The Institutes of Justinian. Anonymous

Чтение книги онлайн.

СКАЧАТЬ to an island for some penal offence entails loss of citizenship, such removal of a man from the list of Roman citizens has, like his death, the effect of liberating his children from his power; and conversely, the deportation of a person subject to paternal power terminates the power of the parent. In either case, however, if the condemned person is pardoned by the grace of the Emperor, he recovers all his former rights.

      2 Relegation to an island does not extinguish paternal power, whether it is the parent or the child who is relegated.

      3 Again, a father's power is extinguished by his becoming a 'slave of punishment,' for instance, by being condemned to the mines or exposed to wild beasts.

      4 A person in paternal power does not become independent by entering the army or becoming a senator, for military service or consular dignity does not set a son free from the power of his father. But by our constitution the supreme dignity of the patriciate frees a son from power immediately on the receipt of the imperial patent; for who would allow anything so unreasonable as that, while a father is able by emancipation to release his son from the tie of his power, the imperial majesty should be unable to release from dependence on another the man whom it has selected as a father of the State? 5 Again, capture of the father by the enemy makes him a slave of the latter; but the status of his children is suspended by his right of subsequent restoration by postliminium; for on escape from captivity a man recovers all his former rights, and among them the right of paternal power over his children, the law of postliminium resting on a fiction that the captive has never been absent from the state. But if he dies in captivity the son is reckoned to have been independent from the moment of his father's capture. So too, if a son or a grandson is captured by the enemy, the power of his ascendant is provisionally suspended, though he may again be subjected to it by postliminium. This term is derived from 'limen' and 'post,' which explains why we say that the person who has been captured by the enemy and has come back into our territories has returned by postliminium: for just as the threshold forms the boundary of a house, so the ancients represented the boundaries of the empire as a threshold; and this is also the origin of the term 'limes, signifying a kind of end and limit. Thus postliminium means that the captive returns by the same threshold at which he was lost. A captive who is recovered after a victory over the enemy is deemed to have returned by postliminium.

      6 Emancipation also liberates children from the power of the parent. Formerly it was effected either by the observance of an old form prescribed by statute by which the son was fictitiously sold and then manumitted, or by imperial rescript. Our forethought, however, has amended this by a constitution, which has abolished the old fictitious form, and enabled parents to go directly to a competent judge or magistrate, and in his presence release their sons or daughters, grandsons or granddaughters, and so on, from their power. After this, the father has by the praetor's edict the same rights over the property of the emancipated child as a patron has over the property of his freedman: and if at the time of emancipation the child, whether son or daughter, or in some remoter degree of relationship, is beneath the age of puberty, the father becomes by the emancipation his or her guardian.

      7 It is to be noted, however, that a grandfather who has both a son, and by that son a grandson or granddaughter, in his power, may either release the son from his power and retain the grandson or granddaughter, or emancipate both together; and a great-grandfather has the same latitude of choice.

      8 Again, if a father gives a son whom he has in his power in adoption to the son's natural grandfather or great-grandfather, in accordance with our constitution on this subject, that is to say, by declaring his intention, before a judge with jurisdiction in the matter, in the official records, and in the presence and with the consent of the person adopted, the natural father's power is thereby extinguished, and passes to the adoptive father, adoption by whom under these circumstances retains, as we said, all its old legal consequences.

      9 It is to be noted, that if your daughterinlaw conceives by your son, and you emancipate or give the latter in adoption during her pregnancy, the child when born will be in your power; but if the child is conceived after its father's emancipation or adoption, it is in the power of its natural father or its adoptive grandfather, as the case may be.

      10 Children, whether natural or adoptive, are only very rarely able to compel their parent to release them from his power.

TITLE XIII. OF GUARDIANSHIPS

       Table of Contents

      Let us now pass on to another classification of persons. Persons not subject to power may still be subject either to guardians or to curators, or may be exempt from both forms of control. We will first examine what persons are subject to guardians and curators, and thus we shall know who are exempt from both kinds of control. And first of persons subject to guardianship or tutelage.

      1 Guardianship, as defined by Servius, is authority and control over a free person, given and allowed by the civil law, in order to protect one too young to defend himself:

      2 and guardians are those persons who possess this authority and control, their name being derived from their very functions; for they are called guardians as being protectors and defenders, just as those entrusted with the care of sacred buildings are called 'aeditui.'

      3 The law allows a parent to appoint guardians in his will for those children in his power who have not attained the age of puberty, without distinction between sons and daughters; but a grandson or granddaughter can receive a testamentary guardian only provided that the death of the testator does not bring them under the power of their own father. Thus, if your son is in your power at the time of your death, your grandchildren by him cannot have a guardian given them by your will, although they are in your power, because your death leaves them in the power of their father.

      4 And as in many other matters afterborn children are treated on the footing of children born before the execution of the will, so it is ruled that afterborn children, as well as children born before the will was made, may have guardians therein appointed to them, provided that if born in the testator's lifetime they would be family heirs and in his power.

      5 If a testamentary guardian be given by a father to his emancipated son, he must be approved by the governor in all cases, though inquiry into the case is unnecessary.

TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL

       Table of Contents

      1 Persons who are in the power of others may be appointed testamentary guardians no less than those who are independent; and a man can also validly appoint one of his own slaves as testamentary guardian, giving him at the same time his liberty; and even in the absence of express manumission his freedom is to be presumed to have been tacitly conferred on him, whereby his appointment becomes a valid act, although of course it is otherwise if the testator appointed him guardian in the erroneous belief that he was free. The appointment of another man's slave as guardian, without any addition or qualification, is void, though valid if the words 'when he shall be free' are added: but this latter form is ineffectual if the slave is the testator's own, the appointment being void from the beginning.

      2 If a lunatic or minor is appointed testamentary guardian, he cannot act until, if a lunatic, he recovers his faculties, and, if a minor, he attains the age of twentyfive years.

      3 There is no doubt that a guardian may be appointed for and from a certain time, or conditionally, or before the institution of the heir.

      4 СКАЧАТЬ