1Gaius, Institutes, Book I. Another division of persons follows according to law, some of whom are their own masters, and some are subject to the control of others. We shall now consider those who are subject to the control of others; for if we know who these persons are, we shall at once understand who those are that are their own masters. Let us then examine those who are under the control of others. 1Thus, slaves are under the power of their masters, and this power is derived from the Law of Nations, for we may perceive that among nearly all nations masters have the power of life and death over their slaves, and whatever is acquired by a slave is acquired by his master. 2But, at present, it is not permitted to any persons living under Roman dominion to be guilty of cruelty to their slaves which is atrocious, or without a cause recognized by the law. For, according to a Constitution of the Divine Antoninus, anyone who kills his slave without a cause shall be punished as severely as one who kills the slave of another; the inordinate severity of masters is also repressed by a Constitution of the same Emperor.

2Ulpianus, Concerning the Office of Proconsul, Book VIII. Where a master is cruel to his slaves and forces them to licentiousness or to disgraceful violation, the course to be taken by the presiding judge is disclosed by a Rescript of the Divine Pius addressed to Julius Marcianus, Proconsul of Bætica. These are the terms of the Rescript: “It is proper that the power of masters over their slaves should remain unimpaired, and that no man should be deprived of his right; but it is to the interest of the masters themselves that relief from cruelty, hunger, or intolerable injury, should not be denied to those who justly implore it. Therefore, take cognizance of the complaints of those slaves of Julius Sabinus who fled for refuge to the Imperial statue; and if you find that they have been treated with greater severity than was proper, or subjected to disgraceful outrage, order them to be sold, under such conditions that they may not be restored to the power of their master; and if he violates this My Constitutions, let him know that he will be more severely punished”. The Divine Hadrian also, banished for five years a certain matron named Umbricia, because she had treated her female slaves with atrocious cruelty for very trivial reasons.

3Gaius, Institutes, Book I. Our children also who are born in lawful marriage are under our control; which is a law peculiar to Roman citizens.

4Ulpianus, Institutes, Book I. Certain Roman citizens are fathers of families, others are sons of families, some are mothers of families, others again are daughters of families. Those are fathers of families who are their own masters, whether they have arrived at puberty or not; in the same manner those who are under the control of others are either the mothers of families, or the sons or daughters of families. For any child who is born of me and my wife is under my control; also a child born of my son and his wife, that is to say my grandson and granddaughter, are also under my control, as well as my great-grandson and great-granddaughter, and so on with reference to other descendants.

5The Same, On Sabinus, Book XXXVI. Grandsons, after the death of their paternal grandfather, usually come under the control of his son, that is, of their own father. In like manner, great-grandchildren and other descendants also come under the control of a son, if he is living, and remains in the family; or under that of an ascendant who precedes them in authority. This is also the law not only concerning natural children but also with reference to those who have been adopted.

6The Same, On Sabinus, Book IX. We define a son to be a male child born of a man and his wife. But if we suppose the husband was absent, for example for the term of ten years, and on his return finds a child a year old in his house, our opinion coincides with that of Julianus, that this is not the son of the husband. Nevertheless, Julianus says, it ought not to be tolerated that a man, who has lived constantly with his wife, should refuse to acknowledge his son as not being his own. It appears to me, however, (and this Scævola also holds), that if it should appear that a husband had not cohabited with his wife for some time, because of disease, or for some other reason, or if he was in such a condition of ill health that he could not procreate, a child born in his house, although this was known to the neighbors, is not his son.

7The Same, On Sabinus, Book XXV. Where a father has been condemned to punishment by which he cither loses his citizenship, or is subjected to penal servitude, there is no doubt that his grandson takes the place of his son.

8The Same, On Sabinus, Book XXVI. Where a father is insane, his child, nevertheless, remains under his control. The case is the same with all ascendants who have children subject to their authority, for the right of paternal control having been established by custom, no one can cease to have persons under it except where children are released from the same as they are under certain circumstances, and there is no question whatever that they still remain subject to his authority. For this reason a father not only, retains under his control those children whom he begat before he became insane, but also any who were conceived before his insanity developed, and were born while it existed. Moreover, if his wife conceives while he is insane, it must be considered whether the child is born under his control or not; for although an insane person cannot marry, he can still retain his matrimonial condition; and since this is the case he will have his son under his control. In like manner, if his wife becomes insane, a child conceived by her previous to her insanity is born under his control; but if it is conceived while she was insane and her husband was not, it undoubtedly is born under his control, for the reason that the marriage still exists. But if both husband and wife are insane, and she then conceives, the child is born under the control of its father; for it is presumed that insane persons still have some will remaining; and, as the marriage relation continues while one or the other is insane, it also does so when both are in that condition. 1Moreover, an insane father retains his paternal authority to such an extent that everything acquired by his son belongs to him.

9Pomponius, On Quintus Mucius, Book XVI. In all matters relating to the public interest the son of a family takes the place of the father of a family; for instance, where he discharges the duty of a magistrate, or is appointed a guardian.

10Ulpianus, On the Lex Julia et Papia, Book IV. Where a judge decides that a child is to be brought up or supported, it should be held that it must be certainly ascertained whether it is his son or not; a ruling as to support cannot prejudice the truth.

11Modestinus, Pandects, Book I. Illegitimate or emancipated children cannot be brought under paternal authority against their consent.