Page:Catholic Encyclopedia, volume 9.djvu/105

 LAW

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LAW

pecidium. The paternal power was stripped of the power of life and death, the right of punisnment was moderated, and the sale of children was restricted to cases of extreme necessity. In the earlier law, it had been permitted to the father to give over his child (as he might give over a slave) to some person injm^ed through the act of the child, and thus escape liability. With the growth of humane sentiment, the noxal ac- tion in the case of children was abolished. Between parents and children, only affirmative or negative actions on the question of miation or the existence of the paternal power were permitted. The paternal power was held only by males, and extended indefi- nitely downward during the lifetime of the patriarch: i. e., father and son were under the patria potestas of the grandfather. The potestas was in no wise in- fluenced by infancy or majority. In the case given, upon the death of the CTandfather the paternal power woiild fall upon the father. The patria 'ootestas was ac- quired over children bom in lawful wedlock, by legiti- mation, and by adoption.

Marriage (huptice or connubium) was the association or community of life between man and woman, for the procreation and rearing of offspring, validly entered mto between Roman citizens. It was wont to be pre- ceded by spansalia (betrothal), defined as an agree- ment of future marriage. Sponsalia might be ver- bally entered into, and required no solemnities. The mutual consent of the spouses was requisite, and the object of marriage was kept in mind so that marriage with an impotent person (castratus) was invalid: the parties must have attainea puberty, and there could De but one husband and one wife. It is true that more or less continuous extra-matrimonial relations between the same man and woman in the absence of any other marriage were considered as a kind of mar- riage, under the jv^ gentium, by the jurists of the sec- ond and third centuries. The cannubium, or Roman marriage, was for Roman citizens: matrimonium existed among other free persons, and corUvbemium was the marital relation of slaves. The latter was a status of fact, not a juridical status. Marriage might be incestuous, indecorous, or noxal: incestuous, e. g., between blood relations or persons between whom affinity existed; indecorous, e. g., between a freeman and a lewd woman or actress; noxal, e. g., between Christian and Jew, tutor or curator and ward, etc.

Cognation or blood relationship is indicated by de- grees and lines; the degree measures the distance be- tween cognates, and the line shows the series, either direct (ascending or descending) or collateral; the collateral line is cither equal or unequal in the descent from the common ancestor. In the direct line, in both civil and canon law, there are as many degrees as there are generations. In the collateral line there is a difference: by civil law, brother and sister are in the second degree, although each is only one degree re- moved from the common ancestor, the father; by canon law, they are in the first degree. The civil law counts each degree up to the common ancestor and then down to the other collateral. The canon law measures the cognation of collaterals by the distance in degrees of the collateral farthest removed from the common ancestor. Uncle and niece are three degrees distant by civil law; by canon law they are only two degrees removed. Aflanity is the artificial relation- ship which exists between one spouse and the cognates of the other. Affinity has no degrees. By Roman law, marriage in the direct line was prohibited; in the collateral line it was prohibited in the second degree.

Marriage was usually accompanied by the dowry, created on behalf of the wife, and by donations propter nuptias, on behalf of the husband. The dowry (dos) was what the wife brought or what some other person on her behalf siipplied towards the expenses of the married state. Property of the wife in excess of the dowry was called her paraphernalia. The dowry was

profective, if it came from the father; adventitious, if from the wife or from any other source. The husband enjoyed its administration and control, and aU of its fruits accrued to him. Upon the dissolution of the marrii^ the profective dowry might be reclaimed by the wile's father, and the adventitious by the wife or her heirs. Special actions existed for the enforcement of dotal agreements.

The offspring of incest or adultery could not be le- gitimated. Adoption, whieh imitates nature, was a means of acquiring the paternal power. Only such persons as in nature might have oeen parents could adopt, and hence a difference of eighteen years was necessary in the aees of the parties. Adoption was of a minor, and could not be for a time only. Similar to adoption was adrogation, whereby one sui juris sub- jected himself to the patria potestas of another.

The paternal power was dissolved by the death of the ancestor, in which case each descendant in the first degree became sui juris; those in remoter degrees fell imder the paternal power of the next ascendant. Upon the death of the grandfather, his children became sui juris, and the grandchildren came under the power of their respective fathers. Loss of status (capitis di- minution media or maxima), involving loss oi liberty or citizenship, destroyed the patemaTpower. Eman- cipation and adoption had a similar effect.

One might be sui juris and yet subject to tutorship or curatorship. Pupillary tutorship was a personal public office consistmg in the education ana in the administration of the ^oods of a person sui juris, but who had not yet attained puberty. Tutorship was testamentary, statutory, or dative: testamentary when validly exercised in the will of the paterfamilias with respect to a child about to become sui juris, but under puberty. A testamentary tutor could not be appointed by the mother nor by a maternal ascendant. The agnates, who were an important class of kinsmen, in the early Roman law were cognates connected through males either by blood relationship or by the artfficial tie of agnation. Statutory tutorship was that which the law immediately conferred, as the tutorship of agnates, of patrons, etc. The first statu- tory tutors were the agnates and gentiles called to tutorship by the Twelve Tables. Justinian abolished the distinction in this respect between agnates and cognates, and called them promiscuously to the statu- tory tutorship.

Similar to tutorship, although distinct in its inci- dents, was curatorship. In tutorship the office ter- minated with the puberty of the ward. The interpo- sition of the tutor's auctoritas in every juridical act was reauired to be concurrent, both in time and place. He had no power of ratification, nor could he supply the auctoritas by letter or through an agent. Curators were given to persons sui juris after puberty and be- fore they had reached the necessary maturity for the conduct of their own affairs. Curators were appointed also for the deaf and dumb, for the insane and for prodigals. The curator of a minor was given rather to the goods than to the person of his wara; the cura- tor's consent was necessary to any valid disposition of the latter's goods. Tutors and curators were re- auired to give security for the faithful performance of uieir duties and were liable on the quasi-contractua! relationship existing between them and their wards. In certain cases the law excused persons from these duties, and provision was made for the removal of persons who nad become "suspect ".

In the law of persons, status depended upon liberty, citizenship, and family; and the corresponding losses of status were known respectively as capitis aiminu- tio maxima, media, and minima. The minima, by a fiction at least, was involved even when one became sui juris, although this is disputed.

B. Things. — ^Things were divini vet humani juris (i. e., governed by divine or by human law). Things