THE INSTITUTES OF GAIUS.
THE FOUR COMMENTARIES OF GAIUS ON THE INSTITUTES OF THE
I. CONCERNING CIVIL AND NATURAL LAW.
(1) All peoples who are ruled by laws and customs partly make use of
their own laws, and partly have recourse to those which are common to all men;
for what every people establishes as law for itself is peculiar to itself, and
is called the Civil Law, as being that peculiar to the State; and what natural
reason establishes among all men and is observed by all peoples alike, is
called the Law of Nations, as being the law which all nations employ. Therefore
the Roman people partly make use of their own law, and partly avail themselves
of that common to all men, which matters we shall explain separately in their
(2) The Civil Law of the Roman people consists of statutes, plebiscites,
Decrees of the Senate, Constitutions of the Emperors, the Edicts of those who
have the right to promulgate them, and the opinions of jurists.
 With the Romans the Jus Gentium and the Jus
Naturale were practically synonymous. The greater number of ancient
authorities made two divisions of jurisprudence, the Law of Nations and the
Civil Law; some added another, the Jus Privatum, or
Familiæ, that is to say, private law.
The precepts of morality, as in most human enactments, form the basis of
this most comprehensive system of jurisprudence which all civilized peoples are
presumed to acknowledge.
By what we designate the Law of Nature, the Roman jurists understood the
rules by which all living beings were governed: "Quod natura omnia animalia
docuit." The Law of Nations was known to them as Jus Feciale.
No lawyer of ancient or modern times has given such a lucid,
comprehensive, and eloquent description of the Law of Nature as Cicero. In
glowing language, eminently worthy of the distinguished scholar and jurist, he
sets forth its constant and universal blessings; a law which summons all to the
performance of their duties, and deters the hesitating from the commission of
fraud; from whose observance even those highest in authority are not exempt;
whose application is universal; whose precepts are eternal and immutable; which
cannot be disregarded or abrogated with impunity; of which God is the
originator, the interpreter, the proposer; and he who refuses to obey it flees
from himself, and rejects the claims of humanity, by this very act rendering
himself liable to the severest penalties, even if he be able to escape others
which have been prescribed.
"Est quidem vera lex recta ratio, naturæ congruens, diffusa in
omnes, conBlans, sempiterna; quæ vocet ad officium jubendo, vetando a
fraude deterreat, quæ tamen neque probos frustra jubet aut vetat, neque
improbos jubendo aut vetando movet. Huic legi neque obrogari fas est, neque
derogari ex hac aliquid licet, neque tota abrogari potest. Nec vero aut per
senatum aut per populum solvi hac lege possumus: neque est quærendus
explanator aut interpres ejus alius. Nec frit alia lex Romæ, alia
Athenis, alia nunc, alia posthac; sed et omnes gentes et
(3) A statute is what the people order and establish. A plebiscite is
what the commonalty order and establish. Moreover, the commonalty is
distinguished from the people by the fact that the entire body of citizens
including the patricians, is designated by the appellation, "the people"; but
the other citizens, exclusive of the patricians, are indicated by the term
commonalty; for which reason the patricians formerly declared that they were
not bound by plebiscites, as they were enacted without their sanction; but
subsequently the Lex Hortensia was passed, by which it was provided that
plebiscites should bind the entire people; and hence, in this way, they were
placed on the same footing as laws.
(4) A Decree of the Senate is what the Senate orders and establishes,
and therefore it obtains the force of law, although this formerly was
(5) An Imperial Constitution is what the Emperor establishes by a
decree, an edict, or a letter, and there was never any doubt that it had the
force of a law, as the Emperor himself derives his authority from a
(6) The magistrates of the Roman people have the power of promulgating
edicts, but the highest authority attaches to the edicts of the two
prætors, the urban and the foreign, whose jurisdiction is vested in the
governors of the provinces; as well as to the edicts of the curule
Ædiles, whose jurisdiction the quæstors administer in the provinces
of the Roman people, for quæstors are not appointed in the provinces of
the Emperor and, therefore, the latter edict is not published in these
(7) The answers of jurists are the decisions and opinions of those who
are authorized to define the law. If the opinions of all of them
omni tempore una lex et sempiterna, et immutabilis continebit;
unusque erit communis quasi magister et imperator omnium Deus, ille legis hujus
inventor, disceptator, lator: cui qui non parebit ipse se fugiet et naturam
hominis aspernabitur, atque hoc ipse luet maximas pœnas, etiamsi
cætera, supplicia, quæ putantur, effugerit." (De Repub. lib.
III, cap. 22.)
The importance of considering man as an individual, distinct from his
association with his fellows in communities, is emphasized by Montesquieu in
determining the principles of the Law of Nature.
"Avant toutes ces lois sont celles de la nature, ainsi nommées
parce qu'elles dérivent uniquement de la constitution de notre
être. Pour les connaître bien, il faut considérer un homme
evant l'établissement des sociétés. Les lois de la nature
seront celles qu'il recevroit dans un état pareil."
"Il songeroit à la conservation de son être, avant de
chercher l'origine de son être." (De l'Esprit des Lois, I, II, Page
The Law of Nations he concisely states to be based upon the bestowal of
the greatest benefits in peace and the infliction of the least injury in war
consistent with the public interests involved.
"Le droit des gens est naturellement fondé sur ce principe,
que les diverses nations doivent se faire dans la paix le plus de bien, et dans
la guerre le moins de mal qu'il est possible, sans nuire à leurs
véritables intérêts." (Ibid I, II, 191.)
No ancient classic work on the Law of Nations has survived, if, indeed,
one ever was written. The formulation and perfection of its rules as a science
were worthily accomplished by the genius, learning, philosophical discernment,
and industry of Grotius, Pufendorf, and Vattel. — ed.
concur, what they agree upon obtains the force of law; if, however, they
disagree, the judge has a right to follow whichever opinion he may wish, and
this is set forth in a rescript of the Divine Hadrian.
II. CONCERNING THE DIVISIONS OF THE LAW.
(8) All the law which we make use of has reference either to persons, to
things, or to actions. Let us first consider persons.
III. CONCERNING THE DIFFERENT CONDITIONS OF MEN.
(9) The principal division of the law of persons is the following,
namely, that all men are either free or slaves.
(10) Again, men who are free are either freeborn or freedmen.
(11) Freeborn are those who are free by birth, freedmen are those who
have been manumitted from legal slavery.
(12) Moreover, there are three classes of freedmen, namely, Roman
citizens, Latins, and dediticii. Let us consider each of these
separately, and, in the first place, dediticii.
IV. CONCERNING DEDITICII AND THE PROVISIONS OF THE LEX ÆLIA
(13) It is provided by the Lex Ælia Sentia that slaves who
have been placed in chains by their masters, or have been branded, or have been
subjected to torture for some offence and convicted, or have been delivered up
to fight with others or with wild beasts, or to contend with gladiators, or
have been thrown into prison and have afterwards been manumitted by the same,
or by another master, shall become free, and belong to the same class as that
of enemies who have surrendered at discretion.
 The Responsa Prudentum were at first only the
opinions of eminent lawyers imparted to anyone who consulted them.
Subsequently, by decrees of Augustus and other sovereigns, they were invested
with legal validity, and obtained all the force of regularly enacted statutes.
They were directly addressed to the judge, or, having been reduced to writing,
were submitted to the court in the presence of witnesses who had seen them
drawn up. The Responsa formed one of the most important sources from
whence was derived the maxims and principles of the Civil Law, and indeed, of
all modern jurisprudence. The Digest is largely composed of them. From the
fragments it contains we can form some idea of the vast knowledge and
attainments possessed by these old Roman lawyers, whose works have perished,
and whose names would hardly be known, were it not for the compilation of
Justinian. As legal dicta they are, as a rule, models of perspicacity and
conciseness. Their language is terse, comprehensive, elegant. The ingenuity
with which their conclusions are formed is admirable. The dominating sentiments
which pervade them are a love of truth and a reverence for justice, qualities,
it is scarcely necessary to add, which do not always characterize modern
These opinions, originally intended to mitigate the severity of the
Civil Law, whose basis was the harsh and inflexible collection of the Twelve
Tables, by enabling the magistrate to modify his decisions, and evade the cruel
legislation of a barbarous age, laid the foundation of equity jurisprudence.
After the Responsa had, by Imperial sanction and general acceptance,
acquired full legal effect, they were designated sententiæ
receptæ. — ed.
V. CONCERNING ENEMIES WHO HAVE SURRENDERED AT DISCRETION.
(14) Those enemies are called dediticii who, having formerly
taken up arms and fought against the Roman people afterwards have been
conquered and have surrendered at discretion.
(15) From this it is evident that slaves who have been guilty of
criminal acts of this kind, no matter in what way, or at what age they may have
been manumitted, and even though their masters had complete authority over
them, can never become either Roman citizens or Latins, but must always be
classed among enemies who have surrendered at discretion.
(16) If, however, a slave has not been guilty of such criminality, we
declare that by manumission he sometimes becomes a Roman citizen, and sometimes
(17) Where the following three requisites are combined in the person of
a slave, that is to say where he is over thirty years of age, where his master
is invested with full civil rights, and he is set free by proper and lawful
manumission through the intervention of the prætor, by enrollment on the
register of the census, or by will, he becomes a Roman citizen; if, however,
one of these requisites should be lacking, he will become a Latin.
