Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/95

Rh 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 Justinian (529) repealed this and gave instead to the father (or other head of the family) the right to retain one-half of the usufruct.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, camp-peculium) to everything 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 impeachment 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-peculium. 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 543, the intestate's camp-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 however 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.