and that everything acquired by the slave is acquired for the master.
2. But at the present day none of our subjects may use unrestrained violence towards their slaves, except for a reason recognized by law. For, by a constitutio of the Emperor Antoninus Pius, he who without any reason kills his own slave is to be punished equally with one who has killed the slave of another. The excessive severity of masters is also restrained by another constitutio of the same emperor. For, when consulted by certain governors of provinces on the subject of slaves, who fly for sanctuary either to temples, or to the statues of the emperors, he decided that if the severity of masters should appear excessive, they might be compelled to make sale of their slaves upon equitable terms, so that the masters might receive the value; and this was a very wise decision, as it concerns the public good, that no one should misuse his own property. The following are the terms of this rescript of Antoninus, which was sent to Laelius Marcianus: The power of masters over their slaves ought to be preserved unimpaired, nor ought any man to be deprived of his just right. But it is for the interest of all masters themselves, that relief prayed on good grounds against cruelty, the denial of sustenance, or any other intolerable injury, should not be refused. Examine, therefore, into the complaints of the slaves who have fled from the house of Julius Sabinus, and taken refuge at the statue of the emperor; and, if you find that they have been too harshly treated, or wantonly disgraced, order them to be sold, so that they may not fall again under the power of their master; and, if Sabinus attempt to evade my constitutio, I would have him know, that I shall severely punish his disobedience.
1. Slaves are in the power of masters, a power derived from the law of nations: for among all nations it may be remarked that masters have the power of life and death over their slaves, and that everything acquired by the slave is acquired for the master.
2. But at the present day none of our subjects may use unrestrained violence towards their slaves, except for a reason recognized by law. For, by a constitutio of the Emperor Antoninus Pius, he who without any reason kills his own slave is to be punished equally with one who has killed the slave of another. The excessive severity of masters is also restrained by another constitutio of the same emperor. For, when consulted by certain governors of provinces on the subject of slaves, who fly for sanctuary either to temples, or to the statues of the emperors, he decided that if the severity of masters should appear excessive, they might be compelled to make sale of their slaves upon equitable terms, so that the masters might receive the value; and this was a very wise decision, as it concerns the public good, that no one should misuse his own property. The following are the terms of this rescript of Antoninus, which was sent to Laelius Marcianus: The power of masters over their slaves ought to be preserved unimpaired, nor ought any man to be deprived of his just right. But it is for the interest of all masters themselves, that relief prayed on good grounds against cruelty, the denial of sustenance, or any other intolerable injury, should not be refused. Examine, therefore, into the complaints of the slaves who have fled from the house of Julius Sabinus, and taken refuge at the statue of the emperor; and, if you find that they have been too harshly treated, or wantonly disgraced, order them to be sold, so that they may not fall again under the power of their master; and, if Sabinus attempt to evade my constitutio, I would have him know, that I shall severely punish his disobedience.
IX. The Power of Parents.
Our children, begotten in lawful marriage, are in our power.
1. Marriage, or matrimony, is a binding together of a man and woman to live in an indivisible union.
2. The power which we have over our children is peculiar to the citizens of Rome; for no other people have a power over their children, such as we have over ours.
3. The child born to you and your wife is in your power. And so is the child born to your son of his wife, that is, your grandson or granddaughter; so are your great-grandchildren, and all your other descendants. But a child born of your daughter is not in your power, but in the power of its own father.
1. Marriage, or matrimony, is a binding together of a man and woman to live in an indivisible union.
2. The power which we have over our children is peculiar to the citizens of Rome; for no other people have a power over their children, such as we have over ours.
3. The child born to you and your wife is in your power. And so is the child born to your son of his wife, that is, your grandson or granddaughter; so are your great-grandchildren, and all your other descendants. But a child born of your daughter is not in your power, but in the power of its own father.
X. Marriage.
Roman citizens are bound together in lawful matrimony when they are united according to law, the males having attained the age of puberty, and the females a marriageable age, whether they are fathers or sons of a family; but, of the latter, they must first obtain the consent of their parents, in whose power they are. For both natural reason and the law require this consent; so much so, indeed, that it ought to precede the marriage. Hence the question has arisen, whether the daughter of a madman could be married, or his son marry? And as opinions were divided as to the son, we decided that as the daughter of a madman might, so may the son of a madman marry without the intervention of the father, according to the mode established by our constitutio.
1. We may not marry every woman without distinction; for with some, marriage is forbidden. Marriage cannot be contracted between persons standing to each other in the relation of ascendant and descendant, as between a father and daughter, a grandfather and his granddaughter, a mother and her son, a grandmother and her grandson; and so on, ad infinitum. And, if such persons unite together, they only contract a criminal and incestuous marriage; so much so, that ascendants and descendants, who are only so by adoption, cannot intermarry; and even after the adoption is dissolved, the prohibition remains. You cannot, therefore, marry a woman who has been either your daughter or granddaughter by adoption, although you may have emancipated her.
2. There are also restrictions, though not so extensive, on marriage between collateral relations. A brother and sister are forbidden to marry, whether they are the children of the same father and mother, or of one of the two only. And, if a woman becomes your sister by adoption, you certainly cannot marry; but, if the adoption is destroyed by emancipation, you may marry her; as you may also, if you yourself are emancipated. Hence it follows, that if a man would adopt his son-in-law, he ought first to emancipate his daughter; and if he would adopt his daughter-in-law, he ought previously to emancipate his son.
3. A man may not marry the daughter of a brother, or a sister, nor the granddaughter, although she is in the fourth degree. For when we may not marry the daughter of any person, neither may we marry the granddaughter. But there does not appear to be any impediment to marrying the daughter of a woman whom your father has adopted; for she is no relation to you, either by natural or civil law.
4. The children of two brothers or two sisters, or of a brother and sister, may marry together.
5. So, too, a man may not marry his paternal aunt, even though she be so only by adoption; nor his maternal aunt; because they are regarded in the light of ascendants. For the same reason, no person may marry his great-aunt, either paternal or maternal.
6. There are, too, other marriages from which we must abstain, from regard to the ties created by marriage; for example, a man may not marry his wife's daughter, or his son's wife, for they are both in the place of daughters to him; and this must be understood to mean those who have been our stepdaughters or daughters-in-law; for if a woman is still your daughter-in-law, that is if she is still married to your son, you cannot marry her for another reason, as she cannot be the wife of two persons at once. And if your step-daughter, that is, if her mother is still married to you, you cannot marry her, because a person cannot have two wives at the same time.
7. Again, a man is forbidden to marry his wife's mother, and his father's wife, because they hold the place of mothers to him; a prohibition which can only operate when the affinity is dissolved; for if your step-mother is still your step-mother, that is, if she is still married to your father, she would be prohibited from marrying you by the common rule of law, which forbids a woman to have two husbands at the same time. So if your wife's mother is still your wife's mother, that is, if her daughter is still married to you, you cannot marry her, because you cannot have two wives at the same time.
8. The son of a husband by a former wife, and the daughter of a wife by a former husband, or the daughter of a husband by a former wife, and the son of a wife by a former husband, may lawfully contract marriage, even though they have a brother or sister born of the second marriage.
9. The daughter of a divorced wife by a second husband is not your step-daughter; and yet Julian says we ought to abstain from such a marriage. For the betrothed wife of a son is not your daughter-in-law; nor your betrothed wife your son's step-mother; and yet it is more decent and more in accordance with law to abstain from such marriage.
10. It is certain that the relationship of slaves is an impediment to marriage, even if the father and daughter or brother and sister, as the case may be, have been enfranchised.
11. There are other persons also, between whom marriage is prohibited for different reasons, which we have permitted to be enumerated in the books of the Digests or Pandects, collected from the old law.
12. If persons unite themselves in contravention of the rules thus laid down, there is no husband or wife, no nuptials, no marriage, nor marriage portion, and the children born in such a connection are not in the power of the father. For, with regard to the power of a father, they are in the position of children conceived in prostitution, who are looked upon as having no father, because it is uncertain who he is; and are therefore called spurii, either from a Greek word sporadan, meaning "at hazard," or as being sine patre, without a father. On the dissolution of such a connection there can be no claim made for the demand of a marriage portion. Persons who contract prohibited marriages are liable also to further penalties set forth in our imperial constitutiones.
