The Ancient Library

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for ingratitude, in case the slave compelled him to manumit pursuant to the constitution of M. Aure-Hus and L. Verus. (Dig. 40. tit. 9. s. 30.)

It was the duty of the patron to support his .freedman in case of necessity, and if he did not, he lost his patronal rights: the consequence was the same if he brought a capital charge against him. The Lex Aelia Sentia, among its various provi­sions, contained several that related to the rights and duties of the patron.

. A capitis diminutio, either of the Patron or the Libertus, dissolved the relation between them. (See Tacit. Hist. ii. 92, where "jura libertorum " means "jura patronorum," or "jura in libertos.") The relation was dissolved when the Libertus obtained Ingenuitas by the Natalium Restitutio, but not when he merely obtained the jus aureorum annulorum. [!ngenuus.]

The most important of the Patronal rights re­lated to the property of Liberti who died intestate or having made a testament.

The subject, so far as concerns the Ante-Justi­nian period, may be distributed under the two fol­lowing heads : — 1. the ordinary rules of law, and 2. the extraordinary: the former comprehend the rules of the old civil law, and the Edict on the Bonorum Possessio ; and the latter, the Bonorum Possessio contra tabulas Hberti and contra suos non naturales, the Bonorum Possessio contra tabu­las libertae, and the right to a virilis pars which was given by the Lex Papia Poppaea.

By the law of the Twelve Tables, if a freedman died intestate, without sui heredes, the patronus was his heir. This right was viewed as a right of Agnation. The Legitima patronorum tutela was not expressly mentioned in the Twelve Tables, but it was a legal consequence of the rule as to inheritance. (Ulp. Frag. xi. 3.) In the case of an intestate liberta, who could not have a suus heres, the patron was heres. The Senatusconsultum Orfi-tianum, which was passed after Gains wrote (iii. 51), and in the last year but one of the reign of M. Aurelius, made an alteration in this respect. The passage of Ulpian {Frag. xxix. 2), which was written when this Senatusconsultum was in force, says, that if a liberta died intestate, the patron suc­ceeded to her property, because a mother could not have sui heredes ; yet Ulpian himself (lib. 12, ad Sabinmn; Dig. 38. tit. 17. s. 1) says, that whether the mother was Ingenua or Libertina, the children could succeed to her inheritance by the Senatus­consultum Orfitianum. This apparent contradic­tion is removed by the supposition that the Sena­tusconsultum gave the children in such cases an equal right with the patron.

, These patronal rights belonged both to a Patro­nus and a Patrona, and to the liberi of a Patronus. (Ulp. Frag, xxvii.) The male children of the pa­tronus had the same rights as the patronus himself; but the females had only the rights which the Twelve Tables gave to the males, and they had not the Bonorum Possessio contra tabulas testament! liberti ant ab intestate contra suos heredes non naturales, until these rights were given them by the Lex Papia Poppaea. (Ulp..Fr«#. xxix. 4, 5.) A difficulty which is raised by a passage in Jus­tinian's legislation on the patronal rights is dis­cussed by Unterholzner. (Zeitschrift, v. p. 37.) It seems that the children of a Patrona had not by the Twelve Tables the same rights as the children of a Patronus, but the Lex Papia Poppaea probably


made some change in this respect, (Zcitsclirijt> v. p. 43, &c.)

In order that these patronal rights should exist, it was necessary that the libertus must have been made free by a Roman citizen, and have become a Roman citizen by the act of manumission. Ac­cordingly, if a person obtained the citizenship, it was necessary that he should have a special grant of the jus patronatus, in order that he might have patronal rights against his then freedmen, who must also at the same time become Roman citizens. (Plin. Ep. x. 6.) A capitis diminutio, as already observed, either of the patron or the libertus, de­stroyed the patronal rights to the inheritance, (Gains, iii. 51.)

If there were several patroni or patronae, they divided the inheritance equally, though their shares in the libertus when a slave might have been un­equal. These patronal rights resembled a joint-tenancy in English Law, for the survivor or survi­vors of the patroni had all the patronal rights to the exclusion of any children of a deceased patronus. A son of a patron also claimed the in­heritance to the exclusion of the grandson of a patron. If the patroni were all dead, leaving several children, the hereditas was divided among all the children equally (in capita)., pursuant to the law of succession in the case of Agnation. (Gains, iii. 16, 59, &c.)

A Senatusconsultum, which was passed in the time of Claudius, allowed a patron to assign his patronal rights to the inheritance of a libertus, to any of his children whom he had in his power, to the exclusion of the rest. (Dig. 38. tit. 4.)

The Edict extended the Bonorum Possessio to Patroni. The Patronal rights of the Civil Law were founded on an assumed Agnatio : those of the Edict were founded on an assumed Cognatio. The Edict called to the Bonorum Possessio of Liberti, 1. their children ; 2. their heredes legitimi; 3. their cognati, who must of course be descendants ; 4. the familia of the Patronus ; 5. the patronus and pa-trona, and their children and parents, by which provision was made in case the Patronus or Pa­trona had sustained a capitis diminutio, and so could not be called in the fourth order ; 6. the husband or wife of the .freedwoman or freedman ; 7. the cognati of the manumissor.

Originally, if the freedman made a will, he could pass o\er\praeterire) the patron. But by the Edict, unless he left him as much as one half of his property, the patron or his male children could obtain the Bonorum possessio contra tabulas of one half of the property. If the libertus died intestate, leaving no suus heres, except an adopted child, or a wife in manu, or a nurus in the manus of his son, the patron had a bonoruin possessio of one half against these sui heredes. But if the libertus had children of his own blood {naturales} either in his power at the time of his death or emancipated or given in adoption, and if these children were made heredes by his testament or being praeteriti claimed the Bonorum possessio contra tabulas, the patron had no claim on the freedman's property. The patron was not excluded, if the children of the freedman were exheredated. (Gains, iii. 40; Dion Cass. li. 15, and the note of Reimarus.)

By the Lex Papia Poppaea, if a freedman had a property amounting to a hundred thousand sestertii and fewer.than three, children, the patronus had an

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