De liberis exhibendis, item ducendis
(Concerning the interdict which has reference to the production of children and their recovery.)
1 Ulpianus libro septuagensimo primo ad edictum. Ait praetor: ‘Qui quaeve in potestate Lucii Titii est, si is eave apud te est dolove malo tuo factum est, quo minus apud te esset, ita eum eamve exhibeas’. 1Hoc interdictum proponitur adversus eum, quem quis exhibere desiderat eum, quem in potestate sua esse dicit. et ex verbis apparet ei, cuius in potestate est, hoc interdictum conpetere. 2In hoc interdicto praetor non admittit causam, cur apud eum sit is, qui exhiberi debet, quemadmodum in superiore interdicto, sed omnimodo restituendum putavit, si in potestate est. 3Si vero mater sit, quae retinet, apud quam interdum magis quam apud patrem morari filium debere (ex iustissima scilicet causa) et divus Pius decrevit et a Marco et a Severo rescriptum est, aeque subveniendum ei erit per exceptionem. 4Pari modo si iudicatum fuerit non esse eum in potestate, etsi per iniuriam iudicatum sit, agenti hoc interdicto obicienda erit exceptio rei iudicatae, ne de hoc quaeratur, an sit in potestate, sed an sit iudicatum. 5Si quis filiam suam, quae mihi nupta sit, velit abducere vel exhiberi sibi desideret, an adversus interdictum exceptio danda sit, si forte pater concordans matrimonium, forte et liberis subnixum, velit dissolvere? et certo iure utimur, ne bene concordantia matrimonia iure patriae potestatis turbentur. quod tamen sic erit adhibendum, ut patri persuadeatur, ne acerbe patriam potestatem exerceat.
1 Ulpianus, On the Edict, Book LXXI. The Prætor says: “You shall produce any male or female child who is subject to the authority of Lucius Titius, and who is in your hands, or whose possession you have fraudulently relinquished.” 1This interdict is intended to be employed against one whom a parent desires shall produce a child that he alleges is subject to his authority. It is evident from the words of the Edict that it will lie in favor of the person entitled to the control of the child. 2In this interdict, the Prætor does not consider the reason why the child is in the possession of him who is required to produce it, as is the case in a former interdict; but holds that it should by all means be restored, if it is subject to the authority of the plaintiff. 3If, however, it is the mother of the child who retains it in her possession, and it appears to be better that it should remain under her care than to be placed under that of its father, that is to say, if the reason is perfectly just, the Divine Pius decided, and it was stated in a Rescript by Marcus Severus, that relief should be granted to the mother by means of an exception. 4In like manner, if it should be ascertained that the child was under no one’s control, although this decision may be unjust, if anyone should attempt to proceed under this interdict, he can be barred by the exception of res judicata; so that the question is no longer whether the child is under the control of the plaintiff, but whether there has been a decision on this point. 5If a father wishes to take his daughter away, or to have her produced after she is married to me, cannot an exception be granted me against the interdict, if he, having, in the first place, agreed to the marriage, should afterwards desire to dissolve it, even if children have been born? Where a marriage has been properly solemnized, it certainly ought not, under our practice, to be interfered with on account of paternal control. Still, an attempt should be made to persuade the father not to exert his right of paternal authority with too much severity.
2 Hermogenianus libro sexto iuris epitomarum. Immo magis de uxore exhibenda ac ducenda pater, etiam qui filiam in potestate habet, a marito recte convenitur.
2 Hermogenianus, Epitomes of Law, Book VI. On the other hand, the father can, with much more propriety, be compelled by the husband of his daughter to produce her, and permit him to recover her, even if she is under paternal control.
3 Ulpianus libro septuagensimo primo ad edictum. Deinde ait praetor: ‘Si Lucius Titius in potestate Lucii Titii est, quo minus eum Lucio Titio ducere liceat, vim fieri veto’. 1Superiora interdicta exhibitoria sunt, hoc est pertinent ad exhibitionem liberorum ceterorumque, de quibus supra diximus: hoc autem interdictum pertinet ad ductionem, ut ducere quis possit eos, in quos habet ius ductionis. itaque prius interdictum, quod est de liberis exhibendis, praeparatorium est huius interdicti: quo magis enim quis duci possit, exhibendus fuit. 2Ex iisdem causis hoc interdictum tribuendum est, ex quibus causis de exhibendis liberis competere diximus: itaque quaecumque ibi diximus, eadem hic quoque dicta accipienda sunt. 3Hoc autem interdictum competit non adversus ipsum filium, quem quis ducere vult, sed utique esse debet is qui eum interdicto defendat: ceterum cessat interdictum, et succedere poterit notio praetoris, ut apud eum disceptetur, utrum quis in potestate sit an non sit. 4Iulianus ait, quotiens id interdictum movetur de filio ducendo vel cognitio et is de quo agitur impubes est, alias differri oportere rem in tempus pubertatis, alias repraesentari: idque ex persona eorum, inter quos controversia erit, et ex genere causae constituendum est. nam si is, qui se patrem dicit, auctoritatis prudentiae fidei exploratae esset, usque in diem litis impuberem apud se habebit: is vero, qui controversiam facit, humilis calumniator notae nequitiae, repraesentanda cognitio est. item si is, qui impuberem negat in aliena potestate esse, vir omnibus modis probatus, tutor vel testamento vel a praetore datus pupillum, quem in diem litis apud se habuit, tuetur, is vero, qui patrem se dicit, suspectus est quasi calumniator, differri litem non oportebit. si vero utraque persona suspecta est aut tamquam infirma aut tamquam turpis, non erit alienum, inquit, disponi, apud quem interim puer educeretur et controversiam in tempus pubertatis differri, ne per collusionem vel imperitiam alterutrius contendentium aut alienae potestati pater familias addicatur aut filius alienus patris familiae loco constituatur. 5Etiamsi maxime autem probet filium pater in sua potestate esse, tamen causa cognita mater in retinendo eo potior erit, idque decretis divi Pii quibusdam continetur: optinuit enim mater ob nequitiam patris, ut sine deminutione patriae potestatis apud eam filius moretur. 6In hoc interdicto, donec res iudicetur, feminam, Praetextatum eumque, qui proxime Praetextati aetatem accedet, interim apud matrem familias deponi praetor iubet. proxime aetatem Praetextati accedere eum dicimus, qui puberem aetatem nunc ingressus est. cum audis matrem familias, accipe notae auctoritatis feminam.
