No change was made
in the old law which permitted a step-son of one parent to marry a
## p.
in the old law which permitted a step-son of one parent to marry a
## p.
Cambridge Medieval History - v2 - Rise of the Saracens and Foundation of the Western Empire
But in practice slaves were usually allowed to
accumulate property out of their savings or from gifts, and the law by a
fiction allowed them to use it in purchasing their own freedom. Such
quasi-property was called their peculium (" petty stock "): it existed only
so long as their master chose; he could withdraw it, but rarely did so,
except for grave offences. But so long as it existed and his master gave
him a free hand, a slave could trade with it and enter into all kinds of
business transactions ostensibly for himself, but in the eye of the law for
the master's account. He could not however give away anything,
and he had no locus standi in court: he could sue and be sued only in
the name of his master. If he was freed by his master when living, the
peculium was deemed to accompany him, unless expressly withdrawn.
But if he was freed by will or alienated, it did not pass with him unless
expressly granted.
The law of persons was greatly simplified by Justinian's legislation.
There were now only two classes of persons, slaves and freemen, though
freemen were not all treated alike by the law. Besides some discrimina-
tion in favour of persons of high rank, freedmen and serfs were in a very
inferior position.
Freedmen were manumitted slaves and retained traces of their former
servile condition. In earlier times, besides the regular forms of manu-
mission by a ceremony before the praetor or by last will, some legal
effect used to be given to informal expressions of the master's will. The
slave so informally emancipated became free in fact during his life, but
his property on his death did not pass as a freeman's by will or to his
relatives, but remained like a slave's peculium to his former master or
master's representatives. Such half-freemen were called Latins as not
being complete citizens. Justinian (531) allowed the informal acts
CH. HI.
## p. 64 (#96) ##############################################
64 Freedmen
which had this imperfect effect to confer in future full freedom, so that
a letter to the slave subscribed by five persons as witnesses, or a declara-
tion similarly witnessed or recorded in court, or the delivery to the slave
before five witnesses of his master's documents of title, or the slave's
attendance on the bier of the deceased master by his or the heir's
direction, or the giving a female slave in marriage to a freeman with a
dowry settled in writing, or addressing a slave in court as his son, were
acts sufficient without further formality to make the slave a freedman or
freedwoman. So also, by an edict of Claudius, ejection of a sick slave
from the master's house without making provision for him, or prostitution
of a female slave in breach of a condition of her purchase, forfeited the
master's rights, and full freedom now ensued; and other cases of freedom
by operation of law are mentioned. Further Justinian repealed the
laws which required a master to be twenty years old before he could
emancipate slaves by will, and restricted the number. Constantine
confirmed (316) a custom of giving freedom in church before the priests
and congregation, a record of the matter being signed by the former;
and he allowed clerics to confer freedom on their slaves by any form of
words without witnesses, the freedom to take effect on publication of the
document at the master's death.
A freedman did not however by the act of manumission lose all trace
of his former condition. He remained under limited control of his
former master or owner, now patron, and patron's children. A patron
could claim respect (obsequium), services, and the succession to some or
all of his property at death if he left no children as heirs. From services
he could be exempted by a special grant by the Emperor of the right
of wearing gold rings, and by a like grant (restitutio natalium, " restora-
tion of birtb ") from the patron's claim to his estate. Such grants were
rarely made without the patron's consent. Justinian dispensed with the
formality of special grants and made the removal of the patron's claim
to services and inheritance follow of itself on a manumission. But unless
the master then, or by way of trust in his will, made a declaration to
that effect, this automatic grant did not exempt a freedman from the
duty of due respect, to his patron. He was punishable for using
abusive language to him: he could not sue him or his children except
by consent of the proper authority: and any suit which he brought had
to shew formal respect by the complaints being couched in a mere
statement of the facts without casting any imputation. Constantine
allowed freedmen guilty of ingratitude or insolent conduct, even though
not of a grave character, to be remitted into their patron's power. A
patron in need could claim support (alimenta) from his freedman.
Claims to the status of freeborn, when disputed, were reserved for the
decision of the city praefect or governor: claims to the status of freed-
man were reserved likewise for the same high officials, or if the
treasury was a party, then for the chief officer of that department.
## p. 65 (#97) ##############################################
Serfs 66
Serfs though free were in some respects not far removed from slaves.
They were found usually in country districts in the provinces, and were
often included under the general term "cultivators" (coloni), which was
also applied in republican and early imperial times to small farmers, who
were freemen not only in law but in practice. The origin and history of
this serfdom is not clear. It may very possibly have been developed on
the example of Marcus Aurelius' settlement in Italy of numbers of
the peoples conquered in the Marcomannic War, and possibly on the
example of the German "Liten" (laeti), settled on the Gallic border.
But besides conquered tribes retained in their own country or settled
in other countries, voluntary contract under pressure of poverty and
statutes against beggary probably added to the number. The main-
tenance of the land tax introduced by Diocletian made the retention of
the cultivators on the several estates a necessity.
The characteristic of a serf was that he and his descendants were
inseparably attached to the land, and as a rule to one particular farm,
specified in the government census, and held under a lord. If this
particular part of the lord's estate was over-supplied with cultivators, he
might transfer serfs permanently to another part which was under-
supplied, in accordance with the purpose of the institution—that of
keeping the land under due cultivation and enabling it to bear taxes.
But except in such a case the serfs could not be separated from the farm
nor the farm from them. They were part of its permanent stock. If
the lord sold a part of the land, he must convey with it a proportionate
number of the serfs belonging. If a serf wandered or was stolen, or
became a cleric without his lord's consent, he could, whatever was the social
position to which he had attained, be reclaimed by his lord just as if he
were a runaway slave. And for some offences, e. g. marrying a freewoman,
he was liable by statute, like a slave, to chains or stripes. He was not
admissible to the army, but as a free man he paid poll tax. He could sell
the surplus produce of his farm, and his savings, called his peculium, were
in a sort his property but were inalienable except in the way of trade;
on his death, (e. g. as a monk) childless and intestate, they passed to his
lord, but usually would pass to his children or other successors on his
farm. He might (apparently) own land, and would be entered in the
Register as its holder and be liable for the land tax, whereas the tax on
the farm to which he was attached as a serf would usually be collected
from the lord. A serf was bound to pay a rent to his lord but the rent
was certain, usually a fixed portion of the produce but sometimes a sum of
money. Against any attempt of the lord to increase the rent, he could
bring the case into court, but on all other grounds he was disabled from
suing his lord. The rent was called canon or permo.
The union of serfs was held to be a marriage and accordingly the
children were serfs, and even the children of a serf by a freewoman or a
slave followed the condition of the father, until Justinian pressed by the
C. MED. H. VOL. II. CH. III. A
## p. 66 (#98) ##############################################
66 Patria potestas
analogy of the rule regarding slaves' unions, first made a serfs offspring
by a slavewoman to be slave (530), and afterwards from the love of liberty
made a serfs offspring by a freewoman to be free (533). He confirmed
this again in 537 and 539, though, by the later law, he required the
children, though free and retaining their property, to be permanently
attached to the farm. Finally in 540, influenced by representations of
the danger of thus depleting the land of its proper cultivators, he restored
the old law and made the children serfs, without affecting the mother's
status as a freewoman. His successors made such children personally free.
It was difficult for a serf to improve his status. Justinian abolished
(c. 531) any claim to throw off serfdom by prescription, but allowed
anyone who had been consecrated as a bishop to be free from serfdom as
from slavery (546). Orthodoxy however was essential, and any serf who
encouraged Donatist meetings on his land was to be beaten, and if he
persisted was fined one-third of his peculium.
Serfs were sometimes called originarii from being in the class by
birth; censiti from being enrolled in the census-register; usually adscripti
or adscripticii from being enrolled as of a certain farm; tributarii from
paying poll tax. Another term, inquilini, which appears in the Digest
in the begining of the third century, and in earlier inscriptions, appears
to denote a similar class, possibly serfs living in huts on the land and
employed either as cultivators or herdsmen or otherwise. The clear
recognition of serfs as half-free is seen chiefly in laws since Constantine.
After Justinian there is little said of them.
Patria potkstas. The father (or grandfather) when regularly
married, as head of the family (paterfamilias), had in early times
absolute power over the other members whether sons or daughters.
And his wife, if married by the ancient forms, ranked as a daughter.
In imperial times this relation was largely modified. She remained out-
side her husband's family, who instead of taking her whole property,
received only a dowry of which he was rather the accountable manager
than the beneficial owner. The children unless emancipated had no
property of their own, any more than slaves had. Whatever came to
them, from any source, passed in strict law at once to the father, who
could do what he liked with it. This "fatherly power1' endured
irrespectively of the age or social or political position of his sons and
daughters. A man of full age, married, with children and occupying a
high office was, unless formally emancipated, still under his father's power
and had only a peculiurn like slaves. He could sue and be sued only in
his father's name and in law for his father's account. Nor could he
compel his father to emancipate him, and if emancipated himself he did
not thereby carry his children with him, unless expressly included in the
emancipation. If his father died, his children fell into his own power;
if he died first, his children remained under his fathers power. Loss of
citizenship had the same effect as death.
## p. 67 (#99) ##############################################
Limitation of father's claim to peculium 67
Constantine in 319 made an important innovation. He enacted that
the father's full right over what came to his children should be restricted
to what came from himself or his relatives; and that in anything that
came from their mother, the head of the family should have only the
usufruct and the administration, but with no right of alienation or
mortgage. If the children died, (it was enacted in 439) their property,
apart from the usufruct, passed to their children, or, if there were none,
to their father as next heir, not to the grandfather, who if alive would
be enjoying the usufruct. When the head of the family emancipated a
child, he lost the usufruct, but was authorised to take one-third of the
property. Justinian (529) repealed this and gave instead to the father
(or other head of the family) the right to retain one-half of the usufruct.
Further this arrangement was made to apply not only to what came
from the mother but (excepting, as we shall see, c&vrvp-peculium) to every-
thing which the children acquired by their own labour or by gift or will
from other than their father's relatives. The administration which
accompanied the usufruct was not subject to any interference or impeach-
ment by the children, who however were to be supported by their father.
The father retained the usufruct, even if he married again.
Soldiers from the time of Augustus were privileged to treat as their
own property, disposable as they chose in their life or by their will, all
gains made while in the army and in connexion therewith, including
gifts from comrades. Such acquisitions were called their castrense-
pecuUum. On this analogy Constantine (326) granted the like privilege
to the court officials (palatini), and later Emperors extended it to
provincial governors, judicial assessors, advocates and others in the
imperial service (which was often called militia); and eventually (472)
to bishops, presbyters and deacons of the orthodox faith. Wills
disposing of such castrense, or quasi-castrense peculium, were specially
exempted from challenge by children or parents on the ground of failure
in due regard. In case of intestacy, before Justinian altered the law in
548, the intestate's c&mp-peculium passed to the father as if, like any
other peculium, it had been his all along.