VI. CONCERNING MANUMISSION, AND PROOF OF THE REASON FOR IT.
(18) The requisite of the age of the slave was introduced by the Lex
Ælia Sentia, for this law did not permit slaves under the age of
thirty years, who had been manumitted, to become Roman citizens unless they
were set free by the wand of the prætor, after proof of good reason for
the manumission had been established in the presence of the Council.
(19) A good reason for manumission exists where, for instance, anyone
offers for manumission before the Council a natural son or daughter, or brother
or sister, or foster-child or teacher, or a slave with the intention of
appointing him a steward, or a female slave on account of prospective
VII. CONCERNING THE CONSTITUTION OF THE COUNCIL.
(20) The Council in the City of Rome consists of five senators and five
Roman knights of the age of puberty. In the provinces it consists of twenty
magistrates who are Roman citizens, and who are convoked on the last day of the
term. At Rome, however, manumissions take place in the presence of the Council
upon certain days. Slaves who are more than thirty years of age can be
manumitted at any time, and the ceremony can be performed even while walking in
the streets, as for instance, when the prætor or the proconsul is on his
way to the bath or the theatre.
(21) A slave, who was under the age of thirty years when manumitted, can
become a Roman citizen if he was granted his freedom and appointed heir by the
will of his master who died insolvent. . . .
(22) Slaves manumitted in certain ways are called Latini Juniani;
Latini for the reason that they are classed with Latin colonists,
Juniani because they received their freedom under the terms of the
Lex Junia, as before it was passed they were considered slaves.
(23) The Lex Junia does not, however, permit them either to make
a will, or to take under the will of another, or to be appointed testamentary
(24) What we have said with reference to their being unable to take
under a will must be understood to mean that they cannot take anything directly
as heirs, or legatees, but, on the other hand, they have a right to take under
the terms of a trust.
(25) Those, however, who belong to the class of dediticii can,
under no circumstances, take under a will, any more than a foreigner; nor can
they, in accordance with a majority of the decisions, themselves make a
(26) Hence, only the lowest degree of freedom is possessed by those who
belong to the class of dediticii nor is any way afforded them of
obtaining Roman citizenship either by a law, by a Decree of the Senate, or by
an Imperial Constitution.
(27) Moreover, they are forbidden to dwell in the City of Rome or within
the hundredth mile-stone of the Capitol; and if they should disobey, they and
their property are ordered to be publicly sold under the condition that they
shall remain slaves beyond the hundredth milestone of the City of Rome, and
that they shall never be manumitted; and if they should be manumitted, they are
ordered to become the slaves of the Roman people; and these things are included
in the Lex Ælia Sentia.
IN WHAT WAY LATINS MAY OBTAIN ROMAN CITIZENSHIP.
(28) Latins obtain Roman citizenship in many ways.
(29) For, by the Lex Ælia Sentia, where slaves under the
age of thirty years are manumitted and become Latins, if they marry either
women who are Roman citizens or Latin colonists, or those who belong to the
same condition as themselves, and prove this by the testimony of not less than
seven Roman citizens who have arrived at the age of puberty; and they have
sons, and the latter are a year old, authority is granted them by this law to
appear before the prætor — or, in the provinces before the governor
— and prove that they have married wives in accordance with the terms of
the Lex Ælia Sentia, and have sons by them who are a year old; and
if the magistrate before whom this proof is adduced should declare it to be
true, then the Latin and his wife, provided she and her son are of the same
condition, are ordered to become Roman citizens.
(30) I added the clause, "If the son is of the same condition", for the
reason that if the wife of the Latin aforesaid is a Roman citizen, her son is a
Roman citizen by birth under the terms of the recent Decree of the Senate
promulgated by the Divine Hadrian.
 Original manuscript illegible.
(31) This right of acquiring Roman citizenship, though at first only
conferred upon those who had been manumitted under thirty years of age and had
become Latins by the Lex Ælia Sentia, was afterwards, by a Decree
of the Senate issued under the consulship of Pegasus and Pusio, granted to all
Latins, even though they were more than thirty years of age at the time when
they were manumitted.
(32) However, even if the Latin should die before he was able to prove
that his son was a year old, the mother of the latter can prove his condition,
and hence both she and her son (if she is a Latin) will become Roman citizens.
If the mother should not be able to prove this, the son himself can do so when
he reaches the age of puberty. If the son himself is a Roman citizen, for the
reason that he is born of a mother who is a Roman citizen, he must still prove
his condition in order to become the heir of his father.
(32a) What we have stated with reference to a son being a year old we
also understood to apply to a daughter of the same age.
(32b) Moreover, by the Lex Visellia, persons become Roman
citizens, where by manumission they have become Latins, when either under or
over thirty years of age, if they have served for six years in the guards at
Rome. A Decree of the Senate is said to have been subsequently enacted by which
Roman citizenship was bestowed on Latins if they had served for three years in
(32c) Likewise, by an Edict of the Divine Claudius, Latins obtain the
rights of Roman citizens if they build a ship with a capacity not less than ten
thousand measures of grain, and the said ship, or one substituted for it,
should transport grain to Rome for the term of six years.
(33) Moreover, it was established in an Edict published by Nero that if
a Latin who had property worth two hundred thousand sesterces, or more, should
build a house in the City of Rome on which he expended not less than half his
estate, he should obtain the right of Roman citizenship.
(34) Finally, the Divine Trajan decreed that if a Latin should exercise
the calling of a miller in the City of Rome for the term of three years, and
should grind each day not less than a hundred measures of grain, he could
acquire Roman citizenship.
(35) Slaves who become Latins either because they are under thirty years
of age when manumitted, or, being over that age, have been informally
manumitted, may become Roman citizens by being again manumitted either by the
wand of the prætor, or by inscription on the register of the census, or
by will; and in either of these cases they become the freedmen of the party who
manumitted them a second time. Therefore, if a slave forms part of your
property by bonitarian right and belongs to me by quiritarian right, he can be
made a Latin solely by you, and he can be manumitted a second time by me but
not by you, and in this way he will become my freedman; and if he obtains the
right of citizenship in other ways he still will be my freedman.
The possession of his estate at the time of his death is however granted
to you, no matter in what way he may have obtained Roman citizenship. But, if
he is manumitted by one who has in him both bonitarian and quiritarian rights
he can be manumitted by the said party, and become both a Latin and a Roman
(36) Every one who desires to manumit a slave is not permitted to do
(37) For he who manumits a slave for the purpose of defrauding his
creditors or his patron, commits an act which is void, for the reason that the
Lex Ælia Sentia prevents the grant of freedom.
(38) Likewise, by the same law a minor owner under the age of twenty
years is not permitted to manumit a slave, except by the intervention of the
prætor, after proper cause has been shown for the manumission in the
presence of the Council.
(39) The following are proper causes for manumission, for instance,
where anyone manumits his father, his mother, his teacher, or his
foster-brother. Moreover, the reasons which we have designated above with
reference to a slave under thirty years of age may be adduced also in the case
of which we speak; and likewise, on the other hand, the same reasons which we
stated with reference to an owner under the age of twenty years may be advanced
where the slave is less than thirty years old.
(40) Therefore, as a certain restriction on the manumission of slaves is
imposed upon owners under the age of twenty years by the Lex Ælia
Sentia, the result is that anyone who has completed his fourteenth year,
although he can make a will, appoint an heir to his estate, and bequeath
legacies, still, if he is under the age of twenty years, he cannot grant
freedom to his slave.
(41) And even though an owner under the age of twenty years may desire
to constitute a slave a Latin, he must, nevertheless, prove before the Council,
that he has a good reason for doing so, and afterwards manumit the said slave
in the presence of friends.
(42) Moreover, by the Lex Fufia Caninia a certain limit is
established with reference to the manumission of slaves by a will.
(43) Hence, he who has more than two slaves and not more than ten, is
permitted to manumit as many as half of that number. He, however, who has more
than ten and not more than thirty slaves, is permitted to manumit a third of
that number; and he who has more than thirty slaves and not more than a
hundred, is granted authority to manumit one fourth of his slaves. Finally, he
who has more than one hundred and not more than five hundred, is not permitted
to manumit more than a fifth; and, no matter how many slaves a man may have, he
is not permitted to manumit more than this, as the law prescribes that no one
shall have the right to manumit more than a hundred. Still, where anyone has
only one or two slaves, his case does not come under this law, and therefore he
has free power of manumission.
(44) Nor does this law have any reference whatever to persons who
manumit in any way except by will, and therefore those who do so either in the
tribunal of the Prætor, or by enrollment on the registers of the census,
or in the presence of friends, are permitted to liberate their entire bodies of
slaves; provided however, that no other reason prevents their receiving their
(45) What we have stated with reference to the number of slaves which
can be manumitted by will should be understood to mean that where a man has a
right to liberate the half, the third, the fourth, or the fifth part of his
entire body of slaves, he shall in no case be restricted to a smaller number
than he would have been permitted to manumit had the estimate been made
according to the next preceding scale. This provision is in accordance with
reason, for it certainly would be absurd for any one to be permitted to
liberate five out of his ten slaves, because he is granted authority to manumit
half of that number; while another, having twelve slaves, would not be
permitted to manumit more than four; and anyone who has more than ten and not
more than thirty, under the same rule should be permitted also to manumit five,
the same number which he who has ten is allowed to liberate.
