James Grech LL.

B 1st Year --------------------

R W LEE: The Elements of Roman Law

Roman Law of Persons
I: The First Di ision of Persons: Free !en an" #la es
$%. The first division of persons is into free men and slaves. Slaves mat be born so or become so. They may become so either jure gentium, i.e. by being taken captive, or by civil law. Thus we distinguish between three modes of becoming a slave; &1' (nfree )irth &*' +ostile ,a-t.re &/' R.les of the ,i il Law $0. &1' (nfree Birth: The general rule of the jus gentium was that the child followed the status of the mother at the time of birth. This was contrary to the rule of civil law which said that when the parents were married, the child followed the status of the father at the time of conception. Thus, in principle, children born of a slave mother, were themselves slaves. The uestion arose of what should happen when a mother changed status from the time of conception to the time of birth. !n favour of freedom, it was decided that if the mother was free at the time of conception or at any subse uent time during the pregnancy, her child would also be free "in other words, a child would only given the status of a slave if his mother had been a slave all the timeat conception, during her pregnancy and at birth#. 12 &*' +ostile ,a-t.re: This source of slavery applied not only to declared enemies, but in principle to any foreigner, who was found within the $mpire unprotected by any treaty or amicable agreement "i.e. he was not a %riend of &ome#. 11 &/' R.les of the ,i il Law: The old law said that fathers could sell their children into slavery. This, however, was, as we shall see, modified. 'y the Twelve Tables, debtors who could not pay their debt, could be sold into slavery trans Tiberim. $nslavement also awaited those who evaded inscription into the census. (nder the $mpire, slavery could come into e)istence in the following ways; "a# *hen a free man upwards of +, years of age, fraudulently allowed himself to be sold into slavery with a view of sharing the profit

"b# *hen a free woman persisted in co-habiting with a slave, the slave master could report her to the -raetor, who would ask her to stop doing so. !f she persisted, the -raetor could by judicial decree declare her to be the same master.s slave. /ere, there were economic connotations. Slaves were considered to be property. Thus, the slave master wasn.t happy that his slave was being distracted, as well as 0used. and 0enjoyed by another free person without paying him. Therefore, he would recourse to the -raetor hoping that the woman will buy the slave- otherwise she would either have to leave his slave alone, or become a slave herself. "c# Servi poenae "slaves of punishment#: Those condemned to death or to labour in the mines lost their freedom. "d# %reedmen who were guilty of serious ingratitude towards their patrons also lost their freedom. "e# -arents were allowed to sell their children into slavery if they in e)treme poverty. !n this case, they had a right of redemption. 1f these methods, 2ustinian, abolished "b# and "c#. 1*. Ri3hts of !asters o er #la es: Slaves were in their masters. power. The master had the right of his slave.s life or death, and everything ac uired by the slave was ac uired for his master. /owever, under the $mpire, there was legislation protecting slaves from inhuman treatment. 3 le) -etronia prohibited masters from using their slaves in arena fights with beasts. 3nother emperor, 3ntonius -ius protected the slave.s life saying that a master who killed his slave without cause was liable as if he had killed another man.s slave. This same emperor enacted another law saying that if a slave fled from his mater because of inhuman treatment, he could seek help from the -raetor, who "if he found the story to be true#, could order that the slave is sold from his cruel master in terms that the slave should never revert to his master.s rule. 1/. #la er4 "e facto: So far, we have talked about the slave.s condition de jure "officially#. *hat about slavery de facto "in practice#4 Slavery was an important part in &oman history. *hen &ome began to e)tend her con uests outside !taly, the number of slaves increased tremendously. 2ulius 5aesar, for e)ample, is said to have taken captive one million 6auls "in one occasion#. !n towns and country alike, slavery replaced free labour. !n towns, the conditions of slavery were more tolerable. /ere, it was the practice to allow slaves to deal with their peculium "the money earned# as their own, and conse uently, be able to purchase their freedom. Sometimes slaves were highly educated men. 3s a general note, one may add that their condition in the later $mpire changed for the worse. 15. Was the Roman sla e a thin3 or a -erson6 The answer is that he was both. Since he could be owned, he was a res. 7et, he was also a human being, and this was recognised in some aspects. Thus, to mention just one e)ample, the burial ground of a slave was made locus religiosus "res religiosae#. Slaves were subject to the criminal law. They were bound by delict, but during slavery the appropriate action was instituted against the master unless he surrendered the culprit. 3fter manumission, they were personally liable.

