De statu hominum
(Concerning the Condition of Men.)
1 Gaius libro primo institutionum. Omne ius quo utimur vel ad personas pertinet vel ad res vel ad actiones.
1 Gaius, Institutes, Book I. All the law which We make use of relates either to persons, things, or actions.
2 Hermogenianus libro primo iuris epitomarum. Cum igitur hominum causa omne ius constitutum sit, primo de personarum statu ac post de ceteris, ordinem edicti perpetui secuti et his proximos atque coniunctos applicantes titulos ut res patitur, dicemus.
2 Hermogenianus, Epitomes of Law, Book I. Therefore, since all law has been established on account of mankind, we shall first speak of the condition of persons, and afterwards of other matters, following the order of the Perpetual Edict, and adding to them the titles as arranged and connected with them, as far as the matter permits.
3 Gaius libro primo institutionum. Summa itaque de iure personarum divisio haec est, quod omnes homines aut liberi sunt aut servi.
3 Gaius, Institutes, Book I. The principal division of the law of persons is as follows, namely, that all men are either free or slaves.
4 Florentinus libro nono institutionum. Libertas est naturalis facultas eius quod cuique facere libet, nisi si quid vi aut iure prohibetur. 1Servitus est constitutio iuris gentium, qua quis dominio alieno contra naturam subicitur. 2Servi ex eo appellati sunt, quod imperatores captivos vendere ac per hoc servare nec occidere solent: 3mancipia vero dicta, quod ab hostibus manu capiantur.
4 Florentinus, Institutes, Book IX. Liberty is the natural power of doing whatever anyone wishes to do unless he is prevented in some way, by force or by law. 1Slavery is an institution of the Law of Nations by means of which anyone may subject one man to the control of another, contrary to nature. 2Slaves are so called for the reason that military commanders were accustomed to sell their captives, and in this manner to preserve them, instead of putting them to death. 3They are styled mancipia, because they are taken by the hands of their enemies.
5 Marcianus libro primo institutionum. Et servorum quidem una est condicio: liberorum autem hominum quidam ingenui sunt, quidam libertini. 1Servi autem in dominium nostrum rediguntur aut iure civili aut gentium: iure civili, si quis se maior viginti annis ad pretium participandum venire passus est: iure gentium servi nostri sunt, qui ab hostibus capiuntur aut qui ex ancillis nostris nascuntur. 2Ingenui sunt, qui ex matre libera nati sunt: sufficit enim liberam fuisse eo tempore quo nascitur, licet ancilla concepit. et e contrario si libera conceperit, deinde ancilla pariat, placuit eum qui nascitur liberum nasci. nec interest iustis nuptiis concepit an volgo, quia non debet calamitas matris nocere ei qui in ventre est. 3Ex hoc quaesitum est, si ancilla praegnas manumissa sit, deinde ancilla postea facta aut expulsa civitate pepererit, liberum an servum pariat. et tamen rectius probatum est liberum nasci et sufficere ei qui in ventre est liberam matrem vel medio tempore habuisse.
5 Marcianus, Institutes, Book I. One condition is common to all slaves; but of persons who are free some are born such, and others are manumitted. 1Slaves are brought under our ownership either by the Civil Law or by that of Nations. This is done by the Civil Law where anyone who is over twenty years of age permits himself to be sold for the sake of sharing in his own price. Slaves become our property by the Law of Nations when they are either taken from the enemy, or are born of our female slaves. 2Persons are born free who are born from a free mother, and it is sufficient for her to have been free at the time when her child was born, even though she may have been a slave when she conceived; and, on the other hand, if she was free when she conceived, and was a slave when she brought forth, it has been established that her child is born free, nor does it make any difference whether she conceived in a lawful marriage or through promiscuous intercourse; because the misfortune of the mother should not be a source of injury to her unborn child. 3Hence the following question arose, where a female slave who was pregnant, has been manumitted, and is afterwards again made a slave, or, after having been expelled from the city, should bring forth a child, whether that child should be free or a slave? It was very properly established that it was born free; and that it is sufficient for a child who is unborn that its mother should have been free during the intermediate time.
6 Gaius libro primo institutionum. Libertini sunt, qui ex iusta servitute manumissi sunt.
6 Gaius, Institutes, Book I. Freedmen are those who are manumitted from lawful slavery.
7 Paulus libro singulari de portionibus, quae liberis damnatorum conceduntur. Qui in utero est, perinde ac si in rebus humanis esset custoditur, quotiens de commodis ipsius partus quaeritur: quamquam alii antequam nascatur nequaquam prosit.
7 Paulus, On the Shares Granted to the Children of Condemned Persons. A child in its mother’s womb is cared for just as if it were in existence, whenever its own advantage is concerned; although it cannot be of any benefit to anyone else before it is born.
8 Papinianus libro tertio quaestionum. Imperator Titus Antoninus rescripsit non laedi statum liberorum ob tenorem instrumenti male concepti.