(46) If freedom should be granted by a testator in his will to a greater
number of slaves than is above mentioned, and the names are written in a circle
so that no order of manumission can be ascertained, none of the said slaves
shall become free; because the Lex Fufia Caninia, as well as other
special Decrees of the Senate, have declared all testamentary provisions
devised for the purpose 01 evading the law to be void.
(47) In conclusion, it should be noted that, as it is provided by the
Lex Ælia, Sentia that slaves who have been manumitted for the
purpose of defrauding a patron, or creditors, do not become free; for the
Senate, at the suggestion of the Divine Hadrian, decreed that this rule should
also apply to foreigners, while the other provisions of the same law do not
apply to them.
(48) There is another division with reference to the law of persons, for
some persons are their own masters, and some are subject to the authority of
(49) Again, of those persons who are subject to the authority of
another, some are in his power, others are in his hand, and others are
considered his property.
(50) Let us now consider those that are subject to the authority of
another, for, when we ascertain who they are, we shall then understand what
persons are their own masters.
(51) In the first place, let us examine those who are in the power of
(52) Slaves are in the power of their masters, and this power is
acknowledged by the Law of Nations, for we know that among all nations alike
the master has the power of life and death over his slaves, and whatever
property is acquired by a slave is acquired by his master.
(53) At the present time, however, neither Roman citizens nor any other
persons who are under the empire of the Roman people are permitted to employ
excessive or causeless severity against their slaves; for by a constitution of
the Most Holy Emperor Antoninus anyone who kills his slave, without good
reason, is not less liable than one who kills the slave of another; and the
excessive harshness of masters is restrained by another constitution of the
same Emperor; for he, having been consulted by certain governors of provinces
with reference to slaves who flee for refuge to the temples of the Gods or the
statues of the Emperor, ordered that if the cruelty of masters
appeared to be intolerable, they should be compelled to sell their slaves; and
in both cases he acted justly, for we should not make a bad use of our rights,
in accordance with which principle the administration of their own property is
forbidden to spendthrifts.
(54) But, as among Roman citizens, a double ownership may exist (for a
slave is understood to be subject to bonitarian or quiritarian right or to
belong to both these classes) so we merely say that a slave is in the power of
his owner if he forms part of his property by bonitarian right, even if at the
same time he may not belong to him by quiritarian right; for anyone who has the
bare quiritarian right in a slave is not understood to have him in his
(55) In like manner, our children whom we have begotten in lawful
marriage are under our control. This right is peculiar to Roman citizens, for
there are hardly any other men who have such authority over their children as
we have, and this the Divine Hadrian stated in the Edict which he published
with reference to persons who petitioned for Roman citizenship for themselves
and for their children, for he said: "It does not escape my knowledge that the
Galatians hold that children are in the power of their parents."
(56) Roman citizens are understood to have contracted marriage according
to the Civil Law and to have the children begotten by them in their power if
they marry Roman citizens, or even Latins or foreigners whom they have the
right to marry; for the result of legal marriage is that the children follow
the condition of the father and not only are Roman citizens by birth, but also
become subject to paternal authority.
(57) Therefore, certain veterans are usually granted permission by the
Imperial Constitutions to contract civil marriage with those Latin or foreign
women whom they first marry after their discharge, and the children born of
such unions become Roman citizens by birth, and are subject to the authority of
(57a) Marriage, however, cannot take place with persons of servile
(58) Nor are we permitted to marry any free woman, as we should refrain
from contracting matrimony with certain ones of this class.
 The right of asylum, derived by Rome from Greece, did not
attach to all temples, or Imperial statues, but only to such as long continued
custom had invested with that privilege, of which debtors, slaves, and
violators of the law constantly availed themselves. The clergy, after the
introduction of Christianity, being well aware of the financial and political
advantages which would accrue to them by the perpetuation of this practice,
encouraged and confirmed it, until the abuse of the right of sanctuary, through
the immunity enjoyed by notorious criminals, became one of the worst scandals
of mediæval times. — ED.
(59) For marriage cannot be contracted between persons who sustain to
one another the relation of ascendants and descendants, nor can legal matrimony
exist between them; for instance, between father and daughter, mother and son,
or grandfather and granddaughter; and if such persons form unions they are said
to have contracted nefarious and incestuous marriages.
To such an extent does this rule apply that, although the relationship
of parents and children may have been established by adoption, they cannot
contract matrimony with one another, and even if the adoption has been
dissolved, the same rule of law will continue to apply; so that I could not
take as a wife a woman who sustains to me the relationship of daughter or
granddaughter by adoption, even if I have emancipated her.
(60) This rule also applies to persons related in the collateral degree,
but not to the same extent.
(61) Marriage is indeed prohibited between brother and sister, whether
they are born of the same father or mother or merely of one of these parents in
common; but although legal marriage cannot take place between me and my sister
by adoption as long as the adoption continues to exist, still if the adoption
is dissolved by emancipation I can marry her, and if I should be emancipated,
no impediment to the marriage will exist.
(62) It is lawful for a man to marry the daughter of his brother, and
this first became customary when the Divine Claudius married Agrippina, his
brother's daughter, but it is not lawful for anyone to marry his sister's
daughter, and this rule is stated in the Imperial Constitutions. It is likewise
illegal for a man to take as his wife his paternal or maternal aunt.
(63) Moreover, I cannot marry my former mother-in-law or
daughter-in-law, or my step-daughter or step-mother. We make use of the word
"former," because if the marriage by which affinity of this kind was
established is still in existence, there is another reason why I cannot marry
her, for a woman cannot marry two men, nor can a man have two wives.
(64) Therefore, if anyone should contract a nefarious and incestuous
marriage he is considered to have neither a wife nor children, hence the issue
of such a union are considered to have a mother but no father, and for this
reason are not subject to paternal authority, but resemble children whom the
mother has conceived through promiscuous intercourse; and they, in like manner,
are understood to have no father, as he also is uncertain; therefore they are
ordinarily called illegitimate children, either from the Greek word meaning
conceived indiscriminately, or because they are children without any
(65) It sometimes happens that children when born are not under the
control of their fathers but are afterwards subjected to their authority.
(66) For instance, under the Lex Ælia Sentia, if a Latin,
after having married, should have a son who is a Latin by a Latin mother, or
who is a Roman citizen by a Roman mother, he will not have him under his
control; but if he should afterwards obtain the right of Roman citizenship by
the evidence required by law, his son will, at the same time, be brought under
(67) Likewise, if a Roman citizen should marry a Latin or a foreign
woman through ignorance, believing that she was a Roman citizen, and should
have a son, the latter will not be under his control because he will not be a
Roman citizen, but either a Latin or a foreigner; that is to say, he will
belong to the same condition as his mother, as no child follows the condition
of its father unless the right to legal marriage existed between its parents;
but by a Decree of the Senate it is permitted to prove the cause of error, and
in this way the wife and the son will both obtain Roman citizenship, and the
son will, from that time, begin to be under the control of his father. The same
rule applies where a Roman citizen marries a woman belonging to the class of
the dediticii, except that the wife does not become a Roman citizen.
(68) Moreover, if a female Roman citizen should, through mistake, marry
a foreigner under the impression that he was a Roman citizen, she will be
permitted to prove the cause of error, and in this way both her son and her
husband will obtain Roman citizenship, and, at the same time, the son will
begin to be subject to the authority of the father. The same rule also applies
if the woman marries a foreigner as a Latin under the terms of the Lex
Ælia Sentia, as provision for a case of this kind is specially made
by the Decree of the Senate. Again, the same rule applies to a certain extent
if she should marry a man belonging to the class of the dediticii, as
being either a Roman citizen or a Latin under the provisions of the Lex
Ælia Sentia, except that her husband belonging to the class of the
dediticii remains in the same condition, and therefore his son, although
he becomes a Roman citizen, is not subjected to the authority of his
(69) Likewise, if a Latin woman should marry a foreigner believing him
to be a Latin in accordance with the Lex Ælia, Sentia, on the
birth of a son she can, under the Decree of the Senate, prove the cause of her
error, and then all the parties will become Roman citizens, and the son will
pass under the control of his father.
(70) The same rule has been established where a Latin man marries a
woman who is a foreigner under the impression that she is either a Latin or a
Roman citizen, with a view to taking advantage of the Lex Ælia
(71) Moreover, a Roman citizen who thinks that he is a Latin, and for
this reason marries a Latin woman, will be permitted to prove the cause of his
error in case of the birth of a son, just as if he had married his wife under
the provisions of the Lex Ælia Sentia. Likewise, those who being
Roman citizens think that they are foreigners and marry foreign women, are
permitted by the Decree of the Senate, on the birth of a son, to prove the
cause of their error; and this having been done, the wife becomes a Roman
citizen, and the son not only obtains to Roman citizenship but also is brought
under the authority of his father.
(72) Whatever we have said with reference to a son is also understood to
apply to a daughter.
