BOOK III. Id. Quod servo debetur ab extraneis dominus recte petet; quod servus ipse debet, eo nomine in peculium et si quid inde in rem domini versum est, in dominum actio datur.-1. 41 eod.a1 So that even obligations-only natural, it is true-supra § 35between the pater fam. and the person subject to power are rendered possible by the peculium. Id. Sive autem ex contractu quid domino debeat sive ex rationum reliquiis, deducet dominus; sed et si ex delicto ei debeat, aeque deducetur.1. 9, § 6 eod.2 Id. Sed et id quod dominus sibi debet in peculium habebit, si forte in domini rationem impendit et dominus ei debitor manere voluit, aut si debitorem eius dominus convenit.-1. 7, § 6 eod. In the manumission of the slave, or emancipation of the filius fam., the peculium that is not taken back is regarded as presented to him. Paul.: Si Sticho peculium, cum manumitteretur, ademptum non est, videtur concessum: debitores autem convenire, nisi mandatis sibi actionibus, non potest.-1. 53 eod.* Besides this peculium profecticium s. concessum, 1 A master will be right in claiming from third parties what is owing to his slave; as to the slave's own debt, an action is given against the master in that behalf for the peculium, and for what may have therefrom accrued to the master's property. 2 Now, whether aught be due to a master upon a contract or upon balances of accounts, the master will deduct it; but even if it is due to him upon a delict, it will be deducted all the same. 3 But that also which the master owes to him he will possess as peculium, if so be the debt accrues to the master's benefit, and the master has desired to remain his debtor, or if the master has sued his debtor. If the peculium has not been taken from Stichus upon his enfranchisement, it is considered to have been allowed to him; but he cannot sue debtors save by actions which have been made over to him. ❝ Cf. ibid., § 114. BOOK III. there was introduced at the beginning of the imperial times the castrense peculium. Recognition was given to the legal rule, that the acquisitions of the filius fam. in his character of a miles, including what was given to him upon entering into military service, represented also in Law his own property, capable of independent development, and in this respect he was to be treated as a paterfamilias. 1 Mac. Castrense peculium est, quod a parentibus vel cognatis in militia agenti donatum est, vel quod ipse filius familias in militia adquisiit, quod, nisi militaret, adquisiturus non fuisset.— 1. II, D. h. t. (de castr. pec. 49, 17).1 Imp. Alex.: Peculio castrensi cedunt res mobiles, quae eunti in militiam a patre vel a matre aliisve propinquis vel amicis donatae sunt, item quae in castris per occasionem militiae quaeruntur; in quibus sunt etiam hereditates eorum, qui non alias noti esse potuerunt, nisi per militiae occasionem, etiamsi res immobiles in his erunt. -empta ex castrensi peculio praedia eius condicionis efficiantur.-C. 12, 36 (37), 1.2 Pap. Servus peculii, quod ad filium spectat, si stipuletur aut per traditionem accipiat, res ad filium pertinebit.-1. 15, § 3, D. h. t.3 Separate property acquired in the field is what has been given by parents or relations to one spending his life in military service, or what the fil. fam. has acquired in military service, which he would not have acquired had he not been a soldier. 2 To military peculium belong movables which have been presented to a fil. fam. entering upon military service, by his father, or mother, or by other relations or friends, likewise those that are acquired in the field by reason of military service; amongst which also are the inheritances of those who could not have been famous save by reason of military service, even if immovables shall form part of these.-Lands purchased with military peculium are rendered of such character. 3 If a slave appertaining to the peculium of the son stipulates for, or by delivery receives, a thing, . . . it will belong to the son. Tryph. Si servus peculii castrensis a quocumque sit heres scriptus, (hereditas) fiet bonorum castrensis peculii.-1. 19, § 1 eod.' : Pap. Si stipulanti filio spondeat (pater), si Ulp. In filiofamilias nihil dignitas facit, quo- Maec. Sed nec cogendus est pater propter BOOK III. If, however, the fil. fam. died without having made a testamentary disposition of such property, as was generally allowed him from the time of Hadrian," this « § 156. property also fell to the pater fam. ' pristino, i.e. peculii iure' (that is, as an ordinary peculium). 