As regards the persons of (free) children the father had the power
and duty of correction and in early times presumably could sell or kill
them, as he could slaves. But this right was rarely exercised, at least in
historical times, though not until Constantine (319) was killing a son
formally forbidden and ranked as parricide. Sale (with a right how-
ever of redemption) was possible only in case of a newly-born child,
under pressure of extreme poverty. Exposure of a child, at least after
the second century, made the parent liable to punishment. Exposed
children of whatever class could not be brought up as slaves or serfs or
freed, but were to be deemed freeborn and independent (529). Previously
to this law of Justinian it was left to the bringer-up to make them slave
or free at his choice.
ch, i'i. 5—2
## p. 68 (#100) #############################################
68 Adoption. Guardianship
The dissolution of the natural father's power over his children,
whether in order to make the child independent (mi juris), or to give
him by adoption into another's power, was in old times effected by a.
complicated ceremonial. This was abolished by Justinian (531), who
substituted in the case of adoption a declaration before a competent
magistrate, both parties being present, and, in the case of emancipation,
either the like simple declaration, or, according to a law of Anastasius
(502), if the son or daughter were of age and not present in court, a
declaration, supported by a petition to the Emperor, with his grant of the
prayer and the consent of the child, if not an infant.
By adoption in older times a person passed under the fatherly power
of one who was not his natural father. If he was not independent, he
passed entirely from one family to another: his natural father no longer
controlled him or was responsible for him, the son's acquisitions did not
pass to him, nor had the son any right to his inheritance. The adoptive
father stood in the natural father's place, and could retain or emancipate
him. Justinian (530) altered this in all cases where the adopter was an
outsider. The adopted person retained all his rights and position in
his natural father's family, and simply acquired a right of succession to
the adopter if he died intestate. But if the adopter was the grandfather
or other ascendant either on the father's or mother's side, the effect of
adoption remained as of old.
Adoption of a person who was mi juris was often called adrogation,
and required a rescript from the Emperor. If the person to be adopted
was under age (impubes), inquiry was made whether it was for his
advantage, and the adopter had to give security to a public officer for
restoration of all the adopted's property to his right heirs, if he died
under age. If he emancipated him without lawful cause, or died, he was
bound by a law of Antoninus Pius to leave him one-fourth part of his
property, besides all that belonged to the adopted person himself. If a
person adrogated had children, they passed with him under the power
of the adopter. In all cases it was required that the adopter should be
at least eighteen years older than the adopted.
Guaudianship. In the old law guardians (tutores) were required not
only for young persons for a time, but for women throughout their life,
though the authority they exercised was often nominal. Guardianship
for women was criticised by Gaius as irrational, and it ceased probably
before Constantine. By Justinian's time, guardianship affected only
impuberes. He fixed the age for puberes at fourteen for males, twelve
for females. Up to that age, if their father or other head of the family
was dead, or if they were freed from his power, they required a guardian
to authorise any legal act which was to bind them. Without such
authority they could bind others but not themselves, the rule being that
they could improve but could not impair their estate. After the age of
puberty the law regarded them as capable of taking the responsibility
## p. 69 (#101) #############################################
Guardians and Curators 69
of their own acts, but practically they had not the requisite knowledge
and discretion. No one could deal safely with them, because of the risk
of the contract or other business being rescinded, if the praetor found
that it was equitable to do so. To meet this difficulty a curator was
often appointed to guide young persons in the conclusion of particular
business, and eventually was appointed to act regularly in matters of
business until the ward became 25 years old. It was the analogy of
madmen, etc. (mentioned below), which probably suggested this course.
From the third century allowance of age (venia aetatis) could be obtained
from the Emperor by youths of 20 years, women of 18, on evidence
of fitness. Justinian however (529) restrained them from all sale or
mortgage of land, unless specially authorised.
A guardian was appointed by the father's will. In default of such
appointment, the mother or grandmother had the first claim by Justinian's
latest legislation, and then the nearest male in order of succession to
the inheritance. If such were disqualified, the praetor at Rome,
the governors in the provinces, and if the estate was small, the town-
defenders, made the appointment of both guardians and curators.
Guardianship was regarded as a public office, and no one was excused
from undertaking it, except for approved cause. Guardians and curators
were liable for any loss caused by their act or neglect. They could
rot marry their wards, unless approved by the ward's father or by
his will.
Mothers had been allowed (since 390) to act in these capacities for
their own children, but by Justinian's final legislation, had to renounce
the right of re-marriage and the benefit of the Velleian Senate's decree
(see below). If they broke their promise, they incurred infamy and
became incapable of inheriting from any but near relatives, besides
losing part of their property.
Severus (195) prohibited all sale of a ward's land in the country or
suburbs unless authorised by the father's will or by the praetor. A
subsequent edict directed everything else to be sold and reduced into
money. Later Emperors (326 and after) reversed this direction, and
partly on the ground of probable attachment of the ward to the family
house, and the utility of old family slaves, and partly from the difficulty
of finding good investments, ordered all the property to be preserved,
unless land had to be purchased or loans made in order to supply the
ward's needs.
Madmen and spendthrifts, pronounced such by the praetor, were by
the XII Tables under the care of their agnates (relatives through males)
but in practice under a curator appointed by the praetor or provincial
governor. So also a curator was appointed, without limit of age in the
ward, for the demented, or deaf and dumb, or for persons incapacitated
for business by chronic disease. The practice of making contracts by
oral stipulation brought deaf and dumb into this category.
## p. 70 (#102) #############################################
70 Rescission of contracts. Postliminium
The protection of minors, mentioned above, was an interesting
feature of Roman Law but must often have been very embarrassing in
practice. Whatever business a minor had conducted, a sale, a purchase,
a loan, a pledge, acceptance of an inheritance, agreement to an arbitra-
tion, etc. , if it was shewn that he had been in any way deceived or
overreached or had suffered from want of due vigilance, application
might be made to the Court, to have the matter rescinded, provided he
had not acted fraudulently and there was no other remedy. The Court
heard the parties, and if it found the claim just, put the parties back,
so far as possible, into their old positions. This was called in integrum
restitutio. The application had to be made within (originally) one year
after the minor's completing his twenty-fifth year, and would be rejected
if after this age he had in any way approved his former act or default.
Justinian extended the period to four years.
A similar reinstatement was sometimes granted to persons of full age,
if it were shewn that they had suffered serious loss owing to absence on
the public service, or to captivity, or fraud, or intimidation. Or the
reverse might be the case: similar absence of others might have pre-
vented plaintiff from bringing a suit or serving a notice within the proper
time: reinstatement might then sometimes be obtained.
A person, who had been taken captive by the enemy and returned
home with the intention of remaining, was held to re-enter at once into
his old position, his affairs having been in the meantime in a state of
suspense. This was called the law of postliminium (reverter). His own
marriage was however dissolved by his captivity, as if he were dead,
though his relation to his children was only suspended till it was known
whether he would return.
Slaves and other chattels taken by the enemy, if brought back into
Roman territory, similarly reverted to their former owners subject to any
earlier claims which attached to them. Anyone who ransomed them
from the enemy had a lien for the amount of the ransom.
Marriage was often preceded by betrothal, that is by a solemn
mutual promise. The consent of the parties was required, but, if the
woman was under her father's power, she was presumed to agree to his
act unless she plainly dissented. The age of seven was deemed necessary
for consent. The restrictions on marriage applied to betrothal, and a
betrothed person was for some purposes treated in law as if married.
Betrothal was usually accompanied by gifts, as earnest from or on behalf
of each party to the other. If the receiver died, the giver had a right
to its return, unless a kiss had passed between them, when the half only
could be recovered (336). Breach of the contract without good cause,
such as lewd conduct, diversity of religion, etc. , previously unknown to
the other, at one time involved a penalty of fourfold (i. e. , the earnest
## p. 71 (#103) #############################################
Betrothal. Marriage 71
and threefold its value), but in the fourth century this was remitted
altogether, if the father or other ascendant of a girl, betrothed before
she was ten years old, renounced the marriage, and in the fifth century
(472) it was reduced generally to twofold. Delay for two years to fulfil
the promise was a sufficient justification for the girl's marrying another.
Marriage in Roman Law is the union of life of man and woman
for the purpose of having children as members of a family in the Roman
Commonwealth. Both must be citizens of Rome or of a nation recognised
for this status by the Romans; they must be of the age of puberty; if
independent, must give their own consent, if not, their father must
consent. Nuptias non coneubitus sed consensus factt was the dominant
rule of Roman Law. It was the avowed purpose of such a union and
public recognition that distinguished marriage from concubinage. In
earlier times the woman passed by one of several forms with all her
property into the power (manus) of her husband and occupied the
position of a daughter. Gradually a freer marriage was developed, by
which the woman did not become part of her husband's family, but
remained either under her father's power, or independent, and controlled,
with the aid of a guardian for a time, her own property, except so far as
she had given part as dowry. The ceremonials, which accompanied the
old forms of marriage, gradually went out of use and had apparently
ceased in or by the third century. The only external mark of marriage
was then the woman's being led into her husband's house, and thus the
paradoxical statement could be made that a woman could be married in
the absence of her husband, but a husband could not be married in the
absence of his wife. The settlement of a dowry grew to be, and was
made by Justinian, a decisive characteristic of marriage, though its
absence did not prevent a union otherwise legal and formed with the
affection and intention of marriage from being such in the eye of the law.
Marriage, and of course also betrothal, could take place only between
free persons, not of the same family, and not otherwise closely connected.
The old law was reaffirmed by a constitution of Diocletian (295), which
expressly forbad marriage of a man with his ascendants or descendants
or aunt or sister or their descendants or with step-daughter, step-mother,
daughter-in-law, mother-in-law or others forbidden by the law of old.
A woman was forbidden to marry the corresponding relatives. Such
marriages were incestuous. Relationship formed when one or both
parties were slaves was equally a bar. Constantius (342) also forbad
marriage with brother's daughter or grand-daughter and (in 855)
marriage with brother's widow or wife's sister—a prohibition repeated
in 415. The marriage of first cousins, forbidden with the approval of
St Ambrose by Theodosius about 385, was relieved from extreme penalty
(of fine) by his sons in 396, and expressly permitted in 405. Justinian
(530) forbad marriage with a god-daughter.
No change was made
in the old law which permitted a step-son of one parent to marry a
## p. 72 (#104) #############################################
72 Prohibited marriages. Doxvry
step-daughter of the other, and forbad the marriage of brothers and
sisters by adoption so long only as they remained in the same family.
Marriage with the daughter of a sister by adoption was legal.
Other prohibitions were based on considerations outside of the
family tie. A guardian or curator was prohibited by Severus and later
Emperors from marrying his ward, if under twenty-six years of age, either
to himself or his son, unless special permission was obtained. Provincials
were forbidden by Valentinian (c. 873) to marry barbarians under
threat of capital punishment. Jews and Christians were forbidden by
Theodosius (388) to intermarry, the act being punished as adultery.
Justinian (530) " following the sacred canon " forbad presbyters, deacons,
and sub-deacons to marry at all; if they did, their children were to
be treated as born of incestuous connexion.
Senators and their descendants were forbidden by Augustus and by
Marcus Aurelius to marry freed persons or actors or actresses or their
children. Constantine (336) forbad any person of high rank or official
position in towns to marry, whether after concubinage or not, freed
women or actresses or stall-keepers or their daughters or others of low
condition, mere poverty not being regarded as such (Valentinian 454).
Justin, in consequence of his nephew Justinian's marriage with Theodora,
removed this prohibition, if the woman had ceased to practise her
profession, and gave to his law retrospective effect from his accession.