1$. !f a man was not a slave, he was free; either born free "ingenuus# or made free "libertinus#. Thus, there were three statuses in hierarchical order; free men, freedmen, slaves. 7 free"man was one who ha" )een man.mitte" from ci il law sla er4. "i.e. a man returning home from foreign slavery did not become a freedman but a free man regaining his prior position by postliminium#. 11. !an.mission: The status of slavery could be brought to an end by manumission, i.e. when the slave.s master took the appropriate steps to end his slavery. There were various modes and we can distinguish these between formal modes and informal modes. %ormal 8odes: "a# 9indicta: 'y a fictitious lawsuit. /ere, there would a ceremony in 5ourt where the master would touch his slave with an iron bar "vindicta# and declare him to be free. This would take place before a magistrate. "b# 5ensu: by enrolment in the census. "c# Testamento: 'y will. Testamentary manumission might be direct or indirect. :irect manumission consisted in a declaration saying, ;let my slave -aul be free<. !n this case the freedman was said to be the dead man.s freedman "libertinus orcinus#, and the rights of patronage passed on to the testator.s family. !ndirect manumission consisted in a declaration saying, ;! charge my heir with a trust to manumit my slave -aul.< !n this case, the heir was the patron of the freedman. !nformal 8odes: "a# !nter 3micos: :eclaring a man free among friends "b# -er $pistolam: Sending him a letter signifying a gift of freedom "c# 'y asking him to dinner. To these modes of manumission, 2ustinian added some others, - =aming a slave as your heir - 3dopting him as your son - 3ppointing him by will as tutor to your son There were also cases when manumission arose independently of the wishes of the master. The law, in these occasions, converted the slave into a free man either to reward the slave or to punish the master "e): in the later empire, slaves could become free if they became 5hristians. 1%. #tat.s of Free"men: 3 freedman was in an inferior position from an ingenuus. 3 freedman was e)cluded from the Senate and magistracies. Secondly, they could not marry freeborn persons until the le) 2ulia of >? '5 restricted this prohibition to make it less stringent.

10. Free"man8s 9)li3ations: 3 freedman had three relations with his patronobse uum "respect#, operae "services#, and bona "property#. 1bse uum "respect#: /e owed respect to his patron. /e could not bring an action against him e)cept by permission of the praetor. 'esides, the freedman had the duty to help his patron if the latter was in need. !f he failed to do so, the patron could ask the praetor to revert the freedman back to his former status- that of slave. 1perae "Services#: The freedman was usually re uired to render services to his patron. The obligation to render services was usually ac uired secured by oath. 'ona "6oods#: 'y the @aw of the Twelve Tables, if the freedman died intestate, the patron would be his successor. @ikewise, if the freedman had children, the patron would become their tutor. @ater law entitled the patron to a share of the freedman.s estate if he had left a will. 2ustinian provided that if the freedman had children, the patron was not entitled to any share of his estate. =ote: The status of freedman could be ended by imperial grant; the person concerned could become a free man if the emperor so decided. /e could also revert to slavery if he failed to perform the duty of obse uum. %2:%1. The +istor4 of !an.mission: *e have thus seen that manumission afforded escape from slavery. !n the last century of the &epublic, manumissions became alarmingly numerous. 8anumission was cheap and easy, and often on their deathbeds, masters manumitted many slaves. !ndiscriminate manumission such as this had a bad effect upon the uality of the citiAen body- there were too many freedmen roaming about. The $mperor 3ugustus sought to restrain it by the legislation which we will mention now B this remained in force until 2ustinian. The civil law recognised only formal manumission. !f manumission was informal, or if the master had the slave among his goods without civil law title, the man remained de jure a slave even though he may have been granted de facto liberty. %5. Le; 7elia #entia: The le) 3elia Sentia "C 3:# contained numerous other provisions relating to manumission. -articularly, "a# it prohibited manumission in fraud of creditors "i.e. if the master wants to manumit so that he can tell creditors that he owns nothing, and thus be able to defraud creditors#. "b# This law also created a very inferior status for slaves who before manumission had been subject to severe punishment. They could not make a will or take under a will. 3lso, they could not reside within >,, miles off &ome under penalty of being sold into slavery without hope of manumission, and in case of a claimed manumission, they became slaves of the &oman -eople. They could not, under any, circumstances, become citiAens.

"c# !f the master was under twenty years of age, or if the slave was under thirty years of age, manumission could only take place by vindicta after a just cause had been established to the satisfaction of a board of five &oman senators and five knights. !n the first case "i.e. master under twenty#, failure to satisfy this condition rendered the manumission void, whilst in the second case "slave under thirty#, the slave was granted only de facto protection. "d# 3 slave manumitted under the age of thirty without complying with this statute, could become a citiAen if he married before seven witnesses, and had a son one year old. %/. Le; F.fia ,aninia &* B,': This limited manumission by will to the proportion of slaves owned, and to one hundred at the most. Till the time of the !nstitutes, this law had been abrogated. %<. 7ll Free"men to )e Roman citi=ens: 'y the constitutions of DE, and DE>, 2ustinian bestowed on all freedmen &oman citiAenship with no discrimination as regards the age of the manumitted slave, the mode of manumission, and the nature of the manumitter.s ownership. This restored law to its former simplicity by making freedmen all into one type. 3s regards, the re uired age of the master, 2ustinian set this as seventeen, but later reduced it to fourteen for males, and twelve for females. 3fter this, nothing remained of the le) 3elia Sentia e)cept the prohibition in fraud of creditors.

