the name is not intended to connote. For purposes of classification this branch of primary rights is of minor importance. Unlike Status, Dominion, Obligation, Primordial rights are not the ground of any primary division of the code. The actions founded on the infraction of Primordial rights partly belong to the civil code of obligation arising from Tort (e. g. actio injuriarum), partly and principally to the criminal code. DE CONDICIONE HOMINUM. § 9. Et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi. § 10. Rursus liberorum hominum alii ingenui sunt, alii libertini. § 11. Ingenui sunt, qui liberi nati sunt; libertini, qui ex iusta servitute manumissi sunt. § 12. Rursus libertinorum tria sunt genera: nam aut cives Romani, aut Latini, aut dediticiorum numero sunt. de quibus singulis dispiciamus; ac prius de dediticiis. ON DIVERSITIES OF CONDITION. § 9. The first division of men by the law of persons is into freemen and slaves. § 10. Freemen are divided into freeborn and freedmen. § 11. The freeborn are free by birth; freedmen by manumission from legal slavery. § 12. Freedmen, again, are divided into three classes, citizens of Rome, Latins, and persons on the footing of enemies surrendered at discretion. Let us examine each class in order, and commence with freedmen assimilated to enemies surrendered at discretion. § 12. As Gaius has not marked very strongly the divisions of the present book, it may be worth while to consider what are the leading branches of the doctrine of Status. Status falls under three heads,-liberty (libertas), citizenship (civitas), and domestic position (familia). Under the first head, men are divided into free (liberi) and slaves (servi): the free, again, are either free by birth (ingenui) or by manumission (libertini). We have here, then, three classes to consider ingenui, libertini, servi. Under the second head men were originally divided into citizens (cives) and aliens (peregrini). The rights of citizens fall into two branches, political and civil, the former being electoral and legislative power (jus suffragii) and capacity for office (jus honorum), the latter relating to property (commercium) or to marriage (connubium). Aliens were of course devoid of the political portion of these rights (suffragium and honores); they were also devoid of proprietary and family rights as limited and protected by the civil law (commercium and connubium), though they enjoyed corresponding rights under the jus gentium. At a subsequent period a third class were intercalated between cives and peregrini, namely, latini, devoid of the political portion of the franchise, and enjoying only a portion of the private franchise, commercium without connubium. Here also, then, we have three classes, cives, latini, peregrini. The powers of the head of a family were nominally three, potestas, manus, mancipium: potestas, however, was either potestas dominica, power over his slaves, or potestas patria, power over his children, which, at the period when Roman law is known to us, were different in kind; so that the rights of paterfamilias were really fourfold. Manus or marital power placed the wife on the footing of filiafamilias, which was the same as that of filiusfamilias. Paterfamilias had a legal power of selling (mancipare) his children into bondage; and mancipium, as denoting a person, designated a filiusfamilias who had been sold by his parent as a bondsman to another paterfamilias. In respect of his purchaser, such a bondsman was assimilated to a slave: in respect of the rest of the world, he was free and a citizen, though probably his political capacities were suspended as long as his bondage (mancipii causa) lasted. As slaves are treated of under the head of libertas, and the status. of the wife (manus) was exactly the same as that of the son, we may say, that in respect of domestic dependence or independence (familia), as well as in respect of libertas and civitas, men are divided into three classes,-paterfamilias, filiusfamilias, and mancipium; paterfamilias alone being independent (sui juris), the other two being dependent (alieni juris) in unequal degrees. These nine classes are not examined by Gaius with equal minuteness. Under the first head he principally examines the libertini : the classes under the second head, cives, latini, peregrini, are only noticed indirectly, i. e. so far as they present a type for the classification of libertini; and the bulk of the first book of the Institutions is devoted to domestic relations. In modern jurisprudence, Status having disappeared, the law of domestic relations-the relation of husband to wife, parent to child, guardian to ward-constitutes the whole of that of which formerly it was only a part, the law of Persons. It differs from the rest of the civil code in that, while the relations of Property and Obligation are artificial and accidental, the relations governed by the code of the Family are natural, and essential to the existence of the human race: so much so that the principal relations of the family extend to the rest of the animal world, and the portion of the code relating to them is called by Ulpian preeminently jus Naturale D. 1, 1, 3. Secondly, whereas every feature of Property and Obligation is the creation of political law, Domestic life is only partially governed by political law, which leaves the greater portion of its rights and duties to be ruled by the less tangible dictates of the moral law. The pure law of the Family, that is, when we exclude all consideration of Property and Obligation relating to property, is of very moderate compass: but with the pure code of the family it is convenient to aggregate what we may call with