Justinian relaxed the rule still further, and eventually (542) enabled all
persons to marry any free woman, but in the case of dignitaries only by
regular marriage settlement: others could marry either by settlement or
by marital affection without settlement.
Forbidden marriages were declared to be no marriages, dowry and
marriage gift were forfeited to the Crown, the children were not even to
be deemed natural children; the parties were incapable of giving by
will to any outsiders or to each other. Incestuous marriage, by
Justinian's latest law (535), was punished by exile and forfeiture of all
property, and in the case of persons of low rank by personal chastisement.
Any children by a previous lawful marriage became independent, took
their father's property and had to support him.
Dowry. A woman's dowry was a contribution from herself or her
relatives or others to the expenses of the married life, placed under the
charge and at the disposal of the husband, and, although theoretically his
property, to be accounted for by him on the dissolution of the marriage
to the donor or the wife. It presumed a lawful marriage: it could be
given either before or after, but if given before it took effect only on
marriage. It was governed by customary rules and often by special
agreements consistent with its general principles. From the time of
Constantine a betrothed husband's or wife's gift made in view of an
intended marriage was revocable by the donor, if the donee or the wife's
father was the cause of the marriage not taking place. And a gift from
## p. 73 (#105) #############################################
Marriage settlements 73
the husband, which was now a usual incident, was treated as balancing
the dowry and gradually subjected to like treatment (468). As the
dowry could be increased by the wife or others during the marriage
(notwithstanding the rule against gifts between husband and wife), so
also could the husband's antenuptial gift, and, if none such had been
made, he was allowed to make one not exceeding the value of the dowry,
and any agreements which had been made for a marriage settlement
could be modified accordingly. The amount of the settlement could be
reduced by mutual consent, unless there were children of the marriage,
for which the settlement was made (527). Justinian enacted (529) that
all agreements for the share to be taken by the wife in her husband's gift
after his death were to apply to the share to be taken by the husband
in the wife's dowry on her death, the larger share to be reduced
to the smaller, and altered the phrase ante nuptias donatio to propter
nuptias donatio, that it might fit the extended character (531). In
539 he enacted that the dowry and the marriage gift should be equal,
and that in all cases of dissolution of the marriage, whether either party
married again or not, the amount coming to him or her from the settle-
ments of the marriage or former marriage should pass as property to the
children of the marriage and only the usufruct to the parent; and that
was to be subject to the support of the children. In 548 he enacted
that either party abstaining from a second marriage should as a reward
share with the children in the property of the dowry or nuptial gift,
besides enjoying the usufruct of the whole: and further he required
that the husband or his friends should (as in other cases of gift)
record in court the amount of his marriage gift if over 500 solidi
(about equal to i? 500) under penalty for omission of losing all share
in the dowry.
A woman's claim for her dowry had since 529 (and still more since
539) precedence of almost all other claims on her husband's property;
and if her husband was insolvent she could maintain her claim on the
settled property even during his life against his creditors, and against her
father or mother or other donor unless they had expressly stipulated
for its return.
Any money or securities or other property which the wife had beside
her dowry (parapherna) were not touched by any of these agreements
or statutes, but remained entirely the property of the wife and subject
to her claim and disposition. The fact was sometimes mentioned in the
dowry deed, and the husband and his property were answerable for the
parapherna so far as they were under his care. Justinian (530) allowed
him to sue for them on his wife's behalf, and to use the interest for
their joint purposes, but the capital he was to deal with according to
her wish.
Second maeriac. es were the subject of much change of opinion, in
the minds of the Emperors at least, between Augustus and Justinian.
## p. 74 (#106) #############################################
74 Second marriages
Under the former celibacy was not merely discouraged, but visited with
the penalty of incapacity to take an inheritance or legacy, if the man
was under sixty or the woman under fifty years of age. Constantine
appears to have been the first to modify this legislation. No doubt the
declension of the Roman population had ceased to have the importance
which led to Augustus' stringent enactments, now that the Empire
contained a wider field for supplying recruits for the army. And the
Christian Church, coming by the fourth century to count the single life
nobler than the married, and encouraging anchorite and monastic
asceticism, looked on second marriages with increasing dislike and
reprobation. The Emperors in the fourth century, though requiring
the father's consent to the re-marriage of a woman under twenty-five
years of age, and severe in condemnation and punishment of any woman
who married again within ten months (in 881 extended to one year) from
the death of her husband, in other cases interfered only to secure the
interest of the children of the former marriage. Justinian dealt with
the subject in 536 and 539. As regards any property derived from the
former husband or wife the party marrying again, as already mentioned,
retained only the usufruct, the children of the former marriage being
entitled to the property in equal shares. As regards property not
derived from the former partner, the party re-marrying was disabled
from giving by dowry or otherwise or leaving to the second wife or
husband more than the smallest share of it which any child of the former
marriage would get. Under the law any excess was to be divided
equally between the said children if not "ungrateful. "
If property was left to a person on condition of his or her not
marrying again, it used to be the practice to require an oath for the
observance of the condition before the property was transferred.
Justinian, in order to prevent frequent perjury and secure the execution
of testator's intention, allowed the legatee, after a year for reflexion, to
have a transfer of the bequest, or, if it be money, the payment of interest
on it. Security had to be given, or at least an oath to be taken, by the
recipient that he would, if the condition were broken, restore the property
transferred with the profits or interest. His or her own property was
tacitly pledged by the statute (536).
By second marriage a mother lost the right, which the law usually
gave her, of educating her former children, and the guardianship, if she
had it, and lost all dignities and privileges derived from her former
husband.
Divorce. Until the year 542 marriage could be dissolved in the
life of the parties by mutual consent without special cause and with only
such consequences as were agreed between them. In that year Justinian
forbad any such divorce except in order to lead a life of chastity. For
breach of this law he enacted in 556 that both parties were to be sent
into a monastery for the rest of their lives; of their property one-third
## p. 75 (#107) #############################################
Divorce. Repudium 75
was to be given to the monastery and two-thirds to their children: if
there were no children, two-thirds to the monastery and one-third to
their parents; if they had no ascendants alive, all to the monastery. If
however husband and wife agreed to come together again, the penalties
were not enforced: if one only was willing, he or she was freed.
Justinian's son, Justin, in 566 yielded to persistent complaints and
restored the old law permitting divorce by mutual consent.
Divorce at the instance of one party only, called repudium, in old
times was subject to no restraint, but in Augustus1 time required seven
witnesses to the declaration, which was made orally or in writing and
delivered to the other party by declarant's freedman. Under the
Emperors a dissolution of marriage without good ground was visited
with penalties. Good ground was either incapacity on the part of the
husband for a period of three years from marriage, or desire to lead a
life of chastity, or captivity, combined with the other's ignorance for
five years of the captive's being alive. In these cases, called by Justinian
divortium bona gratia, the dowry is given back to the wife and the
marriage gift to the husband, but no penalty is incurred. On the other
hand for grave crime or offence either party may repudiate the other
and gain both dowry and marriage gift. The offences as specified by
Valentinian (449) were in the main the same in both cases, adultery,
murder, enchantments, treason, sacrilege, grave-robbery, kidnapping,
forgery, attacks on the other's life, or blows: also in the case of the
man, cattle-lifting, brigandage or brigand-harbouring, associating with
immodest women in presence of his wife: in the case of the woman,
revelling with other men not belonging to her, without her husband's
knowledge or consent, or against his will going to theatres or amphi-
theatres or horse races, or without good cause absenting herself from
his bed. Justinian (535) added to the wife's offences wilful abortion,
bathing with other men, and arranging a future marriage while still
married.
By a later law (542) Justinian reduced the number of offences which
would justify repudiation to six on the part of the wife, viz. , conspiracy
against the Empire or concealing such from her husband, proved
adultery, attempt on the husband's life, banqueting or bathing with
strange men without his consent, staying out of her own house except at
her parents' house or with her husband's consent, visiting circus shows or
theatres or amphitheatres without his knowledge and approval. On the
part of the husband five offences only are to count: conspiracy against
the Empire, attempt on his wife's life or neglect to avenge her, conniving
at others' attempts on her chastity, charging her with adultery and
failing to prove it, associating with other women in the house where his
wife dwells or frequently consorting with another woman in the same
town and persisting after several admonitions by his wife's parents or
others. The regular penalty for the guilty person in such a case and
## p. 76 (#108) #############################################
76 Concubinage
for repudiation on other grounds than those sanctioned by the law was
forfeiture of all the settled property to the innocent person, if there
were no children, and if there were children, the innocent person was to
have the usufruct and the children the property in remainder. In graver
cases an additional amount from the other property of the delinquent
equal to one-third of the dowry or nuptial gift forfeited, was to be so
treated. Where the marriage was not accompanied by a settlement, the
guilty party was to forfeit one-fourth of his or her property to the other.
By the latest legislation (556) the penalty was to be as for dissolution
merely by mutual consent.
If a husband beat his wife with whip or stick, the marriage was not
dissoluble on that account, but he was to forfeit to her of his own
property as much as was equal to one-third of the marriage gift.
As regards persons in military or other imperial service, Justinian
eventually enacted (549) that death should not be presumed from
absence of news however long, but if the wife hear of her husband's
death she must inquire, and, if the authorities of the regiment swear to
his death, she must wait a year before marrying again. Otherwise both
husband and wife will be punished as adulterers.
Concubinage was a connexion not merely transitory or occasional but
continuous, for the gratification of passion, not for the founding of a
family of citizens. The children, if any, had no legal relation to their
father any more than their mother had. And thus, the economical
relations between the man and woman being in law those of independent
persons, gifts were not barred in concubinage as they were in marriage.
Such a connexion was a matter of social depreciation, but not subject to
moral disapprobation if the man was unmarried. Foreigners and soldiers
in the early Empire were rarely capable of contracting a regular Roman
marriage (matrimonium justum), and a looser connexion became almost
inevitable. By Romans in a higher class it was rarely formed except
with a woman of inferior position, a slave or a freedwoman, and in such
cases was thought more seemly than marriage. With freeborn women it
was unusual, unless they followed some ignoble trade or profession or
had otherwise lost esteem. Constantine and other Christian Emperors
viewed it with strong disfavour, and discouraged it by refusing legal
validity to all gifts and testamentary dispositions by the man in favour
of the children of the connexion. On the other hand the conversion of
concubinage into marriage and consequent legitimation of the children
was encouraged, at first under Constantine, only when there were no
legitimate children already and when the concubine was a freeborn
woman. Marriage settlements having been executed, the children born
before as well as any born after became legitimate, and (if they consented)
subject to their father's power and alike eligible to his succession. After
varied legislation eventually Justinian enacted in 539 that this should
apply to freedwomen also and apply whether there were children before,
## p. 77 (#109) #############################################
Legitimation of natural children 77
legitimate or not, and whether others were born after or not. In the
previous year he had provided that, where by the death of the mother or
for other cause marriage was not feasible, the children might be legitimated
on the father's application or in accordance with his will; and that a
woman who, trusting to a man's oath on the Gospels or in church that
he would regard her as his wife, had lived long with him and perhaps
had children, could on proving the fact maintain her position against
him and be entitled to the usufruct of a fourth of his estate, the children
having the property; if there were three children she had the usufruct of a
child's share. In 542 he provided that if a man in a public deed, or his
own writing duly witnessed, or in his will called a child by a free woman
his son without adding the epithet "natural," this sufficed to make him
and his brothers legitimate and their mother a legitimate wife without
further evidence.
