SECTIO -- SECTORES

NOVE TABULE.

45

not entirely lose the rights of freemen, yet they were in actual slavery, and often treated more harshly than even slaves themselves, Liv. ii. 23.*

If any one was indebted to several persons, and could not find a cautioner (vindex vel expromissor) within sixty days, his body (corpus) literally, according to some, [so Niebuhr, ii. p. 569.] but more probably, according to others, his effects, might be cut into pieces (secari), and divided among his creditors, A. Gell. xx. 1.† Thus sectio is put for the purchase of the whole booty of any place, or of the whole effects of a proscribed or condemned person, Cic. Phil. ii. 26.; or for the booty or goods themselves, Cæs. de Bell. Gall. ii. 33. Cic. Inv. i. 45. and sectores for the purchasers, [Cic. Phil. ii. 27.] Ascon. in Cic. Verr. i. 23. because they made profit by selling them in parts (a seco): hence Sectores collorum et bonorum, i. e. qui proscriptos occidebant, et bona eorum emebant, Cic. Rosc. Am. 29.

To check the cruelty of usurers a law was made, A. U. 421, whereby it was provided, that no debtors should be kept in irons or in bonds; that the goods of the debtor, not his person, should be given up to his creditors, Liv. viii. 28.

But the people, not satisfied with this, as it did not free them from prison, often afterwards demanded an entire abolition of debts, which they used to call [Nova Tabula,] NEW TABLES. But this was never granted them. At one time, indeed, by a law passed by Valerius Flaccus, [A. U. 667.] silver was paid with brass, [argentum ære solutum est,] as it is expressed, Sallust. Cat. 33. that is, the fourth part of the debt only was paid, Vell. ii. 23. an as for a sestertius, and a sestertius for a denarius; or 25 for 100, and 250 for 1000. Julius Cæsar after his

having, in form, sold, in reality, pledged himself: into this state none could come, except by his own act and deed. So long as the nexus was not addictus, he enjoyed the same rights as every other full citizen: this was expressly secured to him by the laws. But, on the other hand, he who was adjudged as a slave, lost his civic rights; and thus underwent what was termed a deminutio capitis, a term applicable to every change made in a person's condition, on account of his becoming deterioris juris."

Nieb. i. p. 508.

"Livy himself, in spite of his prejudices, does not suppress what was to be read in the Annals; that every patrician house was a gaol for debtors; and that in seasons of great distress, or after every sitting of the courts, herds of sentenced slaves were led away in chains to the houses of the nobles: vi. 36."— Nieb. i. p. 506.

"Annæus Robertus and Heraldus have each proposed a mitigating interpretation of this law; Bynkershoek was solicitous to prove that the creditors were entitled to divide, not the body, but the price of the insolvent debtor; and his opinion has been adopted by Dr. Taylor, and other learned civilians. But this opinion can neither be reconciled with the obvious meaning of the words, nor with the ancient mode of understanding them. The same laws which conferred on the father of a family the power of life and death over his wife and children, and which awarded capital punishment against the author of a satirical poem, may, without much difficulty, be conceived to have disposed of a poor debtor's person in the most summary manner; and that the unrelenting treatment of debtors was a ground of open dissension between the different orders of people, is obvious to every person acquainted with ancient history."— Encyc. Britan. art. Civil Law. The same custom of giving up the persons of debtors to their creditors prevailed at Athens, until it was abolished by the law of Solon,

The sestertius was originally equal to two asses and a half; and the denarius to ten; when, however, the weight of the as was diminished to one ounce, a denarius passed for 16 asses, and a sestertius for four, which proportion continued when the as was reduced to half an ounce. See the Ler Papiria.

46

RIGHTS OF FAMILY, MARRIAGE, OF A FATHER.

victory in the civil war, enacted something of the same kind, Cæs. Bell. Civ. iii. 1. Suet. Jul. 14.