II: The #econ" Di ision: In"e-en"ent an" De-en"ant #tat.s

%$. Patria Potestas: all persons are either sui juris or alieni juris. -ersons alieni juris are in the power of others either of masters or of parents. The position of persons in the power of masters "slaves# has been considered in the first division. =ow we will speak of persons in the power of a father "or ascendant#, in other words of the patria potesta. %1:%%. ,onse>.ences of -atria -otestas as re3ar"s the -erson : 3nciently "before the $mpire#, the power of the paterfamilias included; "a# the power of life and death. "b# the power of sale either trans Tiberim into foreign slavery or within the city in the status of mancipium. "c# the right to give the children in marriage and divorce them at pleasure. "d# the right to give the children in adoption and to emancipate them at pleasure. These powers disappeared during or before the $mpire. The power of life and death was formally abolished by 5onstantine, who said that a parent, who kills his own child, incurs the punishment for parricide. Sale into actual slavery survived in 5onstantine.s legislation permitting the sale of newborn children. 2ustinian allowed it but only in cases of e)treme poverty. 8arriage and divorce, no longer remained an e)ercise pf paternal power, but came to be regarded as uestions which concerned the immediate parties. Similarly the consent of children "unless they were infants# came to be necessary conditions for adoption or emancipation.

%0. ,onse>.ences of -atria -otestas as re3ar"s -ro-ert4 : 3s regards property, the son in power was originally in no better position than a slave. *hatever he ac uired, was ac uired for the paterfamilias. @ike a slave, he might "but not enforceable# be allowed de facto enjoyment of a peculium. Step by step the principle came to be admitted that a filiusfamilias might have a right for a peculium. The steps were; "a# %rom the time of 3ugustus, soldiers were allowed to keep as their own what they ac uired in military service "peculium castrense#. "b# 5onstantine and later emperors e)tended this to what the son earned in various civil employments or the service of the 5hurch "peculium uasi-castrense#. "c# 3lso under 5onstantine, the father.s interest in property coming to the son in inheritance from his mother "bona materna#, was reduced to usufruct. @ater emperors e)tended this to all ac uisitions coming from the mother or from her relations "bona meterna generis#, or from any other source "bona adventicia#. Thus, such property did not pass into the hands of the father- he only had usufruct on them. The son could not dispose of them during his father.s lifetime but they became his absolute property when his father died. !f the son died first, the property went to the father by right of succession, =1T by right of peculium. !n case of emancipation, the father retained one third of the bona adventicia "as price of emancipation#. 2ustinian substituted for this the usufruct of a half "i.e. the father retained usufruct of half of the property after emancipation#. "d# :espite all these steps, we might add that all these left unaffected the father.s right to his own property confided to his son, and to gains accruing from it. 02. Patria Potestas came into e;istence in a ariet4 of wa4s? namel4: &7' ,i il Law !arria3e &B' Le3itimation &,' 7"o-tion &D' Im-erial Rescri-t

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01. ,i il Law !arria3e: 2ustinian established that the re uirements for civil law were as following: "># the spouses must be ualified to contract a civil law marriage "jus connubi#. "+# they must be of marriageable age. "E# there must be no rule of law forbidding them to marry or intermarry. "C# children in power must have necessary consent. "D# husband and wife must be consenting parties to the marriage.

0*. &1' J.s ,onn.)ii: The husband must have the right to contract a civil law marriage with the wife. 6enerally, the jus connubi was reserved for &oman citiAens and @atins. 5hildren followed the status of their father, i.e. citiAen if he was citiAen, @atin if he was @atin. !n either case, there was a marriage recognised by the &oman courts. 'ut to constitute a civil law marriage, both parties to the marriage must normally be citiAen because generally, the power of contracting a civil marriage "jus conubium# was reserved for &oman citiAens only. !n the first two centuries of the empire, individual citiAens were sometimes granted power "as a special favour# to contract a civil law marriage with a @atin or peregrine woman. 0/. &*' !arria3ea)le 73e: The parties had to be of marriageable age. This was fi)ed to be fourteen for males, twelve for females. These ages later passed into 5anon @aw, and conse uently into most modern systems of law. 05. &/' Lawf.l !arria3e: The parties must be competent to marry and to intermarry. 5ertain people could not marry at all. These were: "i# "ii# "iii# "iv# "v# -ersons already married. 5astrati. Soldiers during the term of service. -ersons who had taken vows of chastity or belonged to priests. orders. !ntermarriage was principally forbidden between persons too nearly related by birth, adoption or marriage. 8arriage was thus, forbidden between ascendants or descendants by blood or marriage, or by relatives removed by only one degree from the common ancestor. !n the later $mpire, it was also forbidden to marry a deceased wife. s sister or a deceased husband.s brother. This doctrine applied prohibitions not only to blood relations but also to relationship by marriage "today this is no longer so#. 2ustinian also prohibit inter-marriage between godparents and godchildren, as well as guardians and their wards "as to avoid abuses of wards marrying the girls under their care to take away their property#. -atricians and plebeians up to CCD '5