As regards connexions with slave women Justinian in 539 enacted
that they might be legitimatised by enfranchisement and marriage
settlement, and the children of the connexion though born in slavery
would thereby become free and legitimate. He had already in 531
provided that if a man having no wife has formed such a connexion
and maintained it till his death, the woman and her children should
become free after his death, if he did not make other disposition
by his will.
Theodosius in 443 had introduced another mode of improving the
condition of natural children. He authorised a father either in his life
or by his will to present one or more of his natural children to the
municipal council of his town to become a member of their body, and
further authorised him to give or leave such children any amount of his
property to support their rank and position; and similarly to give his
natural daughters in marriage to members of the council. Those so
presented were not allowed to decline the position, burdensome though
it was. They succeeded to their father's intestate inheritance just as
if they were legitimate, but had no claim to the inheritance of their
father's relatives. Theodosius restricted this right to a father who had
no legitimate children. Justinian (539) in confirming the law removed
this restriction but limited such a natural son's share of the inheritance
to the smallest amount which fell to any legitimate son.
The jus liberorum exempting from the disabilities imposed by the
Papian law was acquired by natural as well as by legitimate children,
and so also the reciprocal rights between mother and children of intestate
inheritance given by the Tertullian and Orfitian Senates' decrees. The
Papian law was abolished by Constantine (320).
Incestuous connexion was not tolerated as concubinage any more
than as marriage. Children of such or other prohibited connexion
were not capable of legitimation or of any claim on their parents, even
for aliment.
## p. 78 (#110) #############################################
78 Will-making
Wills. A will in Roman law was not a mere distribution of
testator's property: it was the formal nomination of one or more persons
to continue as it were his personality and succeed to the whole of his
rights and obligations to men and gods. In early times the heir1 had
to perform the sacred rites of the family and to pay the debts, and if
testator's property was not sufficient, he was still liable himself in full.
The power of making a will belonged to all free persons who were
mi juris (i. e. , not under the power of their father or other ascendant), of
the age of puberty, not mad at the time and not naturally quite deaf and
dumb. Spendthrifts and persons in the enemy's power could not make
a will, but a will made before interdiction or capture was good.
The procedure was simplified by Justinian, partly indeed by previous
Emperors. Seven witnesses were required, all present at the same time
and subscribing and sealing the written document containing the will.
Neither woman nor child nor anyone in the power of testator nor slave
nor deaf nor dumb nor mad nor spendthrift nor the heir named nor
anyone in the heir's power nor one in whose power the heir was, is a good
witness. There was no objection to legatees as witnesses. The testator
must sign the will and acknowledge it as his will to the witnesses, but
need not disclose its contents. If he cannot write, an eighth person
must subscribe for him. If he is blind, there must be a notary (tabel-
larius) to write and subscribe the will, or at least an additional witness.
If the will be written entirely by testator and he states this fact in the
document, five witnesses suffice. Valentinian III (446) had allowed a
holographic will to be valid even without witnesses. The will might be
written on boards or paper or parchment: the material was unimportant.
Nor need the will be written at all. An oral declaration by the testator
of his will in the presence of seven witnesses was enough without further
formality.
Justinian made a concession to country people in places where
literates (i. e. persons able to read and write) were scarce. There must
be at least five witnesses, literates if possible, one or two of whom if
necessary might subscribe for the rest. In such wills the witnesses must
however be informed who are appointed heirs, and must depose this on
oath after testator's death.
Soldiers although in the power of their fathers were competent to
make a will dealing with their separate estate (castrense peculium). If
they were in actual service in camp or had not retired more than a year,
their will was exempted from all formalities. This concession was begun
by Julius Caesar and made permanent by Trajan in the most general
terms: "Let my fellow soldiers make their testaments as they will and as
they can, and let the bare will of the testator suffice for the division of
1 The heir (heret) is concerned with both personalty and realty (Roman law
drawing no such distinction), and (except for that) is fairly represented by the
earliest form of English executor, who was entitled to take the residue.
## p. 79 (#111) #############################################
Codicils 79
his goods. " It must however be definitely made and understood as a
will and not be a mere casual remark in conversation. Such a will
ceased to be valid after testator had left the service for a year; he must
then make his will in the ordinary form. Words written on his shield
or scabbard with his blood or scratched in the dust with his sword at
the time of death in battle were allowed by Constantine as a soldier's will.
A will might be revoked not only by a second will duly made, but by
cutting the threads which fastened the tablets or breaking the seals with
that intention. If ten years have elapsed, a verbal declaration of
revocation proved by three witnesses or made in court is enough. If a
second will not duly made gave the inheritance to the persons who would
be entitled on intestacy and the first will gave it to others not so
entitled, the second will, if witnessed by five persons on oath, is to
prevail (439).
Codicils. An informal disposition of property was sometimes made
by a testator's writing his desire in a note-book (codicilli). The practice
was introduced with Augustus' approval and was confirmed by the great
lawyer Labeo, in that he followed it himself. It was originally connected
with jideicommissa. Codicils presupposed a will appointing an heir, and
might be made more than once, before or after the will, but should be
confirmed expressly or impliedly by the will, subsequently or by antici-
patory clause. Even if no will followed, codicils were held good, if
there was evidence of testator's not having retracted his intention,
testator in such a case being deemed to have addressed his request to the
heir ab intestato. Only by way of trust could an heir be appointed
in codicils. Codicils required five witnesses who should subscribe the
written document. Testator's subscription was not necessary if he had
written the codicils himself. Oral codicils are mentioned.
It became a practice for a testator in making a formal will to insert
a clause declaring that if for any cause the will should be found invalid
as a will, e. g. by the heir's non-acceptance, he desired that it should pass
as codicils. Any person claiming under the will had to elect whether he
claimed as under a will or under codicils, and to declare his intention at
the first. Parents however and children within the fourth degree were
allowed after suing on it as a will and being unsuccessful to apply as for
a trust, for they are regarded as claiming what is due, whereas outsiders
are trying to secure a gain (424).
A testator could appoint as many heirs as he pleased. If no shares
are mentioned, all take equally. If some heirs accept and others do not,
those who accept take the whole among them, the shares being in the
original proportions to each other. A testator may also provide for the
contingency of the heir or heirs named not accepting, or dying, or
otherwise failing to take, and substitute another or others on this con-
tingency. And he could also appoint a substitute for a child in his
power becoming heir but dying before he came of age (puberty). In
## p. 80 (#112) #############################################
80 Heirs on condition. Slave heirs
such a case the substitute becomes heir to the father, if the son does not
become heir, and heir to the son, if the son has become heir but dies
before puberty. Nor was a testator bound to appoint his son heir; he
might disinherit him and yet appoint an heir to any property which
came to his son from inheritance or gift from others. Justinian allowed
a father to make a similar will for a son of full age who was demented.
If an heir is appointed on a condition, which at the time of testator's
death it is impossible to fulfil, the condition goes for nothing and the
appointment is absolute. But if the appointed heir is a son, the
appointment is treated as bad, and the son being thus passed over, the
will is null, and the son becomes heir on an intestacy. A condition
which could be fulfilled but involved an illegal or immoral action was
treated as impossible, Papinian laying down the principle that acts
should be deemed impossible which do violence to dutiful affection, to
fair repute, to respectful modesty, and generally which are opposed to
good conduct.
A testator could make one of his slaves heir, if he also gave him his
freedom. The slave then became heir of necessity, and this plan was
sometimes adopted by a testator who was insolvent, in order that the
disgrace of the estate being sold in bankruptcy might fall on him rather
than on the testator. As compensation for this misfortune, the creditors
were not allowed any right to be paid out of acquisitions made by him
since testator's death.
Madmen, dumb, infants, posthumous, children under power, others'
slaves, were capable of being heirs.
Inheritance. The position of an heir as a representative of the
deceased was in many cases attended with much uncertainty and serious
risk. His own estate was liable, if testator's was not sufficient, to pay
the creditors. If more than one person was appointed heir, each was
liable in proportion to his share as specified by testator, or, if no share
was named, then in equal shares. Testator might give away from his
heirs such parts of his property as he chose, and these legacies, unlike the
heirship, carried no unexpressed burden with them: a legatee was a mere
recipient of bounty, unless some condition was attached: he was a
successor to testator's rights in a particular thing only.
In such circumstances the appointed heir or heirs could not prudently
accept the inheritance until after careful inquiry into the solvency of the
estate, and even then the emergence of some previously undiscovered debt
might upset all his calculations and ruin him. Further, besides testator's
debts, the heir is liable also to pay the legacies, and cannot prevent the
loss to the estate of the slaves to whom testator may have given freedom
by his will. Hence there might be further ground for hesitation in
accepting the inheritance, and yet if no heir named accepts, the will
becomes a dead letter, intestacy results and the legacies and freedoms
fall to the ground.
## p. 81 (#113) #############################################
Benefit of inventory. Lex Falcidia 81
The first-named difficulty was met very imperfectly by testator's
fixing a period for the heir to make his decision (cretio); afterwards by
statute (529) allowing an heir a year for deliberation without his losing
the right, if he died before decision, of transmitting to his child or other
successor his claim to the inheritance. But a still more effective remedy
was enacted in 531. The heir was empowered, under suitable precau-
tions for accuracy and after inviting the presence of creditors and
legatees, to make an inventory and valuation of the assets of the
deceased, and was then not bound to discharge debts and legacies beyond
that total amount. He need not distribute the value of the estate pro
rata to the claimants, but (unless fully aware of the insufficiency of
the estate) could pay them in the order of their application. Then
creditors who had any right or priority could proceed against any
posterior to themselves who had received payment, or against holders
of any property specifically pledged to them, and all creditors not
satisfied could proceed against legatees who had been paid out of what
turned out to be insufficient to cover*the debts. This provision for
limiting the heir's liability was called "the benefit of an inventory," and
heirs were thus no longer prevented from promptly accepting an
inheritance which might turn out to be ruinous.
Further difficulty arose from legacies and freedoms left in the will.
Testator's estate might be able to meet the debts, but if there were
many or heavy charges for bequests, there might be nothing left to
make it worth while for the heir to accept the inheritance, and the will
might therefore be nullified. Several attempts to meet this difficulty
were made, but nothing effectual, until a Lex Falcidia was passed
c. B. C. 40. This law, as interpreted by the lawyers, allowed the heir or
heirs, if necessary, to reduce the amount of each legacy by so much as
would leave the heir or heirs collectively one-fourth of the inheritance in
value, the value being taken as at the time of death after deducting the
value of slaves freed, the debts, and funeral expenses. If any legacies
lapsed or other gain accrued to the heirs from the estate, this would be
counted towards the Falcidian fourth (as it was called). By this arrange-
ment the heir was sure of getting something, if he accepted a solvent
inheritance. And as, if he refused, the will would drop and the legacies
be lost, the legatees might be willing to accept possibly a further^ deduc-
tion to prevent intestacy. The application of the Falcidian law had
been so thoroughly worked out by the lawyers that Justinian seems to
have found little occasion for further enactment, except (535) to provide
for the presence of the legatees or their agents at taking the inventory,
with power to put the heir on his oath and to examine the slaves by
torture for the purpose of getting full information. An heir neglecting
to make an inventory was liable to creditors in full and could not
use the Falcidian against the legatees. In 544 Justinian directed that
the Falcidian should not apply to any immovable which testator had
C. MKIi.
accumulate property out of their savings or from gifts, and the law by a
fiction allowed them to use it in purchasing their own freedom. Such
quasi-property was called their peculium (" petty stock "): it existed only
so long as their master chose; he could withdraw it, but rarely did so,
except for grave offences. But so long as it existed and his master gave
him a free hand, a slave could trade with it and enter into all kinds of
business transactions ostensibly for himself, but in the eye of the law for
the master's account. He could not however give away anything,
and he had no locus standi in court: he could sue and be sued only in
the name of his master. If he was freed by his master when living, the
peculium was deemed to accompany him, unless expressly withdrawn.
