sanction (auctoritas). Even in the latter period the guardian might act alone or concurrently according to his discretion: he probably gave his sanction in proceedings governed by the Civil law [Nemo alieno nomine lege agere potest, Dig. 50, 17, 123. No appearance in another person's name, i. e. no representation or agency, is admissible in statute-process'], and simply administered in proceedings governed by the law of nations. In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were then confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190. § 147. Postumus (afterborn) has no etymological connection with inhumation, and no reference to the death of the testator, but simply denotes a person born after the execution of a will, whether after the death or in the lifetime of the testator. The law, however, originally made a distinction between the two cases. The institution or disinherison of a postumus born after the death of a testator was valid at Civil law, and availed to save the will from rupture by afterbirth (agnatio) of an immediate successor (suus heres): the same institution or disinherison would have been invalid and unavailing if the postumus had been born in the lifetime of the testator, before the enactment of the lex Junia Velleia in the reign of Augustus, 2 § 130, commentary. A grandson was postumus alienus if born in the lifetime of his father; he was postumus suus, i. e. immediate lineal successor to his grandfather, if born after the death of his father, 2 § 241, and only in this event could he receive a guardian by the will of his grandfather. Aquillius Gallus invented a form for the conditional institution or disinherison of a grandson, and, doubtless, also for the nomination of his guardian, by a will executed in the lifetime of his father: conditioned, that is, to take effect in the event of the decease of the father before the death of the grandfather. It appears, then, that the statement of Gaius, § 147, is inaccurate, unless we complete it by words taken from the parallel passage in the Institutes, and read: Si modo in ea causa sint ut, si vivis nobis nascantur, [sui et] in potestate nostra fiant. § 148. In filii manu must be regarded as an inaccurate expression for filiusfamilias was incapable of all civil rights, including manus, and could only serve as a conduit-pipe by which the right of manus vested in his father. DE LEGITIMA AGNATORUM TUTELA. $155. Quibus testamento quidem tutor datus non sit, iis ex lege XII agnati sunt tutores, qui vocantur legitimi. § 156. Sunt autem agnati per virilis sexus personas cognatione iuncti, quasi a patre cognati: veluti frater eodem patre natus, fratris filius neposve ex eo, item patruus et patrui filius et nepos ex eo. At hi qui per feminini sexus personas cognatione iunguntur non sunt agnati, sed alias naturali iure cognati. itaque inter avunculum et sororis filium non agnatio est, sed cognatio. item amitae, materterae filius non est mihi agnatus, set cognatus, et invicem scilicet ego illi eodem iure coniungor: quia qui nascuntur patris, non matris familiam sequuntur. § 157. Sed olim quidem, quantum ad legem XII tabularum attinet, etiam feminae agnatos habebant tutores; set postea lex Claudia lata est quae, quod ad feminas attinet, tutelas illas sustulit. itaque masculus quidem inpubes fratrem puberem aut patruum habet tutorem; feminae vero talem habere tutorem non intelleguntur. § 158. Set agnationis quidem ius capitis diminutione perimitur, cognationis vero ius non commutatur: quia civilis ratio civilia quidem iura corrumpere potest, naturalia vero non potest. § 155. In default of a testamentary guardian the statute of the Twelve Tables assigns the guardianship to the nearest agnates, who are hence called statutory guardians. § 156. Agnates (3 § 10) are cognates through males, that is, through their male ascendents: as a brother by the same father, such brother's son or son's son; a father's brother, his son or son's son. Cognates through female ascendents are merely natural kinsmen. Thus, between a man and his sister's son there is not agnation, but cognation: so my father's sister's son or my mother's sister's son is not my agnate, but my cognate, and viceversa; for children are members of their father's family, but not of their mother's. § 157. In former times, the statute of the Twelve Tables made females as well as males wards of their agnates: subsequently a law of the Emperor Claudius abolished this wardship in the case of females: accordingly, a male below the age of puberty has his brother above the age of puberty or his paternal uncle for guardian, but females are not in the wardship of their agnates. § 158. Loss of status extinguishes rights by agnation, while it leaves unaffected rights by cognation, because civil changes can affect rights annexed to a civil title, but not rights annexed to a natural title. The maxim of the Civil law is stated by Justinian: Plerumque ubi successionis est emolumentum, ibi et tutelae onus esse debet, Inst. 1, 17. As a general rule, those that have the emolument of succession should bear the burden of guardianship.' Feudal law, and its daughter, the Common law, in respect of guardianship in socage, was guided by the opposite policy. Guardianship in socage occurs when lands descend upon a minor, and devolves by the Common law upon those of his next of blood upon whom the inheritance cannot descend. Thus, if the lands descend to the heir from the paternal line, the mother or other nearest maternal relative shall have the guardianship; and vice-versa, the father or other nearest paternal relative, if the lands descend from the maternal line. While recognizing that proximity of blood is a natural recommendation to this office, the Feudal law judges it improper to trust the person of the infant into the hands of a possible heir, for fear he should be tempted to abuse his trust. The law of Scotland and the ancient law of France took a middle. course, and committed the pupil's estate to the person entitled to the legal succession, because he is most interested in preserving it from waste, but excluded him from the custody of the pupil's person, because his interest is placed in opposition to the life of the pupil. Coke and Blackstone triumph in the superior wisdom of the Common law compared with the Roman law. Kent, the American jurist, is inclined to believe that the English, the Scotch, and the French law equally proceed on too