gerit. cum enim antiquitas huiusmodi aetati et pro aliis postulare concessit', cur non etiam sui iudicii stabilitas ita eos adiuvare credatur, ut et ad libertates dandas servis suis possint provenire?

TIT. VII. DE LEGE FURIA CANINIA SUBLATA.

Lege Furia Caninia certus modus constitutus erat in servis testamento manumittendis. quam, quasi libertatibus impedientem et quodammodo invidam, tollendam esse censuimus, cum satis fuerat inhumanum, vivos quidem licentiam habere totam suam familiam libertate donare, nisi alia causa impediat libertati, morientibus autem huiusmodi licentiam adimere.

TIT. VIII. DE HIS QUI SUI VEL ALIENI IURIS SUNT.

Sequitur de iure personarum alia divisio. nam quaedam personae sui iuris sunt, quaedam alieno iuri subiectae sunt.

year and entered upon his eighteenth. For since the ancients allowed people of this age to plead, even on behalf of others', why should not the soundness of their judgment be supposed to enable them to proceed also to the conferring of liberty upon their slaves?

TIT. VII. ON THE REPEAL OF THE LEX FURIA CANINIA.

As the Lex Furia Caninia established a strict limitation of the number of slaves who could be manumitted by testament, we have thought fit that it should be abolished, because it interfered with the bestowal of freedom and was in some respects an odious law: for it seemed thoroughly unreasonable that living persons should have the power to set free their whole household, unless some other cause interfered with the gift of freedom, whilst we took the same privilege from the dying.

TIT. VIII. ON THOSE WHO ARE SUI JURIS OR ALIENI JURIS. Now follows another division of the law of persons. For some persons are sui juris3, some are subject to the jus

1 D. 3. I. I. 3.

2 As to the provisions of this lex see Gaius I. 42.

3 Sui juris sunt familiarum suarum principes. Ulpian IV. 1.

rursus earum, quae alieno iuri subiectae sunt, aliae in potestate parentum, aliae in potestate dominorum sunt. videamus itaque de his quae alieno iuri subiectae sunt: nam si cognoverimus quae istae personae sunt, simul intellegemus quae sui iuris sunt.

Ac prius dispiciamus de his quae in potestate dominorum sunt.

I. In potestate itaque dominorum sunt servi. quae quidem potestas iuris gentium est': nam apud omnes peraeque gentes animadvertere possumus dominis in servos vitae necisque potestatem esse, et quodcumque per servum acquiritur, id domino acquiritur. (2.) Sed hoc tempore nullis hominibus qui sub imperio nostro sunt licet sine causa legibus cognita et supra modum in servos suos saevire. Nam ex constitutione divi Pii Antonini qui sine causa servum suum occiderit, non minus puniri iubetur, quam qui servum alienum occiderit. Sed et

(authority) of another. Of those persons again who are subject to the authority of another, some are in the potestas of their ascendants, some in the potestas of their masters. Let us consider then about those who are subject to another's authority for if we discover who these persons are, we shall at the same time understand who are sui juris.

:

And first let us consider about those who are in the potestas of their masters.

I.

Which

Slaves then are in the potestas of their masters. potestas is a creation of the jus gentium': for we may perceive that amongst all nations alike masters have the power of life and death over their slaves. Also whatever is acquired by means of a slave, is acquired for the master2. 2. But at the present day no persons who are under our sway are allowed to punish their slaves without a reason recognized by the laws, or in an outrageous manner. For by a constitution of the late emperor Pius Antoninus, he who kills his own slave without cause, is ordered to be punished as severely as he who kills the slave of another. The extravagant cruelty of masters is further

1

I. 2. 2.

2 This passage is taken almost verbatim from Gaius I. 48-53. It will be noticed that it is only the power of life and death which is

described as a creation of the jas
gentium, the prohibition of property
to a slave being a rule of the civil
law. See our note on Gaius I. 52.
3 He was amenable to the penal-

maior asperitas dominorum eiusdem Principis constitutione coërcetur. Nam consultus a quibusdam Praesidibus provinciarum de his servis, qui ad aedem sacram vel ad statuas Principum confugiunt, praecepit, ut si intolerabilis videatur dominorum saevitia, cogantur servos bonis condicionibus vendere, ut pretium dominis daretur. et recte: expedit enim reipublicae, ne quis rem suam male utatur. cuius rescripti, ad Aelium Marcianum emissi, verba haec sunt': Dominorum quidem potestatem in suos servos illibatam esse oportet, nec cuiquam hominum ius suum detrahi. sed dominorum interest, ne auxilium contra saevitiam vel famem vel intolerabilem iniuriam denegetur his qui iuste deprecantur. ideoque cognosce de querelis eorum qui ex familia Iulii Sabini ad statuam confugerunt; et si vel durius habitos quam aequum est, vel infami