But if he was freed by will or alienated, it did not pass with him unless
expressly granted.
The law of persons was greatly simplified by Justinian's legislation.
There were now only two classes of persons, slaves and freemen, though
freemen were not all treated alike by the law. Besides some discrimina-
tion in favour of persons of high rank, freedmen and serfs were in a very
inferior position.
Freedmen were manumitted slaves and retained traces of their former
servile condition. In earlier times, besides the regular forms of manu-
mission by a ceremony before the praetor or by last will, some legal
effect used to be given to informal expressions of the master's will. The
slave so informally emancipated became free in fact during his life, but
his property on his death did not pass as a freeman's by will or to his
relatives, but remained like a slave's peculium to his former master or
master's representatives. Such half-freemen were called Latins as not
being complete citizens. Justinian (531) allowed the informal acts
CH. HI.
## p. 64 (#96) ##############################################
64 Freedmen
which had this imperfect effect to confer in future full freedom, so that
a letter to the slave subscribed by five persons as witnesses, or a declara-
tion similarly witnessed or recorded in court, or the delivery to the slave
before five witnesses of his master's documents of title, or the slave's
attendance on the bier of the deceased master by his or the heir's
direction, or the giving a female slave in marriage to a freeman with a
dowry settled in writing, or addressing a slave in court as his son, were
acts sufficient without further formality to make the slave a freedman or
freedwoman. So also, by an edict of Claudius, ejection of a sick slave
from the master's house without making provision for him, or prostitution
of a female slave in breach of a condition of her purchase, forfeited the
master's rights, and full freedom now ensued; and other cases of freedom
by operation of law are mentioned. Further Justinian repealed the
laws which required a master to be twenty years old before he could
emancipate slaves by will, and restricted the number. Constantine
confirmed (316) a custom of giving freedom in church before the priests
and congregation, a record of the matter being signed by the former;
and he allowed clerics to confer freedom on their slaves by any form of
words without witnesses, the freedom to take effect on publication of the
document at the master's death.
A freedman did not however by the act of manumission lose all trace
of his former condition. He remained under limited control of his
former master or owner, now patron, and patron's children. A patron
could claim respect (obsequium), services, and the succession to some or
all of his property at death if he left no children as heirs. From services
he could be exempted by a special grant by the Emperor of the right
of wearing gold rings, and by a like grant (restitutio natalium, " restora-
tion of birtb ") from the patron's claim to his estate. Such grants were
rarely made without the patron's consent. Justinian dispensed with the
formality of special grants and made the removal of the patron's claim
to services and inheritance follow of itself on a manumission. But unless
the master then, or by way of trust in his will, made a declaration to
that effect, this automatic grant did not exempt a freedman from the
duty of due respect, to his patron. He was punishable for using
abusive language to him: he could not sue him or his children except
by consent of the proper authority: and any suit which he brought had
to shew formal respect by the complaints being couched in a mere
statement of the facts without casting any imputation. Constantine
allowed freedmen guilty of ingratitude or insolent conduct, even though
not of a grave character, to be remitted into their patron's power. A
patron in need could claim support (alimenta) from his freedman.
Claims to the status of freeborn, when disputed, were reserved for the
decision of the city praefect or governor: claims to the status of freed-
man were reserved likewise for the same high officials, or if the
treasury was a party, then for the chief officer of that department.
## p. 65 (#97) ##############################################
Serfs 66
Serfs though free were in some respects not far removed from slaves.
They were found usually in country districts in the provinces, and were
often included under the general term "cultivators" (coloni), which was
also applied in republican and early imperial times to small farmers, who
were freemen not only in law but in practice. The origin and history of
this serfdom is not clear. It may very possibly have been developed on
the example of Marcus Aurelius' settlement in Italy of numbers of
the peoples conquered in the Marcomannic War, and possibly on the
example of the German "Liten" (laeti), settled on the Gallic border.
But besides conquered tribes retained in their own country or settled
in other countries, voluntary contract under pressure of poverty and
statutes against beggary probably added to the number. The main-
tenance of the land tax introduced by Diocletian made the retention of
the cultivators on the several estates a necessity.
The characteristic of a serf was that he and his descendants were
inseparably attached to the land, and as a rule to one particular farm,
specified in the government census, and held under a lord. If this
particular part of the lord's estate was over-supplied with cultivators, he
might transfer serfs permanently to another part which was under-
supplied, in accordance with the purpose of the institution—that of
keeping the land under due cultivation and enabling it to bear taxes.
But except in such a case the serfs could not be separated from the farm
nor the farm from them. They were part of its permanent stock. If
the lord sold a part of the land, he must convey with it a proportionate
number of the serfs belonging. If a serf wandered or was stolen, or
became a cleric without his lord's consent, he could, whatever was the social
position to which he had attained, be reclaimed by his lord just as if he
were a runaway slave. And for some offences, e. g. marrying a freewoman,
he was liable by statute, like a slave, to chains or stripes. He was not
admissible to the army, but as a free man he paid poll tax. He could sell
the surplus produce of his farm, and his savings, called his peculium, were
in a sort his property but were inalienable except in the way of trade;
on his death, (e. g. as a monk) childless and intestate, they passed to his
lord, but usually would pass to his children or other successors on his
farm. He might (apparently) own land, and would be entered in the
Register as its holder and be liable for the land tax, whereas the tax on
the farm to which he was attached as a serf would usually be collected
from the lord. A serf was bound to pay a rent to his lord but the rent
was certain, usually a fixed portion of the produce but sometimes a sum of
money. Against any attempt of the lord to increase the rent, he could
bring the case into court, but on all other grounds he was disabled from
suing his lord. The rent was called canon or permo.
The union of serfs was held to be a marriage and accordingly the
children were serfs, and even the children of a serf by a freewoman or a
slave followed the condition of the father, until Justinian pressed by the
C. MED. H. VOL. II. CH. III. A
## p. 66 (#98) ##############################################
66 Patria potestas
analogy of the rule regarding slaves' unions, first made a serfs offspring
by a slavewoman to be slave (530), and afterwards from the love of liberty
made a serfs offspring by a freewoman to be free (533). He confirmed
this again in 537 and 539, though, by the later law, he required the
children, though free and retaining their property, to be permanently
attached to the farm. Finally in 540, influenced by representations of
the danger of thus depleting the land of its proper cultivators, he restored
the old law and made the children serfs, without affecting the mother's
status as a freewoman. His successors made such children personally free.
It was difficult for a serf to improve his status. Justinian abolished
(c. 531) any claim to throw off serfdom by prescription, but allowed
anyone who had been consecrated as a bishop to be free from serfdom as
from slavery (546). Orthodoxy however was essential, and any serf who
encouraged Donatist meetings on his land was to be beaten, and if he
persisted was fined one-third of his peculium.
Serfs were sometimes called originarii from being in the class by
birth; censiti from being enrolled in the census-register; usually adscripti
or adscripticii from being enrolled as of a certain farm; tributarii from
paying poll tax. Another term, inquilini, which appears in the Digest
in the begining of the third century, and in earlier inscriptions, appears
to denote a similar class, possibly serfs living in huts on the land and
employed either as cultivators or herdsmen or otherwise. The clear
recognition of serfs as half-free is seen chiefly in laws since Constantine.
After Justinian there is little said of them.
Patria potkstas. The father (or grandfather) when regularly
married, as head of the family (paterfamilias), had in early times
absolute power over the other members whether sons or daughters.
And his wife, if married by the ancient forms, ranked as a daughter.
In imperial times this relation was largely modified. She remained out-
side her husband's family, who instead of taking her whole property,
received only a dowry of which he was rather the accountable manager
than the beneficial owner. The children unless emancipated had no
property of their own, any more than slaves had. Whatever came to
them, from any source, passed in strict law at once to the father, who
could do what he liked with it. This "fatherly power1' endured
irrespectively of the age or social or political position of his sons and
daughters. A man of full age, married, with children and occupying a
high office was, unless formally emancipated, still under his father's power
and had only a peculiurn like slaves. He could sue and be sued only in
his father's name and in law for his father's account. Nor could he
compel his father to emancipate him, and if emancipated himself he did
not thereby carry his children with him, unless expressly included in the
emancipation. If his father died, his children fell into his own power;
if he died first, his children remained under his fathers power. Loss of
citizenship had the same effect as death.
## p. 67 (#99) ##############################################
Limitation of father's claim to peculium 67
Constantine in 319 made an important innovation. He enacted that
the father's full right over what came to his children should be restricted
to what came from himself or his relatives; and that in anything that
came from their mother, the head of the family should have only the
usufruct and the administration, but with no right of alienation or
mortgage. If the children died, (it was enacted in 439) their property,
apart from the usufruct, passed to their children, or, if there were none,
to their father as next heir, not to the grandfather, who if alive would
be enjoying the usufruct. When the head of the family emancipated a
child, he lost the usufruct, but was authorised to take one-third of the
property. Justinian (529) repealed this and gave instead to the father
(or other head of the family) the right to retain one-half of the usufruct.
Further this arrangement was made to apply not only to what came
from the mother but (excepting, as we shall see, c&vrvp-peculium) to every-
thing which the children acquired by their own labour or by gift or will
from other than their father's relatives. The administration which
accompanied the usufruct was not subject to any interference or impeach-
ment by the children, who however were to be supported by their father.
The father retained the usufruct, even if he married again.
Soldiers from the time of Augustus were privileged to treat as their
own property, disposable as they chose in their life or by their will, all
gains made while in the army and in connexion therewith, including
gifts from comrades. Such acquisitions were called their castrense-
pecuUum. On this analogy Constantine (326) granted the like privilege
to the court officials (palatini), and later Emperors extended it to
provincial governors, judicial assessors, advocates and others in the
imperial service (which was often called militia); and eventually (472)
to bishops, presbyters and deacons of the orthodox faith. Wills
disposing of such castrense, or quasi-castrense peculium, were specially
exempted from challenge by children or parents on the ground of failure
in due regard. In case of intestacy, before Justinian altered the law in
548, the intestate's c&mp-peculium passed to the father as if, like any
other peculium, it had been his all along.
