SERFS though free were in some respects not far removed from slaves. They were found usually in country districts in the provinces, and were often included under the general term "cultivators" (coloni), which was also applied in republican and early imperial times to small farmers, who were freemen not only in law but in practice. The origin and history of this serfdom is not clear. It may very possibly have been developed on the example of Marcus Aurelius' settlement in Italy of numbers of the peoples conquered in the Marcomannic War, and possibly on the example of the German "Liten" (laeti), settled on the Gallic border. But besides conquered tribes retained in their own country or settled in other countries, voluntary contract under pressure of poverty and statutes against beggary probably added to the number. The maintenance of the land tax introduced by Diocletian made the retention of the cultivators on the several estates a necessity.

The characteristic of a serf was that he and his descendants were inseparably attached to the land, and as a rule to one particular farm, specified in the government census, and held under a lord. If this particular part of the lord's estate was over-supplied with cultivators, he might transfer serfs permanently to another part which was undersupplied, in accordance with the purpose of the institution that of keeping the land under due cultivation and enabling it to bear taxes. But except in such a case the serfs could not be separated from the farm nor the farm from them. They were part of its permanent stock. If the lord sold a part of the land, he must convey with it a proportionate number of the serfs belonging. If a serf wandered or was stolen, or became a cleric without his lord's consent, he could, whatever was the social position to which he had attained, be reclaimed by his lord just as if he , were a runaway slave. And for some offences, e.g. marrying a freewoman, he was liable by statute, like a slave, to chains or stripes. He was not admissible to the army, but as a free man he paid poll tax. He could sell the surplus produce of his farm, and his savings, called his peculium, were in a sort his property but were inalienable except in the way of trade; on his death (e.g. as a monk), childless and intestate, they passed to his lord, but usually would pass to his children or other successors on his farm. He might (apparently) own land, and would be entered in the Register as its holder and be liable for the land tax, whereas the tax on the farm to which he was attached as a serf would usually be collected from the lord. A serf was bound to pay a rent to his lord but the rent was certain, usually a fixed portion of the produce but sometimes a sum of money. Against any attempt of the lord to increase the rent, he could bring the case into court, but on all other grounds he was disabled from suing his lord. The rent was called canon or pensio.

The union of serfs was held to be a marriage and accordingly the children were serfs, and even the children of a serf by a freewoman or a slave followed the condition of the father, until Justinian, pressed by the

C. MED. H. VOL. II. CH. III.

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analogy of the rule regarding slaves' unions, first made a serf's offspring by a slavewoman to be slave (530), and afterwards from the love of liberty made a serf's offspring by a freewoman to be free (533. He confirmed this again in 537 and 539, though, by the later law, he required the children, though free and retaining their property, to be permanently attached to the farm. Finally in 540, influenced by representations of the danger of thus depleting the land of its proper cultivators, he restored the old law and made the children serfs, without affecting the mother's status as a freewoman. His successors made such children personally free.

It was difficult for a serf to improve his status. Justinian abolished (c. 531) any claim to throw off serfdom by prescription, but allowed anyone who had been consecrated as a bishop to be free from serfdom as from slavery (546). Orthodoxy however was essential, and any serf who encouraged Donatist meetings on his land was to be beaten, and if he persisted was fined one-third of his peculium.

Serfs were sometimes called originarii from being in the class by birth; censiti from being enrolled in the census-register; usually adscripti or adscripticii from being enrolled as of a certain farm; tributarii from paying poll tax. Another term, inquilini, which appears in the Digest in the beginning of the third century, and in earlier inscriptions, appears to denote a similar class, possibly serfs living in huts on the land and employed either as cultivators or herdsmen or otherwise. The clear recognition of serfs as half-free is seen chiefly in laws since Constantine. After Justinian there is little said of them.

PATRIA POTESTAS. The father (or grandfather) when regularly married, as head of the family (paterfamilias), had in early times absolute power over the other members whether sons or daughters. And his wife, if married by the ancient forms, ranked as a daughter. In imperial times this relation was largely modified. She remained outside her husband's family, who instead of taking her whole property, received only a dowry of which he was rather the accountable manager than the beneficial owner. The children unless emancipated had no property of their own, any more than slaves had. Whatever came to them, from any source, passed in strict law at once to the father, who could do what he liked with it. This "fatherly power" endured irrespectively of the age or social or political position of his sons and daughters. A man of full age, married, with children and occupying a high office was, unless formally emancipated, still under his father's power and had only a peculium like slaves. He could sue and be sued only in his father's name and in law for his father's account. Nor could he compel his father to emancipate him, and if emancipated himself he did not thereby carry his children with him, unless expressly included in the emancipation. If his father died, his children fell into his own power; if he died first, his children remained under his father's power. Loss of citizenship had the same effect as death.

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Constantine in 319 made an important innovation. He enacted that the father's full right over what came to his children should be restricted to what came from himself or his relatives; and that in anything that came from their mother, the head of the family should have only the usufruct and the administration, but with no right of alienation or mortgage. If the children died (it was enacted in 439), their property, apart from the usufruct, passed to their children, or, if there were none, to their father as next heir, not to the grandfather, who if alive would be enjoying the usufruct. When the head of the family emancipated a child, he lost the usufruct, but was authorised to take one-third of the property. Justinian (529) repealed this and gave instead to the father (or other head of the family) the right to retain one-half of the usufruct. Further this arrangement was made to apply not only to what came from the mother but (excepting, as we shall see, camp-peculium) to everything which the children acquired by their own labour or by gift or will from other than their father's relatives. The administration which accompanied the usufruct was not subject to any interference or impeachment by the children, who however were to be supported by their father. The father retained the usufruct, even if he married again.