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"vii#

0<. &5' ,onsent of Paterfamilias: %or a person to get married, the consent of the paterfamilias was necessary. 3 grandson in power with a father still unemancipated and still living, re uired the consent of his father as well as his grandfather.s. This did not apply to granddaughter. %or her, the grandfather.s consent was enough "this was because after marriage she would fall under the patria potestas of her husband#. :ifficulties arose when the paterfamilias refused to give his consent or was insane 2ustinian decided that the consent of an insane parent was not re uired. !f consent was unreasonably withheld, the le) 2ulia allowed the daughter or son to apply to a magistrate for leave to marry. This was so at the time of 2ustinian too. 0$. &<' ,onsent of Parties : The consent of both parties is deemed to be necessary. This was so at the time of 2ustinian and for centuries before him. This opposed the

situation as it was in the past, where often marriages were arranged by the parties. families, without their knowing, let alone their approval. 0%. @o ceremon4 re>.ire": =o ceremony, civil or religious, was re uired. 8arriage was concluded by consent "=ote: /ere we are not speaking about 8anus 8arriage#. !t was of course fundamental that the parties had the intention to live together as husband and wife "affectio maritalis#. 1nly this distinguished marriage from concubinage. 00. Wife8s #tat.s (nchan3e": &oman marriage of this type "which became universal in the classical age# was a relation of remarkable of freedom#. 8arriage per se did not effect a transfer of the wife.s property to the husband- neither did it give him any right of administration. The wife retained her contractual freedom, e)cept that she could not make any gift to him, as he couldn.t make any gift to her. 3s the wife controlled her own property, so was she e)pected to provide for her own maintenance. !t was not her husband s. business to provide for her needs. Since this was not 8anus 8arriage, then the husband was not in any way responsible for the wife. 121. Di orce: :ivorce became very popular in the later &epublic. 3s marriage came into e)istence by agreement and marital affection, so it was thought reasonable that it should cease to e)its when these conditions were no longer present. This meant that the marriage bond was severed by mutual consent ""i orti.m )ona 3ratia# or at the will of either party &re-."i.m- tela tela tela #. This had to be done before seven witnesses. 12*. There were cases in which marriage was terminated by operation of the law: these were: "a# !f the father adopted his son.s wife or daughter.s husband, the marriage became incestuous and was ipso jure, dissolved. "b# @oss of citiAenship. "c# $nslavement of either spouse dissolved the marriage. "d# 5aptivity: 5aptivity did not dissolve the marriage, and if before five years have passed, the husband returned, he was automatically re-established by postliminium "so was his marriage#. !f, however, five years passed, and the husband had not been known to be alive, the wife was free to remarry. 3part from this, absence without news, no longer how prolonged, was unaffected. 12/. #tat.s of ,hil"ren: &eferences has already been made to this subject, and we had established that where there is conubium, the children follow the status of their father at the time of conception. *here there is not, the children follow the status of their mother at the time of conception "FG#. %rom this, it would follow that the child of a peregrine father and a citiAen mother is a citiAen, beaus there is no conubium, and thus the child follows the mother.s status. !n the converse situation "citiAen father, peregrine mother#, the child would be a peregrine. /owever, a le) 8incia established that when one of the parents is a citiAen and the other a peregrine, the child should always have the inferior status.

125. ,onc.)ina3e: 5oncubinage was a tolerated condition that was only distinguished from marriage by the absence of the affectio maritalis. 3ny child would be illegitimate.

1**:1*/. !an.s: @et us now speak about the system of marriage called manus marriage, as opposed to free marriage. !n this marriage, the wife passed into the hand of her husband with the conse uence that she was like a daughter to her husband, and if he too was in power, like a granddaughter to his father. !f the husband died sui juris and intestate, she shared the inheritance e ually with her children "as if she was also a daughter#. 8anus marriage was brought about by three ways: "># 5onfarreatio: This was a marriage made in a religious way- it was reserved for patricians only. The advantage of this type of marriage was the children out of it could become priest of the temple. "+# 5oemptio: This took place by the sale of the woman by the paterfamilias into the hand of the man she was about to marry. "E# (su: 'y use. !f a woman lived with a man for a whole year, she passed into his hands under manus marriage. To break the one-year necessary for usucapio, the wife stayed away from him for three nights each year so that he wouldn.t ac uire a proprietary right over her. This was called the trinoctiumtrinoctio abesse. This may have been the starting point for free marriages. 3part from all this, manus could also arise without marriage. 5oemptio could be made either for the purpose of marriage "as seen#, or for a woman to change her tutor. She would make a coemptio to a male person "not her husband# and that would place her in the position of his daughter.