As regards the persons of (free) children the father had the power
and duty of correction and in early times presumably could sell or kill
them, as he could slaves. But this right was rarely exercised, at least in
historical times, though not until Constantine (319) was killing a son
formally forbidden and ranked as parricide. Sale (with a right how-
ever of redemption) was possible only in case of a newly-born child,
under pressure of extreme poverty. Exposure of a child, at least after
the second century, made the parent liable to punishment. Exposed
children of whatever class could not be brought up as slaves or serfs or
freed, but were to be deemed freeborn and independent (529). Previously
to this law of Justinian it was left to the bringer-up to make them slave
or free at his choice.
ch, i'i. 5—2
## p. 68 (#100) #############################################
68 Adoption. Guardianship
The dissolution of the natural father's power over his children,
whether in order to make the child independent (mi juris), or to give
him by adoption into another's power, was in old times effected by a.
complicated ceremonial. This was abolished by Justinian (531), who
substituted in the case of adoption a declaration before a competent
magistrate, both parties being present, and, in the case of emancipation,
either the like simple declaration, or, according to a law of Anastasius
(502), if the son or daughter were of age and not present in court, a
declaration, supported by a petition to the Emperor, with his grant of the
prayer and the consent of the child, if not an infant.
By adoption in older times a person passed under the fatherly power
of one who was not his natural father. If he was not independent, he
passed entirely from one family to another: his natural father no longer
controlled him or was responsible for him, the son's acquisitions did not
pass to him, nor had the son any right to his inheritance. The adoptive
father stood in the natural father's place, and could retain or emancipate
him. Justinian (530) altered this in all cases where the adopter was an
outsider. The adopted person retained all his rights and position in
his natural father's family, and simply acquired a right of succession to
the adopter if he died intestate. But if the adopter was the grandfather
or other ascendant either on the father's or mother's side, the effect of
adoption remained as of old.
Adoption of a person who was mi juris was often called adrogation,
and required a rescript from the Emperor. If the person to be adopted
was under age (impubes), inquiry was made whether it was for his
advantage, and the adopter had to give security to a public officer for
restoration of all the adopted's property to his right heirs, if he died
under age. If he emancipated him without lawful cause, or died, he was
bound by a law of Antoninus Pius to leave him one-fourth part of his
property, besides all that belonged to the adopted person himself. If a
person adrogated had children, they passed with him under the power
of the adopter. In all cases it was required that the adopter should be
at least eighteen years older than the adopted.
Guaudianship. In the old law guardians (tutores) were required not
only for young persons for a time, but for women throughout their life,
though the authority they exercised was often nominal. Guardianship
for women was criticised by Gaius as irrational, and it ceased probably
before Constantine. By Justinian's time, guardianship affected only
impuberes. He fixed the age for puberes at fourteen for males, twelve
for females. Up to that age, if their father or other head of the family
was dead, or if they were freed from his power, they required a guardian
to authorise any legal act which was to bind them. Without such
authority they could bind others but not themselves, the rule being that
they could improve but could not impair their estate. After the age of
puberty the law regarded them as capable of taking the responsibility
## p. 69 (#101) #############################################
Guardians and Curators 69
of their own acts, but practically they had not the requisite knowledge
and discretion. No one could deal safely with them, because of the risk
of the contract or other business being rescinded, if the praetor found
that it was equitable to do so. To meet this difficulty a curator was
often appointed to guide young persons in the conclusion of particular
business, and eventually was appointed to act regularly in matters of
business until the ward became 25 years old. It was the analogy of
madmen, etc. (mentioned below), which probably suggested this course.
From the third century allowance of age (venia aetatis) could be obtained
from the Emperor by youths of 20 years, women of 18, on evidence
of fitness. Justinian however (529) restrained them from all sale or
mortgage of land, unless specially authorised.
A guardian was appointed by the father's will. In default of such
appointment, the mother or grandmother had the first claim by Justinian's
latest legislation, and then the nearest male in order of succession to
the inheritance. If such were disqualified, the praetor at Rome,
the governors in the provinces, and if the estate was small, the town-
defenders, made the appointment of both guardians and curators.
Guardianship was regarded as a public office, and no one was excused
from undertaking it, except for approved cause. Guardians and curators
were liable for any loss caused by their act or neglect. They could
rot marry their wards, unless approved by the ward's father or by
his will.
Mothers had been allowed (since 390) to act in these capacities for
their own children, but by Justinian's final legislation, had to renounce
the right of re-marriage and the benefit of the Velleian Senate's decree
(see below). If they broke their promise, they incurred infamy and
became incapable of inheriting from any but near relatives, besides
losing part of their property.
Severus (195) prohibited all sale of a ward's land in the country or
suburbs unless authorised by the father's will or by the praetor. A
subsequent edict directed everything else to be sold and reduced into
money. Later Emperors (326 and after) reversed this direction, and
partly on the ground of probable attachment of the ward to the family
house, and the utility of old family slaves, and partly from the difficulty
of finding good investments, ordered all the property to be preserved,
unless land had to be purchased or loans made in order to supply the
ward's needs.
Madmen and spendthrifts, pronounced such by the praetor, were by
the XII Tables under the care of their agnates (relatives through males)
but in practice under a curator appointed by the praetor or provincial
governor. So also a curator was appointed, without limit of age in the
ward, for the demented, or deaf and dumb, or for persons incapacitated
for business by chronic disease. The practice of making contracts by
oral stipulation brought deaf and dumb into this category.
## p. 70 (#102) #############################################
70 Rescission of contracts. Postliminium
The protection of minors, mentioned above, was an interesting
feature of Roman Law but must often have been very embarrassing in
practice. Whatever business a minor had conducted, a sale, a purchase,
a loan, a pledge, acceptance of an inheritance, agreement to an arbitra-
tion, etc. , if it was shewn that he had been in any way deceived or
overreached or had suffered from want of due vigilance, application
might be made to the Court, to have the matter rescinded, provided he
had not acted fraudulently and there was no other remedy. The Court
heard the parties, and if it found the claim just, put the parties back,
so far as possible, into their old positions. This was called in integrum
restitutio. The application had to be made within (originally) one year
after the minor's completing his twenty-fifth year, and would be rejected
if after this age he had in any way approved his former act or default.
Justinian extended the period to four years.
A similar reinstatement was sometimes granted to persons of full age,
if it were shewn that they had suffered serious loss owing to absence on
the public service, or to captivity, or fraud, or intimidation. Or the
reverse might be the case: similar absence of others might have pre-
vented plaintiff from bringing a suit or serving a notice within the proper
time: reinstatement might then sometimes be obtained.
A person, who had been taken captive by the enemy and returned
home with the intention of remaining, was held to re-enter at once into
his old position, his affairs having been in the meantime in a state of
suspense. This was called the law of postliminium (reverter). His own
marriage was however dissolved by his captivity, as if he were dead,
though his relation to his children was only suspended till it was known
whether he would return.
Slaves and other chattels taken by the enemy, if brought back into
Roman territory, similarly reverted to their former owners subject to any
earlier claims which attached to them. Anyone who ransomed them
from the enemy had a lien for the amount of the ransom.
Marriage was often preceded by betrothal, that is by a solemn
mutual promise. The consent of the parties was required, but, if the
woman was under her father's power, she was presumed to agree to his
act unless she plainly dissented. The age of seven was deemed necessary
for consent. The restrictions on marriage applied to betrothal, and a
betrothed person was for some purposes treated in law as if married.
Betrothal was usually accompanied by gifts, as earnest from or on behalf
of each party to the other. If the receiver died, the giver had a right
to its return, unless a kiss had passed between them, when the half only
could be recovered (336). Breach of the contract without good cause,
such as lewd conduct, diversity of religion, etc. , previously unknown to
the other, at one time involved a penalty of fourfold (i. e. , the earnest
## p. 71 (#103) #############################################
Betrothal. Marriage 71
and threefold its value), but in the fourth century this was remitted
altogether, if the father or other ascendant of a girl, betrothed before
she was ten years old, renounced the marriage, and in the fifth century
(472) it was reduced generally to twofold. Delay for two years to fulfil
the promise was a sufficient justification for the girl's marrying another.
Marriage in Roman Law is the union of life of man and woman
for the purpose of having children as members of a family in the Roman
Commonwealth. Both must be citizens of Rome or of a nation recognised
for this status by the Romans; they must be of the age of puberty; if
independent, must give their own consent, if not, their father must
consent. Nuptias non coneubitus sed consensus factt was the dominant
rule of Roman Law. It was the avowed purpose of such a union and
public recognition that distinguished marriage from concubinage. In
earlier times the woman passed by one of several forms with all her
property into the power (manus) of her husband and occupied the
position of a daughter. Gradually a freer marriage was developed, by
which the woman did not become part of her husband's family, but
remained either under her father's power, or independent, and controlled,
with the aid of a guardian for a time, her own property, except so far as
she had given part as dowry. The ceremonials, which accompanied the
old forms of marriage, gradually went out of use and had apparently
ceased in or by the third century. The only external mark of marriage
was then the woman's being led into her husband's house, and thus the
paradoxical statement could be made that a woman could be married in
the absence of her husband, but a husband could not be married in the
absence of his wife. The settlement of a dowry grew to be, and was
made by Justinian, a decisive characteristic of marriage, though its
absence did not prevent a union otherwise legal and formed with the
affection and intention of marriage from being such in the eye of the law.
Marriage, and of course also betrothal, could take place only between
free persons, not of the same family, and not otherwise closely connected.
The old law was reaffirmed by a constitution of Diocletian (295), which
expressly forbad marriage of a man with his ascendants or descendants
or aunt or sister or their descendants or with step-daughter, step-mother,
daughter-in-law, mother-in-law or others forbidden by the law of old.
A woman was forbidden to marry the corresponding relatives. Such
marriages were incestuous. Relationship formed when one or both
parties were slaves was equally a bar. Constantius (342) also forbad
marriage with brother's daughter or grand-daughter and (in 855)
marriage with brother's widow or wife's sister—a prohibition repeated
in 415. The marriage of first cousins, forbidden with the approval of
St Ambrose by Theodosius about 385, was relieved from extreme penalty
(of fine) by his sons in 396, and expressly permitted in 405. Justinian
(530) forbad marriage with a god-daughter.
No change was made
in the old law which permitted a step-son of one parent to marry a
## p. 72 (#104) #############################################
72 Prohibited marriages. Doxvry
step-daughter of the other, and forbad the marriage of brothers and
sisters by adoption so long only as they remained in the same family.
Marriage with the daughter of a sister by adoption was legal.
Other prohibitions were based on considerations outside of the
family tie. A guardian or curator was prohibited by Severus and later
Emperors from marrying his ward, if under twenty-six years of age, either
to himself or his son, unless special permission was obtained. Provincials
were forbidden by Valentinian (c. 873) to marry barbarians under
threat of capital punishment. Jews and Christians were forbidden by
Theodosius (388) to intermarry, the act being punished as adultery.
Justinian (530) " following the sacred canon " forbad presbyters, deacons,
and sub-deacons to marry at all; if they did, their children were to
be treated as born of incestuous connexion.
Senators and their descendants were forbidden by Augustus and by
Marcus Aurelius to marry freed persons or actors or actresses or their
children. Constantine (336) forbad any person of high rank or official
position in towns to marry, whether after concubinage or not, freed
women or actresses or stall-keepers or their daughters or others of low
condition, mere poverty not being regarded as such (Valentinian 454).
Justin, in consequence of his nephew Justinian's marriage with Theodora,
removed this prohibition, if the woman had ceased to practise her
profession, and gave to his law retrospective effect from his accession.
Justinian relaxed the rule still further, and eventually (542) enabled all
persons to marry any free woman, but in the case of dignitaries only by
regular marriage settlement: others could marry either by settlement or
by marital affection without settlement.