2. THE RIGHT OF FAMILY.

EACH gens and each family had certain sacred rites peculiar to itself, which went by inheritance in the same manner as effects, Liv. iv. 2.* When heirs by the father's side of the same family (agnati) failed, those of the same gens (gentiles) succeeded, in preference to relations by the mother's side (cognati) of the same family (familia). No one could pass from a Patrician family to a Plebeian, or from a Plebeian to a Patrician, unless by that form of adoption, which could only be made at the Comitia Curiata. Thus Clodius, that enemy of Cicero, was adopted by a Plebeian, that he might be created a tribune of the commons, Cic. Dom. 15. Att. i. 18. 19.

3. THE RIGHT OF MARRIAGE.

No Roman citizen was permitted to marry a slave, a barbarian, or a foreigner, unless by the permission of the people; as Liv. xxxviii. 36. CONNUBIUM est matrimonium inter cives; inter servos autem, aut inter civem et peregrina conditiones hominem, aut serviles, non est Connubium, sed CONTUBERNIUM. Boeth. in Cic. Top. 4. By the laws of the Decemviri, intermarriages between the Patricians and Plebeians were prohibited. But this restriction was soon abolished, Liv. iv. 6. Afterwards, however, when a Patrician lady married a Plebeian, she was said Patribus enubere, and was excluded from the sacred rites of Patrician ladies, Liv. x. 23. When any woman married out of her clan, it was called Gentis enuptio; which likewise seems anciently to have been forbidden, Liv. xxxix. 19. The different kinds of marriage, &c. will be treated of afterwards.

4. THE RIGHT OF A FATHER.

A FATHER, among the Romans, had the power of life and death over his children. He could not only expose them when infants, which cruel custom prevailed at Rome for many ages, as among other nations, Cic. de Legg. iii. 8. [" tanquam ex XII. tabulis, insignis ad deformitatem puer. Davis quotes Sen. de Irâ, i. 15. Portentosos fœtus extinguimus; liberos quoque, si debiles monstrosique sunt, MERGIMUS. T.] Ter. Heaut. iv. 1. Suet. Octav. 65. [“ ex nepte Julia, post damnationem, editum infantem agnosci alique vetuit: a strong case, but extraordinary." T. Compare Claud. 27.] Calig. 5. [" on the day of the death of Germanicus, Lares a quibusdam familiares in publicum abjecti, partus conjugum expositi: evidently, most extraordinary." T.] Senec. de Ben. iii. 13. ["31. Si exposuisses, nempe injuria erat genuisse: which seems rather to indicate the extreme rarity of the practice." T.] &c. and a new-born infant was not held legitimate, unless the father, or in his absence some person for him, lifted it from the ground (terrá le

"The Nautii were bound to offer such to Minerva; the Fabii, perhaps, to Hercules or Sancus; the Horatii, in expiation of the fratricide committed by Horatius.". - Nieb. i. p. 271.

EMANCIPATION AND ADOPTION.

47

vâsset), and placed it on his bosom ; hence tollere filium, to educate; non tollere, to expose.* But even when his children were grown up, he might imprison, scourge, send them bound to work in the country, and also put them to death by any punishment he pleased, if they deserved it, Sall. Cat. 39. Liv. ii. 41. viii. 7. Dionys. viii. 79.t Hence a father is called a domestic judge, or magistrate, by Seneca ; and a censor of his son, by Suetonius, Claud. 16. Romulus, however, at first permitted this right only in certain cases, Dionys. ii. 15. ix. 22. A son could acquire no property but with his father's consent; and what he did thus acquire was called his PECULIUM, as of a slave, Liv. ii. 41. If he acquired it in war, it was called PECULIUM CASTRENSE.

The condition of a son was in some respects harder than that of a slave. A slave when sold once became free: but a son not, unless sold three times. The power of the father was suspended, when the son was promoted to any public office, but not extinguished, Liv. ib. For it continued not only during the life of the children, but likewise extended to grandchildren and great grandchildren. None of them became their own masters (sui juris) till the death of their father and grandfather. A daughter by marriage passed from the power of her father under that of her husband,

EMANCIPATION AND ADOPTION.