8 Papinianus, Questions, Book III. The Emperor Titius Antoninus stated in a Rescript that the status of children could not be prejudiced on account of the tenor of an improperly drawn instrument.
9 Idem libro trigensimo primo quaestionum. In multis iuris nostri articulis deterior est condicio feminarum quam masculorum.
9 The Same, Questions, Book XXXI. In many parts of our law the condition of women is worse than that of men.
10 Ulpianus libro primo ad Sabinum. Quaeritur: hermaphroditum cui comparamus? et magis puto eius sexus aestimandum, qui in eo praevalet.
10 Ulpianus, on Sabinus, Book I. The question has been raised to which sex shall we assign an hermaphrodite? And I am of the opinion that its sex should be determined from that which predominates in it.
11 Paulus libro octavo decimo responsorum. Paulus respondit eum, qui vivente patre et ignorante de coniunctione filiae conceptus est, licet post mortem avi natus sit, iustum filium ei ex quo conceptus est esse non videri.
11 Paulus, Opinions, Book XVIII. Paulus was of the opinion that a child who was conceived during the life of its grandfather, while the latter was ignorant of the connexion of his daughter, even though it was born after the death of its grandfather, was not the lawful son of him by whom it was begotten.
12 Idem libro nono decimo responsorum. Septimo mense nasci perfectum partum iam receptum est propter auctoritatem doctissimi viri Hippocratis: et ideo credendum est eum, qui ex iustis nuptiis septimo mense natus est, iustum filium esse.
12 The Same, Opinions, Book XIX. It is now generally held upon the authority of that most learned man Hippocrates, that a child perfectly formed may be born in the seventh month; and therefore it is established that a child who is born in lawful marriage after seven months is legitimate.
13 Hermogenianus libro primo iuris epitomarum. Servus in causa capitali fortunae iudici a domino commissus, etsi fuerit absolutus, non fit liber.
13 Hermogenianus, Epitomes of Law, Book I. A slave abandoned by his master to fortune in the trial of a capital case does not become free even if he should be acquitted.
14 Paulus libro quarto sententiarum. Non sunt liberi, qui contra formam humani generis converso more procreantur: veluti si mulier monstrosum aliquid aut prodigiosum enixa sit. partus autem, qui membrorum humanorum officia ampliavit, aliquatenus videtur effectus et ideo inter liberos connumerabitur.
14 Paulus, Sentences, Book IV. Those beings are not children who are born formed in some way which is contrary to the likeness of the human race; as, for instance, where a woman brings forth something monstrous or unnatural. A child, however, which has more than the ordinary number of human limbs seems to be, to some extent, completely formed, and therefore may be included among children.
15 Tryphoninus libro decimo disputationum. Arescusa, si tres pepererit libera esse testamento iussa, primo partu unum, secundo tres peperit: quaesitum est, an et quis eorum liber esset. haec condicio libertati adposita iam implenda mulieri est. sed non dubitari debet, quin ultimus liber nascatur: nec enim natura permisit simul uno impetu duos infantes de utero matris excedere, ut ordine incerto nascentium non appareat, uter in servitute libertateve nascatur. incipiente igitur partu existens condicio efficit, ut ex libera edatur quod postea nascitur, veluti si quaelibet alia condicio libertati mulieris adposita parturiente ea existat. vel manumissa sub hac condicione, si decem milia heredi Titiove dederit, eo momento quo parit per alium impleverit condicionem: iam libera peperisse credenda est.
15 Tryphoninus, Controversies, Book X. A slave named Arescusa was declared to be free by will if she brought forth three children; and at her first delivery she had one child, and at her second she had three. The question then arose as to which of the said children were free? The condition on which her freedom pended had to be fulfilled by the woman, and there was no doubt that the last child was born free; for nature does not permit two children to come forth from their mother’s womb at the same time, by one movement, so that the order of birth being uncertain, it does not appear which one was born in slavery, and which was born free. Therefore, the condition having been fulfilled at the time the birth began, namely that the child should be born of a free woman, it is the one born last, just as if any other condition imposed on the freedom of the woman had been fulfilled at the moment of her delivery; for example, that she should be manumitted on condition that she gave ten thousand sesterces to the heir, or to Titius; and at the instant when she was delivered she fulfilled the condition through the agency of someone else; it would necessarily be held that she was already a free woman when she brought forth the child.
16 Ulpianus libro sexto disputationum. Idem erit, si eadem Arescusa primo duo pepererat, postea geminos ediderat: dicendum est enim non posse dici utrumque ingenuum nasci, sed eum qui posterior nascitur. quaestio ergo facti potius est, non iuris.
16 Ulpianus, Controversies, Book VI. The same thing should take place if Arescusa had first brought forth two children, and afterwards brought forth twins; for it must be held that both the latter are not born free, but only the one who was born last. The question, however, is rather one of fact than of law.