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12<. Le3itimation: There were various ways by which natural children might be legitimated and brought under the power of their father: These were: 'y subse uent marriage. This was introduced buy 5onstantine to encourage marriage with e)isting concubines. 2ustinian established certain conditions to this method of @egitimation: - the parents must have been legally capable of marriage when the child was conceived or born. - a marriage contract must be drawn in order that no doubt e)ist as to the transition from concubinage to matrimony. - the child must accept without protest. - it applied only to children born out of concubinage and not to illegitimate children. 'y making a son a member "or married to a daughter of a member# of a municipality

 'y imperial &escript. 2ustinian included this if the concubine was already dead, and thus, marriage was out of the uestion.

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12$. 7"ro3ation an" 7"o-tion: This is another way in which patria potestas were brought into e)istence. 3doption was of two kinds; - of a person sui juris, specifically called adrogatio. - of a person alieni juris, which had no specific name. *e will see how these were affected and their legal conse uences. 121. 7"ro3atio: !n the ceremony of adrogatio, the adopting father was asked whether he wished that the person he was going to adopt should be his lawful son, and the person who was going to be adopted was asked whether he wished this to happen. Then the -eople was asked whether it was pleased so to enact. Thus, 6aius says that adrogatio took place ;by the authority of the -eople<. !n essence, prior to an adrogation to take place officially, the pontiffs had to make an in uiry to be satisfied that the adrogation was desirable, and that the interests "religious and material# of the adrogatus were duly protected. The adrogator "person adopting# had to be at least si)ty years of age and childless. The adrogatus had to be younger than the adrogator. *hen the pontiffs gave their approval, then the uestion was submitted pro forma to the -eople. @ater on, this system was altered and instead of an in uiry by the pontiffs and submission pro forma to the -eople, there was an imperial &escript granted after in uiry by the local magistrate. !n 2ustinianHs time, this was the only method in use. 12%. 7"ro3ation of women: This did not happen. %irstly, because women could not take part in the proceedings of the comitia. *hen adrogation changed its means by imperial &escript, there was no longer this problem. 7et, since adrogation was intended mainly to continue the male line of descent, adrogation of females could only have been included after the institution "of adrogation# changed its character. 3nother point to consider is that women couldn.t adrogate. !ndeed females could not adopt at all. 120. 7"ro3ation of ,hil"ren: 6aius says that the adrogation of children "sui generis# under puberty "impubes# was at one time prohibited, but later permitted given that certain conditions were adhered to. The difficulty was that the child could not give his consent unaided, and tutors were considered incompetent to give their consent in matters of such grave concern. The $mperor 3ntonius -ius allowed adrogation of impubes subject to stringent conditions. %irst an in uiry had to be held "as in all adrogations#. Secondly the child was not to be emancipated e)cept for a just cause. Thirdly, The adrogator had to give his security that if the child died or was emancipated still impubes, he would restore his property. %ourthly, if the adrogator died first, the child was to have his property returned to him, and if he had been disinherited or emancipated without just cause, he was entitled to receive one-fourth of the adrogatorHs estate. This was known as the Iuarta 3ntonia.