great a distrust of the ordinary integrity of mankind. It is, however, noteworthy that the fears and precautions of Feudal law, though not imitated by the Roman legislator, were paralleled by Roman testators when they made a substitution, that is, a devise to a second successor, in the event of the first successor dying before attaining to years of puberty (pupillaris substitutio), 2 § 181. It is perhaps less remarkable that a legislator should seek by a general rule to guard against occasional depravity, than that a testator, exercising an individual choice, should select for the successor of his fortunes a person whom he believes capable of the blackest crime. § 158. The maxim here enunciated is calculated to give a false idea of the relation of the institutes of Gentile law to those of Civil law. Title by cognation is just as much an institute of Positive law as title by agnation. The synthesis of title and right in Civil law may be freakish and capricicus, while that in Gentile law is reasonable and expedient; but both are equally positive institutions, and both are equally mutable and liable to be overruled. Accordingly, the specious-sounding maxim, that revolutions in status or civil condition cannot affect such rights as are annexed to natural titles, crumbles away as soon as we examine it, for we find that it only holds good of the most insignificant change, the minima capitis minutio, 3 § 27, and that maxima and media capitis minutio extinguish gentile title by cognation as well as civil title by agnation, Inst. 1, 16, 6. The truth is, that the effects of a collision of Civil and Natural law fall under two very different classes, which it is important to distinguish. I. If the command of the civil lawgiver, under the sway of motives financial, political, ethical, or religious, is highly imperious and absolutely compulsive, all natural titles with which it may come in conflict are absolutely void and inoperative: e. g. the Sc. Velleianum, prohibiting suretyship of women, allowed no naturalis obligatio to be produced by any such suretyship: and so with the laws prohibiting gambling and usury. 2. If the command of the civil law is less peremptory and absolute, it may deprive any conflicting natural title of plenary force, and yet leave to it a naturalis obligatio capable of acquiring efficacy by some machinery of Positive law; e. g. the Sc. Macedonianum, prohibiting money loans to a filiusfamilias without the sanction of his father, made them irrecoverable by action, and yet the courts recognized in the borrowing filiusfamilias a naturalis obligatio, which was capable of novation, Dig. 46, 2, 19, and a bar to recovery back (condictio indebiti) in case of actual repayment, Dig. 14, 6, 10. When Justinian revolutionized the law of intestate succession and made the right of succession depend on cognation instead of agnation, he made a corresponding change in the obligation of guardianship, which henceforth devolved on cognates instead of agnates, women as formerly, with the exception of mothers and grandmothers, being excluded from the office, Nov. 118, 5. DE CAPITIS MINUTIONE. § 159. Est autem capitis diminutio prioris capitis permutatio. eaque tribus modis accidit: nam aut maxima est capitis diminutio, aut minor, quam quidam mediam vocant, aut minima. § 160. Maxima est capitis diminutio, cum aliquis simul et civitatem et libertatem amittit; quae... qui ex patria [3} lin.]; item feminae liberae ex senatusconsulto Clau § 159. Loss of status, in other words, civil degradation or diminution of civil rights, is of three orders, greatest, minor or mediate, and least. § 160. The greatest loss of status is the simultaneous loss of citizenship and freedom, which is the consequence of . . . . or under the Sc. Claudianum of persistent inter diano ancillae fiunt eorum dominorum, quibus invitis et denunciantibus nihilo minus cum servis eorum coierint. § 161. Minor capitis diminutio est, cum civitas quidem amittitur, libertas vero retinetur. quod accidit ei cui aqua et igni interdictum fuerit. § 162. Minima capitis diminutio est, cum et civitas et libertas retinetur, sed status hominis commutatur. quod accidit in his qui adoptantur, item in his qui coemptionem faciunt, et in his qui mancipio dantur, quique ex mancipatione manumittuntur; adeo quidem, ut quotiens quisque mancipetur, aut remancipetur, totiens capite dimi nuatur. § 163. Nec solum maioribus diminutionibus ius adgnationis corrumpitur, sed etiam minima. et ideo si ex duobus liberis alterum pater emancipaverit, post obitum eius neuter alteri agnationis iure tutor esse poterit. § 164. Cum autem ad agnatos tutela pertinet, non simul ad omnes pertinet, set ad eos tantum qui proximo gradu sunt. [desunt lin. 24.] course on the part of a freewoman with another person's slave in spite of the prohibition and denunciation of the owner. § 161. Minor loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water. § 162. The least loss of status is descent in domestic rights without loss of citizenship or freedom, and occurs in adoption, coemption, noxal surrender, and manumission by mancipation, and so inseparably that each successive mancipation by the natural father, and every remancipation by a coemptionator, is a fall in domestic status. § 163. Not only by the two greater losses of status are rights of agnation extinguished, but also by the least: accordingly, if one of two children is emancipated, the elder cannot on the father's decease be guardian to the younger by right of agnation. § 164. When agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree. § 160. In the lines now illegible, Gaius may have mentioned, as causes reducing to slavery, surrender by the pater patratus to a foreign state for an offence against international law, Livy, 5, 36, or non-inscription on the censorial register (cum incensus aliquis venierit, Ulp. 11, 11), or evasion of military service (populus quum eum vendidit qui miles factus non est, Cic. Pro Caec. 34), or capture by the enemy, § 129, or condemnation for a capital crime, which made the convict a slave of punishment (servus poenae, Inst. 1, 16, 1), i. e. reduced him to penal servitude, or condemnation of a freedman for ingratitude towards his patron (libertus ingratus circa patronum condemnatus, ibid.) whereupon he forfeited his freedom, or collusion of a freeman in consenting to be sold as a slave on condition of sharing the purchase-money (cum liber homo, |