13. It sometimes happens that children who at their birth were not in the power of their father are brought under it afterwards. Such is the case of a natural son, who is given to the curia, and then becomes subject to his father's power. Again, a child born of a free woman, with whom marriage was not prohibited by any law, but with whom the father only cohabited, will likewise become subject to the power of his father if at any time afterwards instruments of dowry are drawn up according to the provisions of our constitutio. And this constitutio confers the same benefits on any children who may be subsequently born of the same marriage.
1. We may not marry every woman without distinction; for with some, marriage is forbidden. Marriage cannot be contracted between persons standing to each other in the relation of ascendant and descendant, as between a father and daughter, a grandfather and his granddaughter, a mother and her son, a grandmother and her grandson; and so on, ad infinitum. And, if such persons unite together, they only contract a criminal and incestuous marriage; so much so, that ascendants and descendants, who are only so by adoption, cannot intermarry; and even after the adoption is dissolved, the prohibition remains. You cannot, therefore, marry a woman who has been either your daughter or granddaughter by adoption, although you may have emancipated her.
2. There are also restrictions, though not so extensive, on marriage between collateral relations. A brother and sister are forbidden to marry, whether they are the children of the same father and mother, or of one of the two only. And, if a woman becomes your sister by adoption, you certainly cannot marry; but, if the adoption is destroyed by emancipation, you may marry her; as you may also, if you yourself are emancipated. Hence it follows, that if a man would adopt his son-in-law, he ought first to emancipate his daughter; and if he would adopt his daughter-in-law, he ought previously to emancipate his son.
3. A man may not marry the daughter of a brother, or a sister, nor the granddaughter, although she is in the fourth degree. For when we may not marry the daughter of any person, neither may we marry the granddaughter. But there does not appear to be any impediment to marrying the daughter of a woman whom your father has adopted; for she is no relation to you, either by natural or civil law.
4. The children of two brothers or two sisters, or of a brother and sister, may marry together.
5. So, too, a man may not marry his paternal aunt, even though she be so only by adoption; nor his maternal aunt; because they are regarded in the light of ascendants. For the same reason, no person may marry his great-aunt, either paternal or maternal.
6. There are, too, other marriages from which we must abstain, from regard to the ties created by marriage; for example, a man may not marry his wife's daughter, or his son's wife, for they are both in the place of daughters to him; and this must be understood to mean those who have been our stepdaughters or daughters-in-law; for if a woman is still your daughter-in-law, that is if she is still married to your son, you cannot marry her for another reason, as she cannot be the wife of two persons at once. And if your step-daughter, that is, if her mother is still married to you, you cannot marry her, because a person cannot have two wives at the same time.
7. Again, a man is forbidden to marry his wife's mother, and his father's wife, because they hold the place of mothers to him; a prohibition which can only operate when the affinity is dissolved; for if your step-mother is still your step-mother, that is, if she is still married to your father, she would be prohibited from marrying you by the common rule of law, which forbids a woman to have two husbands at the same time. So if your wife's mother is still your wife's mother, that is, if her daughter is still married to you, you cannot marry her, because you cannot have two wives at the same time.
8. The son of a husband by a former wife, and the daughter of a wife by a former husband, or the daughter of a husband by a former wife, and the son of a wife by a former husband, may lawfully contract marriage, even though they have a brother or sister born of the second marriage.
9. The daughter of a divorced wife by a second husband is not your step-daughter; and yet Julian says we ought to abstain from such a marriage. For the betrothed wife of a son is not your daughter-in-law; nor your betrothed wife your son's step-mother; and yet it is more decent and more in accordance with law to abstain from such marriage.
10. It is certain that the relationship of slaves is an impediment to marriage, even if the father and daughter or brother and sister, as the case may be, have been enfranchised.
11. There are other persons also, between whom marriage is prohibited for different reasons, which we have permitted to be enumerated in the books of the Digests or Pandects, collected from the old law.
12. If persons unite themselves in contravention of the rules thus laid down, there is no husband or wife, no nuptials, no marriage, nor marriage portion, and the children born in such a connection are not in the power of the father. For, with regard to the power of a father, they are in the position of children conceived in prostitution, who are looked upon as having no father, because it is uncertain who he is; and are therefore called spurii, either from a Greek word sporadan, meaning "at hazard," or as being sine patre, without a father. On the dissolution of such a connection there can be no claim made for the demand of a marriage portion. Persons who contract prohibited marriages are liable also to further penalties set forth in our imperial constitutiones.
13. It sometimes happens that children who at their birth were not in the power of their father are brought under it afterwards. Such is the case of a natural son, who is given to the curia, and then becomes subject to his father's power. Again, a child born of a free woman, with whom marriage was not prohibited by any law, but with whom the father only cohabited, will likewise become subject to the power of his father if at any time afterwards instruments of dowry are drawn up according to the provisions of our constitutio. And this constitutio confers the same benefits on any children who may be subsequently born of the same marriage.
XI. Adoption.
Not only are our natural children, as we have said, in our power, but those also whom we adopt.
1. Adoption takes place in two ways, either by imperial rescript, or by the authority of the magistrate. The imperial rescript gives power to adopt persons of either sex who are sui juris; and this species of adoption is called arrogatio. By the authority of the magistrate we adopt persons in the power of an ascendant, whether in the first degree, as sons and daughters, or in an inferior degree, as grandchildren or great-grandchildren.
2. But now, by our constitutio, when a filiusfamilias is given in adoption by his natural father to a stranger, the power of the natural father is not dissolved; no right passes to the adoptive father, nor is the adopted son in his power, although we allow such son the right of succession to his adoptive father dying intestate. But if a natural father should give his son in adoption, not to a stranger, but to the son's maternal grandfather; or, supposing the natural father has been emancipated, if he gives the son in adoption to the son's paternal grandfather, or to the son's maternal great-grandfather, in this case, as the rights of nature and adoption concur in the same person, the power of the adoptive father, knit by natural ties and strengthened by the legal bond of adoption, is preserved undiminished, so that the adopted son is not only in the family, but in the power of his adoptive father.
3. When any one, under the age of puberty, is arrogated by the imperial rescript, the arrogatio is only allowed when inquiry has been made into the circumstances of the case. It is asked what is the motive leading to the arrogatio, and whether the arrogatio is honorable and expedient for the pupil. And the arrogatio is always made under certain conditions: the arrogator is obliged to give security before a public person, that is, before a notary, that if the pupil should die within the age of puberty, he will restore all the property to those who would have succeeded him if no adoption had been made. Nor, again, can the arrogator emancipate the person arrogated, unless, on examination into the case, it appears that the latter is worthy of emancipation; and, even then, the arrogator must restore the property belonging to the person he emancipates. Also, even if the arrogator, on his death-bed, has disinherited his arrogated son, or, during his life, has emancipated him without just cause, he is obliged to leave him the fourth part of all his goods, besides what the son brought to him at the time of arrogatio, or acquired for him afterwards.
4. A younger person cannot adopt an older; for adoption imitates nature; and it seems unnatural that a son should be older than his father. Anyone, therefore, who wishes either to adopt or arrogate a son should be the elder by the term of complete puberty, that is, by eighteen years.
5. A person may adopt another as grandson or granddaughter, great-grandson or great-granddaughter, or any other descendant, although he has no son.
6. A man may adopt the son of another as his grandson, and the grandson of another as his son.
7. If a man adopts a grandson to be the son of a man already adopted, or of a natural son in his power, the consent of this son ought first to be obtained, that he may not have a suus heres given him against his will. But, on the contrary, if a grandfather gives his grandson by a son in adoption, the consent of the son is not necessary.
8. He who is either adopted or arrogated is assimilated, in many points, to a son born in lawful matrimony; and therefore, if any one adopts a person who is not a stranger by imperial rescript, or before the praetor, or the praeses of a province, he can afterwards give in adoption to another the person whom he has adopted.
9. It is a rule common to both kinds of adoption, that persons, although incapable of procreating, as, for instance, impotent persons, may, but those who are castrated cannot adopt.
10. Women, also, cannot adopt; for they have not even their own children in their power; but, by the indulgence of the emperor, as a comfort for the loss of their own children, they are allowed to adopt.