112. ,onse>.ences of 7"ro3atio: The legal conse uences of adrogation were as follows: "i# The person being adrogated "adrogatus# and any children in his power passed in the power of the adrogator. "ii# The property of the adrogatus and any debts due to him "his assets# passed to the adrogator by a kind of universal succession. "iii# :ebts due by the adrogatus and the personal servitudes of usufruct and usus were considered to be e)tinguished as a result of the e)tinction of the old persona brought about by the adrogation. 111. 3s a result of "iii#, creditors could easily see their just claims defeated by an operation "the adrogation# over which they had no control. So the praetor gave them an action "utilis actio# against the adrogatus. This was based on the fiction that there had been no change in status- thus the adrogator had to defend the action in his name. !f he failed to do so, the praetor allowed the property which had come to the adrogator from the adrogatus to be taken and given to the creditors to satisfy their claim. Thus, 2ustinian says, though the adrogator is not liable in law "to make up for the debt with his own goods#, he can be sued the name of the son with the conse uences above described 11/. 7"o-tion of Persons 7lieni J.ris: The @aw of the Twelve Tables said that if the father sold his son three times, the son shall be free from his father.s power. 3doption in this sense was thus effected by a series of sales and manumissions. This was terminated by a decree of the magistrate declaring the child to be the child of the adopting father. So mancipating "selling B?J# and manumitting three times terminated the patria potesta of the father. The son would now be in the hands of the person to whom he has been mancipated who will usually be the adopter. !f this person does not wish to have the son in mancipium ">+C#, but as a son, then to complete the process the son must be re-mancipated to the natural father, and claimed from him as a son in a fictitious action brought by the adopter "in jure cessio#. %or the adoption of a daughter or a grandchild, one mancipation was deemed to be enough. 115. J.stinian : 7"o-tio Plena an" 7"o-tio !in.s Plena: 'efore 2ustinian, the effect of adoption was to pass the person being adopted "adoptatus# into the power of the adopter. 2ustinian made a fundamental change by limiting this to the case of adoption by a natural ascendant "e): by a paternal or maternal grandfather, or if an emancipated son gave his own son in adoption to his father#. This was called a"o-tio -lena "complete adoption# because it produced the old effects of adoption. !n other cases, what is called a"o-tio min.s -lena "incomplete adoption# there was no change in the patria potesta "the son was already in the patria potesta of the grandfather#, but the adoptatus ac uired a right of intestate succession from the adopting father. There was also the de facto change of family with some legal conse uences such as reciprocal duty of support.

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11<. Im-erial Rescri-t: !mperial rescript was another way of creating patria potesta in the sense that if a @atin man was granted citiAenship, immediately his children fell under his patria potesta "i.e. prior to his gaining citiAenship, even if they were already born, there hadn.t been patria potesta#. *ithout an imperial rescript, the children continue being sui juris. -----------------------------,--------------------,--------------------,-------------------------111. Postlimini.m: :uring captivity patria potesta was temporarily suspended. !f the paterfamilias returned from foreign slavery, he resumed power over his children. Similarly if a child returned, he reverted back to his father.s power. This was called postliminium "both ways#. 11%. +ow Patria Potestas En"e": *e have seen the ways in which patria potestas came into e)istence. =ow we will see the ways in which it ceased to e)ist: "># :eath of the paterfamilias- yet, on the death of the paternal grandfather, the grandchildren did not become sui juris but fell under the power of their father, if he too was unemancipated. "+# 3ny change of status in father or son involving loss of freedom or citiAenship "regarding the father# or family "regarding the son Bmostly emanci-ation and a"o-tion#. "E# 2ustinian enacted that when the son was given certain public offices "especially the office of patriciate# or dignity, his patria potesta ended. 'y =ovel ?> he attached the same conse uence to the consulship and other dignities. 110. The emancipation of a natural-born son terminated the rights of agnation, not of cognation. Thus, the praetor allowed the emancipated son to succeed his father ab intestato. /owever, the emancipation of an adopted son terminated all relations with the family of adoption. !n the family of his origin, he counted as an emancipated son. 1*2. ,a-itis Demin.tio: 5apitis :eminutio means a change of status which takes place: "i# *hen a man loses citiAenship and freedom by being reduced to slavery. This is called capitis deminutio ma)ima. "ii# *hen a man loses citiAenship but retains his freedom, as when a person was compelled to go into e)ile, or sentenced to deportation on an island. This was called capitis deminutio media "or minor#. "iii# *hen citiAenship and freedom are retained, but a man.s family is changed, for the better or for the worse. This was called capitis deminutio minima. This took place for e)ample, when a person alieni juris became sui juris or conversely. 5apitis deminutio included a wide variety of activities. 6enerally, capitis deminutio cannot be described as a step up or down the ladder of the status.

1*5. !anci-i.m &,i il Bon"a3e': This was the status resulting from the mancipation of a free person. !t was generally made when a father made a no)al surrender of his son "FE?#, and in some other circumstances which were mostly momentarily. !n the case of no)al surrender, mancipium created a relation between the person mancipated and the person to whom the mancipation was made. This continued until he had by his labour, made good to the damage done. 8ancipium was similar to slavery but contrary to slavery trans Tiberim, this was made within &ome.s boundary walls. 3 person in mancipium, however, remained a free man, though he was in a uasi-servile condition. Similarities between a slave and a person in mancipium: /e ac uired for the master. /e could not be instituted heir by his master, unless at the same time given his freedom. /e was set free by manumission "censu, vindicta, or testamento#. 'y manumission, he became sui juris, and did not revert into his father.s power, the mancipation having e)tinguished the potestas.