(73) And, so far as proving the cause of the error is concerned, as
nothing with reference to this was provided by the Decree of the Senate, it
makes no difference how old the son or daughter may be unless he or she should
be a Latin; because it was also declared by the Lex Ælia Sentia
that in this case if the son or daughter is less than a year old the cause
cannot be proved. It has not escaped my observation that it was stated in a
rescript of the Divine Hadrian, with reference to the proof of the cause of the
error, that the child must be a year old, but the right did not seem to be of
general application, as the Emperor issued the rescript under peculiar
(74) If a foreigner, believing himself to be a Roman citizen, married a
woman who is a Roman citizen, the question arises whether he could prove the
cause of error under the Decree of the Senate. He could not do so, however, as
this privilege is not granted by the Decree of the Senate to a foreigner, even
though he, being mistaken, should have married a Roman citizen, unless this
right was especially conferred upon him. But, when a foreigner married a woman
who is a Roman citizen, and after a son was born, he obtained Roman citizenship
in some other way, then when the question arose whether he could prove the
cause of error, the Emperor Antoninus stated in a rescript that he could do so,
just as if he had remained a foreigner; from which we gather that even a
foreigner can prove the cause of error.
(75) From what we have said, it is apparent that where either a Roman
citizen marries a foreign woman or a foreigner marries a woman who is a Roman
citizen, the child born of the union is a foreigner. If, however, a marriage of
this kind should have been contracted through mistake, the defect can be
remedied in the manner which we explained above. But if no error took place,
and the parties, aware of their condition, contracted marriage, the defect of
an union of this kind can, under no circumstances, be remedied.
(76) We, however, are speaking of persons who have not the right to
contract legal marriage; for, otherwise, if a Roman citizen should marry a
foreign woman with whom civil marriage can be contracted as is stated above, a
legal marriage takes place, and a son born to the parties is a Roman citizen,
and will become subject to the authority of his father.
(77) Likewise, if a female Roman citizen should marry a foreigner who is
entitled to contract a legal marriage, and a son is born, he will be an alien,
and the lawful son of his father, just as if he had begotten him with a foreign
woman. At the present time, however, by a Decree of the Senate enacted at the
instance of the Divine Hadrian, even if the right of civil marriage did not
exist between a woman who is a Roman citizen and a foreigner, the child born of
the union is the lawful son of his father.
(78) What we have stated, however, with reference to a female Roman
citizen marrying a foreigner, and their issue being an alien, is derived from
the Lex Minicia, by which it is provided that where a child is born of
an unequal marriage it follows the condition of the parent of inferior rank. On
the other hand, it is provided by the same law that if a Roman citizen should
marry a foreign woman with whom the right of legal marriage did not exist, the
child born of this union will be a foreigner. The Lex Minicia was not
especially necessary in a case of this kind, for, without this law, the child
would have followed the condition of its mother, as this is the rule by the Law
of Nations, among those between whom the right of civil marriage does not
exist. This provision of the law which directs that the issue of a Roman
citizen and a foreign woman shall be a foreigner seems to be superfluous, for
even without this law this would be the case under the Law of Nations.
(79) Moreover, to such an extent does this rule apply that the issue of
the marriage between a Roman citizen and a Latin woman follows the condition of
its mother, for in the Lex Minicia not only are alien nations and
peoples designated as "foreigners," but also those who are called Latins; and
it also refers to other Latins who had their own peoples and states, and were
included under the head of foreigners.
(80) On the other hand, by the same rule, the son of a Latin father and
a mother who was a Roman citizen, whether the marriage was contracted under the
provisions of the Lex Ælia Sentia or not, is born a Roman citizen.
There were some authorities, however, who held that where a marriage was
contracted under the Lex Ælia Sentia the child was born a Latin;
for the reason that in this instance the right of legal marriage was conferred
upon the parties by the Lex Ælia Sentia et Junia, and legal
marriage always has the effect of giving the child the same condition as its
father; for, if the marriage were otherwise contracted, the child, by the Law
of Nations, would follow the condition of its mother, and for this reason would
be a Roman citizen. We, however, make use of the rule established by the Decree
of the Senate at the instance of the Divine Hadrian, by which it is declared
that, under all circumstances, the child of a Latin man and a woman who is a
Roman citizen is born a Roman citizen.
(81) In conformity with these provisions, the said Decree of the Senate,
enacted at the instance of the Divine Hadrian, also prescribes that the issue
of a Latin man and a foreign woman, as well as that of a foreign man and a
Latin woman, follows the condition of the mother.
(82) The result of this is that the child of a female slave and a
freeman is, by the Law of Nations, born a slave; and, on the other hand, the
child of a free woman and a male slave is free by birth.
(83) We should note, however, whether any law or enactment having the
force of law, in any case changes the rule of the Law of Nations.
(84) For example, under the Claudian Decree of the Senate, a woman who
is a Roman citizen and has sexual intercourse with a slave belonging to another
with the consent of his master will, in accordance with the agreement, remain
free herself while she gives birth to a slave; for the contract entered into
between her and the owner of the slave is declared to be valid by the Decree of
the Senate. Afterwards, however, the Divine Hadrian, influenced by the
injustice and impropriety of the law, restored the rule of the Law of Nations,
so that as the woman herself remains free, her child is also born free.
(85) Likewise, by another law, children born of a female slave and a
freeman could be born free; for it is provided by the said law that if anyone
should have sexual intercourse with a female slave belonging to another and
whom he believed to be free, and any male children should be born, they will be
free; but any female children would be the property of him to whom their
mother, the female slave, belonged. In this case, however, the Divine
Vespasian, influenced by the impropriety of the law, restored the rule of the
Law of Nations, so that, in every instance, even if female children should be
born, they will become the slaves of the person who owned their mother.
(86) Another section of the same law remains in force, namely, that any
children born to a free woman and a slave who is the property of another, and
whom she knew to be a slave, are born slaves; hence among those who are not
subject to this law, the child follows the condition of its
mother by the Law of Nations, and on this account is free.
(87) In those cases, however, where the child follows the condition of
the mother and not that of the father, it is perfectly clear that it is not
subject to the authority of his father, even though the latter may be a Roman
citizen; and therefore we stated above that in certain instances where a
marriage which was not lawful was contracted through a mistake, the Senate
could intervene and remedy the defect of the marriage, and in this way
generally bring it about that the son should be subjected to the authority of
(88) If a female slave should conceive by a Roman citizen and
afterwards, having been manumitted, should become a Roman citizen and a child
should be born, although the latter would be a Roman citizen like its father,
it would still not be under the control of the latter, for the reason that it
was not conceived in lawful marriage, and because an union of this kind is not
declared to be legal by any decree of the Senate.
(89) The decision which was made that if a female slave should conceive
by a Roman citizen and then, after having been manumitted, her child should be
born free, is in accordance with natural law, for children who are
illegitimately conceived assume their status at the time when they are born,
and therefore, if they are born of a free woman, they will be free, nor does it
make any difference by whom their mother conceived them while she was a female
slave; but those who are lawfully conceived assume their status at the time of
(90) Therefore, where a female citizen at Rome, who is pregnant at the
time, is interdicted from fire and water, and for this reason
having become a foreigner, gives birth to a child; many authorities make a
distinction, and are of the opinion that, as she conceived in lawful marriage,
her child is born a Roman citizen, but if she conceived as the result of
promiscuous intercourse, her child will be an alien.
 This rule, as expressed in the maxim: "Partus sequitur
ventrem," has always been recognized. It not only applied to slaves, but
also to illegitimate children, with reference to whom it is everywhere in force
to-day. — ed.
 Prohibition of the use of water and fire was a death
penalty introduced by Sylla in the Lex Cornelia. The person upon whom it
was imposed being by its terms excluded from the enjoyment of the absolute
necessaries of life, was certain to perish miserably if the sentence had been
literally executed, which it never was, in reality. It operated, however, as a
forfeiture of civil rights, and was avoided by voluntary exile. Certain limits
were prescribed within which the privileges of citizenship could not be
exercised; and if the guilty party remained, he became a social outcast with
whom all ordinary intercourse was prohibited, and whose acts were void in law.
Those who were convicted of capital crimes either took refuge in foreign
countries, or changed their residence beyond the radius prescribed by the
sentence, trusting to good fortune or the efforts of their friends to have it
annulled, and their disabilities removed by legislation, which was usually
effected in the Comitia Centuriata where the trial had taken place. Many
distinguished Romans were subjected to the interdiction from fire and water,
among them Cicero, who was, in this way, banished four hundred miles from Rome.
(91) Likewise, where a woman who is a Roman citizen while pregnant,
becomes a slave under the Claudian Decree of the Senate, for the reason that
she had intercourse with a slave belonging to another, against the consent and
protest of his master, many authorities make a distinction and hold that as the
child was conceived in lawful marriage, it will be born a Roman citizen, but if
it was conceived as the result of promiscuous intercourse, it will be born the
slave of the person to whom his mother belongs.
(92) Again, if an alien woman should conceive as the result of
promiscuous intercourse, and afterwards become a Roman citizen and bring forth
a child, the latter will be a Roman citizen. If, however, she should conceive
by an alien whom she married in accordance with foreign laws and customs, she
will, under the terms of the Decree of the Senate enacted at the instance of
the Divine Hadrian, be held to give birth to a Roman citizen, provided Roman
citizenship has also been conferred upon the father.