11. Adoption by the rescript of the emperor has this peculiarity. If a person, having children under his power, should give himself in arrogatio, not only does he submit himself to the power of the arrogator, but his children are also in the arrogator's power, being considered his grandchildren. It was for this reason that Augustus did not adopt Tiberius until Tiberius had adopted Germanicus; so that directly the adoption was made, Germanicus became the grandson of Augustus.
12. Cato, as we learn from the ancients, has with good reason written that slaves, when adopted by their masters, are thereby made free. In accordance with which opinion, we have decided by one of our constitutiones that a slave to whom his master by a solemn deed gives the title of son is thereby made free, although he does not require thereby the rights of a son.
1. Adoption takes place in two ways, either by imperial rescript, or by the authority of the magistrate. The imperial rescript gives power to adopt persons of either sex who are sui juris; and this species of adoption is called arrogatio. By the authority of the magistrate we adopt persons in the power of an ascendant, whether in the first degree, as sons and daughters, or in an inferior degree, as grandchildren or great-grandchildren.
2. But now, by our constitutio, when a filiusfamilias is given in adoption by his natural father to a stranger, the power of the natural father is not dissolved; no right passes to the adoptive father, nor is the adopted son in his power, although we allow such son the right of succession to his adoptive father dying intestate. But if a natural father should give his son in adoption, not to a stranger, but to the son's maternal grandfather; or, supposing the natural father has been emancipated, if he gives the son in adoption to the son's paternal grandfather, or to the son's maternal great-grandfather, in this case, as the rights of nature and adoption concur in the same person, the power of the adoptive father, knit by natural ties and strengthened by the legal bond of adoption, is preserved undiminished, so that the adopted son is not only in the family, but in the power of his adoptive father.
3. When any one, under the age of puberty, is arrogated by the imperial rescript, the arrogatio is only allowed when inquiry has been made into the circumstances of the case. It is asked what is the motive leading to the arrogatio, and whether the arrogatio is honorable and expedient for the pupil. And the arrogatio is always made under certain conditions: the arrogator is obliged to give security before a public person, that is, before a notary, that if the pupil should die within the age of puberty, he will restore all the property to those who would have succeeded him if no adoption had been made. Nor, again, can the arrogator emancipate the person arrogated, unless, on examination into the case, it appears that the latter is worthy of emancipation; and, even then, the arrogator must restore the property belonging to the person he emancipates. Also, even if the arrogator, on his death-bed, has disinherited his arrogated son, or, during his life, has emancipated him without just cause, he is obliged to leave him the fourth part of all his goods, besides what the son brought to him at the time of arrogatio, or acquired for him afterwards.
4. A younger person cannot adopt an older; for adoption imitates nature; and it seems unnatural that a son should be older than his father. Anyone, therefore, who wishes either to adopt or arrogate a son should be the elder by the term of complete puberty, that is, by eighteen years.
5. A person may adopt another as grandson or granddaughter, great-grandson or great-granddaughter, or any other descendant, although he has no son.
6. A man may adopt the son of another as his grandson, and the grandson of another as his son.
7. If a man adopts a grandson to be the son of a man already adopted, or of a natural son in his power, the consent of this son ought first to be obtained, that he may not have a suus heres given him against his will. But, on the contrary, if a grandfather gives his grandson by a son in adoption, the consent of the son is not necessary.
8. He who is either adopted or arrogated is assimilated, in many points, to a son born in lawful matrimony; and therefore, if any one adopts a person who is not a stranger by imperial rescript, or before the praetor, or the praeses of a province, he can afterwards give in adoption to another the person whom he has adopted.
9. It is a rule common to both kinds of adoption, that persons, although incapable of procreating, as, for instance, impotent persons, may, but those who are castrated cannot adopt.
10. Women, also, cannot adopt; for they have not even their own children in their power; but, by the indulgence of the emperor, as a comfort for the loss of their own children, they are allowed to adopt.
11. Adoption by the rescript of the emperor has this peculiarity. If a person, having children under his power, should give himself in arrogatio, not only does he submit himself to the power of the arrogator, but his children are also in the arrogator's power, being considered his grandchildren. It was for this reason that Augustus did not adopt Tiberius until Tiberius had adopted Germanicus; so that directly the adoption was made, Germanicus became the grandson of Augustus.
12. Cato, as we learn from the ancients, has with good reason written that slaves, when adopted by their masters, are thereby made free. In accordance with which opinion, we have decided by one of our constitutiones that a slave to whom his master by a solemn deed gives the title of son is thereby made free, although he does not require thereby the rights of a son.
XII. Freeing From Power.
Let us now inquire into the different ways in which persons in the power of others are freed from it. How slaves are freed from the power of their masters may be learnt from what we have already said with regard to manumission. Those who are in the power of a parent became independent at his death; a rule, however, which admits of a distinction. For when a father dies, his sons and daughters become undoubtedly independent; but when a grandfather dies, his grandchildren do not necessarily become independent, but only if on the grandfather's death they do not fall under the power of their father. Therefore, if their father is alive at the death of their grandfather, and was in his power, then, on the grandfather's death, they become subject to the power of their father. But, if at the time of the grandfather's death their father is either dead, or has already passed out of the grandfather's power by emancipation, as they do not fall under the power of their father, they become independent.
1. If a man, convicted of some crime, is deported to an island, he loses the rights of a Roman citizen; whence it follows, that the children of a person thus banished cease to be under his power, exactly as if he were dead. Equally, if a son is deported, does he cease to be under the power of his father? But, if by favor of the emperor anyone is restored, he regains his former position in every respect.
2. A father who is merely banished by relegatio still retains his children in his power: and a child who is relegated still remains in the power of his father.
3. When a man becomes a "slave of punishment" he ceases to have his sons in his power. Persons become "slaves of punishment" who are condemned to the mines, or exposed to wild beasts.
4. A son, though he becomes a soldier, a senator, or a consul, still remains in the power of his father, from which neither military service nor consular dignity can free him. But by our constitutio the supreme dignity of the patriciate frees the son from the power of his father immediately on the grant of the imperial patent. It is obviously absurd that a parent could emancipate his son from the tie of his power, and that the majesty of the emperor should not be able to release from the power of another, one whom he had chosen to be a father of the state.
5. If a parent is taken prisoner, although he become the slave of the enemy, yet his paternal power is only suspended, owing to the ius postliminii; for captives, when they return, are restored to all their former rights. Thus, on his return, the father will have his children in his power; for the postliminium supposes that the captive has never been absent. If, however, a prisoner dies in captivity, the son is considered to have been independent from the time when his father was taken a prisoner. So, too, if a son, or grandson, is taken prisoner, the power of the parent, by means of the ius postliminii, is only in suspense. The term postliminium is derived from post and limen. We therefore say of a person taken by the enemy, and then returning into our territory, that he is come back by postliminium. For, just as the threshold forms the boundary of a house, so the ancients have termed the boundary of the empire a threshold. Whence limes also is derived, and is used to signify a boundary and limit. Thence comes the word postliminium, because the prisoner returned to the same limits whence he had been lost. The prisoner, also, who is retaken on the defeat of the enemy, is considered to have come back by postliminium.
6. Children, also, cease to be under the power of their parents by emancipation. Formerly emancipation was effected, either adopting the process of the ancient law, consisting of imaginary sales, each followed by a manumission, or by imperial rescript; but we, in our wisdom, have introduced a reform on this point by one of our constitutiones. The old fictitious process is now done away with, and parents may now appear directly before a proper judge or magistrate, and free from their power their children, or grandchildren, or other descendants. And then, according to the praetorian edict, the parent has the same rights over the goods of those whom he emancipates, as the patron has over the goods of his freedman. And, further, if the child or children emancipated are within the age of puberty, the parent, by the emancipation, becomes their tutor.
7. It is also to be observed that a parent having in his power a son, and by that son a grandson or granddaughter, may emancipate his son, and retain in his power his grandson or granddaughter; or, conversely, he may emancipate his grandson or granddaughter, and retain his son in his power; or, he may make them all independent. And it is the same in the case of a great-grandson, or a great-granddaughter.