WHEN a father wished to free his son from his authority (EMANCIPARE), it behoved him to bring him before the Prætor, or some magistrate (apud quem legis actio erat), and there sell him three times, PER ES ET LIBRAM, as it was termed, to some friend, who was

"The right of parents to expose their children, was restricted till the infant had attained the age of three years; in the double hope, that both the child, and their affection for it, might, in that time, acquire strength sufficient to avert the fate which otherwise awaited it. This humane law, although confirmed by those of the twelve tables, was, however, continually evaded; and although absolute childmurder was not, perhaps, often committed, yet the exposition of infants was customary at Rome, not only during the early period of its history, but for many succeeding ages."-Sketches of the Institutions, &c. of the Romans, p. 43. "Notwithstanding that infanticide was not criminal in the view of the law, it has been thought probable that Rome, at an early period, contained foundling hospitals for the reception of deserted 'children. Mention is made of such houses in the Justinian code; and that orphans were provided for by the state, as well as by charitable individuals, has been proved by the discovery of an ancient document, in the neighbourhood of Placentia, in the year 1747. This curious relic of antiquity which consists of a ponderous copper tablet, five feet in height, and ten in breadth, -contains an inscription of more than 600 lines, purporting that the emperor Trajan had laid out a capital of 1,044,000 sesterces, on mortgage, at 5 per cent. interest, which was to be divided, monthly, among 245 boys and 34 girls, born in wedlock; and two illegitimate children, belonging to the community of Velleia. The same tablet also records a bequest, by one Cornelius, of a smaller amount, for a similar purpose; but it makes no allusion to orphan houses for the reception of the children, nor of the manner in which the money was to be applied." Ibid. p. 44.

This power was exercised, so late as the conspiracy of Catiline; one of whose associates, named Aulus Fabius, was put to death by his father, for attempting to join the rebels. More recently, T. Arius held a domestic court for the trial of his own son, who had plotted against his life; but Augustus having suggested exile as an adequate punishment, the youth was banished to Marseilles." - Blair, p. 238.

48 FORMS IN FREEING A SON - ARROGATIO, ADOPTIO. called PATER FIDUCIARIUS, because he was bound after the third sale to sell him back (remancipare) to the natural father. There were besides present, a LIBRIPENS, who held a brazen balance; five witnesses, Roman citizens, past the age of puberty; and an antestatus, who is supposed to be so named, because he summoned the witnesses by touching the tip of their ears, Hor. Sat. i. 9. 76. In the presence of these, the natural father gave over (mancipabat, i. e. manu tradebat), his son to the purchaser, adding these words, MANCUPO TIBI HUNC FILIUM, QUI MEUS EST. Then the purchaser, holding a brazen coin (sestertius), said, HUNC EGO HOMINEM EX JURE QUIRITIUM MEUM ESSE AIO, ISQUE MIHI EMPTUS EST HOC ERE, ÆNEAQUE LIBRA and having struck the balance with the coin, gave it to the natural father by way of price. Then he manumitted the son in the usual form. But as by the principles of the Roman law, a son, after being manumitted once and again, fell back into the power of his father, this imaginary sale was thrice to be repeated, either on the same day, and before the same witnesses, or on different days, and before different witnesses; and then the purchaser, instead of manumitting him, which would have conferred a jus patronatus on himself, sold him back to the natural father, who immediately manumitted him by the same formalities as a slave (Libra et ære liberatum emittebat, Liv. vi. 14.). Thus the son became his own master (sui juris factus est), Liv. vii. 16.

The custom of selling per æs vel assem et libram, took its rise from this, that the ancient Romans, when they had no coined money, Liv. iv. 60. and afterwards when they used asses of a pound weight, weighed their money, and did not count it.*

In emancipating a daughter, or grandchildren, the same formalities were used, but only once (unica mancipatio sufficiebat); they were not thrice repeated as in emancipating a son. But these form

alities, like others of the same kind, in process of time came to be thought troublesome. Athanasius, [Anastasius I.; see Gibbon, c, xxxix.] therefore, and his nephew Justinian, invented new modes of emancipation. Anastasius I. appointed, that it should be sufficient if a father showed to a judge the rescript of the Emperor for emancipating his son; and Justinian, that a father should go to any magistrate competent, and before him, with the consent of his son, signify that he freed his son from his power by saying, HUNC SUI JURIS ESSE PATIOR,

MEAQUE MANU MITTO.

