of the testator, or to his pupil children and grown-up unmarried daughters; but such appointment, if unknown previously, was soon held to be justified by a liberal interpretation of the very inclusive provision, “uti legassit suae rei, ita jus esto.” In the absence of testamentary appointment the nearest male agnates of lawful age were to be tutors. This tutory of agnates was an invention of the decemvirs, just as was the agnates' right of succession on intestacy. The plebeians had no gentes, at least until a much later period; so, to make the law equal for all, it was necessary to introduce a new order of heirs and tutors. “Tutores . . . ex lege XII. Tabularum introducuntur Guardianship of agnates. . . . agnati” is the very notable language of Ulpian. And his words are very similar in speaking of their right of succession; for, while he says of testamentary inheritances no more than that they were confirmed by the XII. Tables, he explains that the legitimate hereditates of agnates and patrons were derived from them.[1] The phrases legitima cognatio, legitima hereditas, legitimi heredes, tutela legitima, tutores legitimi themselves proclaim the origin of agnation, agnatic inheritance and agnatic tutory; for, though the word legitimus might be applied to any institution based on statute, yet in the ordinary case it indicated one introduced by the XII. Tables, the law of laws.
A man's agnates, in the strict sense, were those of his collateral kinsmen who were subject to the same patria potestas as himself, or would have been had the common ancestor been still alive. A man's sons and daughters in potestate, therefore, whether the relationship was by birth or adoption, and his wife in manu (being filiae loco) were each other's agnates. But a wife not in manu was not their agnate; nor were children who had been emancipated or otherwise capite minuti the agnates of either their brothers and sisters or their mother in manu. A man was an agnate of his brother's children, assuming always that there had been no capitis deminutio on either side; but he was not an agnate of his sister's children, for they were not ejusdem familiae: they were agnates of their father's family, not of their mother's. In like manner, and again assuming the absence of minutio capitis, the children of brothers were each other's agnates, but not the children of a brother and a sister or of two sisters. Brothers and sisters were agnates of the second degree; a man and his brother's children were of the third, the children of two brothers (patrueles) of the fourth, and so on,—it being a condition, however, that the kinship should always result either from lawful marriage or from adoption in one or other of its forms.
When, therefore, a man died leaving pupil male descendants or unmarried female descendants who by his death became sui juris, they got their brothers of lawful age as their tutors; if he was survived by his wife, and she had been in manu, her sons, or it might be stepsons, acted for her in the same capacity; in either case they took office as the nearest qualified male agnates. If the widow had no sons or stepsons of full age, and the children consequently no qualified brothers, the tutory devolved on the agnates next in order,—i.e. the brothers german and consanguinean of the deceased husband and father; for they were agnates of the third degree. And so with agnates of the fourth and remoter degrees.[2] Failing agnates who could demonstrate their propinquity, the tutory passed to the gens when the ward happened to belong to one. This is nowhere expressly stated; but Cicero gives what he represents to be an enactment of the Tables, making the fellow-gentiles of a lunatic his guardians on failure of agnates; and analogy seems to justify the extension of the same rule to the case of sane pupil and female wards.[3]
The curatory of minors above pupillarity was of much later date than the Tables. The only curatories they sanctioned were those of lunatics (furiosi) and spendthrifts (prodigi). A lunatic was committed to the care of his agnates, and, failing them, of his fellow-gentiles; and a few words in Festus seem to suggest that arrangements had to be made by them for his safe custody.