8. If a father has a son in his power, and gives him in adoption to the son's natural grandfather or great-grandfather, in conformity with our constitutiones enacted on this subject, that is, if he declares his intention in a formal act before a competent judge, in the present and without the dissent of the person adopted, and also in the presence of the person who adopts, then the right of paternal power is extinguished as to the natural father, and passes from him to the adoptive father; with regard to whom, as we have before observed, adoption preserves all its effects.
9. It must be observed, that if your daughter-in-law becomes pregnant, and if during her pregnancy you emancipate your son, or give him in adoption, the child will be born in your power; but if the child is conceived subsequently to the emancipation or adoption, he is born in the power of his emancipated father, or his adoptive grandfather. Children, natural or adoptive, have almost no means of compelling their parents to free them from their power.
1. If a man, convicted of some crime, is deported to an island, he loses the rights of a Roman citizen; whence it follows, that the children of a person thus banished cease to be under his power, exactly as if he were dead. Equally, if a son is deported, does he cease to be under the power of his father? But, if by favor of the emperor anyone is restored, he regains his former position in every respect.
2. A father who is merely banished by relegatio still retains his children in his power: and a child who is relegated still remains in the power of his father.
3. When a man becomes a "slave of punishment" he ceases to have his sons in his power. Persons become "slaves of punishment" who are condemned to the mines, or exposed to wild beasts.
4. A son, though he becomes a soldier, a senator, or a consul, still remains in the power of his father, from which neither military service nor consular dignity can free him. But by our constitutio the supreme dignity of the patriciate frees the son from the power of his father immediately on the grant of the imperial patent. It is obviously absurd that a parent could emancipate his son from the tie of his power, and that the majesty of the emperor should not be able to release from the power of another, one whom he had chosen to be a father of the state.
5. If a parent is taken prisoner, although he become the slave of the enemy, yet his paternal power is only suspended, owing to the ius postliminii; for captives, when they return, are restored to all their former rights. Thus, on his return, the father will have his children in his power; for the postliminium supposes that the captive has never been absent. If, however, a prisoner dies in captivity, the son is considered to have been independent from the time when his father was taken a prisoner. So, too, if a son, or grandson, is taken prisoner, the power of the parent, by means of the ius postliminii, is only in suspense. The term postliminium is derived from post and limen. We therefore say of a person taken by the enemy, and then returning into our territory, that he is come back by postliminium. For, just as the threshold forms the boundary of a house, so the ancients have termed the boundary of the empire a threshold. Whence limes also is derived, and is used to signify a boundary and limit. Thence comes the word postliminium, because the prisoner returned to the same limits whence he had been lost. The prisoner, also, who is retaken on the defeat of the enemy, is considered to have come back by postliminium.
6. Children, also, cease to be under the power of their parents by emancipation. Formerly emancipation was effected, either adopting the process of the ancient law, consisting of imaginary sales, each followed by a manumission, or by imperial rescript; but we, in our wisdom, have introduced a reform on this point by one of our constitutiones. The old fictitious process is now done away with, and parents may now appear directly before a proper judge or magistrate, and free from their power their children, or grandchildren, or other descendants. And then, according to the praetorian edict, the parent has the same rights over the goods of those whom he emancipates, as the patron has over the goods of his freedman. And, further, if the child or children emancipated are within the age of puberty, the parent, by the emancipation, becomes their tutor.
7. It is also to be observed that a parent having in his power a son, and by that son a grandson or granddaughter, may emancipate his son, and retain in his power his grandson or granddaughter; or, conversely, he may emancipate his grandson or granddaughter, and retain his son in his power; or, he may make them all independent. And it is the same in the case of a great-grandson, or a great-granddaughter.
8. If a father has a son in his power, and gives him in adoption to the son's natural grandfather or great-grandfather, in conformity with our constitutiones enacted on this subject, that is, if he declares his intention in a formal act before a competent judge, in the present and without the dissent of the person adopted, and also in the presence of the person who adopts, then the right of paternal power is extinguished as to the natural father, and passes from him to the adoptive father; with regard to whom, as we have before observed, adoption preserves all its effects.
9. It must be observed, that if your daughter-in-law becomes pregnant, and if during her pregnancy you emancipate your son, or give him in adoption, the child will be born in your power; but if the child is conceived subsequently to the emancipation or adoption, he is born in the power of his emancipated father, or his adoptive grandfather. Children, natural or adoptive, have almost no means of compelling their parents to free them from their power.
XIII. Guardianship.
Let us now proceed to another division of persons. Of those who are not in the power of a parent, some are under a tutor, some under a curator, some under neither. Let us treat, then, of the class of those persons who are under a tutor or curator; for we shall thus ascertain who are they who are not subject to either. And first of persons under a tutor.
1. Tutelage, as Servius has defined it, is an authority and power over a free person, given and permitted by the civil law, in order to protect one whose tender years prevent him defending himself.
2. Tutors are those who have this authority and power, and they take their name from the nature of their office; for they are called tutors, as being protectors [i.e., tuitores] and defenders, just as those who have the care of the sacred edifices are called aeditui.
3. Parents may give tutors by testament to such of their children as have not attained the age of puberty, and are under their power. And this, without any distinction, in the case of all sons and daughters. But grandfathers can only give tutors to their grandchildren when these will not fall under the power of their father on the death of the grandfather. Hence, if your son is in your power at the time of your death, your grandchildren by that son cannot have a tutor appointed them by your testament, although they were in your power; because, at your decease, they will fall under the power of their father.
4. Posthumous children, as in many other respects, so also in this respect, are considered as already born before the death of their fathers; and tutors may be given by testament to posthumous children, as well as to children already born, provided that the posthumous children, had they been born in the lifetime of their father, would have been sui heredes, and in their father's power.
5. But if a father gives a tutor by testament to his emancipated son, the appointment must be confirmed by the sentence of the praeses in all cases, that is, without inquiry.
1. Tutelage, as Servius has defined it, is an authority and power over a free person, given and permitted by the civil law, in order to protect one whose tender years prevent him defending himself.
2. Tutors are those who have this authority and power, and they take their name from the nature of their office; for they are called tutors, as being protectors [i.e., tuitores] and defenders, just as those who have the care of the sacred edifices are called aeditui.
3. Parents may give tutors by testament to such of their children as have not attained the age of puberty, and are under their power. And this, without any distinction, in the case of all sons and daughters. But grandfathers can only give tutors to their grandchildren when these will not fall under the power of their father on the death of the grandfather. Hence, if your son is in your power at the time of your death, your grandchildren by that son cannot have a tutor appointed them by your testament, although they were in your power; because, at your decease, they will fall under the power of their father.
4. Posthumous children, as in many other respects, so also in this respect, are considered as already born before the death of their fathers; and tutors may be given by testament to posthumous children, as well as to children already born, provided that the posthumous children, had they been born in the lifetime of their father, would have been sui heredes, and in their father's power.
5. But if a father gives a tutor by testament to his emancipated son, the appointment must be confirmed by the sentence of the praeses in all cases, that is, without inquiry.
XV. Agnate Tutorship.
They to whom no tutor has been appointed by testament, have their agnati as tutors, by the law of the Twelve Tables, and such testators are called "legal tutors."
1. Agnati are those who are related to each other through males, that is, are related through the father, as, for instance, a brother by the same father, or the son of a brother, or the son of such a son; or, again, a father's brother, or a father's brother's son, or the son of such a son. But those who are related to us through the females are not agnati, but merely cognati by their natural relationship. This the son of a father's sister is related to you not by agnatio, but by cognatio, and you are also related to him by cognatio; as children belong to the family of their father, and not to that of their mother.
1. Agnati are those who are related to each other through males, that is, are related through the father, as, for instance, a brother by the same father, or the son of a brother, or the son of such a son; or, again, a father's brother, or a father's brother's son, or the son of such a son. But those who are related to us through the females are not agnati, but merely cognati by their natural relationship. This the son of a father's sister is related to you not by agnatio, but by cognatio, and you are also related to him by cognatio; as children belong to the family of their father, and not to that of their mother.
XVI. Change of Station.
The capitis deminutio is a change of status, which may happen in three ways: for it may be the greatest capitis deminutio, or the less, also called the middle, or the least.
