BOOK II. a Gai. iv. 44. Later on, this suit was conducted in the form of a 'praeiudicium.'a Inst. iv. 6, § 13: Praeiudiciales actiones in rem esse videntur, quales sunt per quas quaeritur, an aliquis liber vel an libertus sit, vel de partu agnoscendo; ex quibus fere una illa legitimam causam habet, per quam quaeritur, an aliquis liber sit ceterae ex ipsius praetoris iurisdictione substantiam capiunt.' In this the functions of the parties, and the burden of proof governed by such, were regulated by the settlement of whether he whose freedom was in question had been in possession of freedom thitherto or had been in the condition of de facto servitude. Ulp. Si quis ex servitute in libertatem proclamat, petitoris partes sustinet; si vero ex libertate in servitutem petatur, is partes actoris sustinet, qui servum suum dicet. Igitur cum de hoc incertum est, . . . hoc ante apud eum, qui de libertate cogniturus est, disceptatur, utrum ex libertate in servitutem aut contra agatur. Et si forte apparuerit eum, qui de statu suo litigat, in libertate sine dolo malo fuisse, is qui se dominum dicit, actoris partes sustinebit et necesse habebit servum suum probare.-D. 40, 12, 7, 5.2 1 Pre-judicial actions are accounted in rem, for instance, those by which inquiry is made whether some one is a freeman or a freedman, or those concerning the acknowledgment of issue. Of such in general only that is grounded upon statute by which the inquiry is whether some one is a freeman; the rest derive their origin from the jurisdiction of the praetor. → Whosoever from slavery makes claim to freedom undertakes the functions of plaintiff; but if the claim be made as from freedom to slavery, he assumes the functions of plaintiff who alleges that [the other] is his slave. When, therefore, uncertainty prevail concerning it. . . this is discussed previously before him who shall decide concerning the freedom, whether proceedings are taken as from freedom into slavery, or conversely. And if so be it should appear that he who maintains a suit Id. Quod autem diximus in libertate fuisse,' sic est accipiendium, non ut se liberum doceat is qui liberale iudicium patitur, sed in possessione libertatis sine dolo malo fuisse.-1. 10 eod.1 Here also, after 'litis contestatio,' provisional possession of freedom was accorded such person until the decision of the case. Paul. Ordinata liberali The necessity of the party concerned having a 'vindex' was only done away with by Justinian. The suit concerning ingenuitas' or 'libertinitas' was also decided in a praeiudicium between the alleged patron and libertus. Ulp. Quotiens de hoc contenditur, an quis libertus sit, sive operae petantur, sive obsequium desideretur, sive etiam famosa actio intendatur, sive in ius vocetur qui se patronum dicit, sive nulla causa interveniat, redditur praeiudicium. —D. 40, 14, 6.3 Venulei. Qui se ex libertinitate ingenuitati concerning his status has been in liberty without fraud, the one who alleges that he is the master will take upon him the functions of plaintiff, and will of necessity have to prove that [the other] is his slave. 1 1 But if we have spoken of 'having been in liberty,' this is to be understood not as that the one who is involved in a suit concerning freedom demonstrates that he is free, but that he has been in possession of freedom without fraud. 2 If a suit concerning freedom have been commenced, the one who takes proceedings concerning his legal condition is regarded as a freeman. 3 Whenever a suit is maintained as to whether any one is a freedman, be it that services are claimed or obedience desired, or even an action brought involving infamy, or he is summoned who alleges that he is patron, or if no special cause occur, a praeiudicium is granted. Р BOOK II. l'art I. BOOK II. adserant, non ultra quinquennium, quam manumissi fuissent, audientur.-1. 2, § 1 eod.' As regards the distribution of functions between the parties and the burden of proof, the case is precisely the same as that of the Action concerning Freedom. Ulp. Circa eum, qui se ex libertinitate ingenuum dicat, referendum est, quis actoris partibus fungatur. Et si quidem in possessione libertinitatis fuit, sine dubio ipsum oportebit ingenuitatis causam agere docereque se ingenuum esse; sin vero in possessione ingenuitatis sit et libertinus esse dicatur, scilicet eius qui ei controversiam movet, hoc probare debet, qui eum dicit libertum suum.