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 Constantine, Theodosius II. and Justinian relaxed the strictness of the old rules; but there was never any approach to the recognition of the complete supremacy 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 if he received an honourable discharge, for twelve months after his retirement.
The peculium castrense had a wider influence; for it was the first of a series of amendments that vastly diminished the importance of the patria potestas on its patrimonial side. It had its origin in a constitution of Augustus granting to filiifamilias on service the right to dispose by testament of what they had acquired in the active exercise of their profession Peculium Castrense. (quod in castris adquisierant).[1] 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 inter vivos slaves that formed part of it; and by a little step further the classical jurists recognized their right to dispose of it onerously or gratuitously inter vivos. In the 3rd century 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 involved 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 filiusfamilias which lie might deal with independently of his paterfamilias, which could not be touched by the latter's creditors, and which he was not even 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 inheritance, but as his paterfamilias reclaiming a peculium.[2]
The Family.—The legislative efforts of Augustus to encourage marriage, to which persons of position showed a remarkable distaste, 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 in certain cases some act indicative of change of life, such as the Family Relations. bride's homecoming to her husband's house, was regarded as the criterion of completed marriage.[3] But it was rarely accompanied 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 confarreation 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 uninterrupted cohabitation was long out of date in the time of Gaius; and, although that by coemption was stiil in use in his time, it was almost unknown by the end of the period. Husband and wife therefore had their separate estates, the common establishment being maintained by the husband, with the assistance of the 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 (either of common consent or by repudium by either spouse) was unfortunately very common; it was lawful even without any assignable cause; when blame attached to either spouse, he or she suffered deprivation to some extent of the nuptial provisions, but there were no other penal consequences.
Not only in the case of a filiusfamilias who had adopted a military career, but in all directions, there was manifested a strong tendency to place restrictions on the exercise of the patria potestas. This was due in a great degree to the hold that the principles of natural law were gaining within the Roman system, perhaps due to the fact that the emperors, having succeeded to the censorial regimen morum, allowed these principles freely to influence their edicts and rescripts. Exposure of an infant was still apparently allowed; but a parent was no longer permitted, even in the character of household judge, to put his son to death or cruelly ill-treat him; in fact his prerogative was limited to moderate chastisement, the law requiring, in the case of a grave offence that merited severer punishment, that he should bring his child before the competent magistrate. His right of sale, in like manner, was permitted only when he was in great poverty and unable to maintain them, while their impignoration by him was prohibited under pain of banishment.
Except in the solitary case of a son who was a soldier, a paterfamilias was still recognized as in law the owner of all the earnings and other acquisitions of his children in 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 paterfamilias, with one exception, namely, when his debt was for borrowed money; in that case, with some very reasonable qualifications, it was declared by the well-known Macedonian 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 freedom 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 maintained 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 alienation of the ward's property without judicial authority), that of women above the age of pupillarity gradually disappeared.[4] The guardianship or curatory (cura) of minors above pupillarity owed its establishment as a general doctrine to Marcus Aurelius. The Plaetorian law[5] of the middle of the 6th 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 granting restitutio in integrum in cases of lesion and appointing curators to act with such persons for the protection of their interests in particular affairs. But it was Marcus Aurelius that 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 definition and regulation by the jurists, whose exposition indeed of the law of guardianship generally, whether by tutors or curators, has found wide acceptance 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 in either that of property or that of obligation. The rise and progress of the military testament has already been explained. The testament of the common law was still ostensibly that per aes et libram; but the practice of Law of Succession. granting bonorum possessio secundum tabulas to the persons named as heirs in any testament instrument that bore outside the requisite number of seals led, from the time of Antoninus Pius, to the frequent neglect of the time-honoured formalities of the familiae mancipatio and nuncupatio testamenti. It was his rescript, formerly mentioned, declaring that an heir-at-law should no longer be entitled to dispute the last wishes of a testator on the technical ground of non-compliance with the purely formal requirements of the law, that practically established what Justinian calls the praetorian testament.
One of the commonest provisions in the testaments of the period was the fideicommissum,—a request by the testator to his heir to enter on the inheritance and thereafter denude wholly or partially in favour of a third party. It was introduced in the time of Augustus by (it is said by Theophilus) a testator who had married a peregrin wife, and desired thus indirectly to give to his peregrin children the succession which, as not being citizens, they could neither take ab intestato nor as his direct testamentary heirs.[6] He probably soon found imitators, and their number must have rapidly multiplied once the emperor, shocked at the perfidy of a trustee
- ↑ Inst. ii. 12 pr.
- ↑ This was altered by Justinian's 118th Novel, under which a paterfamilias taking any part of a deceased son's estate did so as his heir; see infra, p. 573.
- ↑ Some writers take the view that such act was always essential. See Girard, Manuel, 4th ed. p. 151.
- ↑ Dig. xxvii. 9 fr. 1, § 2.
- ↑ Also sometimes called lex Laetoria. See, e.g. reference to a recently discovered papyrus in Z. d. Sav. Stift. xxii. 170.
- ↑ Fideicommissa, as informal requests to heirs or legatees to hand over what they received to third parties, were known earlier than Augustus, but had no legal force.