(93) Where an alien has acquired Roman citizenship for himself and his
children, the latter do not pass under the control of their father unless the
Emperor should expressly cause them to do so; and this he only does when, after
the case has been examined, he thinks that this would be advantageous to the
children. He, moreover, makes a more diligent and minute investigation with
reference to children who are under the age of puberty and absent; and this
rule is set forth in an Edict of the Divine Hadrian.
(94) Likewise, where anyone with his wife, during her pregnancy, is
presented with Roman citizenship, although the child, as we have mentioned
above, is born a Roman citizen, he still does not pass under the control of his
father; and this is stated in a rescript of the Divine Hadrian. For this reason
if he knows that his wife is pregnant, and he petitions the Emperor for
citizenship for himself and his wife, he should, at the same time, ask that his
child shall be subjected to his authority.
(95) The rule is otherwise in the case of those who, together with their
children, attain to Roman citizenship by the right of being Latins, for their
children pass under their control.
(96) This right has been granted to certain foreign States, either by
the Roman people, or by the Senate, or by the Emperor.
The right of Latinity is either greater or less. Greater Latinity is
that of those who are elected decurions or administer any honorable office or
magistracy, and by this means obtain Roman citizenship. The lesser right of
Latinity is where only those who administer the office of magistrate or any
other honorable employment attain to Roman citizenship; and this difference is
referred to in many Imperial rescripts.
(97) Not only as we have stated are natural children in our power, but
also those whom we adopt.
(98) Adoption takes place in two ways; either by the authority of the
people, or by the command of the magistrate, as for instance, of the
(99) We adopt, by the authority of the people, those who are their own
masters, which kind of adoption is called arrogation, for the reason that he
who adopts is asked, that is to say, interrogated, whether he desires to have
the person whom he intends to adopt as his lawful son; and he who is adopted is
asked whether he is willing to have this done; and the assembled people are
asked whether they direct this to take place. By the command of the magistrate
we adopt those who are under the control of their parents, whether they are in
the first degree of descendants, as a son or a daughter, or whether they belong
to an inferior degree, as a grandson or a granddaughter, a great-grandson or a
(100) Adoption by the people can only take place at Rome; and the other
usually takes place in the provinces before the governors of the same.
(101) The better opinion is that women cannot be adopted by the voice of
the people; but women may be adopted in the tribunal of the Prætor at
Rome, or in the provinces in the tribunal of the proconsul or the
(102) The adoption of a child under the age of puberty by the vote of
the people was at one time forbidden, and at another permitted; but at present,
by the Epistle of the Emperor Antoninus addressed to the pontiffs, it is
allowed under certain conditions, if there seems to be good cause for the
adoption. We can, however, adopt persons of any age in the tribunal of the
Prætor at Rome, or in the provinces in that of the proconsul, or the
(103) It is a rule common to both kinds of adoption that persons who are
incapable of begetting children, such as eunuchs, can adopt.
(104) Women, however, cannot in any way adopt other persons, for the
reason that they cannot exercise authority even over their natural
(105) Likewise, if anyone adopts another, either by the vote of the
people, or by the consent of the Prætor or the governor of a province, he
can give the son whom he has adopted in adoption to another.
(106) It is a question, however, with reference to both forms of
adoption, whether a person can adopt another who is older than himself.
(107) It is peculiar to that kind of adoption which takes place by the
vote of the people, that if he who gives himself to be arrogated has children
under his control, he will not only himself be subject to the authority of the
arrogator, but his children will also be under the control of the latter, as
(108) Now let us consider those persons who are in our hand, which right
is also peculiar to Roman citizens.
(109) Both males and females are under the authority of another, but
females alone are placed in the hands.
(110) Formerly this ceremony was performed in three different ways,
namely, by use, by confarreation, and by coemption.
(111) A woman came into the hand of her husband by use when she had
lived with him continuously for a year after marriage; for the reason that she
was obtained by usucaption, as it were, through possession for the term of a
year, and passed into the family of her husband where she occupied the position
of a daughter. Hence it is provided by the Law of the Twelve Tables that if a
woman was unwilling to be placed in the hand of her husband in this way, she
should every year absent herself for three nights, and in this manner interrupt
the use during the said year; but all of this law has been partly repealed by
legal enactments, and partly abolished by disuse.
(112) Women are placed in the hand of their husbands by confarreation,
through a kind of sacrifice made to Jupiter Farreus, in which a cake is
employed, from whence the ceremony obtains its name; and in addition to this,
for the purpose of performing the ceremony, many other things are done and take
place, accompanied with certain solemn words, in the presence of ten witnesses.
This law is still in force in our time, for the principal flamens, that is to
say, those of Jupiter, Mars, and Quirinus, as well as the chief of the sacred
rites, are exclusively selected from persons born of marriages celebrated by
confarreation. Nor can these persons themselves serve as priests without
marriage by confarreation.
(113) In marriage by coemption, women become subject to their husbands
by mancipation, that is to say by a kind of fictitious sale; for the man
purchases the woman who comes into his hand in the presence of not less than
five witnesses, who must be Roman citizens over the age of puberty, and also of
(114) By this act of sale a woman can not only make a coemption to her
husband but also to a stranger, that is to say, the sale takes place either on
account of marriage or by way of trust; for a woman who disposes of herself in
this way to her husband for the purpose of occupying the place of his daughter
is said to have done so on account of matrimony; but where she does this for
some other purpose, either to a husband or to a stranger, as for instance in
order to avoid a guardianship, she is said to have made a coemption by way of
(115) The method by which this is done is as follows: If a woman wishes
to get rid of her present guardians and obtain another in their stead, she
makes this disposal of herself with their consent; and then the other party to
the sale sells her again to him to whom she wishes to be her guardian, and he
manumits her by the ceremony of the wand of the Prætor, and by this means
becomes her guardian, and is designated a fiduciary guardian, as will hereafter
(115a) Formerly a fiduciary coemption took place for the purpose of
acquiring power to make a will, for women, with some exceptions, did not then
have testamentary capacity unless they had made fictitious sales of this kind,
and after having been resold, were manumitted; but the Senate, at the
suggestion of the Divine Hadrian, abolished this necessity of making a
(115b) Even if the woman makes a fiduciary sale of herself to her
husband, she nevertheless occupies the place of his daughter; for if a wife
comes into the hand of her husband for any reason whatsoever, it has been
decided that she enjoys the rights of a daughter.
(116) It remains for us to explain what persons are subject to
(117) All children of either the male or female sex who are under the
control of their father can be mancipated by him in the same way as that in
which slaves can be mancipated.
(118) The same rule of law applies to those persons who are in the hand
of others, and they can be mancipated in the same way by those to whom they
have been sold, just as children may be mancipated by their father; and while
she who is married to the purchaser may only occupy the place of his daughter;
still, though she may not be married to him, nor occupy the place of his
daughter, she can still be mancipated by him.
(118a) Generally speaking, mancipation takes place either by parents or
by those who obtain possession by coemption, when the parents and the so-called
purchasers desire to release the persons from their authority, as will appear
more clearly hereafter.
(119) Mancipation, as we have mentioned above, is a kind of fictitious
sale, and the law governing it is peculiar to Roman citizens. The ceremony is
as follows: After not less than five witnesses (who must be Roman citizens
above the age of puberty) have been called together, as well as another person
of the same condition who holds a brazen balance in his hand and is styled the
"balance holder," the so-called purchaser, holding a piece of bronze in his
hands, says: "I declare that this man belongs to me by my right as a Roman
citizen, and let him be purchased by me with this piece of bronze, and bronze
balance." Then he strikes the scales with the piece of bronze, and gives it to
the so-called vendor as purchase money.
(120) In this manner both slaves and free persons are mancipated, as
well as such animals as are subject to sale, among which are included oxen,
horses, mules, and asses, as well as urban and rustic estates; for instance,
Italian lands are usually disposed of in the same manner.
(121) The sale of land differs from the mancipation of other things, in
that both slaves and free persons, as well as animals subject to mancipation
cannot be disposed of in this way unless they are present; as it is necessary
for him who acquires the object by mancipation to be able to grasp it with his
hands, and the ceremony is designated mancipation because the property is
seized with the hands. Lands, however, are usually mancipated at a
(122) A piece of brass and a balance are employed for the reason that in
former times only brazen money was in circulation, and this consisted of asses,
double asses, half asses, and quarter asses; nor was any gold or silver coin in
circulation, as we learn by the Law of the Twelve Tables. The value of the
purchasing power of these coins was not estimated by their number, but by their
weight; hence an as consisted of a pound of bronze, a double as of two pounds
(whence it derived its name, which is still retained), while the half-asses and
quarter-asses were estimated by their respective parts of a pound. Therefore,
in former times, those who paid out money to anyone did not count it but
weighed it, and the slaves who were permitted to disburse money were called
(123) If anyone should ask what is the difference between coemption and
mancipation, the reply is that the first ceremony does not reduce the party to
a servile condition; but persons of either sex mancipated by parents or others
are reduced to the condition of slaves, to such an extent that they cannot take
either an estate or a legacy under the will of the party by whom they have been
mancipated, unless they have been ordered to be free by the terms of the same
will; just as the law is with reference to the persons of slaves. The reason
for this distinction is clear, as the words used by parents and so-called
purchasers are the same as those employed in the mancipation of slaves, but in
the coemption of women this is not the case.
