Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/730

706 ROMAN LAW [JUS NATURALE. [ilitary of the jus militare (as it is sometimes called) were the ta- military testament and the castrense peculium. The first ients - set at naught all the rules of the /MS civile and the praetors' edict alike as to the form and substance of last wills. It might be in writing, by word of mouth, by the unspoken signs perhaps of a dying man ; all that was required was the voluntas so manifested as not to be mistaken. More extra- ordinary still, it was sustained even though its provisions ran counter to the most cherished rules of the common law. Contrary to the maxim that no man could die partly testate and partly intestate, a soldier might dispose of part of his estate by testament and leave the rest to descend to his heirs ab intestate. Contrary also to the maxim semel heres semper heres, he might give his estate to A for life or for a term of years, or until the occurrence of some event, with remainder to B. Contrary to the general rule, a Latin or peregrin, or an unmarried or married but child- less person, might take an inheritance or a bequest from a soldier as freely as could a citizen with children. His testament, in so far as it disposed only of bona castrensia, was not affected by capitis deminutio minima. It was not invalidated by praeterition of sui heredes, nor could they challenge it because they had less under it than their "legitim"; nor could the instituted heir claim a Fal- cidian fourth, even though nine-tenths of the succession had been assigned to legatees. Finally, a later testament did not nullify an earlier one, if it appeared to be the intention of the soldier testator that they should be read together. All this is remarkable, manifesting a spirit very different from that which animated the common law of testaments. True, it was a principle with the jurists of the classical period that the voluntatis ratio was to be given effect to in the interpretation of testamentary writings ; but that was on the condition that the requirements of law as to form and substance had been scrupulously observed. But in the military testament positive rules were made to yield to the voluntas in all respects : the will was almost absolutely unfettered. Roman law in this matter gave place to natural law. One would have expected the influence of so great a change to have manifested itself by degrees in the ordinary law of testaments ; yet it is barely visible. In a few points the legislation of Constantino, Theodosius II., and Justinian relaxed the strictness of the old rules ; but there was never any approach to the recognition of the complete supre- macy of the voluntas. In the Corpus Juris the contrast between the testamentum paganum and the testamentum militare was almost as marked as in the days of Trajan. The latter was still a privileged deed, whose use was confined to a soldier actually on service, and which had to be replaced by a testament executed according to the usual forms of law within twelve months after his retirement, 'eculium The peculium castrense had a wider influence ; for it was the first astrense. of a series of amendments that vastly diminished the importance of the patria potestas on its patrimonial side. It had its origin in the concession by Augustus to filiifamilias on service of the right to dispose by testament of what they had acquired in the active exer- cise of their profession (quod in castris adquisierant). But it soon went much further. Confined at first to filiifamilias on actual service, the privilege was extended by Hadrian to those who had obtained honourable discharge. The same emperor allowed them not merely to test on their peculium castrense, but to manumit slaves that formed part of it ; and a little step further recognized their right to dispose of it onerously ( or gratuitously inter viws. By and by the range of it was extended so as to include not only the soldier's pay and prize but all that had come to him, directly or indirectly, in connexion with his profession, his outfit, gifts made to him during his service, legacies from comrades, and so on. All this was in a high degree subversive of the doctrines of the common law. It may almost be called revolutionary ; for it in- volved in the first place the recognition of the right of a person alieni juris to make a testament as if he were sui juris, and in the second place the recognition of a separate estate in a filiusfami- lias which he might deal with independently of his paterfamilias, which could not be touched by the latter's creditors, and which he was not bound to collate (or bring into hotch-pot) on claiming a share of his father's succession. The radical right of the parent, however, was rather suspended than extinguished ; for, if the soldier son died intestate, the right of the paterfamilias revived : he took his son's belongings, not as his heir appropriating an in- heritance, but as his paterfamilias reclaiming a peculium.