When a man had no children of his own, lest his sacred rites and names should be lost, he might assume others (extraneos) as his children by adoption.

If the person adopted was his own master (sui juris), it was called ARROGATIO, because it was made at the Comitia Curiata, by proposing a bill to the people (per populi rogationem), Gell. v. 19. [Suet. Octav. 65. Tertium nepotem Agrippam, simulque privignum Tiberium adoptavit in foro, lege Curiatâ.]

If he was the son of another, it was properly called ADOPTIO, and was performed before the Prætor or president of a province, or

The object was to bring the coins of different towns, which were all current at Rome, to a common standard. See Nieb. i. p. 405.

RIGHTS OF MATRONS

OF PROPERTY.

49

any other magistrate (apud quem legis actio erat). The same formalities were used as in emancipation. It might be done in any place, Suet. Aug. 64. The adopted passed into the family, the name, and sacred rites of the adopter, and also succeeded to his fortune. Cicero makes no distinction between these two forms of adoption, but calls both by the general name of Adoptio.*

[RIGHTS OF MATRONS.

"THE Sabine women had saved Rome. Romulus rewarded them with honours for themselves, and the class of matrons. The names of the Sabine wives were given to the curies: exemption was guaranteed to them, and to all married women, for ever, from every kind of household service, except spinning and weaving. A man was to make way for the matron that met him; whoever hurt her modesty by a wanton word or look, was guilty of a capital offence; the right of inheriting on the same footing with a child (by the conventio in manum), was conferred on the wife, if she wished it: but the husband who should abuse this parental power, and sell his wife, as he might a child, was devoted to the infernal gods." — Nieb. i. p. 194.]

5. THE RIGHT OF PROPERTY.

THINGS, with respect to property among the Romans, were variously divided. Some things were said to be of DIVINE RIGHT, others of HUMAN RIGHT: the former were called sacred (res SACRÆ); as altars, temples, or any thing publicly consecrated to the gods by the authority of the pontiffs; or religious (RELIGIOSÆ); as sepulchres, &c.; or inviolable (SANCTE, i. e. aliqua sanctione munita); as the walls and gates of a city, Macrob. Sat. iii. 3.

These things were subject to the law of the pontiffs, and the property of them could not be transferred. Temples were rendered sacred by inauguration, or dedication, that is, by being consecrated by the augurs (consecrata inaugurataque). Whatever was legally consecrated, was ever after unapplicable to profane uses, Plin. Ep. ix. 39. x. 58, 59. 76. Temples were supposed to belong to the gods, and could not be the property of a private person. Things ceased to be sacred by being unhallowed (exauguratione, Liv. i. 55.).

Any place became religious by interring a dead body in it, i. 6. 4. D. de divis. rei.

Sepulchres were held religious, because they were dedicated to the infernal gods (Diis manibus vel inferis). No sepulchre could be built or repaired without the permission of the pontiffs; nor could the

* "Besides these forms, three other conditions were essential; that the adoptive father should be at least eighteen years older than the son, and that he should both be without children of his own, and without reasonable hope of having any; that neither honour, religion, the domestic worship, or peculiar sacrifices of the two families, should receive any attaint by it; that it was without fraud or collusion; and that it had no other object than the apparent one of a bonâ fide adoption. The consideration of these conditions belonged to the college of pontiffs, and if they approved the demand, it was at once admitted in the case of simple affiliation, and referred to the general assembly of the people in that of arrogation; but the emperors took this right into their own hands, and extended it so far as to give permission of adoption to women who were childless." Sketches of the Institutions, &c. of the Romans, p. 54.

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