Forbidden marriages were declared to be no marriages, dowry and
marriage gift were forfeited to the Crown, the children were not even to
be deemed natural children; the parties were incapable of giving by
will to any outsiders or to each other. Incestuous marriage, by
Justinian's latest law (535), was punished by exile and forfeiture of all
property, and in the case of persons of low rank by personal chastisement.
Any children by a previous lawful marriage became independent, took
their father's property and had to support him.
Dowry. A woman's dowry was a contribution from herself or her
relatives or others to the expenses of the married life, placed under the
charge and at the disposal of the husband, and, although theoretically his
property, to be accounted for by him on the dissolution of the marriage
to the donor or the wife. It presumed a lawful marriage: it could be
given either before or after, but if given before it took effect only on
marriage. It was governed by customary rules and often by special
agreements consistent with its general principles. From the time of
Constantine a betrothed husband's or wife's gift made in view of an
intended marriage was revocable by the donor, if the donee or the wife's
father was the cause of the marriage not taking place. And a gift from
## p. 73 (#105) #############################################
Marriage settlements 73
the husband, which was now a usual incident, was treated as balancing
the dowry and gradually subjected to like treatment (468). As the
dowry could be increased by the wife or others during the marriage
(notwithstanding the rule against gifts between husband and wife), so
also could the husband's antenuptial gift, and, if none such had been
made, he was allowed to make one not exceeding the value of the dowry,
and any agreements which had been made for a marriage settlement
could be modified accordingly. The amount of the settlement could be
reduced by mutual consent, unless there were children of the marriage,
for which the settlement was made (527). Justinian enacted (529) that
all agreements for the share to be taken by the wife in her husband's gift
after his death were to apply to the share to be taken by the husband
in the wife's dowry on her death, the larger share to be reduced
to the smaller, and altered the phrase ante nuptias donatio to propter
nuptias donatio, that it might fit the extended character (531). In
539 he enacted that the dowry and the marriage gift should be equal,
and that in all cases of dissolution of the marriage, whether either party
married again or not, the amount coming to him or her from the settle-
ments of the marriage or former marriage should pass as property to the
children of the marriage and only the usufruct to the parent; and that
was to be subject to the support of the children. In 548 he enacted
that either party abstaining from a second marriage should as a reward
share with the children in the property of the dowry or nuptial gift,
besides enjoying the usufruct of the whole: and further he required
that the husband or his friends should (as in other cases of gift)
record in court the amount of his marriage gift if over 500 solidi
(about equal to i? 500) under penalty for omission of losing all share
in the dowry.
A woman's claim for her dowry had since 529 (and still more since
539) precedence of almost all other claims on her husband's property;
and if her husband was insolvent she could maintain her claim on the
settled property even during his life against his creditors, and against her
father or mother or other donor unless they had expressly stipulated
for its return.
Any money or securities or other property which the wife had beside
her dowry (parapherna) were not touched by any of these agreements
or statutes, but remained entirely the property of the wife and subject
to her claim and disposition. The fact was sometimes mentioned in the
dowry deed, and the husband and his property were answerable for the
parapherna so far as they were under his care. Justinian (530) allowed
him to sue for them on his wife's behalf, and to use the interest for
their joint purposes, but the capital he was to deal with according to
her wish.
Second maeriac. es were the subject of much change of opinion, in
the minds of the Emperors at least, between Augustus and Justinian.
## p. 74 (#106) #############################################
74 Second marriages
Under the former celibacy was not merely discouraged, but visited with
the penalty of incapacity to take an inheritance or legacy, if the man
was under sixty or the woman under fifty years of age. Constantine
appears to have been the first to modify this legislation. No doubt the
declension of the Roman population had ceased to have the importance
which led to Augustus' stringent enactments, now that the Empire
contained a wider field for supplying recruits for the army. And the
Christian Church, coming by the fourth century to count the single life
nobler than the married, and encouraging anchorite and monastic
asceticism, looked on second marriages with increasing dislike and
reprobation. The Emperors in the fourth century, though requiring
the father's consent to the re-marriage of a woman under twenty-five
years of age, and severe in condemnation and punishment of any woman
who married again within ten months (in 881 extended to one year) from
the death of her husband, in other cases interfered only to secure the
interest of the children of the former marriage. Justinian dealt with
the subject in 536 and 539. As regards any property derived from the
former husband or wife the party marrying again, as already mentioned,
retained only the usufruct, the children of the former marriage being
entitled to the property in equal shares. As regards property not
derived from the former partner, the party re-marrying was disabled
from giving by dowry or otherwise or leaving to the second wife or
husband more than the smallest share of it which any child of the former
marriage would get. Under the law any excess was to be divided
equally between the said children if not "ungrateful. "
If property was left to a person on condition of his or her not
marrying again, it used to be the practice to require an oath for the
observance of the condition before the property was transferred.
Justinian, in order to prevent frequent perjury and secure the execution
of testator's intention, allowed the legatee, after a year for reflexion, to
have a transfer of the bequest, or, if it be money, the payment of interest
on it. Security had to be given, or at least an oath to be taken, by the
recipient that he would, if the condition were broken, restore the property
transferred with the profits or interest. His or her own property was
tacitly pledged by the statute (536).
By second marriage a mother lost the right, which the law usually
gave her, of educating her former children, and the guardianship, if she
had it, and lost all dignities and privileges derived from her former
husband.
Divorce. Until the year 542 marriage could be dissolved in the
life of the parties by mutual consent without special cause and with only
such consequences as were agreed between them. In that year Justinian
forbad any such divorce except in order to lead a life of chastity. For
breach of this law he enacted in 556 that both parties were to be sent
into a monastery for the rest of their lives; of their property one-third
## p. 75 (#107) #############################################
Divorce. Repudium 75
was to be given to the monastery and two-thirds to their children: if
there were no children, two-thirds to the monastery and one-third to
their parents; if they had no ascendants alive, all to the monastery. If
however husband and wife agreed to come together again, the penalties
were not enforced: if one only was willing, he or she was freed.
Justinian's son, Justin, in 566 yielded to persistent complaints and
restored the old law permitting divorce by mutual consent.
Divorce at the instance of one party only, called repudium, in old
times was subject to no restraint, but in Augustus1 time required seven
witnesses to the declaration, which was made orally or in writing and
delivered to the other party by declarant's freedman. Under the
Emperors a dissolution of marriage without good ground was visited
with penalties. Good ground was either incapacity on the part of the
husband for a period of three years from marriage, or desire to lead a
life of chastity, or captivity, combined with the other's ignorance for
five years of the captive's being alive. In these cases, called by Justinian
divortium bona gratia, the dowry is given back to the wife and the
marriage gift to the husband, but no penalty is incurred. On the other
hand for grave crime or offence either party may repudiate the other
and gain both dowry and marriage gift. The offences as specified by
Valentinian (449) were in the main the same in both cases, adultery,
murder, enchantments, treason, sacrilege, grave-robbery, kidnapping,
forgery, attacks on the other's life, or blows: also in the case of the
man, cattle-lifting, brigandage or brigand-harbouring, associating with
immodest women in presence of his wife: in the case of the woman,
revelling with other men not belonging to her, without her husband's
knowledge or consent, or against his will going to theatres or amphi-
theatres or horse races, or without good cause absenting herself from
his bed. Justinian (535) added to the wife's offences wilful abortion,
bathing with other men, and arranging a future marriage while still
married.
By a later law (542) Justinian reduced the number of offences which
would justify repudiation to six on the part of the wife, viz. , conspiracy
against the Empire or concealing such from her husband, proved
adultery, attempt on the husband's life, banqueting or bathing with
strange men without his consent, staying out of her own house except at
her parents' house or with her husband's consent, visiting circus shows or
theatres or amphitheatres without his knowledge and approval. On the
part of the husband five offences only are to count: conspiracy against
the Empire, attempt on his wife's life or neglect to avenge her, conniving
at others' attempts on her chastity, charging her with adultery and
failing to prove it, associating with other women in the house where his
wife dwells or frequently consorting with another woman in the same
town and persisting after several admonitions by his wife's parents or
others. The regular penalty for the guilty person in such a case and
## p. 76 (#108) #############################################
76 Concubinage
for repudiation on other grounds than those sanctioned by the law was
forfeiture of all the settled property to the innocent person, if there
were no children, and if there were children, the innocent person was to
have the usufruct and the children the property in remainder. In graver
cases an additional amount from the other property of the delinquent
equal to one-third of the dowry or nuptial gift forfeited, was to be so
treated. Where the marriage was not accompanied by a settlement, the
guilty party was to forfeit one-fourth of his or her property to the other.
By the latest legislation (556) the penalty was to be as for dissolution
merely by mutual consent.
If a husband beat his wife with whip or stick, the marriage was not
dissoluble on that account, but he was to forfeit to her of his own
property as much as was equal to one-third of the marriage gift.
As regards persons in military or other imperial service, Justinian
eventually enacted (549) that death should not be presumed from
absence of news however long, but if the wife hear of her husband's
death she must inquire, and, if the authorities of the regiment swear to
his death, she must wait a year before marrying again. Otherwise both
husband and wife will be punished as adulterers.
Concubinage was a connexion not merely transitory or occasional but
continuous, for the gratification of passion, not for the founding of a
family of citizens. The children, if any, had no legal relation to their
father any more than their mother had. And thus, the economical
relations between the man and woman being in law those of independent
persons, gifts were not barred in concubinage as they were in marriage.
Such a connexion was a matter of social depreciation, but not subject to
moral disapprobation if the man was unmarried. Foreigners and soldiers
in the early Empire were rarely capable of contracting a regular Roman
marriage (matrimonium justum), and a looser connexion became almost
inevitable. By Romans in a higher class it was rarely formed except
with a woman of inferior position, a slave or a freedwoman, and in such
cases was thought more seemly than marriage. With freeborn women it
was unusual, unless they followed some ignoble trade or profession or
had otherwise lost esteem. Constantine and other Christian Emperors
viewed it with strong disfavour, and discouraged it by refusing legal
validity to all gifts and testamentary dispositions by the man in favour
of the children of the connexion. On the other hand the conversion of
concubinage into marriage and consequent legitimation of the children
was encouraged, at first under Constantine, only when there were no
legitimate children already and when the concubine was a freeborn
woman. Marriage settlements having been executed, the children born
before as well as any born after became legitimate, and (if they consented)
subject to their father's power and alike eligible to his succession. After
varied legislation eventually Justinian enacted in 539 that this should
apply to freedwomen also and apply whether there were children before,
## p. 77 (#109) #############################################
Legitimation of natural children 77
legitimate or not, and whether others were born after or not. In the
previous year he had provided that, where by the death of the mother or
for other cause marriage was not feasible, the children might be legitimated
on the father's application or in accordance with his will; and that a
woman who, trusting to a man's oath on the Gospels or in church that
he would regard her as his wife, had lived long with him and perhaps
had children, could on proving the fact maintain her position against
him and be entitled to the usufruct of a fourth of his estate, the children
having the property; if there were three children she had the usufruct of a
child's share. In 542 he provided that if a man in a public deed, or his
own writing duly witnessed, or in his will called a child by a free woman
his son without adding the epithet "natural," this sufficed to make him
and his brothers legitimate and their mother a legitimate wife without
further evidence.
