De his qui sui vel alieni iuris sunt
(Concerning those who are their own masters, and those that are under the control of others.)
1 Gaius libro primo institutionum. De iure personarum alia divisio sequitur, quod quaedam personae sui iuris sunt, quaedam alieno iuri subiectae sunt. videamus itaque de his, quae alieno iuri subiectae sunt: nam si cognoverimus quae istae personae sunt, simul intellegemus quae sui iuris sunt. dispiciamus itaque de his, quae in aliena potestate sunt. 1Igitur in potestate sunt servi dominorum (quae quidem potestas iuris gentium est: nam apud omnes peraeque gentes animadvertere possumus dominis in servos vitae necisque potestatem fuisse) et quodcumque per servum adquiritur, id domino adquiritur. 2Sed hoc tempore nullis hominibus, qui sub imperio Romano sunt, licet supra modum et sine causa legibus cognita in servos suos saevire. nam ex constitutione divi Antonini qui sine causa servum suum occiderit, non minus puniri iubetur, quam qui alienum servum occiderit. sed et maior asperitas dominorum eiusdem principis constitutione coercetur.
1 Gaius, 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.
2 Ulpianus libro octavo de officio proconsulis. Si dominus in servos saevierit vel ad impudicitiam turpemque violationem compellat, quae sint partes praesidis, ex rescripto divi Pii ad Aelium Marcianum proconsulem baeticae manifestabitur. cuius rescripti verba haec sunt: ‘dominorum quidem potestatem in suos servos illibatam esse oportet nec cuiquam hominum ius suum detrahi: sed dominorum interest, ne auxilium contra saevitiam vel famem vel intolerabilem iniuriam denegetur his qui iuste deprecantur. ideoque cognosce de querellis eorum, qui ex familia Iulii Sabini ad statuam confugerunt, et si vel durius habitos quam aequum est vel infami iniuria affectos cognoveris, veniri iube ita, ut in potestate domini non revertantur. qui si meae constitutioni fraudem fecerit, sciet me admissum severius exsecuturum’. divus etiam Hadrianus Umbriciam quandam matronam in quinquennium relegavit, quod ex levissimis causis ancillas atrocissime tractasset.
2 Ulpianus, 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.
3 Gaius libro primo institutionum. Item in potestate nostra sunt liberi nostri, quos ex iustis nuptiis procreaverimus: quod ius proprium civium Romanorum est.
3 Gaius, Institutes, Book I. Our children also who are born in lawful marriage are under our control; which is a law peculiar to Roman citizens.
4 Ulpianus libro primo institutionum. Nam civium Romanorum quidam sunt patres familiarum, alii filii familiarum, quaedam matres familiarum, quaedam filiae familiarum. patres familiarum sunt, qui sunt suae potestatis sive puberes sive impuberes: simili modo matres familiarum; filii familiarum et filiae, quae sunt in aliena potestate. nam qui ex me et uxore mea nascitur, in mea potestate est: item qui ex filio meo et uxore eius nascitur, id est nepos meus et neptis, aeque in mea sunt potestate, et pronepos et proneptis et deinceps ceteri.
4 Ulpianus, 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.
5 Idem libro trigensimo sexto ad Sabinum. Nepotes ex filio mortuo avo reccidere solent in filii potestatem, hoc est patris sui: simili modo et pronepotes et deinceps vel in filii potestate, si vivit et in familia mansit, vel in eius parentis, qui ante eos in potestate est. et hoc non tantum in naturalibus, verum in adoptivis quoque iuris est.
5 The 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.
6 Idem libro nono ad Sabinum. Filium eum definimus, qui ex viro et uxore eius nascitur. sed si fingamus afuisse maritum verbi gratia per decennium, reversum anniculum invenisse in domo sua, placet nobis Iuliani sententia hunc non esse mariti filium. non tamen ferendum Iulianus ait eum, qui cum uxore sua adsidue moratus nolit filium adgnoscere quasi non suum. sed mihi videtur, quod et Scaevola probat, si constet maritum aliquamdiu cum uxore non concubuisse infirmitate interveniente vel alia causa, vel si ea valetudine pater familias fuit, ut generare non possit, hunc, qui in domo natus est, licet vicinis scientibus, filium non esse.
6 The 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.
7 Idem libro vicensimo quinto ad Sabinum. Si qua poena pater fuerit affectus, ut vel civitatem amittat vel servus poenae efficiatur, sine dubio nepos filii loco succedit.
7 The 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.
8 Idem libro vicensimo sexto ad Sabinum. Patre furioso liberi nihilominus in patris sui potestate sunt: idem et in omnibus est parentibus, qui habent liberos in potestate. nam cum ius potestatis moribus sit receptum nec possit desinere quis habere in potestate, nisi exierint liberi quibus casibus solent, nequaquam dubitandum est remanere eos in potestate. quare non solum eos liberos in potestate habebit, quos ante furorem genuit, verum et si qui ante furorem concepti in furore editi sunt. sed et si in furore agente eo uxor concipiat, videndum an in potestate eius nascatur filius: nam furiosus licet uxorem ducere non possit, retinere tamen matrimonium potest: quod cum ita se habeat, in potestate filium habebit. proinde et si furiosa sit uxor, ex ea ante conceptus in potestate nascetur: sed et in furore eius conceptus ab eo qui non furebat sine dubio in potestate nascetur, quia retinetur matrimonium. sed et si ambo in furore agant et uxor et maritus et tunc concipiat, partus in potestate patris nascetur, quasi voluntatis reliquiis in furiosis manentibus: nam cum consistat matrimonium altero furente, consistet et utroque. 1Adeo autem retinet ius potestatis pater furiosus, ut et adquiratur illi commodum eius, quod filius adquisivit.
8 The 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.
9 Pomponius libro sexto decimo ad Quintum Mucium. Filius familias in publicis causis loco patris familias habetur, veluti ut magistratum gerat, ut tutor detur.
9 Pomponius, 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.
10 Ulpianus libro quarto ad legem Iuliam et Papiam. Si iudex nutriri vel ali oportere pronuntiaverit, dicendum est de veritate quaerendum, filius sit an non: neque enim alimentorum causa veritati facit praeiudicium.
10 Ulpianus, 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.
11 Modestinus libro primo pandectarum. Inviti filii naturales vel emancipati non rediguntur in patriam potestatem.
11 Modestinus, Pandects, Book I. Illegitimate or emancipated children cannot be brought under paternal authority against their consent.