1. The greater capitis deminutio is, when a man loses both his citizenship and his liberty; as they do who by a terrible sentence are made "the slaves of punishment;" and freedmen, condemned to slavery for ingratitude towards their patrons; and all those who suffer themselves to be sold in order to share the price obtained.
2. The less or middle capitis deminutio is, when a man loses his citizenship, but retains his liberty; as is the case when anyone is forbidden the use of fire and water, or is deported to an island.
3. The least capitis deminutio is when a person's status is changed without forfeiture either of citizenship or liberty; as when a person sui juris becomes subject to the power of another, or a person alieni juris becomes independent.
4. A slave who is manumitted is not said to be capite manutus, as he has no "caput," or civil existence.
5. Those whose dignity rather than their status is changed, do not suffer a capitis deminutio, as those, for instance, who are removed from the senatorial dignity.
6. In saying that the right of cognatio remains in spite of a capitis deminutio, we were speaking only of the least deminutio, after which the cognatio subsists. For, by the greater deminutio, as, for example, if one of the cognati becomes a slave, the right of cognatio of wholly destroyed, so as not to be recovered even by manumission. So, too, the right of cognatio is lost by the less or middle deminutio, as, for example, by deportation to an island.
7. The right to be tutor, which belongs to the agnati, does not belong to all at the same time, but to the nearest in degree only; or, if there are many in the same degree, then to all in that degree. Several brothers, for instance, in the same degree, are all equally called to be tutor.
1. The greater capitis deminutio is, when a man loses both his citizenship and his liberty; as they do who by a terrible sentence are made "the slaves of punishment;" and freedmen, condemned to slavery for ingratitude towards their patrons; and all those who suffer themselves to be sold in order to share the price obtained.
2. The less or middle capitis deminutio is, when a man loses his citizenship, but retains his liberty; as is the case when anyone is forbidden the use of fire and water, or is deported to an island.
3. The least capitis deminutio is when a person's status is changed without forfeiture either of citizenship or liberty; as when a person sui juris becomes subject to the power of another, or a person alieni juris becomes independent.
4. A slave who is manumitted is not said to be capite manutus, as he has no "caput," or civil existence.
5. Those whose dignity rather than their status is changed, do not suffer a capitis deminutio, as those, for instance, who are removed from the senatorial dignity.
6. In saying that the right of cognatio remains in spite of a capitis deminutio, we were speaking only of the least deminutio, after which the cognatio subsists. For, by the greater deminutio, as, for example, if one of the cognati becomes a slave, the right of cognatio of wholly destroyed, so as not to be recovered even by manumission. So, too, the right of cognatio is lost by the less or middle deminutio, as, for example, by deportation to an island.
7. The right to be tutor, which belongs to the agnati, does not belong to all at the same time, but to the nearest in degree only; or, if there are many in the same degree, then to all in that degree. Several brothers, for instance, in the same degree, are all equally called to be tutor.
XVII. Patron Guardianship.
By the same law of the Twelve Tables, the tutelage of freedmen and freedwomen belongs to their patrons, and to the children of their patrons; and this tutelage is called legal tutelage, not that the law contains any express provision on the subject, but because it has been as firmly established by interpretation, as if it had been introduced by the express words of the law. For, as the law had ordered that patrons and their children should succeed to the inheritance of their freedmen or freedwomen who should die intestate, the ancients were of opinion that the intent of the law was that the tutelage also belonged to them; since the law which calls agnati to the inheritance, also appoints them to be tutors, because, in most cases, where the advantage of the succession is, there also ought to be the burden of the tutelage. We say "in most cases," because if a person below the age of puberty is manumitted by a female, she is called to the inheritance, although another person is tutor.
XX. Appointing of Tutors.
If any one had no tutor at all, one was given him, in the city of Rome by the praetor urbanus, and a majority of the tribunes of the plebs, under the lex Atilia; in the provinces, by the praesides under the lex Julia et Titia.
1. Again, if a testamentary tutor had been appointed conditionally, or for a certain time, until the completion of the condition or arrival of the time fixed, another tutor might be appointed under the same laws. Also, if a tutor had been given unconditionally, yet, as long as no one had accepted the inheritance, as heir by the testament, another tutor might be appointed for the interval. But this office ceased when the condition was accomplished, when the time arrived, or the inheritance was entered upon.
2. If, again, a tutor was taken prisoner by the enemy, application could be made, under the same laws, for another tutor, whose office ceased when the first tutor returned from captivity; for on his return he resumed the tutelage by the ius postliminii.
3. But tutors have ceased to be appointed under these laws, since they have been appointed to pupils of either sex, first by the consuls, after inquiry into the case, and afterwards by the praetors under imperial constitutiones. For the above-mentioned laws required no security from the tutors for the safety of the pupil's property, nor did they contain any provisions to compel them to accept the office.
4. Under our present system tutors are appointed at Rome by the prefect of the city, or the praetor, according to his jurisdiction, and, in the provinces, by the praesides after inquiry; or by an inferior magistrate, at the command of the praeses, if the property of the pupil is only small.
5. But by one of our constitutiones, to do away with these distinctions of different persons, and to avoid the necessity of waiting for the order of the praeses, we have enacted, that if the property of the pupil or adult does not exceed five hundred solidi, tutors or curators shall be appointed by the defensores of the city, acting in conjunction with the holy bishop, or by other public persons, that is, by the magistrates, or, in the city of Alexandria, by the judge; and legal security must be given according to the terms of the same constitutio, that is to say, at the risk of those who receive it.
6. It is agreeable to the law of nature that the persons under the age of puberty should be under tutelage, so that persons of tender years may be under the government of another.
7. As tutors administer the affairs of their pupils, they may be compelled to account, by the actio tutela, when their pupils arrive at puberty.
1. Again, if a testamentary tutor had been appointed conditionally, or for a certain time, until the completion of the condition or arrival of the time fixed, another tutor might be appointed under the same laws. Also, if a tutor had been given unconditionally, yet, as long as no one had accepted the inheritance, as heir by the testament, another tutor might be appointed for the interval. But this office ceased when the condition was accomplished, when the time arrived, or the inheritance was entered upon.
2. If, again, a tutor was taken prisoner by the enemy, application could be made, under the same laws, for another tutor, whose office ceased when the first tutor returned from captivity; for on his return he resumed the tutelage by the ius postliminii.
3. But tutors have ceased to be appointed under these laws, since they have been appointed to pupils of either sex, first by the consuls, after inquiry into the case, and afterwards by the praetors under imperial constitutiones. For the above-mentioned laws required no security from the tutors for the safety of the pupil's property, nor did they contain any provisions to compel them to accept the office.
4. Under our present system tutors are appointed at Rome by the prefect of the city, or the praetor, according to his jurisdiction, and, in the provinces, by the praesides after inquiry; or by an inferior magistrate, at the command of the praeses, if the property of the pupil is only small.
5. But by one of our constitutiones, to do away with these distinctions of different persons, and to avoid the necessity of waiting for the order of the praeses, we have enacted, that if the property of the pupil or adult does not exceed five hundred solidi, tutors or curators shall be appointed by the defensores of the city, acting in conjunction with the holy bishop, or by other public persons, that is, by the magistrates, or, in the city of Alexandria, by the judge; and legal security must be given according to the terms of the same constitutio, that is to say, at the risk of those who receive it.
6. It is agreeable to the law of nature that the persons under the age of puberty should be under tutelage, so that persons of tender years may be under the government of another.
7. As tutors administer the affairs of their pupils, they may be compelled to account, by the actio tutela, when their pupils arrive at puberty.
XXI. Authority of Tutors.
In some cases it is necessary that the tutor should authorize the acts of the pupil, in others not. When, for instance, the pupil stipulates for something to be given him, the authorization of the tutor is not requisite; but if the pupil makes the promise, it is requisite; for the rule is, that pupils may make their condition better, but may not make it worse, without the authorization of their tutor. And therefore in all cases of reciprocal obligation, as in contracts of buying, selling, letting, hiring, bailment, and deposit, if the tutor does not authorize the pupil to enter into the contract, the person who contracts with the pupil is bound, but the pupil is not bound.
