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factum, si iste homo servus sit, fieret eius servus,
qui detexisset collusionem.-D. 40, 16, 1.'

:

Ulp. Si libertinus per collusionem fuerit pronuntiatus ingenuus, collusione detecta in quibusdam causis quasi libertinus incipit esse.-1. 4

eod.2

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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
(SO-CALLED STATUS FAMILIAE).

§ 41. FAMILY RELATIONS IN GENERAL: NATURE OF
THE ROMAN FAMILY, AND SUBJECT-MATTER OF
THE ROMAN FAMILY LAW."

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.

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 ius

naturale, sce

Inst. i. 2 pr.

BOOK II.
Part I.

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 a Cf. Mommsen, or had been subject to the same Family Power."

"History of Rome,' by Dickson, vol. i.

pp. 59, 899.

Comp. its usage in actio familiae ercis

cundae (§ 174).

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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

familias incipiunt habere, singuli enim patrum-
familiarum nomen subeunt; idemque eveniet et
in eo qui emancipatus est, nam et hic sui iuris
effectus propriam familiam habet. Communi iure
familiam dicimus omnium adgnatorum; nam etsi
patrefamilias mortuo singuli singulas familias
habent, tamen omnes, qui sub unius potestate
fuerunt, recte eiusdem familiae appellabuntur,
quia ex eadem domo et gente proditi sunt. § Ser-
vitutum quoque solemus appellare familias, ut

. interdicto VNDE VI familiae appellatio
omnes servos comprehendit. § Item appellatur
familia plurium personarum, quae ab eiusdem
ultimi genitoris sanguine proficiscuntur, sicuti
dicimus familiam Iuliam. § Mulier autem
familiae suae et caput et finis est.-D. 50, 16,
195, §§ 1-5.'

BOOK II.

Part I.

1 Let us see in what way the designation familia is used. It has indeed been used in different ways, for it is applied both to things and to persons. To things, for example, in the Law of the Twelve Tables as follows: 'the next agnate shall have the inheritance'; but it relates to persons, when the lex speaks of the patron and the freedman: from that family into this family'; and it is known that the lex here speaks of individual persons. The denomination ‘familia' is also used for the designation of any community which either has its special rights, or is comprehended in the common rights of the whole relationship. By a familia with special rights, we speak of several persons who are under the power of one person, to whom they are subject either by nature or by Law; for example, the father of a family, the mother of a family, the son of a family, the daughter of a family. Now he is called 'pat. fam.' who has authority in the house, and he is rightly called by this name, although he have no son; for we designate not merely the person, but also the legal relation thereof; accordingly, we call a pupil also 'pat. fam.' And when the pat. fam. dies, as many heads as were subject to him begin to have just so many single families, for every individual takes the name 'pat. fam.,' and the same will occur also in the case of one who has been emancipated, for he also has a family of his own, having become sui iuris. By a familia with common rights, we speak of those composing all the agnates;" for although upon the death of a See § 43.

BOOK II.
Part I.

Gai. Familiae appellatione et ipse princeps familiae continetur. Feminarum liberos in familia earum non esse palam est, quia qui nascuntur, patris familiam sequuntur.-1. 196 eod.1

A person that is subject to no Family Power is free from control, or independent of Family, that is, constitutes the head of a familia, or even himself

represents a Family, is 'persona sui iuris': 'paterfamilias' (possessed of full Roman capacity for private

a Cf. Cic. Top. rights, and himself capable of Family Power) and 'materfamilias.' a

3, 14.

Sce § 60.

Ulp. iv. I Sui iuris sunt familiarum suarum principes, i.e. paterfamiliae itemque materfamiliae." Jd. Patresfamiliarum sunt, qui sunt suae potestatis, sive puberes sive impuberes; simili modo matresfamiliarum.-D. 1, 6, 4.3

Free persons subject to the Family control of another, and whose legal capacity is governed by his right under whose power they are, are 'personae alieno iuri subiectae,' persons in subservience to a Family or under domestic dependence. We have here three classes:

the pat. fam., every individual has a separate family, yet all that were under the power of the one person will rightly be spoken of as belonging to the same family, because they have sprung from the same house and stock. § We are also accustomed to call a whole body of slaves a 'familia,' as . . . in the interdict unde vi' the designation familia takes in all the slaves. ... Likewise, a familia is so called of several persons who are sprung from the blood of the same first ancestor, as when we speak of the Julian family.' § But a woman is both the begin. ning and the end of her family.

1

1 Under the designation of 'familia,' the head himself also of a family is included. That women's children are not in their family is plain, because the issue follows the family of the father.

2 Those are sui iuris who are heads of their own families, that is, the pat. fam. and the mat. fam.

3

They are patresfam. who are in possession of their own right, whether or not they have reached the age of puberty; the like with matresfam.

(a) personae in potestate, or filius familias, filia
familias.

(B) uxor in manu.

(8) personae in mancipio.a

Gai. i. §§ 48, sq.: Quaedam personae sui iuris sunt, quaedam alieno iuri subiectae.-Sed rursum earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio.1

The Roman Family Law, which is to be treated of in the following pages, comprehends accordingly the doctrine of 'patria potestas,' of ' manus,' of 'mancipium'; but since marriage is presupposed as well by Patria Potestas as by Manus, and in general by the Family, it will be well to explain this in the first place.

THE FAMILY AS A GROUP OF PERSONS.

KINSHIP.

$42. THE NATURAL FAMILY; BLOOD-RELATIONSHIP,

AND AFFINITY BY MARRIAGE.

(1) COGNATION.

BOOK II. l'art I.

a For servi, see

$35.

Cf. Roby,

'School Latin Grammar,' App. C;

Law,' pp. 146

The Family in the natural sense, or according to ius Maine, Ane'. gent., is the aggregate of persons connected by demon- sqq. strable blood-relationship (cognatio), i.e., by common descent. Blood-relationship arises by conception or birth.

Blood-relations (cognati) are the persons that are related to one another in a direct line of descent, or are descended from the same third person. The first are spoken of as kinsmen in an ascending and descending line (linea recta; superior, inferior) or ancestors and descendants, e.g., parentes, avus, proavus, liberi, nepos, pronepos; the latter are called collaterals (linea transversa, a latere), e.g., brothers and sisters, uncle and aunt (upon the paternal side: patruus and amita,

1 Some persons are sui iuris, some are subject to the control of another. But again, of those persons subject to the control of another, some are in potestas, others in manus, others in mancipium.

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