1 But if a slave appertaining to military peculium has been instituted heir by any one whomsoever, . . . (the inheritance) will become part of the effects of the military peculium. If the son by stipulation take a promise (from the father), the stipulation will hold good, should it relate to military peculium; but in every other relation it will not stand.-If a father take a stipulation from a son, the same distinction will be observed. In respect of a fil. fam., no dignity hinders the application. of the SC. Macedon. .. unless he possesses military peculium; for then the SCtum will fall through-as far as the amount of military peculium extends, since filii fam. in respect of military peculium discharge the functions of patres fam. But neither is a father required to put up with an action de peculio in respect of a debt which his son is alleged to have incurred in connection with peculium that he has acquired in the field. G BOOK III. Inst. ii. 12 pr.: militibus, qui in potestate parentum sunt, . . . de eo quod in castris adquisierint permissum est ex constitutionibus principum testamentum facere: quod quidem initio tantum militantibus datum est tam ex auctoritate D. Augusti quam Nervae nec non optimi imperatoris Traiani, postea vero subscriptione D. Hadriani etiam dimissis militia, i.e. veteranis, concessum est.' Ulp. Si filiusfamilias miles decesserit, si quidem intestatus, bona eius non quasi hereditas, sed quasi peculium patri deferuntur: si autem testamento facto, hic pro hereditate habetur castrense peculium.-1. 2, D. de castr. pec. $150. THE LATER LAW: PECULIUM QUASI CASTRENSE; BONA ADVENTICIA. From the time of Constantine a proprietary independence was gradually acquired by filii fam., to an ever wider extent. Acquisitions by public office (state, court or ecclesiastical service) were placed on the same footing as military acquisitions: Peculium quasi castrense. Inst. ii. 11, § ult.: Sciendum tamen est, quod ad exemplum castrensis peculii tam anteriores leges quam principales constitutiones quibusdam quasi castrensia dederunt peculia, atque eorum ... 1 Soldiers that are under parental power have been allowed by imperial constitutions to make a testament concerning such property as they have acquired in the field; and this right was at the outset granted by the late Emperors Augustus and Nerva and the excellent Emperor Trajan only to those engaged in the service, but afterwards it was allowed by a subscriptio of the late Emperor Hadrian to soldiers discharged from the service, i.e., to veterans. If a fil. fam. has died as a soldier, and that intestate, his estate devolves upon his father not as inheritance, but as peculium; but if a testament has been made, in this case the military peculium is treated as an inheritance. Part II. quibusdam permissum erat etiam in potestate BOOK III. Moreover, a maternal inheritance (bona materna) was in general recognised in every acquisition proceeding from the maternal side (bona materni generis), and finally, inheritance by marriage (lucra nuptialia), as the peculiar property of the fil. fam., in which the pat. fam. should possess only the usufruct for life: bona adventicia. In certain cases the father's usufruct even a Cf. Curtesy (Scrutton, pp. was not allowed, as when the acquisition, especially of an inheritance, was made against the declared will of the pater fam., or if the donor had by stipulation taken away the right of the latter to the user: bona adventicia irregularia. Finally, Justinian provided that every non-military acquisition of filii fam., which they had not made from the property of the pater, should be on the same footing as bona materna; so that there was thenceforth— (1) fully free property of the child (bona castrensia vel quasi); (2) bona adventicia of the same, and besides, (3) as in the older Law, still merely one peculium, that is, a patre profectum.' Inst. ii. 9, § 1: Sancitum etenim a nobis est, ut si quid ex re patris ei obveniat, hoc secundum antiquam observationem totum parenti adquirat : . . quod autem ex alia causa sibi filiusfamilias adquisivit, huius usumfructum quidem patri ad 1 We must, however, note that, according to the analogy of military peculium, both ancient statutes and imperial constitutions have conferred quasi-military peculia on certain persons; and to some of such persons leave has been given to make a testament, even while under paternal power, and our constitution, by wider development of this, has allowed all to make a testament in respect alone of this peculium. 98-99). |