1. Pupils, however, cannot, without the authorization of the tutor, enter on an inheritance, demand the possession of goods, or take an inheritance given by a fideicommissum, even though to do so would be to their gain, and could involve them in no risk.
2. A tutor who wishes to authorize any act, which he esteems advantageous to his pupil, should do so at once while the business is going on, and in person, for his authorization is of no effect if given afterwards or by letter.
3. When a suit is to be commenced between a tutor and his pupil, as the tutor cannot give authority with regard to his own case, a curator, and not, as formerly, a praetorian tutor, is appointed, with whose intervention the suit is carried on, and who ceases to be curator when the suit is determined.
1. Pupils, however, cannot, without the authorization of the tutor, enter on an inheritance, demand the possession of goods, or take an inheritance given by a fideicommissum, even though to do so would be to their gain, and could involve them in no risk.
2. A tutor who wishes to authorize any act, which he esteems advantageous to his pupil, should do so at once while the business is going on, and in person, for his authorization is of no effect if given afterwards or by letter.
3. When a suit is to be commenced between a tutor and his pupil, as the tutor cannot give authority with regard to his own case, a curator, and not, as formerly, a praetorian tutor, is appointed, with whose intervention the suit is carried on, and who ceases to be curator when the suit is determined.
XXII. Freedom from Guardianship.
Pupils, both male and female, are freed from tutelage when they attain the age of puberty. The ancients judged of puberty in males, not only by their years, but also by the development of their bodies. But we, from a wish to conform to the purity of the present times, have thought it proper, that what seemed even to the ancients to be indecent towards females, namely, the inspection of the body, should be thought no less so towards males; and, therefore, by our sacred constitutio, we have enacted that puberty in males should be considered to commence immediately on the completion of their fourteenth year; while, as to females, we have preserved the wise rule adopted by the ancients, by which they are esteemed fit for marriage on the completion of their twelfth year.
1. Tutelage is also determined if the pupil, before attaining the age of puberty, is either arrogated, or suffers deportation, or is reduced to slavery, or becomes a captive.
2. Again, if a person is appointed by testament to be tutor until a condition is accomplished, he ceases to be tutor on the accomplishment of the condition.
3. Tutelage ends also by the death of the tutor, or of the pupil.
4. When a tutor, by a capitis deminutio, loses his liberty or his citizenship, his tutelage is in every case at an end. But, if he undergo only the least capitis deminutio, as when a tutor gives himself in adoption, then only legal tutelage is ended, and not the other kinds; but any capitis deminutio of the pupil, even the least, always puts an end to the tutelage.
5. A tutor, again, who is appointed by testament to hold office during a certain time, lays down his office when the time is expired.
6. They also cease to be tutors who are removed from their office on suspicion, or who excuse themselves on good grounds from the burden of the tutelage, and rid themselves of it according to the rules we will give hereafter.
1. Tutelage is also determined if the pupil, before attaining the age of puberty, is either arrogated, or suffers deportation, or is reduced to slavery, or becomes a captive.
2. Again, if a person is appointed by testament to be tutor until a condition is accomplished, he ceases to be tutor on the accomplishment of the condition.
3. Tutelage ends also by the death of the tutor, or of the pupil.
4. When a tutor, by a capitis deminutio, loses his liberty or his citizenship, his tutelage is in every case at an end. But, if he undergo only the least capitis deminutio, as when a tutor gives himself in adoption, then only legal tutelage is ended, and not the other kinds; but any capitis deminutio of the pupil, even the least, always puts an end to the tutelage.
5. A tutor, again, who is appointed by testament to hold office during a certain time, lays down his office when the time is expired.
6. They also cease to be tutors who are removed from their office on suspicion, or who excuse themselves on good grounds from the burden of the tutelage, and rid themselves of it according to the rules we will give hereafter.
XXIII. Curatorship.
Males arrived at the age of puberty, and females of a marriageable age, receive curators, until they have completed their twenty-fifth year; for, although they have attained the age of puberty, they are still of an age which makes them unfit to protect their own interests.
1. Curators are appointed by the same magistrates who appoint tutors. A curator cannot be appointed by testament, but if appointed, he may be confirmed in his office by a decree of the praetor of praeses.
2. No adolescent is obliged to receive a curator against his will, unless in case of a lawsuit, for a curator may be appointed for a particular special purpose.
3. Madmen and prodigals, although past the age of twenty-five, are yet placed under the curatorship of their agnati by the law of the Twelve Tables. But, ordinarily, curators are appointed for them, at Rome, by the prefect of the city or the praetor: in the provinces, by the praesides, after inquiry into the circumstances has been made.
4. Persons who are of unsound mind, or who are deaf, mute, or subject to any perpetual malady, since they are unable to manage their own affairs, must be placed under curators.
5. Sometimes even pupils receive curators; as, for instance, when the legal tutor is unfit for the office; for a person who already has a tutor cannot have another given him; again, if a tutor appointed by testament, or by the praetor or praeses is unfit to administer the affairs of his pupil, although there is nothing fraudulent in the way he administers them, it is usual to appoint a curator to act conjointly with him. It is also usual to assign curators in the place of tutors excused for a time only.
6. If a tutor is prevented by illness or otherwise from administering the affairs of his pupil, and his pupil is absent, or an infant, then the praetor or praeses of the province will, at the tutor's risk, appoint by decree some one to be the agent of his pupil.
1. Curators are appointed by the same magistrates who appoint tutors. A curator cannot be appointed by testament, but if appointed, he may be confirmed in his office by a decree of the praetor of praeses.
2. No adolescent is obliged to receive a curator against his will, unless in case of a lawsuit, for a curator may be appointed for a particular special purpose.
3. Madmen and prodigals, although past the age of twenty-five, are yet placed under the curatorship of their agnati by the law of the Twelve Tables. But, ordinarily, curators are appointed for them, at Rome, by the prefect of the city or the praetor: in the provinces, by the praesides, after inquiry into the circumstances has been made.
4. Persons who are of unsound mind, or who are deaf, mute, or subject to any perpetual malady, since they are unable to manage their own affairs, must be placed under curators.
5. Sometimes even pupils receive curators; as, for instance, when the legal tutor is unfit for the office; for a person who already has a tutor cannot have another given him; again, if a tutor appointed by testament, or by the praetor or praeses is unfit to administer the affairs of his pupil, although there is nothing fraudulent in the way he administers them, it is usual to appoint a curator to act conjointly with him. It is also usual to assign curators in the place of tutors excused for a time only.
6. If a tutor is prevented by illness or otherwise from administering the affairs of his pupil, and his pupil is absent, or an infant, then the praetor or praeses of the province will, at the tutor's risk, appoint by decree some one to be the agent of his pupil.
XXIV. Security by Guardians.
To prevent the property of pupils and persons placed under curators being wasted or destroyed by tutors or curators, the praetor sees that tutors and curators give security against such conduct. But this is not always necessary; a testamentary tutor is not compelled to give security, as his fidelity and diligence have been recognized by the testator. And tutors and curators appointed upon inquiry are not obliged to give security, because they have been chosen as being proper persons.
1. If two or more are appointed by testament, or by a magistrate, after inquiry, as tutors or curators, any of them, by offering security for the indemnification of the pupil or adolescent, may be preferred to his co-tutor or co-curator, so that he may either alone administer the property, or may oblige his co-tutor or co-curator to give security, if he wishes to obtain the preference, and become the sole administrator. He cannot directly demand security from his co-tutor or co-curator; he must offer it himself, and so give his co-tutor or co-curator the choice to receive or to give security. If no tutor or curator offers security, the person appointed by the testator to manage the property shall manage it; but if no such person be appointed, then the administration will fall to the person whom a majority of the tutors shall choose, as is provided for the praetorian edict. If the tutors disagree in their choice, the praetor must interpose. And in the same way, when several are appointed after inquiry by a magistrate, a majority is to determine who shall administer.
2. It should be observed that it is not only tutors and curators who are responsible for their administration to pupils, minors, and the other persons we have mentioned, but, as a last safeguard, a subsidiary actio may be brought against the magistrate who has accepted the security as sufficient. The subsidiary actio may be brought against a magistrate who has wholly omitted to take security, or has taken insufficient security; and the liability to this actio, according to the responses of the jurisprudenti as well as the imperial constitutiones, extends also to the heirs of the magistrate.