17 Idem libro vicensimo secundo ad edictum. In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt.
17 The Same, On the Edict, Book XXII. According to a Constitution of the Emperor Antoninus, all those who were living in the Roman world were made Roman citizens.
18 Idem libro vicensimo septimo ad Sabinum. Imperator Hadrianus Publicio Marcello rescripsit liberam, quae praegnas ultimo supplicio damnata est, liberum parere et solitum esse servari eam, dum partum ederet. sed si ei, quae ex iustis nuptiis concepit, aqua et igni interdictum est, civem Romanum parit et in potestate patris.
18 The Same, on Sabinus, Book XXVII. The Emperor Hadrian set forth in a Rescript addressed to Publicius Marcellus, that if a free woman after having been condemned to death while pregnant brought forth a child it would be free; and that it was customary to hold her until she was delivered. Also, where a woman who has conceived in lawful marriage is interdicted from fire and water, the child she brings forth is a Roman citizen, and remains under the control of its father.
19 Celsus libro vicensimo nono digestorum. Cum legitimae nuptiae factae sint, patrem liberi sequuntur: volgo quaesitus matrem sequitur.
19 Celsus, Digest, Book XXIX. When children are born in lawful marriage they follow the condition of the father, but one that is conceived in promiscuous intercourse follows the condition of the mother.
20 Ulpianus libro trigensimo octavo ad Sabinum. Qui furere coepit, et statum et dignitatem in qua fuit et magistratum et potestatem videtur retinere, sicut rei suae dominium retinet.
20 Ulpianus, on Sabinus, Book XXXVIII. Anyone who becomes insane is considered to retain the position and rank he previously held, and also his magistracy and authority; just as he retains the ownership of his property.
21 Modestinus libro septimo regularum. Homo liber, qui se vendidit, manumissus non ad suum statum revertitur, quo se abdicavit, sed efficitur libertinae condicionis.
21 Modestinus, Rules, Book VII. Where a freeman sells himself and is afterwards manumitted, he does not recover his former condition of which he deprived himself, but belongs to the class of freedmen.
22 Idem libro duodecimo responsorum. Herennius Modestinus respondit, si eo tempore enixa est ancilla, quo secundum legem donationis manumissa esse debuit, cum ex constitutione libera fuerit, ingenuum ex ea natum.
22 The Same, Opinions, Book XII. Herennius Modestinus held that if a female slave brought forth a child at the time when, according to the terms of the donation which disposed of her, she should be manumitted; since she was free by the Imperial Constitution, the child born of her is freeborn.
23 Idem libro primo pandectarum. Volgo concepti dicuntur qui patrem demonstrare non possunt, vel qui possunt quidem, sed eum habent, quem habere non licet. qui et spurii appellantur παρὰ τὴν σποράν.
23 The Same, Pandects, Book I. The term “conceived in promiscuous intercourse” is applicable to those who cannot show who their father is, or if they can do so, he is not their lawful father, and these are called spurious, from spora.
24 Ulpianus libro vicensimo septimo ad Sabinum. Lex naturae haec est, ut qui nascitur sine legitimo matrimonio matrem sequatur, nisi lex specialis aliud inducit.
24 Ulpianus, On Sabinus, Book XXVII. The law of nature is that a child born out of lawful matrimony follows the mother, unless a special law provides otherwise.
25 Idem libro primo ad legem Iuliam et Papiam. Ingenuum accipere debemus etiam eum, de quo sententia lata est, quamvis fuerit libertinus: quia res iudicata pro veritate accipitur.
25 The Same, On the Lex Julia et Papia, Book I. We should consider him to be freeborn who has been legally declared such, even though he is in fact a freedman; for the reason that whatever is judicially determined is accepted as truth.
26 Iulianus libro sexagensimo nono digestorum. Qui in utero sunt, in toto paene iure civili intelleguntur in rerum natura esse. nam et legitimae hereditates his restituuntur: et si praegnas mulier ab hostibus capta sit, id quod natum erit postliminium habet, item patris vel matris condicionem sequitur: praeterea si ancilla praegnas subrepta fuerit, quamvis apud bonae fidei emptorem pepererit, id quod natum erit tamquam furtivum usu non capitur: his consequens est, ut libertus quoque, quamdiu patroni filius nasci possit, eo iure sit, quo sunt qui patronos habent.
26 Julianus, Digest, Book LXIX. Those who are unborn are, by almost every provision of the Civil Law, understood to be already in existence; for estates legally descend to them, and if a pregnant woman is taken by the enemy, her child has the right of postliminium, and it also follows the condition of the father, or mother. Moreover, if a pregnant female slave is stolen, even after she may have brought forth in the hands of a purchaser in good faith, her child being stolen property is not acquired by use. The result of this is that a manumitted slave, also, as long as a son can be born to his patron is considered to hold the same position under the law as those who have patrons living.