(124) Let us now consider in what ways those who are subject to the
authority of another are released from it.
(125) And, in the first place, let us examine those who are under the
power of others.
(126) We can understand from what has been stated above with reference
to the manumission of slaves, how they are freed from the power of their
(127) Children who are under the authority of their father become their
own masters at his death. The following distinction, however, must be made,
namely: When a father dies, his sons and his daughters always become
independent; but when a grandfather dies, his grandsons and granddaughters do
not, under all circumstances, become independent, but only where, after the
death of their grandfather, they do not again pass under the control of their
father. Therefore, if at the time of the death of their grandfather their
father was living and was under the control of his father, they pass under the
control of their father after the death of their grandfather; but if, at the
time of the death of their grandfather, their father was either dead or had
been released from the control of his father, then the grandchildren, for the
reason that they cannot pass under his control, will become their own
(128) As a person who, on account of the commission of some crime, has
been interdicted from water and fire under the Lex Cornelia, loses his
Roman citizenship, and for this reason is excluded from the number of Roman
citizens, his children cease to be under his control, just as if he were dead;
for reason does not permit that a person of the condition of an alien should
have a Roman citizen subject to this authority. In like manner, if anyone who
is in the power of his father is interdicted from water and fire, he ceases to
be under his control, as it is not reasonable that a man of the condition of an
alien should be under the parental authority of a Roman citizen.
(129) Even if the father should be taken captive by the enemy and
thereby become the enemy's slave, nevertheless, his authority over his children
remains in abeyance under the law of postliminium, by which those who
were captured by the enemy and return, recover all their former rights; and,
therefore, if he should return, he will have his children in his power. If,
however, he should die while in captivity, his children will become their own
masters; but it may be doubted whether this took place at the time when the
father died in the hands of the enemy, or at the time when he was captured.
Likewise, if the son himself, or a grandson, should be taken captive by the
enemy, we say that the authority of the father remains in abeyance on account
of the law of postliminium.
(130) Moreover, male children are released from paternal authority if
they are installed priests of Jupiter; and females, if they are chosen Vestal
(131) In former times also, when the Roman people were accustomed to
establish colonies in Latin territory, sons, who, by the order of their father,
placed their names upon the roll of the Latin colony, ceased to be under the
control of their father, because they became citizens of another State.
(132) Again, children cease to be under parental authority by means of
mancipation. A son, however, by three mancipations, and other children either
of the male or female sex by a single mancipation, are released from parental
authority; for the Law of the Twelve Tables only mentions three mancipations
with reference to a son, as follows: "If a father sells his son three times,
let him be free from the control of his father." This ceremony takes place in
the following manner. The father sells his son to a third party, and the latter
manumits him by the wand of the prætor, and by doing so, he is restored
to the control of his father; and the latter then sells him a second time,
either to the same person or to another (but it is customary to sell him to the
same person); and he again manumits him in the same way, and by this act the
son is again placed in the power of his father; and the father then sells him a
third time, either to the same person or to another (it is customary, however,
for him to be sold to the same person), and by virtue of this sale he ceases to
be under the control of his father, even though he has not yet been manumitted,
but still remains in the condition of one who has been sold.
(133) It should, however, be noted that one who has a son, and by him a
grandson under his control, has full power to release his son from his control,
and still to retain authority over his grandson; or, on the other hand, he has
the right to manumit his grandson, or to render both parties their own masters.
We understand that this rule also applies to great-grandsons.
(134) Again, parents also lose their authority over their children by
giving them in adoption. Where a son is given in adoption, three sales are
required, and two intervening manumissions must take place, as is customary
when the father releases a son from his authority, in order that he may become
his own master. Then, the son is either resold to the father and he who adopts
him claims him as his son before the prætor; and, if his natural father
does not claim him, he is given by the prætor to the party who claims him
by adoption; or, if he is not sold again to his father, he who adopts him
claims him from him to whom he was sold for the third time. It is, however,
more convenient for him to be resold to his natural father. In the case of
other offspring of either sex, one sale is sufficient, whether a resale is made
to the natural father or not. The same ceremony ordinarily takes place in the
provinces, in the presence of the governor.
(135) When a grandson is conceived after the first or second sale of a
son, although he may not be born until after the third sale of his father, he,
nevertheless, remains under the control of his grandfather, and may be
emancipated, or given in adoption by him. A grandson, however, who is begotten
after the third sale of a son, is not born under the control of his
grandfather; but Labeo holds that he is born under the control of him to whom
his father was sold. We, however, make use of the following rule, that as long
as its father is in mancipation the right of the child remains in suspense; and
if the father should be manumitted, the child will pass under his authority;
but if he should die before the ceremony of mancipation has been completed, the
child will become its own master.
(135a) We understand that the same rule applies to the case of a
grandson who has been mancipated once, as it does to that of a son who has been
mancipated three times, for, as we stated above, what three sales accomplished
with reference to a son, one accomplishes in the case of a grandson.
(136) A woman placed in the hand of her husband by confarreation is not,
for this reason, at present, released from paternal authority unless the
ceremony of coemption has been performed; for it is provided by the Lex
Asinia Antistia enacted during the Consulate of Cornelius Maximus and
Tubero, with reference to priestesses of Jupiter being in the hand of their
husbands as far as relates to the sacred rites; but in all other respects they
are considered as not being under such restraint. Where, however, women are
placed in the hand of their husbands by coemption, they are released from
parental control; and it makes no difference whether they are placed in the
hand of their husbands, or in that of strangers; although those alone are
considered to occupy the place of daughters who are placed in the hand of their
(137) Women placed in the hand of their husbands by coemption cease to
be subject to this authority in the same way as daughters under the control of
their father; that is to say, either by the death of him in whose power they
are, or because he has been interdicted from water and fire.
(137a) They also cease to be in the hand of their husbands by
remancipation; and if emancipated after a single sale they become their own
mistresses. A woman who has concluded a coemption with a stranger by way of
trust, can compel him to sell her again to anyone whom she may select; but one
who has been sold to her husband, in whose hand she is, cannot compel him to do
so, any more than a daughter can compel her father, even though she may be an
adopted daughter. A woman, however, can, by serving notice of repudiation,
force her husband to release her, just as if she had never been married.
(138) As persons who have been sold in this way are considered to occupy
the position of slaves, if they should be manumitted either by the
prætor, or by enrollment in the census, or by will, they become their own
(139) In this instance, however, the Lex Ælia Sentia does
not apply. Therefore, we do not require the party who manumits, or the one who
is manumitted, to be of any particular age; and no attention is paid to whether
the party granting the manumission has either a patron or a creditor; and not
even the number prescribed by the Lex Fufia Caninia is considered with
reference to persons of this description.
(140) But even if the party having possession of the one who is sold
should be unwilling, the latter can obtain his freedom by being enrolled on the
register of the census; except in the case of one whom his father has
mancipated under the condition that he should be again sold to him; for, in
this instance, the father is considered to have reserved, to a certain extent,
his own power for himself which he received by mancipation. And, indeed, he is
not said to have received his freedom by enrollment on the register of the
census, against the consent of the party who holds him in mancipation, if his
father gave him up as the result of a noxal action; for instance, where his
father has been condemned on account of a theft committed by his son and has
surrendered him by mancipation to the plaintiff, for then the plaintiff holds
him instead of the payment of a sum of money.
(141) In conclusion, we observe that no insulting act should be
committed by us against persons whom we hold in mancipation; otherwise, we
shall be liable to a suit for injury committed. And, indeed, men should not be
retained for any length of time in this condition, but, for the most part, as a
matter of form, and only for an instant, unless the parties are mancipated on
account of a noxal action.
(142) Let us now pass to another division. For persons who are neither
subject to paternal authority, nor are in the hand, nor are held in mancipation
by another, may still be under guardianship or curatorship, or may be free from
either of these restrictions. Let us first consider those who may be under
guardianship and curatorship; for then we shall understand who the other
persons are who are subject to neither of these restraints.
(143) And, first, let us examine those who are under guardianship.
(144) Parents are permitted to appoint testamentary guardians for their
children who are subject to their authority, who are under the age of puberty,
and of the male sex; and for those of the female sex, no matter what their age
may be, and even if they are married; for the ancients required women, even if
they were of full age, to remain under guardianship on account of the levity of
(145) Therefore, if anyone appoints a guardian for his son and daughter
by will, and both should arrive at the age of puberty, the son will cease to
have a guardian, but the daughter will nevertheless remain subject to
guardianship; for it is only under the Lex Julia et Papia that women are
released from guardianship by the birth of children. Those whom we speak of do
not include Vestal Virgins, whom the ancients desired to be free on account of
the honor of the priesthood; hence this was provided by the Law of the Twelve
(146) We can, however, only appoint testamentary guardians for grandsons
and granddaughters, if after our death they do not again pass under the control
of their father. Therefore, if my son was under my control at the time of my
death, my grandsons by him cannot have a guardian appointed by my will,
although they were under my control at the time; for the reason that by my
death they were placed under the control of their father.