3. The same constitutiones also expressly enact that tutors and curators who do not give security, may be compelled to do so by seizure of their goods as pledges.
4. Neither the prefect of the city, nor the praetor, nor the praeses of a province, nor any one else to whom the appointment of tutors belongs, will be liable to this actio, but only those whose ordinary duty is to exact the security.
1. If two or more are appointed by testament, or by a magistrate, after inquiry, as tutors or curators, any of them, by offering security for the indemnification of the pupil or adolescent, may be preferred to his co-tutor or co-curator, so that he may either alone administer the property, or may oblige his co-tutor or co-curator to give security, if he wishes to obtain the preference, and become the sole administrator. He cannot directly demand security from his co-tutor or co-curator; he must offer it himself, and so give his co-tutor or co-curator the choice to receive or to give security. If no tutor or curator offers security, the person appointed by the testator to manage the property shall manage it; but if no such person be appointed, then the administration will fall to the person whom a majority of the tutors shall choose, as is provided for the praetorian edict. If the tutors disagree in their choice, the praetor must interpose. And in the same way, when several are appointed after inquiry by a magistrate, a majority is to determine who shall administer.
2. It should be observed that it is not only tutors and curators who are responsible for their administration to pupils, minors, and the other persons we have mentioned, but, as a last safeguard, a subsidiary actio may be brought against the magistrate who has accepted the security as sufficient. The subsidiary actio may be brought against a magistrate who has wholly omitted to take security, or has taken insufficient security; and the liability to this actio, according to the responses of the jurisprudenti as well as the imperial constitutiones, extends also to the heirs of the magistrate.
3. The same constitutiones also expressly enact that tutors and curators who do not give security, may be compelled to do so by seizure of their goods as pledges.
4. Neither the prefect of the city, nor the praetor, nor the praeses of a province, nor any one else to whom the appointment of tutors belongs, will be liable to this actio, but only those whose ordinary duty is to exact the security.
XXV. Excusal of Tutors or Curators.
Tutors and curators are excused on different grounds; most frequently on account of the number of their children, whether in their power or emancipated. For anyone who at Rome has three children living, in Italy four, or in the provinces five, may be excused from being tutor or curator as from other offices, for the office of both a tutor and a curator is considered a public one. Adopted children will not avail the adopter, but though given in adoption are reckoned in favor of their natural father. Grandchildren by a son may be reckoned in the number, so as to take the place of their father, but not grandchildren by a daughter. It is only those children who are living that can be reckoned to excuse any one from being tutor or curator, and not those who are dead. It has been questioned, however, whether those who have perished in war may not be reckoned; and it has been decided, that those who die in battle may, but they only, for glory renders those immortal who have fallen for their country.
1. The Emperor Marcus declared by rescript in his Semestria, that a person engaged in administering the property of the fiscus is excused from being tutor or curator while his administration lasts.
2. Persons absent on the service of the state are excused from being tutors or curators; and if those who have already been appointed either as tutors or curators should afterwards be absent on the public service, they are excused during their absence, and meanwhile curators are appointed in their place. On their return, they must again take upon them the burden of the tutelage; and, according to Papinian's opinion, expressed in the fifth book of his answers, are not entitled to the privilege of a year's vacation, which is only allowed them when they are called to a new tutelage.
3. By a rescript of the Emperor Marcus, all persons invested with magisterial power may excuse themselves; but they cannot abandon the office of tutor, which they have already undertaken.
4. No tutor or curator can excuse himself by alleging a lawsuit with the pupil or adult; unless the suit embraces the whole of the goods, or the property, or is for an inheritance.
5. Three tutelages or curatorships, if unsolicited, serve as an excuse from filling any other such office, while the holder continues to discharge duties. But the tutelage of several pupils, or the curatorship of an undivided property, as where the pupils or adults are brothers, is reckoned as one only.
6. Poverty is a sufficient excuse, when it can be proved such as to render a man incapable of the burden imposed upon him, according to the rescripts given both by the imperial brothers together, and by the Emperor Marcus singly.
7. Illness also, if it prevents a man from superintending his own affairs, affords a ground of excuse.
8. So, too, a person who cannot read must be excused, according to the rescript of the Emperor Antoninus Pius; but persons who cannot read are sometimes considered capable of administering.
9. If it is through enmity that the father appoints by testament any one as tutor, this circumstance itself will afford a sufficient excuse; just as, on the other hand, they who have promised the father of the pupils to fill the office of tutor, cannot be excused.
10. That the tutor was unknown to the father of a pupil is not of itself to be admitted as a sufficient excuse, as is decided by a rescript of the imperial brothers.
11. Enmity against the father of the pupil or adult, if of a deadly character, and no reconciliation has taken place, is usually considered as an excuse from being tutor or curator.
12. So, too, he whose status has been called in question by the father of the pupil, is excused from the office of tutor.
13. Persons above seventy years of age may be excused from being tutors of curators. Persons under the age of twenty-five were formerly excused, but, by our constitutio, they are now prohibited from aspiring to these offices, so that excuses are become unnecessary. This constitutio provides that neither pupils nor adults shall be called to a legal tutelage. For it is absurd that persons who are themselves governed, and are known to need assistance in the administration of their own affairs, should become the tutors or curators of others.
14. The same rule holds good also as to military persons. They cannot, even though they wish it, be admitted to the office of tutor or curator.
15. Grammarians, rhetoricians, and physicians at Rome, and those who exercise such professions in their own country, and are within the number authorized, are exempted from being tutors or curators.
16. If a person wishes to excuse himself, and has several excuses, even supposing some are not admitted, there is nothing to prevent him employing others, providing he does so within the prescribed time. Those who wish to excuse themselves are not to appeal, but whatever kind of tutors they may be, that is, however they may have been appointed, must offer their excuses within the fifty days next after they have known of their appointment, if they are within a hundred miles of the place when they were appointed. If they are at a greater distance they are allowed a day for every twenty miles, and thirty days besides; but the time should, as Scaevola said, be so calculated as never to be less than fifty days in the whole.
17. The tutor who is appointed is considered as appointed for the whole patrimony.
18. A person who has discharged the office of tutor is not compelled against his will to become the curator of the same person; so much so, that although the father, after appointing a tutor by testament, adds that he also appoints the same person to be curator, the person so appointed if unwilling cannot be compelled to take the office of curator; so it has been decided by the rescript of the Emperors Severus and Antoninus.
19. The same emperors have decided by rescript, that a husband appointed as curator to his wife may excuse himself from the office, even after he has intermeddled with her affairs.
20. If any one has succeeded by false allegations in getting himself excused from the office of tutor, he is not discharged from the burden of the office.
1. The Emperor Marcus declared by rescript in his Semestria, that a person engaged in administering the property of the fiscus is excused from being tutor or curator while his administration lasts.
2. Persons absent on the service of the state are excused from being tutors or curators; and if those who have already been appointed either as tutors or curators should afterwards be absent on the public service, they are excused during their absence, and meanwhile curators are appointed in their place. On their return, they must again take upon them the burden of the tutelage; and, according to Papinian's opinion, expressed in the fifth book of his answers, are not entitled to the privilege of a year's vacation, which is only allowed them when they are called to a new tutelage.
3. By a rescript of the Emperor Marcus, all persons invested with magisterial power may excuse themselves; but they cannot abandon the office of tutor, which they have already undertaken.
4. No tutor or curator can excuse himself by alleging a lawsuit with the pupil or adult; unless the suit embraces the whole of the goods, or the property, or is for an inheritance.
5. Three tutelages or curatorships, if unsolicited, serve as an excuse from filling any other such office, while the holder continues to discharge duties. But the tutelage of several pupils, or the curatorship of an undivided property, as where the pupils or adults are brothers, is reckoned as one only.
6. Poverty is a sufficient excuse, when it can be proved such as to render a man incapable of the burden imposed upon him, according to the rescripts given both by the imperial brothers together, and by the Emperor Marcus singly.