3 Ulpianus, On the Edict, Book LXXI. The Prætor next says: “If Lucius Titius is under the control of Lucius Titius, I forbid force to be employed to prevent the latter from taking Lucius Titius with him.” 1The interdicts previously mentioned are exhibitory, that is. to say, they have reference to the production of children and others of whom we have spoken. This interdict also relates to the removal of such persons, and anyone who has the right to do so can take them away from him. Therefore, the first interdict, which relates to the production of children, is preparatory to this one, by which the plaintiff can remove the person who was produced. 2This interdict should be granted for the same reason for which we have stated children should be produced in court. Hence, whatever we have previously stated should also be understood to be applicable here. 3Moreover, this interdict is not granted against the child itself whom the plaintiff desires to take away, but someone must appear to defend it against the interdict. The interdict, however, will not lie, and the Prætor himself can at once proceed, and render a decision, if any controversy arises before him as to whether the child is, or is not, under paternal control. 4Julianus says that whenever an interdict is employed, or an investigation is instituted with reference to the removal of a child, and the latter is under the age of puberty, in some instances the inquiry should be deferred until the child reaches that age, and in others, it ought to be decided without delay. This is a matter which must be determined in accordance with the rank of the persons between whom the controversy has arisen, and the nature of the case. If the party who alleges that he is the father is one whose social position, wisdom, and integrity are established, he will be entitled to keep the minor in his care until the case has been disposed of; but if he who instituted proceedings is of inferior rank, a malicious person, or one of bad reputation, the investigation should take place at once. Likewise, if he who denies that the minor is under the control of another is honorable in every respect, and is either a testamentary guardian, or one appointed by the Prætor, and has care of the ward, and charge of him during the trial of the case; and on the other hand, he who alleges that he is his father is a malicious person, the investigation should not be postponed. Where, however, both parties are liable to suspicion, either on account of inferior rank, or bad character, Julianus says it will not be improper to appoint someone else by whom the child can be brought up in the meantime, and postpone the determination of the case until it reaches the age of puberty; in order that, through the collusion or ignorance of one or the other of the contending parties, a child who is independent may not be decided to be under the control of another, or one who is subject to the authority of another may be held to occupy the place of the head of a household. 5Even if it should be conclusively proved by the father that the child is under his control, still, if after investigation it is ascertained that the mother should have the preference, and retain possession of the child, she can do so; for it was established by several decrees of the Divine Pius that the mother can obtain permission for the child to remain with her on account of the bad character of the father, without any diminution of paternal authority. 6In this interdict, the Prætor orders that a girl or a boy seventeen years of age, or one who is near that age, shall, pending the hearing of the case, be left in the care of the mother of the family. We say that a child is near the age of seventeen, immediately after he has reached that of puberty. The mother of a family is understood to be a woman of acknowledged good repute.
4 Africanus libro quarto quaestionum. Si eum, qui se patrem familias dicat, ego in mea potestate esse et iussu meo adisse hereditatem dicam, tam de hereditate agi oportere quam ad interdictum de filio ducendo iri debere ait.
4 Africanus, Questions, Book IV. If I say that anyone who alleges that he is the head of a household is my son, and under my control, and that, by my order, he has entered upon an estate, I ought to assert my claim to it, and have recourse to the interdict under which I can take my son away with me.
5 Venuleius libro quarto interdictorum. Si filius sua sponte apud aliquem est, inutile hoc interdictum erit, quia filius magis apud se quam apud eum est, in quem interdicetur, cum liberam facultatem abeundi vel remanendi haberet: nisi si inter duos, qui se patres dicerent, controversia esset et alter ab altero exhiberi eum desideraret.
5 Venuleius, Interdicts, Book IV. If a son is in the possession of another with his own consent, this interdict cannot be employed, because he is rather in his own possession than in that of him against whom proceedings may be instituted under the interdict, as he has free power to depart or remain; unless there is a dispute between two persons, each of whom alleges that he is his father, and one of whom demands that the child shall be produced by the other.