(147) As in many other instances posthumous children are considered as
already born, in this case also it has been decided that testamentary guardians
can be appointed for posthumous children, as well as for those previously born;
provided, however, that if born during our lifetime, they would have been
subject to our authority. We can also appoint them our heirs, but it is not
permitted to appoint posthumous strangers heirs.
(148) A testamentary guardian can be appointed for a wife who is in the
hand of the testator; just as if she were a daughter; and, likewise, one may be
appointed for a daughter-in-law who is in the hand of a son, just as if she
were a granddaughter.
(149) A guardian can most properly be appointed in the following manner,
namely: "I appoint Lucius Titius guardian of my children." If, however, the
appointment was made as follows: "Let Lucius Titius be the guardian of my
children and my wife," it is understood to be legally made.
(150) The choice of a guardian may be left to a wife who is in the hand
of the testator, that is to say, he can permit her to select any guardian whom
she may choose, as follows: "I give to Titia, my wife, the selection of her
guardian." In this instance, the wife is permitted to appoint a guardian either
for the administration of all the property, or only of one or two things.
(151) Moreover, the choice may be granted either absolutely or with
(152) It is ordinarily granted absolutely in the way that we have
mentioned above. Where it is granted with restrictions, the following form is
usually employed: "I grant to Titia, my wife, only one choice of a guardian";
or: "I only grant her the right to make two selections."
(153) These privileges of selection are very different, for she who has
an unlimited right of choice, can choose a guardian twice or three times, or
oftener; but she who has a limited right of choice cannot make more than one if
only one is granted; and if only two are granted she has no right to make more
than two selections.
(154) Guardians who are especially appointed by will are called
"dative"; and those ta whom the selection of a guardian is left are called
(155) By the Law of the Twelve Tables the nearest agnates become the
guardians of children for whom no guardian was appointed by will, and they are
styled legal guardians.
(156) Agnates are blood relatives through the male sex, for instance,
through the father; as a brother having the same father, the son of a brother,
or a grandson by him, and also a paternal uncle and his son and grandson. Those
who are related through the female sex are not agnates, but cognates, according
to natural law. Therefore, agnation does not exist between a maternal uncle and
a son or a sister, but cognation does. In like manner, the son of my maternal
aunt, or the sister of my mother, is not my agnate, but my cognate; and, on the
other hand, I am related to him by the same rule, because children follow the
family of their father, and not that of their mother.
(157) Formerly, however, according to the Law of the Twelve Tables,
females had agnates as legal guardians, but afterwards the Lex Claudia,
which abolished the guardianship of agnates, so far as females were concerned,
was enacted, and therefore a male child under the age of puberty has his
brother, who is above the age of puberty, or his paternal uncle, as his
guardian; but a female child cannot have a guardian of this kind.
(158) The right of agnation is extinguished by the loss of civil rights,
but the right of cognation is not affected by it, for the reason that a civil
law can abrogate civil rights, but cannot extinguish natural rights.
(159) The loss of civil rights is a change of former condition, and this
takes place in three ways; it is either greatest, or less, which some call
intermediate, or least.
(160) The greatest loss of civil rights occurs when anyone forfeits at
the same time both his citizenship and his freedom, which happens to those who
are not inscribed on the register of the census, and are in consequence ordered
to be sold; which rule has for some time been abolished by disuse. Under the
terms of the Lex Ælia Sentia, dediticii are liable to the same
penalty for violation of its provisions
if they have established their domicile in the City of Rome. It also
takes place where, under the Claudian Decree of the Senate, free women become
the slaves of the owners of other slaves with whom they have cohabited against
the consent and protest of their masters.
(161) Less, or intermediate, loss of civil rights occurs when
citizenship is forfeited but freedom is retained, which happens when anyone is
interdicted from fire and water.
(162) The least loss of civil rights results when both citizenship and
freedom are retained, but a man's domestic condition is altered; which happens
to those who are adopted, as well as to women subject to coemption, and also in
the case of those who are given in mancipation and are afterwards manumitted;
so that as often as anyone is mancipated, or remancipated, or manumitted, he
suffers a loss of civil rights.
(163) The right of agnation is extinguished not only by the two greater
losses of civil rights but also by the least; and therefore if a father should
emancipate one of two children, neither can be the guardian of the other by the
right of agnation after his death.
(164) When agnates have a right to guardianship, all of them are not
entitled to that right at once, but only those in the nearest degree.
(165) By the same law of the Twelve Tables, the guardianship of
freedwomen and freedmen under the age of puberty belongs to their patrons and
the children of the latter. This kind of guardianship is also styled legal, not
because special provision is made for it by this law, but for the reason that
this has been accepted by interpretation just as if it had been expressly
stated in the words of the statute; for as the law directed that the estates of
freedmen and freedwomen who died intestate should belong to their patrons and
the children of the latter, the ancient authorities held that the law intended
that they should be entitled to their guardianship because it ordered that
agnates whom it called to the succession should also be guardians.
CONCERNING FIDUCIARY GUARDIANSHIP.
(166) As in the case of patrons, another kind of guardianship which is
also designated legal, has been established. For, if anyone should give in
mancipation to another, under the condition that he would remancipate him to
himself, either a son or a grandson by that son, who is under the age of
puberty, or a daughter or a granddaughter by a son, and their descendants,
whether they have arrived at the age of puberty or not; and he should manumit
them after they have been remancipated, he will become their legal
(166a) There are other kinds of guardianship which are styled fiduciary,
that is to say, such as we are entitled to for the reason that a free person
has been mancipated by us, or by a relative, or by a party to coemption and
afterwards has been manumitted.
(167) The guardianship of Latins of both sexes who are under the age of
puberty does not invariably belong to those who manumit them, but to those to
whom they belonged by quiritarian right before their manumission. Therefore, if
a female slave who belonged to you by quiritarian right, but who was mine by
bonitarian right, should be manumitted by me alone without your taking part in
the ceremony, she would become a Latin, and her property will belong to me; but
you will have the right to her guardianship, as provision for this is made by
the Lex Junia. Hence, if the said slave should be made a Latin by one
who had both the bonitarian and quiritarian rights, her property as well as her
guardianship will belong to him.
(168) Agnates, patrons, and those who manumit free persons are permitted
to transfer the guardianship of a female ward to another in court; it is not,
however, permitted to transfer the guardianship of male wards, for the reason
that this is not considered onerous, as it terminates at the age of
(169) He to whom a guardian is thus transferred is designated a
(170) If he dies, or loses his civil rights, the guardianship reverts to
the party who transferred it;, and if the latter should be either dead or have
forfeited his civil rights, the guardianship will leave the cessionary guardian
and pass to the one next in degree to the party who transferred it.
(171) So far as agnates are concerned, however, cessionary guardianship
does not at present exist, as guardianship of female wards by agnates was
abolished by the Lex Claudia.
(172) Certain authorities hold that fiduciary guardians also have no
right to transfer their guardianship, as they themselves have voluntarily
assumed the burdens of the same; but, although this has been decided, still in
the case of a parent who have given either a daughter, granddaughter, or a
great-granddaughter in mancipation to another under the condition that she
shall be again mancipated to him, and, this having been done, he manumits her,
the same rule should not apply; as he is considered a legal guardian, and the
same privilege should be granted to him as to a patron.
(173) Moreover, by a Decree of the Senate, women are permitted to demand
another guardian to take the place of one who is absent; and this having been
granted, the first guardian ceases to hold his office, nor does it make any
difference how far he may be from home.
(174) An exception, however, is made in the case of an absent patron, as
a freedwoman is not permitted in this instance to demand another guardian.
(175) Again, in the same class with the patron we have a parent who has
obtained legal guardianship from the fact that he has manumitted his daughter,
granddaughter, or great-granddaughter, who has previously been remancipated by
himself. His sons, however, are only considered to occupy the places of
fiduciary guardians, but those of a patron obtain the same guardianship which
their father possessed.
 Prior to the enactment of the Lex Claudia, the
res mancipi of a woman under the tutelary control of agnates, were not
subject to usucaption, unless the transfer had previously been sanctioned by
her guardian. — ed.
(176) Sometimes, however, it is permitted to demand a guardian to take
the place of an absent patron; as for instance, where an estate is to be
(177) The Senate decreed that the same rule should apply to the son of a
patron who was himself a ward.
(178) For by the Lex Julia, enacted for the purpose of regulating
marriages, a female who is under the legal guardianship of a ward is permitted
to demand a guardian from the Prætor of the City for the purpose of
constituting her dowry.
(179) For the son of a patron, even if he is under the age of puberty,
becomes the guardian of a freedwoman, although he cannot perform any legal act,
as he is not permitted to do anything without the authority of his
(180) Likewise, if any female is subject to the legal guardianship of a
person who is insane, or dumb, she is permitted by the Decree of the Senate to
demand a guardian for the purpose of constituting her dowry.
(181) In these instances, it is clear that the patron or the patron's
son is unquestionably entitled to the guardianship.
(182) Moreover, the Senate decreed that, if the guardian of a male or
female ward was suspected of maladministration, and was removed from the
guardianship; or if he should be excused for some good reason, and another
guardian be appointed in his stead; after this has been done, the former
guardian shall lose the guardianship.