7. Illness also, if it prevents a man from superintending his own affairs, affords a ground of excuse.
8. So, too, a person who cannot read must be excused, according to the rescript of the Emperor Antoninus Pius; but persons who cannot read are sometimes considered capable of administering.
9. If it is through enmity that the father appoints by testament any one as tutor, this circumstance itself will afford a sufficient excuse; just as, on the other hand, they who have promised the father of the pupils to fill the office of tutor, cannot be excused.
10. That the tutor was unknown to the father of a pupil is not of itself to be admitted as a sufficient excuse, as is decided by a rescript of the imperial brothers.
11. Enmity against the father of the pupil or adult, if of a deadly character, and no reconciliation has taken place, is usually considered as an excuse from being tutor or curator.
12. So, too, he whose status has been called in question by the father of the pupil, is excused from the office of tutor.
13. Persons above seventy years of age may be excused from being tutors of curators. Persons under the age of twenty-five were formerly excused, but, by our constitutio, they are now prohibited from aspiring to these offices, so that excuses are become unnecessary. This constitutio provides that neither pupils nor adults shall be called to a legal tutelage. For it is absurd that persons who are themselves governed, and are known to need assistance in the administration of their own affairs, should become the tutors or curators of others.
14. The same rule holds good also as to military persons. They cannot, even though they wish it, be admitted to the office of tutor or curator.
15. Grammarians, rhetoricians, and physicians at Rome, and those who exercise such professions in their own country, and are within the number authorized, are exempted from being tutors or curators.
16. If a person wishes to excuse himself, and has several excuses, even supposing some are not admitted, there is nothing to prevent him employing others, providing he does so within the prescribed time. Those who wish to excuse themselves are not to appeal, but whatever kind of tutors they may be, that is, however they may have been appointed, must offer their excuses within the fifty days next after they have known of their appointment, if they are within a hundred miles of the place when they were appointed. If they are at a greater distance they are allowed a day for every twenty miles, and thirty days besides; but the time should, as Scaevola said, be so calculated as never to be less than fifty days in the whole.
17. The tutor who is appointed is considered as appointed for the whole patrimony.
18. A person who has discharged the office of tutor is not compelled against his will to become the curator of the same person; so much so, that although the father, after appointing a tutor by testament, adds that he also appoints the same person to be curator, the person so appointed if unwilling cannot be compelled to take the office of curator; so it has been decided by the rescript of the Emperors Severus and Antoninus.
19. The same emperors have decided by rescript, that a husband appointed as curator to his wife may excuse himself from the office, even after he has intermeddled with her affairs.
20. If any one has succeeded by false allegations in getting himself excused from the office of tutor, he is not discharged from the burden of the office.
XXVI. Suspected Guardians.
The right of accusing a suspected tutor or curator is derived from the law of the Twelve Tables.
1. The power of removing suspected tutors belongs at Rome to the praetor; in the provinces to the praesides, or to the legate of the proconsul.
2. We have shown what magistrates may take cognizance of suspected persons: let us now inquire, what persons may become suspected. All tutors may become so, whether testamentary, or others; thus even a legal tutor may be accused. But what is the case with a patron? He, too, may be accused; but we must remember that his reputation must be spared, although he be removed as suspected.
3. Let us inquire, by whom suspected persons may be accused. Now an accusation of this sort is in a measure public, that is, it is open to all. Nay, by a rescript of the Emperors Severus and Antoninus, even women are admitted to be accusers; but only those who are induced to do so through feelings of affection, as a mother, a nurse, or a grandmother, or a sister, who may all become accusers. But the praetor will admit any other woman to make the accusation, in whom he recognizes a real affection, and who, without overstepping the modesty of her sex, is impelled by this affection not to endure the pupil suffering harm.
4. No person below the age of puberty can bring an accusation against his tutor as suspected: but those who have attained that age may, under the advice of their near relations, accuse their curators. Such is the decision given in a rescript of the Emperors Severus and Antoninus.
5. A tutor is suspected who does not faithfully execute his trust, although perfectly solvent, as Julian writes, who also thinks that even before he enters on his office, a tutor may be removed, as suspected; and a constitutio has been made in accordance with this opinion.
6. A suspected person, if removed on account of fraud, is infamous, but not if for neglect only.
7. If an actio is brought against any one as suspected, his administration, according to Papinian, is suspended while the accusation is pending.
8. If a process is commenced against a tutor or curator, as suspected, and he dies while it is going on, the process is at an end.
9. If a tutor fails to appear, that a certain amount of maintenance may be fixed on for his pupil, it is provided by a rescript of the Emperors Severus and Antoninus that the pupil shall be put into the possession of the effects of the tutor, and that after a curator has been appointed, those things, which are perishable, may be sold. Therefore, a tutor who does not afford maintenance to his pupil may be removed, as suspected.
10. But if the tutor appears, and denies that maintenance can be allowed in consequence of the smallness of the pupil's estate; if he says this falsely, he shall be handed over to the prefect of the city, to be punished, just as a person is handed over who has purchased a tutelage by bribery.
11. Also a freedman, who is proved to have been guilty of fraud, when acting as tutor to the son or grandson of the patron, is handed over to the prefect of the city to be punished.
12. Lastly, it must be known that they who are guilty of fraud in their administration must be removed, although they offer sufficient security. For giving security makes no change in the malevolent purpose of the tutor, but only procures him a longer opportunity of injuring the estate.
13. We also deem every man suspected, whose conduct is such that we cannot but suspect him. A tutor or curator who is faithful and diligent is not to be removed as a suspected person merely because he is poor.
1. The power of removing suspected tutors belongs at Rome to the praetor; in the provinces to the praesides, or to the legate of the proconsul.
2. We have shown what magistrates may take cognizance of suspected persons: let us now inquire, what persons may become suspected. All tutors may become so, whether testamentary, or others; thus even a legal tutor may be accused. But what is the case with a patron? He, too, may be accused; but we must remember that his reputation must be spared, although he be removed as suspected.
3. Let us inquire, by whom suspected persons may be accused. Now an accusation of this sort is in a measure public, that is, it is open to all. Nay, by a rescript of the Emperors Severus and Antoninus, even women are admitted to be accusers; but only those who are induced to do so through feelings of affection, as a mother, a nurse, or a grandmother, or a sister, who may all become accusers. But the praetor will admit any other woman to make the accusation, in whom he recognizes a real affection, and who, without overstepping the modesty of her sex, is impelled by this affection not to endure the pupil suffering harm.
4. No person below the age of puberty can bring an accusation against his tutor as suspected: but those who have attained that age may, under the advice of their near relations, accuse their curators. Such is the decision given in a rescript of the Emperors Severus and Antoninus.
5. A tutor is suspected who does not faithfully execute his trust, although perfectly solvent, as Julian writes, who also thinks that even before he enters on his office, a tutor may be removed, as suspected; and a constitutio has been made in accordance with this opinion.
6. A suspected person, if removed on account of fraud, is infamous, but not if for neglect only.
7. If an actio is brought against any one as suspected, his administration, according to Papinian, is suspended while the accusation is pending.
8. If a process is commenced against a tutor or curator, as suspected, and he dies while it is going on, the process is at an end.
9. If a tutor fails to appear, that a certain amount of maintenance may be fixed on for his pupil, it is provided by a rescript of the Emperors Severus and Antoninus that the pupil shall be put into the possession of the effects of the tutor, and that after a curator has been appointed, those things, which are perishable, may be sold. Therefore, a tutor who does not afford maintenance to his pupil may be removed, as suspected.
10. But if the tutor appears, and denies that maintenance can be allowed in consequence of the smallness of the pupil's estate; if he says this falsely, he shall be handed over to the prefect of the city, to be punished, just as a person is handed over who has purchased a tutelage by bribery.
11. Also a freedman, who is proved to have been guilty of fraud, when acting as tutor to the son or grandson of the patron, is handed over to the prefect of the city to be punished.
12. Lastly, it must be known that they who are guilty of fraud in their administration must be removed, although they offer sufficient security. For giving security makes no change in the malevolent purpose of the tutor, but only procures him a longer opportunity of injuring the estate.
13. We also deem every man suspected, whose conduct is such that we cannot but suspect him. A tutor or curator who is faithful and diligent is not to be removed as a suspected person merely because he is poor.