As regards connexions with slave women Justinian in 539 enacted
that they might be legitimatised by enfranchisement and marriage
settlement, and the children of the connexion though born in slavery
would thereby become free and legitimate. He had already in 531
provided that if a man having no wife has formed such a connexion
and maintained it till his death, the woman and her children should
become free after his death, if he did not make other disposition
by his will.
Theodosius in 443 had introduced another mode of improving the
condition of natural children. He authorised a father either in his life
or by his will to present one or more of his natural children to the
municipal council of his town to become a member of their body, and
further authorised him to give or leave such children any amount of his
property to support their rank and position; and similarly to give his
natural daughters in marriage to members of the council. Those so
presented were not allowed to decline the position, burdensome though
it was. They succeeded to their father's intestate inheritance just as
if they were legitimate, but had no claim to the inheritance of their
father's relatives. Theodosius restricted this right to a father who had
no legitimate children. Justinian (539) in confirming the law removed
this restriction but limited such a natural son's share of the inheritance
to the smallest amount which fell to any legitimate son.
The jus liberorum exempting from the disabilities imposed by the
Papian law was acquired by natural as well as by legitimate children,
and so also the reciprocal rights between mother and children of intestate
inheritance given by the Tertullian and Orfitian Senates' decrees. The
Papian law was abolished by Constantine (320).
Incestuous connexion was not tolerated as concubinage any more
than as marriage. Children of such or other prohibited connexion
were not capable of legitimation or of any claim on their parents, even
for aliment.
## p. 78 (#110) #############################################
78 Will-making
Wills. A will in Roman law was not a mere distribution of
testator's property: it was the formal nomination of one or more persons
to continue as it were his personality and succeed to the whole of his
rights and obligations to men and gods. In early times the heir1 had
to perform the sacred rites of the family and to pay the debts, and if
testator's property was not sufficient, he was still liable himself in full.
The power of making a will belonged to all free persons who were
mi juris (i. e. , not under the power of their father or other ascendant), of
the age of puberty, not mad at the time and not naturally quite deaf and
dumb. Spendthrifts and persons in the enemy's power could not make
a will, but a will made before interdiction or capture was good.
The procedure was simplified by Justinian, partly indeed by previous
Emperors. Seven witnesses were required, all present at the same time
and subscribing and sealing the written document containing the will.
Neither woman nor child nor anyone in the power of testator nor slave
nor deaf nor dumb nor mad nor spendthrift nor the heir named nor
anyone in the heir's power nor one in whose power the heir was, is a good
witness. There was no objection to legatees as witnesses. The testator
must sign the will and acknowledge it as his will to the witnesses, but
need not disclose its contents. If he cannot write, an eighth person
must subscribe for him. If he is blind, there must be a notary (tabel-
larius) to write and subscribe the will, or at least an additional witness.
If the will be written entirely by testator and he states this fact in the
document, five witnesses suffice. Valentinian III (446) had allowed a
holographic will to be valid even without witnesses. The will might be
written on boards or paper or parchment: the material was unimportant.
Nor need the will be written at all. An oral declaration by the testator
of his will in the presence of seven witnesses was enough without further
formality.
Justinian made a concession to country people in places where
literates (i. e. persons able to read and write) were scarce. There must
be at least five witnesses, literates if possible, one or two of whom if
necessary might subscribe for the rest. In such wills the witnesses must
however be informed who are appointed heirs, and must depose this on
oath after testator's death.
Soldiers although in the power of their fathers were competent to
make a will dealing with their separate estate (castrense peculium). If
they were in actual service in camp or had not retired more than a year,
their will was exempted from all formalities. This concession was begun
by Julius Caesar and made permanent by Trajan in the most general
terms: "Let my fellow soldiers make their testaments as they will and as
they can, and let the bare will of the testator suffice for the division of
1 The heir (heret) is concerned with both personalty and realty (Roman law
drawing no such distinction), and (except for that) is fairly represented by the
earliest form of English executor, who was entitled to take the residue.
## p. 79 (#111) #############################################
Codicils 79
his goods. " It must however be definitely made and understood as a
will and not be a mere casual remark in conversation. Such a will
ceased to be valid after testator had left the service for a year; he must
then make his will in the ordinary form. Words written on his shield
or scabbard with his blood or scratched in the dust with his sword at
the time of death in battle were allowed by Constantine as a soldier's will.
A will might be revoked not only by a second will duly made, but by
cutting the threads which fastened the tablets or breaking the seals with
that intention. If ten years have elapsed, a verbal declaration of
revocation proved by three witnesses or made in court is enough. If a
second will not duly made gave the inheritance to the persons who would
be entitled on intestacy and the first will gave it to others not so
entitled, the second will, if witnessed by five persons on oath, is to
prevail (439).
Codicils. An informal disposition of property was sometimes made
by a testator's writing his desire in a note-book (codicilli). The practice
was introduced with Augustus' approval and was confirmed by the great
lawyer Labeo, in that he followed it himself. It was originally connected
with jideicommissa. Codicils presupposed a will appointing an heir, and
might be made more than once, before or after the will, but should be
confirmed expressly or impliedly by the will, subsequently or by antici-
patory clause. Even if no will followed, codicils were held good, if
there was evidence of testator's not having retracted his intention,
testator in such a case being deemed to have addressed his request to the
heir ab intestato. Only by way of trust could an heir be appointed
in codicils. Codicils required five witnesses who should subscribe the
written document. Testator's subscription was not necessary if he had
written the codicils himself. Oral codicils are mentioned.
It became a practice for a testator in making a formal will to insert
a clause declaring that if for any cause the will should be found invalid
as a will, e. g. by the heir's non-acceptance, he desired that it should pass
as codicils. Any person claiming under the will had to elect whether he
claimed as under a will or under codicils, and to declare his intention at
the first. Parents however and children within the fourth degree were
allowed after suing on it as a will and being unsuccessful to apply as for
a trust, for they are regarded as claiming what is due, whereas outsiders
are trying to secure a gain (424).
A testator could appoint as many heirs as he pleased. If no shares
are mentioned, all take equally. If some heirs accept and others do not,
those who accept take the whole among them, the shares being in the
original proportions to each other. A testator may also provide for the
contingency of the heir or heirs named not accepting, or dying, or
otherwise failing to take, and substitute another or others on this con-
tingency. And he could also appoint a substitute for a child in his
power becoming heir but dying before he came of age (puberty). In
## p. 80 (#112) #############################################
80 Heirs on condition. Slave heirs
such a case the substitute becomes heir to the father, if the son does not
become heir, and heir to the son, if the son has become heir but dies
before puberty. Nor was a testator bound to appoint his son heir; he
might disinherit him and yet appoint an heir to any property which
came to his son from inheritance or gift from others. Justinian allowed
a father to make a similar will for a son of full age who was demented.
If an heir is appointed on a condition, which at the time of testator's
death it is impossible to fulfil, the condition goes for nothing and the
appointment is absolute. But if the appointed heir is a son, the
appointment is treated as bad, and the son being thus passed over, the
will is null, and the son becomes heir on an intestacy. A condition
which could be fulfilled but involved an illegal or immoral action was
treated as impossible, Papinian laying down the principle that acts
should be deemed impossible which do violence to dutiful affection, to
fair repute, to respectful modesty, and generally which are opposed to
good conduct.
A testator could make one of his slaves heir, if he also gave him his
freedom. The slave then became heir of necessity, and this plan was
sometimes adopted by a testator who was insolvent, in order that the
disgrace of the estate being sold in bankruptcy might fall on him rather
than on the testator. As compensation for this misfortune, the creditors
were not allowed any right to be paid out of acquisitions made by him
since testator's death.
Madmen, dumb, infants, posthumous, children under power, others'
slaves, were capable of being heirs.
Inheritance. The position of an heir as a representative of the
deceased was in many cases attended with much uncertainty and serious
risk. His own estate was liable, if testator's was not sufficient, to pay
the creditors. If more than one person was appointed heir, each was
liable in proportion to his share as specified by testator, or, if no share
was named, then in equal shares. Testator might give away from his
heirs such parts of his property as he chose, and these legacies, unlike the
heirship, carried no unexpressed burden with them: a legatee was a mere
recipient of bounty, unless some condition was attached: he was a
successor to testator's rights in a particular thing only.
In such circumstances the appointed heir or heirs could not prudently
accept the inheritance until after careful inquiry into the solvency of the
estate, and even then the emergence of some previously undiscovered debt
might upset all his calculations and ruin him. Further, besides testator's
debts, the heir is liable also to pay the legacies, and cannot prevent the
loss to the estate of the slaves to whom testator may have given freedom
by his will. Hence there might be further ground for hesitation in
accepting the inheritance, and yet if no heir named accepts, the will
becomes a dead letter, intestacy results and the legacies and freedoms
fall to the ground.
## p. 81 (#113) #############################################
Benefit of inventory. Lex Falcidia 81
The first-named difficulty was met very imperfectly by testator's
fixing a period for the heir to make his decision (cretio); afterwards by
statute (529) allowing an heir a year for deliberation without his losing
the right, if he died before decision, of transmitting to his child or other
successor his claim to the inheritance. But a still more effective remedy
was enacted in 531. The heir was empowered, under suitable precau-
tions for accuracy and after inviting the presence of creditors and
legatees, to make an inventory and valuation of the assets of the
deceased, and was then not bound to discharge debts and legacies beyond
that total amount. He need not distribute the value of the estate pro
rata to the claimants, but (unless fully aware of the insufficiency of
the estate) could pay them in the order of their application. Then
creditors who had any right or priority could proceed against any
posterior to themselves who had received payment, or against holders
of any property specifically pledged to them, and all creditors not
satisfied could proceed against legatees who had been paid out of what
turned out to be insufficient to cover*the debts. This provision for
limiting the heir's liability was called "the benefit of an inventory," and
heirs were thus no longer prevented from promptly accepting an
inheritance which might turn out to be ruinous.
Further difficulty arose from legacies and freedoms left in the will.
Testator's estate might be able to meet the debts, but if there were
many or heavy charges for bequests, there might be nothing left to
make it worth while for the heir to accept the inheritance, and the will
might therefore be nullified. Several attempts to meet this difficulty
were made, but nothing effectual, until a Lex Falcidia was passed
c. B. C. 40. This law, as interpreted by the lawyers, allowed the heir or
heirs, if necessary, to reduce the amount of each legacy by so much as
would leave the heir or heirs collectively one-fourth of the inheritance in
value, the value being taken as at the time of death after deducting the
value of slaves freed, the debts, and funeral expenses. If any legacies
lapsed or other gain accrued to the heirs from the estate, this would be
counted towards the Falcidian fourth (as it was called). By this arrange-
ment the heir was sure of getting something, if he accepted a solvent
inheritance. And as, if he refused, the will would drop and the legacies
be lost, the legatees might be willing to accept possibly a further^ deduc-
tion to prevent intestacy. The application of the Falcidian law had
been so thoroughly worked out by the lawyers that Justinian seems to
have found little occasion for further enactment, except (535) to provide
for the presence of the legatees or their agents at taking the inventory,
with power to put the heir on his oath and to examine the slaves by
torture for the purpose of getting full information. An heir neglecting
to make an inventory was liable to creditors in full and could not
use the Falcidian against the legatees. In 544 Justinian directed that
the Falcidian should not apply to any immovable which testator had
C. MKIi.