-D. 22, 3, 14.2 The SC. de collusione detegenda related to both suits as to status, and sought to obviate ready abuse, if the proceedings should be only brought as a pretext, and by collusion between the master or patron and the slave or libertus, to procure for the latter the status of 'ingenuitas.' Gai. Ne quorundam dominorum erga servos nimia indulgentia inquinaret amplissimum ordinem, eo quod paterentur servos suos in ingenuitatem proclamare liberosque iudicari, senatusconsultum factum est Domitiani temporibus, quo cautum est, ut si quis probasset, per collusionem quidquam They that from the condition of freedmen claim free birth shall not be heard after five years from their manumission. 2 In respect of him who alleges that he is not in the condition of a freedman, but is freeborn, we have to consider who takes the part of plaintiff. And if he have been in possession of the condition of a freedman, he will without doubt himself have to take proceedings as for free birth and prove that he is freeborn; but if he be in possession of free birth, and it be alleged that he is a freedman, that is of him who brings the action against him, the one must prove this who alleges that such person is his freedman. factum, si iste homo servus sit, fieret eius servus, Ulp. Si libertinus per collusionem fuerit eod.2 A decision upon civitas,' 'Latinitas,' or 'Peregrinitas' (apart from cases where it came in question incidentally in a private suit) was obtained not by way of iudicium, but summarily through the magistrate. RELATIONS OF POWER IN THE FAMILY § 41. FAMILY RELATIONS IN GENERAL: NATURE OF BOOK II. Part 1. a Cf. Maine, 'Anct. Law,' Familia' as used by the Romans means something PP. 128, 897. essentially different from the Family looked at from the natural point of view, which was not fully recognised amongst them until a late period, but is now that which alone prevails. By 'Family' is now understood that connection of men recognised by Law which rests upon a natural basis (procreation and birth ), and is maintained by the moral bond of family affection. It consists of domestic fellowship and relations of protection and control founded upon it, a connection which as a legal relation is alone exhibited externally, i.e., in 1 Lest the too great kindness of certain masters towards their slaves should corrupt the right honourable Senate, by their suffering their slaves to claim free birth and to be adjudged freemen, a SCtum was passed in the times of Domitian by which it was provided that, if any one should have proved aught to have been done by secret agreement, that man, if a slave, should become the slave of the person that had discovered the secret agreement. 2 If by secret agreement a freedman shall have been declared freeborn, after the secret agreement has been discovered, in certain cases he begins to pass as a freedman. For ins naturale, sce Inst. i. 2 pr. BOOK II. so far as it is one recognised and protected by Law, and as it exercises an influence upon proprietary rights; whilst intrinsically it expresses a merely natural and moral relation. But in the Roman sense it is a purely legal conception, and designates a strict, civil relation of power and dependence. 'Familia' is fundamentally the totality of all that is subject to the Power, by Private Law, of a civis Rom.; hence, his whole domestic surroundings, and, at the same time, that sphere of Power which is created by Private Law. Both things and human beings, free or in bondage, can be objects of such power, or constituents of the 'familia'; and thus, objects of ownership (familia pecuniaque) and Persons. As a group of Persons, the 'familia' is the aggregate of all connected by common descent—or a juristic act legally equivalent to it—who themselves, or those under whose Power they are, were Cf. Mommsen, or had been subject to the same Family Power." 'History of Rome,' by Dickson, vol. i. pp. 59, 897. Comp. its usage in actio familiae erciscundae (§ 174). Ulp. Familiae appellatio qualiter accipiatur, videamus; et quidem varie accepta est, nam et in res et in personas deducitur; in res utputa in lege xii tabularum his verbis ADGNATVS PROXIMVS FAMILIAM HABETO," ad personas autem refertur, . cum de patrono et liberto loquitur lex ' EX EA FAMILIA IN EAM FAMILIAM,' et hic de singularibus personis legem loqui constat. § Familiae appellatio refertur et ad corporis cuiusdam significationem, quod aut iure proprio ipsorum aut communi universae cognationis continetur. Iure proprio familiam dicimus plures personas quae sunt sub unius potestate aut natura aut iure subiectae, ut puta patremfamilias, matremfamilias, filiumfamilias, filiamfamilias. Pater autem familias appellatur, qui in domo dominium habet, recteque hoc nomino appellatur; quamvis filium non habeat; non enim solam personam eius, sed et ius demonstramus: denique et pupillum patremfamilias appellamus. Et cum paterfamilias moritur, quotquot capita ei subiecta fuerint, singulas |