III: The Thir" Di ision: #ome In"e-en"ent -ersons ha e a t.tor or c.rator? others not.
1*$. T.tela &T.torshi-#: Tutela is a right and power, given and allowed by civil law, which is e)ercised over a free person "sui juris# who because of tender years "or se)# cannot take care of himself. The aim of tutela was to ensure that these children were not abused, as regards to both their persons and their property. 3s we will see tutela applied also for woman who were sui juris- however this had been abolished before 2ustinian.s time. *e will speak about women later ">E?#. The idea of the tutor was given great importance in &ome. The tutor was considered to be holding a public office. So the person appointed as a tutor especially those appointed in a testament took it as an honour. Tutela came into e)istence in various ways, and this resulted in having four basic kinds of tutorship. >. Testamentary +. Statutory "legitima# E. %iduciary C. :ative

1*1. &1' Testamentar4 &T.tela Testimentaria': /ere, a paterfamilias could by will appoint a tutor to sons or other descendants in power beneath the age of puberty, who would become sui juris after his death "i.e. he could not appoint a tutor to his grandsons if their father was still alive, for in the case of the paterfamilias. death, they wouldn.t become sui juris. /e could appoint a tutor for them if their father was dead or emancipated#. The tutor appointed could only be a male.

1*%. &*' #tat.tor4 &T.tela Le3itima' : !f the paterfamilias failed to nominate a tutor in his will, tutela went to the nearest agnates, for it was considered that the persons who would succeed "and thus benefit# from succession ab intestato, should also have the right "or burden# of tutelage. @ater, 2ustinian by =ovel >>?, substituted agnates to cognates "see @aw of Succession#. The tutor had to be male. !n this tutela, if there were no people within the family willing or able to be tutors, then friends of the family would then be looked at. The element of the clan was strong in &oman @aw. Thus, the magistrate would first look at the family, then at the friends. !n this way, the child would continue living more or less the same style of life as before. 129. (3) Fiduciary (Tutela Fiduciaria ): If the emancipating father died leaving the emancipated child still under the age, guardianship passed to the nearest male relatives of the child agnatically related to the deceased (ex: unemancipated brothers, uncles etc.) This is the less important of the categories of tutorship. Dr. Mifsud onnici excludes it from the list and says that there are three basic categories. 1/2. &5' Dati e &T.tela Dati a#: !f there were no tutors available as family and friends, an appointment was made by the magistrate. 3 mother could not, properly speaking, appoint a tutor by will, because she had no potestas over her children. /owever, she could leave property and appoint a tutor to manage it. The same could be done by any person who left property by will to a person under the age of puberty. Thus there were tutors appointed to the property rather than to the person. !n modern systems of law, they are known as ;tutors nominate<. 1/1. D.ties an" F.nctions of T.tors: =aturally, the tutor had responsibilities. The state imposed on the tutor to fulfil his duties. 1nce a person accepted the tutela, he had to take an oath that he would fulfil his functions and take care of the child under his care. !f he failed to do so, he could be made liable to pay with his own property. The tutor held this 0office. until the son became of age. *hen the son became of age, the tutor had to render account of what he had done. !f it resulted that the tutor had administrated wrongly the child.s property, then he would be given 0infamia. "bad name#, which was a social stigma that prevented one from taking certain offices. So, even though tutela was an honour, a public office, the main preoccupation was the protection of the child. Therefore, especially in the third function, we will see a lot of check on the tutor to ensure he was carrying this duty well. 7 t.tor8s f.nctions were mainl4 three: "># $ducating the child. "+# !nterpose 3uthority "3uctoritatem interponere#. "E# 3dminister the property "negotia gerere#. &1' E".cation: The tutor had to give ade uate funds for the education of the child. &*' Inter-ose 7.thorit4: $ven though the child was sui juris, he was deemed capable of taking important decisions on his own. Therefore for him to enter into a contract, the presence of the tutor was vital. The child could, however, make his condition better, without his tutor.s present, i.e. the child could accept a gift even though the tutor was not there. /e couldn.t make his condition worse without the tutor, i.e. he couldn.t give a gift, spend money or enter into a contract involving obligations without him.