Savigny, § 57, the applied code of the Family, i. e. such of the laws of Property and Obligation as concern members of the family group-husband and wife, parent and child, guardian and ward. The main divisions then of the substantive code are Family law Pure and Applied; the law of Property; and the law of Obligation. If, in view of its importance, we separate from the law of Property the law of Rerum Universitates, confining the law of Property to the province of Res singulae, we may add to the three we have enumerated a fourth division, the law of Successions. DE DEDITICIIS VEL LEGE AELIA § 13. Lege itaque Aelia Sentia cavetur, ut qui servi a dominis poenae nomine vincti sint, quibusve stigmata inscripta sint, deve quibus ob noxam quaestio tormentis habita sit et in ea noxa fuisse convicti sint, quique ut ferro aut cum bestiis depugnarent traditi sint, inve ludum custodiamve coniecti fuerint, et postea vel ab eodem, domino vel ab alio manumissi, eiusdem condicionis liberi fiant, cuius condicionis sunt peregrini dediticii. §14. Vocantur autem peregrini dediticii hi qui quondam adversus populum Romanum armis susceptis FREEDMEN ASSIMILATED TO SURREN- § 13. The law Aelia Sentia enacts that slaves who have been punished by their proprietors with chains, or have been branded, or have been examined with torture on a criminal charge, and have been convicted, or have been delivered to fight with men or beasts, or have been committed to a gladiatorial school or a public prison, if subsequently manumitted by the same or by another proprietor, shall acquire by manumission the status of enemies surrendered at discretion. § 14. Surrendered enemies are people who having taken up arms and fought against the people of pugnaverunt, deinde, ut victi sunt, se dediderunt. § 15. Huius ergo turpitudinis servos quocumque modo et cuiuscumque aetatis manumissos, etsi pleno iure dominorum fuerint, numquam aut cives Romanos aut Latinos fieri dicemus, sed omni modo dediticiorum numero constitui intellegemus. § 16. Si vero in nulla tali turpitudine sit servus, manumissum modo civem Romanum, modo Latinum fieri dicemus. § 17. Nam in cuius persona tria haec concurrunt, ut maior sit annorum triginta, et ex iure Quiritium domini, et iusta ac legitima manumissione liberetur, id est vindicta aut censu aut testamento is civis Romanus fit: sin vero aliquid eorum deerit, Latinus erit. Rome and having been defeated have surrendered. § 15. Slaves tainted with this degree of criminality, by whatever mode they are manumitted and at whatever age, and notwithstanding the plenary dominion of their proprietor, never become citizens of Rome or Latins, but can only acquire the status of enemies who have surrendered. § 16. If unstained by offences of so deep a dye, manumission sometimes makes the slave a citizen of Rome, sometimes a Latin. § 17. A slave in whose person these three conditions are united, thirty years of age, quiritary ownership of the manumitter, liberation by a civil and statutory mode of manumission, i. e. by default in a fictitious vindication, by entry on the censor's register, by testamentary disposition, becomes a citizen of Rome: a slave who fails to satisfy one of these conditions becomes only a Latin. DE MANUMISSIONE VEL CAUSAE PROBATIONE. § 18. Quod autem de aetate servi requiritur, lege Aelia Sentia introductum est. nam ea lex minores XXX annorum servos non aliter voluit manumissos cives Romanos fieri, quam si vindicta, aput consilium iusta causa manumissionis adprobata, liberati fuerint. $ 19. Iusta autem causa manumissionis est veluti si quis filium filiamve, aut fratrem sororemve naturalem, aut alumnum, aut paedagogum, aut servum procuratoris habendi gratia, aut ancillam matrimonii causa, aput consilium manumittat. § 18. The requisition of a certain age of the slave was introduced by the Lex Aelia Sentia, by the terms of which law, unless he is thirty years old, a slave cannot on manumission become a citizen of Rome, unless the mode of manumission is fictitious vindication, preceded by proof of adequate motive before a body of judicial assessors of the praetor. § 19. It is an adequate motive of manumission if, for instance, the slave whose manumission is justified before the council is a natural child or natural brother or sister or foster child of the manumitter's, or a governor of the manumitter's child, or is a male destined to be employed as an agent in business, or a female destined to become the manumitter's wife. § 20. The council of assessors is composed at Rome of five senators and five Roman knights above the age of puberty: in the provinces of twenty recuperators, who must be Roman citizens, and who hold their session on the last day of the assize. At Rome the council holds its session on certain days appointed for the purpose. A slave above the age of thirty can be manumitted at any time, and even in the streets, when the praetor or proconsul is on his way to the bath or theatre. 21. Under the age of thirty a slave becomes by manumission a citizen of Rome, when his owner being insolvent leaves a will, in which he gives him his freedom and institutes him his heir (2 § 154), provided that no other devisee accepts the succession. § 22. Slaves manumitted in writing, or in the presence of witnesses, or at a banquet, are called Latini Juniani: Latini because they are assimilated in status to Latin colonists (§ 131), Juniani because they owe their freedom to the lex Junia, before whose enactment they were slaves in the eye of the law. § 23. These freedmen, however, are not permitted by the lex Junia either to dispose of their property by will or to take by devise or bequest, or to be appointed testamentary guardians. |