* 1 This was altered by Justinian's 1 1 8th Novel, under which a father taking any part of a deceased son's estate did so as his heir ; see infra, p. 713. The Family. The legislative efforts of Augustus to encourage Family marriage, to which persons of position showed a remarkable dis- relatioi taste, have already been mentioned. The relation of husband and wife still in law required no more for its creation than deliberate interchange of nuptial consent, although for one or two purposes the bride's home-coming to her husband's house was regarded as the criterion of completed marriage. But it was rarely accom- panied with manus. So repugnant was such subjection to patrician ladies that they declined to submit to confarreate nuptials ; and so great consequently became the difficulty of finding persons qualified by confarreate birth to fill the higher priesthoods that early in the empire it had to be decreed that coufarreation should in future be productive of manus only quoad sacra, and should not make the wife a member of her husband's family. Manus by a year's unin- terrupted cohabitation was already out of date in the time of Gaius ; and, although that by coemption was still in use in his time, it prob- ably was quite unknown by the end of the period. Husband and wife therefore had their separate estates, the common establish- ment being maintained by the husband, with the assistance of th<> revenue of the wife's dowry (dos), an institution which received much attention at the hands of the jurists, and was to some extent regulated by statute. Divorce was unfortunately very common ; it was lawful even without any assignable cause ; when blame attached to either side, he or she suffered deprivation to some extent of the nuptial provisions, but there were no other penal consequences. Not ouly in the case of a filiusfamilias who had adopted a mili- tary career, but in all directions, there was manifested a tendency to place restrictions on the exercise of the patria potestas. Tins was due in a great degree to the hold that the doctrines of natural law were gaining within the Roman system, partly also to the fact that the emperors, having succeeded to the censorial regimen morum, allowed it freely to influence their edicts and rescripts. Exposure of an infant was still allowed ; but a parent was no longer permitted, even in the character of household judge, to put his son to death ; in fact his prerogative was limited to moderate chastisement, the law requiring, in case of a grave offence that merited severer punishment, that he should hand his child over to the ordinary tribunal. His right of sale, in like manner, was re- stricted to young children, and permitted only when he was in great poverty and unable to maintain them, while their impiguora- tion by him was prohibited under pain of banishment. Except in the solitary case of a. son who was a soldier, a pater- familias was still recognized as in law the owner of all the earnings and other acquisitions of his children in potestate ; but the old rule still remained that for their civil debts he was not liable beyond the amount of the fund he had advanced them to deal with as de facto their own (peculium profecticium}, except when he had derived advantage from their contract or had expressly or by implication authorized them to enter into it as his agents. To the party with whom he had contracted a filiusfamilias was himself liable as fully as if he had been a paterfamilia-s, with one exception, namely, when his debt was for borrowed money ; in that case, with some very reasonable qualifications, it was declared by the notorious Mace- donian senatusconsult (of the time of Vespasian) that the lender should not be entitled to recover payment, even after his borrower had become sui juris by his father's death. Between a father and his emancipated son there was, and always had been, perfect free- dom of contract ; but so was there now between a father and his soldier son in any matter relating to the peculium castrense, even though the son was in potestate. What is still more remarkable is that the new sentiment which was operating on the jus civile admitted the possibility of natural obligation between paterfamilias and filiusfamilias even in reference to the peculium profecticium, which, though incapable of direct enforcement by action, was yet to some extent recognized and given effect to indirectly. In the matter of guardianship, while the tutory of pupils was carefully tended and the law in regard to it materially amended during the period under review (particularly by a senatusconsult generally referred to as the Oratio divi Severi, prohibiting aliena- tion of the ward's property without judicial authority), that of women above the age of pupilarity gradually disappeared. The guardianship or curatory (cura) of minors above pupilarity owed its institution to Marcus Aurelius. The Plsetorian law of the middle of the sixth century of the city had indeed imposed penalties on those taking undue advantage of the inexperience of minors, i.e., persons sui juris under the age of twenty-five ; and from that time the praetors were in the habit of appointing curators to act with such persons for the protection of their interests in particular affairs. But it was Marcus Aurelius who first made curatory a general permanent office, to endure in the ordinary case until the ward attained majority. The powers, duties, and responsibilities of such curators became a matter for careful and elaborate defini- tion and regulation by the jurists, whose exposition of the law of guardianship, whether by tutors or curators, has found wide accept- ance in modern systems of jurisprudence. The Law of Succession and particularly Testamentary Trusts. There were far more positive changes in the law of succession than