(183) All of these provisions are observed both at Rome and in the
provinces, but at Rome application for the appointment of a guardian should be
made to the Prætor, and in the provinces to the governor.
(184) Formerly, when the ancient mode of procedure was in use, a
guardian was appointed for another reason, namely, where a suit was about to be
brought between the guardian and the woman, or the ward; since because the
guardian could not grant authority in his own case, another guardian was
appointed by whom the legal proceedings were instituted; and he was called a
prætorian guardian, because he was appointed by the Urban Prætor.
Some authorities, however, think that, after the ancient mode of procedure was
abolished, this method of appointing a guardian became obsolete, but it is held
by others that it is still the practice where an action is to be brought.
(185) If there should be no lawful guardian for a person, one is
appointed for him under the Lex Atilia, in the City of Rome by the Urban
Prætor and a majority of the tribunes of the people, who is styled an
"Atilian guardian"; and in the provinces he is appointed by the governor under
the Lex Julia et Titia.
(186) Hence if a guardian is appointed of anyone by will under a
condition, or from a certain day, a guardian can be appointed while the
condition is pending, or before the time arrives. Likewise, if a guardian
should be appointed absolutely, a guardian can be demanded under these laws, so
long as no heir appears, and he will cease to hold his office as guardian when
the one appointed by will acquires the right to act.
(187) When a guardian is captured by the enemy, a substitute should be
demanded under these laws, and he will cease to be guardian if the one who was
taken captive should return, for, on his return, he will recover the
guardianship by the law of postliminium.
(188) From this it is apparent how many different kinds of guardianships
there are, and if we consider into how many classes they may be divided a long
discussion will be required, for the ancient authorities entertained many
doubts on this subject, and as we have examined it very carefully, both in the
interpretation of the Edict and in the books which we have written on Quintus
Mucius, it will be sufficient to state that certain jurists, for instance,
Quintus Mucius, say that there are five classes, and others, like Servius
Sulpicius, say that there are three; and still others, as Labeo, say that there
are two; and
 The jus postliminii of the Civil Law, was the
privilege enjoyed by prisoners of war of being, upon their return, restored to
all the rights which they possessed previous to their captivity. By the effect
of this legal fiction they were considered never to have been absent at all.
"Postliminium fingit eum qui captus est, in civitate semper fuisse." The
rule was also applicable to real, but not to personal property, unless the
latter was speedily retaken, and hence became readily susceptible of
Under the Law of Postliminium, freemen were said to "return";
slaves to be "received"; and property to be "recovered". The animus
revertendi was absolutely essential for the enjoyment of the rights which
it conferred; if a prisoner of war was surrendered against his will, he was not
entitled to them. Deserters were also excluded from participation in these
As long as a father was in captivity, the exercise of paternal control
remained in abeyance, dating from the moment of capture, but the right again
vested at the time of release. Marriage was voidable at the option of the
parties interested; hence its suspension might be indefinitely prolonged. As a
captive was temporarily civiliter mortuus, he could perform no legal
act; but if he died while in the hands of the enemy his decease was presumed to
have occurred in his own country, at the instant when he lost his liberty.
The general principles of the jus postliminii as laid down by the
Romans, are recognized by all writers on international law. "Per bellum
capti, ubi manus hostium quocunqua modo evaserint, neque illis fide data sint
obstricti, atque ad suos redierint, non modo pristinum statum, sed & omnia
sua bona ac jura recuperent. Quod autem res attinet, quamdiu bellum
durât, si hostibus iterum sint ereptæ sive per nos ipsos, sive per
nostros cives aut milites, eas ad antiquos dominos redire par est, non
immobiles tantum, sed & mobiles, modo liquido a nobis possint
dignosci." (Pufendorf, De Jure Naturæ et Gentium, VIII, VI,
"It is therefore with reason that movables or booty are excepted from
the right of postliminium, unless retaken from the enemy immediately
after his capture of them; in which case, the proprietor neither finds a
difficulty in recognising his effects, nor is presumed to have relinquished
them." (Vattel, The Law of Nations, III, XIV, Page 393.)
"The right of postliminy is founded upon the duty of every State to
protect the persons and property of its citizens against the operations of the
enemy. When, therefore, a subject who has fallen into the hands of the enemy is
rescued by his State, he is restored to his former rights and condition under
his State. So, of the property of a subject recaptured from the enemy by his
State; it is no more the property of the State than it was before it fell into
the hands of the enemy; it must, therefore, be restored to its former owner.
But if, by the well-established rules of public law, the title to the captured
property has become vested in the enemy captor, the former owner cannot claim
its restoration from the recaptor, because his original title has been
extinguished." (Baker, First Steps in International Law, XXXV, Pages 364, 365.)
others again, hold that there are as many kinds of guardianship as there
are forms of the same.
(189) The law of all states declares that persons who have not reached
puberty shall be under guardianship, because it is consonant with natural
reason that one who is not of full age should be controlled by the guardianship
of another. Indeed, there is scarcely any state in which parents are not
permitted to appoint testamentary guardians for their children; although, as we
have stated above, only Roman citizens are considered to have their children
subject to paternal authority.
(190) There does not seem to be any good reason, however, why women of
full age should be under guardianship, for the common opinion that because of
their levity of disposition they are easily deceived, and it is only just that
they should be subject to the authority of guardians, seems to be rather
apparent than real; for women of full age transact their own affairs, but in
certain cases, as a mere form, the guardian interposes his authority, and he is
often compelled to give it by the Prætor, though he may be unwilling to
(191) Therefore, a woman has no right of action under the guardianship
against her guardian, but where guardians transact the business of their male
and female wards, they must render an account of their guardianship in court,
after their wards arrive at the age of puberty.
(192) The legal guardianship of patrons and parents are indeed
understood to have a certain effect, for the reason that they cannot be forced
to give their consent to the making of a will, to the alienation of property
subject to mancipation, or to the assumption of obligations; unless there
should be some urgent reason for the alienation of such property, or for
undertaking the obligations aforesaid. These provisions have been made for
their own benefit, in order that where the estates of persons who have died
intestate belong to them, they can neither be excluded from them by will, nor
have the estate come into their hands diminished in value on account of debts
which have been incurred, or through the alienation of the most valuable part
of the property.
(193) Women are not held in guardianship among foreigners as they are
with us; still, they are generally, as it were, in a state of tutelage; as, for
example, the law of the Bythinians directs that if a woman enters into a
contract it must be authorized either by her husband or by a son who has
reached the age of puberty.
(194) Moreover, a freeborn woman is released from guardianship if she is
the mother of three children, and a freedwoman if she is the mother of four,
and is under the legal guardianship of her patron. Those who have other kinds
of guardians, as, for instance, Atilian or Fiduciary, are
released from guardianship by having three children.
 The tutor Atilianus was appointed by the
Prætor and the tribunes, under the Lex Atilia, when no guardian
existed. This became necessary when there was a will, and the heir had not
accepted the estate; or the designated guardian was incapacitated; or the
testament from which he derived his authority was defective. — ed.
(195) A freedwoman may, however, have a guardian appointed in several
other ways; for example, where she has been manumitted by a woman, for then she
must demand a guardian under the Lex Atilia, or in the provinces under
the Lex Julia et Titia, for she cannot be under the guardianship of a
(195a) Again, if she has been manumitted by a male and should enter into
coemption with his consent, and then should be remancipated and manumitted, she
ceases to have her patron as her guardian, and begins to have as a guardian the
party by whom she was manumitted, who is designated a fiduciary guardian.
(195b) Likewise, if her patron, or his son, gives himself in adoption, a
freedwoman should demand a guardian for herself either under the Lex Atilia,
or the Lex Julia et Titia.
(195c) Likewise, under the same laws, a freedwoman should demand a
guardian, where her patron dies and leaves no child of the male sex in the
(196) Again, when males reach the age of puberty they are released from
guardianship. Sabinus and Cassius and our other preceptors hold that a person
has arrived at the age of puberty who manifests this by the condition of his
body, that is to say, if he is capable of procreation; but in the case of those
who cannot show this condition, as for instance, eunuchs, their age should be
considered to be that at which persons ordinarily reach puberty. Authorities
belonging to another school, however, think that the age of puberty should be
estimated by years; that is to say, they hold that a person has arrived at the
age of puberty who has completed his thirteenth year. . . .
(197) After having been released from guardianship, the affairs of a
minor are administered by a curator until he reaches the age when he is
qualified to transact his own business; and this rule is observed among foreign
nations, as we have stated above.
(198) In cases of this kind, in the provinces, curators are usually
appointed by the governor.
(199) In order to prevent the property of wards and persons who are
under the charge of curators from being wasted or diminished in value by their
guardians and curators, it is the duty of the Prætor to compel guardians
and curators to furnish security for this purpose.
(200) This, however, is not always the case, for guardians appointed by
will are not compelled to furnish security, because their fidelity and
diligence have been approved by the testator himself; and curators who have not
obtained their office by law, but who are appointed either by a consul, a
Prætor, or the governor of a province, are, for the most part, not
required to furnish security, for the reason that they have been chosen on
account of their being considered sufficiently trustworthy.
Original manuscript illegible.