The idea of this authority was that the tutor increased or completed the deficient capacity of the child due to his age. %or such events when the tutor.s consent was re uired, he had to do so in person B sending a letter afterwards was ineffectual. The authority to interpose was only possible when the child "though still under tutela# was old enough to know what he was doing. The tutor could only give his final judgement, i.e. decide whether to consent or not to the child.s proposal. Thus, it re uired co-operation between both parties. 1//. &/' 7"minister the -ro-ert4: This function was that the tutor could administer the child.s property as trustee for the child. This had the disadvantage that whatever the tutor did was done in his own name. !t bound and entitled him, not the ward. 7et to counter this disadvantage, it had to be done in a detailed manner. The tutor had to keep a book of accounts listing down what he was doing "e): buying, selling etc.#. 3t the end of his office, as we have already seen, he had to render account of what he did. 8aladministration of the child.s property was very serious. 3ny citiAen of &ome could go to the praetor and denounce a tutor on grounds of misconduct. 8isconduct could be either actual "already happened# or anticipated "i.e. the tutor is about to enter into a seal which will definitely not be beneficial for the child#. !f found to be true, the tutor could be removed from his office, given infamia, and also be sued for damages. *hen the child became of age, he could sue his tutor for administering his property wrongly, and he could sue him for double damages. 1ne other important thing that the tutor had to keep was an inventory showing a list of the child.s property, as well as an inventory showing a list of his won property. This was made to ensure that the tutor wouldn.t start to misappropriate property from the child.s estate into his own. >EC. !n the early law, a testamentary might decline to act. 'ut since in the time of 2ustinian, tutela was a public duty, nobody could decline to accept e)cept by leave of magistrate. 1/%. Per-et.a T.tela !.lier.m &-er-et.al t.tela3e of women #: This tutela was for women who were not married in 8anus and not in the potestas of a father or grandfather. The husband could choose the tutor for the wife, or else leave it in her discretion. The principal idea behind this was to keep the property in the family. The reason commonly given was that women were light-headed, malleable and easily imposed upon. The le) 2ulia freed from tutela a woman who had three chil"ren if she was free, and a woman who had fo.r chil"ren if she was free". !n time, this tutela became a formality. *omen could in effect manage their own affairs, however, the tutor would need to interpose his authority in certain deals and negotiations. 1ften the tutor would be compelled by the praetor to give his consent even if against his will. 7et the presence of the tutor always helped and this tutela was created to protect women so as not to let people take advantage of affluent women. *ith the presence of the tutor, the woman would be at least taking a second opinion, even if ultimately, the decision lay in her own hands. The concept of this tutela started to dilute more and more in time. The tutor was no longer appointed for life, but for one specific task. 'esides, almost in all cases, the women were able to choose the tutor themselves, and not have one imposed on them.

This tutela was given the final blow when in C>, 3:, all women were given the jus liberorum. 1/%. +ow T.tela came to an en": Tutela ended when: the child reached the age of puberty ">+-females, >C-males# by the child.s death "natural or civil "loss of &oman citiAenship## by the tutor.s death for women, if the women got married in 8anus or if she died "naturally or civilly# 1/0:151. ,.ra &,.ratorshi-#: ,.ra !inor.m: 1bviously boys of fourteen and girls of twelve could not be left to manage their affairs on their own. So, curatorship succeeded tutela. This was called cura minorum and applied for children from the age of puberty till the age of twentyfive. To be able to do business, a minor of this age bracket, had to apply to the magistrate to appoint a curator for the transaction in uestion. @ater, the practice was initiated to get a permanent curator appointed for the general management of his affairs. ,.rators "iffere" from t.tors mainl4 in the followin3; "># 5urators were appointed to administer the property, not to control the person. "+# =obody was obliged to have a curator unless he was a party to litigation "i.e. he was doing business#. "E# 3 curator could not strictly speaking be appointed by will B if he was, he had to be confirmed by the magistrate. 5uratorship was not reserved only for minors. !t was also e)ercised over: !nsane persons "cura furiosi# -rodigals "spendthrifts# These categories were interdicted from the management of their property and put under curatorship of their agnates. !t would be in the interest of the family to protect the property of the madman or of the spendthrift. @ike tutela, if there was nobody in the family, then cura would go to someone outside the family. 9ther c.rators were intro".ce" for: :eaf and dumb people "curator stulti#. *hen someone was abroad for a long time, he could ask for a curator to be appointed to take care of his estate.

 *hen an inheritance hadn.t been cleared, i.e. nobody knew how the inheritance is to be divided and there may claims to it, making it obscure to whom the property belongs. !n this instance, a curator was appointed to manage the estate until the matter was figured out. 5uratio 3dvente: !f a husband dies, leaving a pregnant wife, a curator would be appointed to make sure that the child is born, i.e. to prevent abortions "remember that for matters of inheritance, it would be in the interest of the mother to have an abortion especially if that was the first child to be born#. The curator, thus, very often, had to step into the shoes of somebody else and act on his behalf "e): if the man was abroad or dumb or mad#. Thus, the full powers of administration and representation were given to the curator. This means that in this sense, the curator.s legal responsibility was greater than that of the tutor for he could substitute the person "the curator.s duty was not just to be present#. 1bviously, the law distinguished between different cases. !f a man was completely mad, then the curator actually substituted him, but if a deaf person could still take decisions, the there wouldn.t be substitution. 5uratorship was seen as an office of the state. This meant that if there were losses because of curators. acts, the curator had to make good with his own estate. The ,lose of ,.ra: !n the case of a curator appointed permanently, then the curator stopped from being so if he died "naturally or civilly, or if he was removed from office due to misconduct.