Soldiers from the time of Augustus were privileged to treat as their own property, disposable as they chose in their life or by their will, all gains made while in the army and in connexion therewith, including gifts from comrades. Such acquisitions were called their castrensepeculium. On this analogy Constantine (326) granted the like privilege to the court officials (palatini), and later Emperors extended it to provincial governors, judicial assessors, advocates, and others in the imperial service (which was often called militia); and eventually (472) to bishops, presbyters, and deacons of the orthodox faith. Wills disposing of such castrense, or quasi-castrense peculium, were specially exempted from challenge by children or parents on the ground of failure in due regard. In case of intestacy, before Justinian altered the law in 543, the intestate's camp-peculium passed to the father as if, like any other peculium, it had been his all along

As regards the persons of (free) children the father had the power and duty of correction and in early times presumably could sell or kill them, as he could slaves. But this right was rarely exercised, at least in historical times, though not until Constantine (319) was killing a son formally forbidden and ranked as parricide. Sale (with a right however of redemption) was possible only in case of a newly-born child, under pressure of extreme poverty. Exposure of a child, at least after the second century, made the parent liable to punishment. Exposed children of whatever class could not be brought up as slaves or serfs or freed, but were to be deemed freeborn and independent (529). Previously to this law of Justinian it was left to the bringer-up to make them slave or free at his choice.

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Adoption. Guardianship

The dissolution of the natural father's power over his children, whether in order to make the child independent (sui juris), or to give him by adoption into another's power, was in old times effected by a complicated ceremonial. This was abolished by Justinian (531), who substituted in the case of adoption a declaration before a competent magistrate, both parties being present, and, in the case of emancipation, either the like simple declaration, or, according to a law of Anastasius (502), if the son or daughter were of age and not present in court, a declaration, supported by a petition to the Emperor, with his grant of the prayer and the consent of the child, if not an infant.

By ADOPTION in older times a person passed under the fatherly power of one who was not his natural father. If he was not independent, he passed entirely from one family to another: his natural father no longer controlled him or was responsible for him, the son's acquisitions did not pass to him, nor had the son any right to his inheritance. The adoptive father stood in the natural father's place, and could retain or emancipate him. Justinian (530) altered this in all cases where the adopter was an outsider. The adopted person retained all his rights and position in his natural father's family, and simply acquired a right of succession to the adopter if he died intestate. But if the adopter was the grandfather or other ascendant either on the father's or mother's side, the effect of adoption remained as of old.

Adoption of a person who was sui juris was often called adrogation, and required a rescript from the Emperor. If the person to be adopted was under age (impubes), inquiry was made whether it was for his advantage, and the adopter had to give security to a public officer for restoration of all the adopted's property to his right heirs, if he died under age. If he emancipated him without lawful cause, or died, he was bound by a law of Antoninus Pius to leave him one-fourth part of his property, besides all that belonged to the adopted person himself. If a person adrogated had children, they passed with him under the power of the adopter. In all cases it was required that the adopter should be at least eighteen years older than the adopted.

GUARDIANSHIP. In the old law guardians (tutores) were required not only for young persons for a time, but for women throughout their life, though the authority they exercised was often nominal. Guardianship for women was criticised by Gaius as irrational, and it ceased probably before Constantine. By Justinian's time, guardianship affected only impuberes. He fixed the age for puberes at fourteen for males, twelve for females. Up to that age, if their father or other head of the family was dead, or if they were freed from his power, they required a guardian to authorise any legal act which was to bind them. Without such authority they could bind others but not themselves, the rule being that they could improve but could not impair their estate. After the age of puberty the law regarded them as capable of taking the responsibility

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of their own acts, but practically they had not the requisite knowledge and discretion. No one could deal safely with them, because of the risk of the contract or other business being rescinded, if the praetor found that it was equitable to do so. To meet this difficulty a curator was often appointed to guide young persons in the conclusion of particular business, and eventually was appointed to act regularly in matters of business until the ward became 25 years old. It was the analogy of madmen, etc. (mentioned below), which probably suggested this course. From the third century allowance of age (venia aetatis) could be obtained from the Emperor by youths of 20 years, women of 18, on evidence of fitness. Justinian however (529) restrained them from all sale or mortgage of land, unless specially authorised.

A guardjan was appointed by the father's will. In default of such appointment, the mother or grandmother had the first claim by Justinian's latest legislation, and then the nearest male in order of succession to the inheritance. If such were disqualified, the praetor at Rome, the governors in the provinces, and if the estate was small, the towndefenders, made the appointment of both guardians and curators. Guardianship was regarded as a public office, and no one was excused from undertaking it, except for approved cause. Guardians and curators were liable for any loss caused by their act or neglect. They could not marry their wards, unless approved by the ward's father or by his will.

Mothers had been allowed (since 390) to act in these capacities for their own children, but by Justinian's final legislation, had to renounce the right of re-marriage and the benefit of the Velleian Senate's decree (see below). If they broke their promise, they incurred infamy and became incapable of inheriting from any but near relatives, besides losing part of their property.

Severus (195) prohibited all sale of a ward's land in the country or suburbs unless authorised by the father's will or by the praetor. A subsequent edict directed everything else to be sold and reduced into money. Later Emperors (326 and after) reversed this direction, and partly on the ground of probable attachment of the ward to the family house, and the utility of old family slaves, and partly from the difficulty of finding good investments, ordered all the property to be preserved, unless land had to be purchased or loans made in order to supply the ward's needs.

Madmen and spendthrifts, pronounced such by the praetor, were by the XII Tables under the care of their agnates (relatives through males) but in practice under a curator appointed by the praetor or provincial governor. So also a curator was appointed, without limit of age in the ward, for the demented, or deaf and dumb, or for persons incapacitated for business by chronic disease. The practice of making contracts by oral stipulation brought deaf and dumb into this category.