Mancipation and the Law of Property.—In the early law, as we have seen, there was no technical word for ownership of things: Ownership in “res mancipi” and “res nec mancipi.” it was an element of the house-father's manus. In time, although it is impossible to say when, the word dominium came into use, but, so far as can be discovered, it did not occur in the XII. Tables, and must have been of later introduction. In those days, when a man asserted ownership of a thing, he was content to say, “It is mine,” or “It is mine according to the law of the Quirites.” It is said by some jurists of eminence that under the law of the Tables what afterwards came to be called “dominium ex jure Quiritium” was competent only in the case of res mancipi—of a man's house and farm, and things appurtenant thereto, as slaves and animals with which he worked them. There is much to be said for this hypothesis, but it is so far contradicted by Ulpian and Paul, who tell us that tigna juncta (that is, building materials, vine stakes and the like, which undoubtedly were res nec mancipi) were exceptionally excluded from vindication. On the other hand, these texts may be explained as mere deductions by interpretation at a later time of the words “ne solvito” of the XII. Tables.[4] At any rate it is pretty certain that before the close of the present period res nec mancipi as well as res mancipi could be held in quiritarian ownership.
The modes in which these two classes of things might be acquired in property were various. But there was this important difference: that, while a natural mode of acquisition sufficed in the case of res nec mancipi, some civil one was necessary for the derivative acquisition, at all events, of res mancipi. The most important were mancipation, surrender in court, usucapion and bequest as singular modes, and inheritance, in manum conventio, adrogation and purchase of a confiscated estate, as universal ones. All of these, with the exception of mancipation, applied equally to res mancipi and res nec mancipi. But there was, in addition, for res nec mancipi, what was the commonest of all the modes of transferring things of this class, simple tradition. If the transfer of these was by the owner, with the intention of passing the property, then the simple delivery of possession (traditio) was enough, unless indeed it was in virtue of a sale; in which latter case the ownership remained with the vendor, notwithstanding the change of possession, until the price was paid or security given for it.[5] Only mancipation, surrender in court and usucapion, however, need be noticed at present.
The origin of the distinction between mancipable and nonmancipable things, and of the form of conveyance by mancipation Mancipation. applicable to the first, has been explained (supra, p. 529).[6] Originally emancipation was not the imaginary sale that Gaius speaks of, but as real a sale as could well be conceived—the weighing in scales, held by an official, of the raw metal that was to be the consideration for the transfer of a res mancipi, and the handing of it by the transferee to the transferrer, with the declaration that thereby and therewith the thing in question became his in quiritary right. On the introduction of coined money weighing became unnecessary. The price was counted out before the ceremony, or sometimes left to be done afterwards; and though, in that spirit of conservatism that was so marked in the adhesion
- ↑ Ulp. Frag. xxvii. 5, “legitimae hereditatis jus . . . ex lege Duodecim Tabularum descendit.” This derivation of agnatic inheritance from the XII. Tables was specially noticed by Danz in his Gesch. d. röm. Rechts (2nd ed., Leipzig, 1871-73), ii. 95, but is generally ignored.
- ↑ To determine the degree of propinquity between two persons it was necessary to count the generations upwards from the first to the common ancestor and downwards from him to the second. Consequently brothers were related in the second degree, uncle and nephew in the third, first cousins in the fourth, and so on.
- ↑ See Gai. i. 165.
- ↑ Dlg. xlvii. 3, 1 pr. and xlvi. 3, 98, § 8. See Cuq, Inst. Jurid. 2nd ed. i. 91 n.; and on tignum junctum in general, Girard, Manuel de droit romain, 4th ed. p. 330.
- ↑ Our only authority for attributing this fundamental rule to the XII. Tables is Justinian's Institutes, ii. 1, § 41, where there is clear evidence of a Tribonianism. The rule undoubtedly must have been applied to res mancipatae in the Tables, and possibly its extension to tradition of res nec mancipi may have been due to interpretation. See Girard, ut supra, p. 288; cf. Cuq, Institutions Jurid. i. p. 87.
- ↑ Literature: Leist, Mancipation und Eigenthumstradition (Jena, 1865); Jhering, Geist. d. röm. Rechts, vol. ii. § 46; Bechmann, Der Kauf nach gemeinem Recht (Erlangen), i. pp. 47-302; Voigt, XII. Tafeln, vol. i. § 22, vol. ii. §§ 84-88; Kalowa, Röm. Rechtsgesch. ii. pp. 363-81.