restrained by another constitution of the same emperor. For when consulted by certain governors of provinces with regard to those slaves who flee for refuge to a holy temple or to the statues of the Emperors, he ordered that if the cruelty of the masters be proved to be beyond endurance, they shall be compelled to sell their slaves on fair terms, the price being given to the owners. And this rule is just; for it is a matter of public concern that no one should make an evil use of his property. The words of the edict referred to, which was sent to Aelius Marcianus, are as follows: "The power of masters over their slaves ought certainly to suffer no infringement, nor ought any man to be deprived of his right: yet it is to the interest of the masters themselves that there should be no denial of relief to those who implore it on just grounds against cruelty, or starvation, or other intolerable wrong. Therefore examine into the complaints of those slaves of Julius Sabinus who have fled to the statue and if you discover that they have been treated with more severity than they deserve, or that they have undergone outrageous wrong, order them to be sold,

ties of the Lex Cornelia de Sicariis. See D. 48. 8. 1. 2 and D. 48. 8. 3. 5. In the passage last quoted, we are informed that the punishment was originally deportation to an island in all cases; but that subsequently death by exposure to wild beasts

was the sentence awarded to all but persons of high degree, the latter remaining liable to deportation only.

Γ

Quoted from a passage of Ulpian in D. 1. 6. 2.

iniuria affectos cognoveris, veniri iube, ita ut in potestatem domini non revertantur. qui Sabinus, si meae constitutioni fraudem fecerit, sciet me admissum severius executurum.

TIT. IX. DE PATRIA POTESTATE.

In potestate nostra sunt liberi nostri quos ex iustis nuptiis procreaverimus. (1.) Nuptiae autem sive matrimonium' est viri et mulieris coniunctio, individuam consuetudinem vitae continens. (2.) Ius autem potestatis quod in liberos habemus proprium est civium Romanorum: nulli enim alii sunt homines, qui talem in liberos habeant potestatem, qualem nos habemus3.

3. Qui igitur ex te et uxore tua nascitur in tua potestate est. item qui ex filio tuo et uxore eius nascitur, id est nepos tuus et neptis, aeque in tua sunt potestate, et pronepos et

in such wise that they do not return into the power of their master. And if he evade my constitution, he shall discover that I will severely punish his offence."

TIT. IX. ON PATRIA POTESTAS.

Our children also whom we have begotten in lawful marriage are in our potestas. 1. Now marriage or matrimony' is the union of man and woman, creating an indivisible community of life'. 2. The right of potestas which we have over our children is peculiar to Roman citizens, for there are no other men who have such potestas over their children as we have3.

3. A child then who is born from you and your wife is in your potestas. So too is one born from your son and his wife in your potestas-that is, your grandson or granddaughter; in like manner your great-grandson and great-granddaughter, and

1 The word nuptiae strictly speaking denotes the ceremonies by which a marriage was contracted: and matrimonium the actual status of marriage.

2 There was a community of status, but not of property. The wife took her husband's rank, but the husband (unless the marriage was

accompanied by conventio in manum) did not acquire the wife's property, nor had she any claims upon his.

3 Gaius on the contrary says that the Galatians have the same regulations on this subject as the Romans (1. 55); and we may quote in corroboration St Paul's Epistle to the Galatians, iv. I.

proneptis, et deinceps ceteri. Qui tamen ex filia tua nascitur in tua potestate non est, sed in patris eius'.

TIT. X. DE NUPTIIS.

Iustas autem nuptias inter se cives Romani contrahunt, qui secundum praecepta legum coëunt, masculi quidem puberes, feminae autem viripotentes, sive patresfamilias sint sive filiifamilias; dum tamen filiifamilias et consensum habeant parentum, quorum in potestate sunt3. nam hoc fieri debere, et civilis et naturalis ratio suadet in tantum, ut iussum parentis praecedere debeat. unde quaesitum est, an furiosi filia nubere, aut furiosi filius uxorem ducere possit? cumque super filio variabatur*,

all others more remote; but the child of your daughter is not in your potestas, but in that of his father'.

TIT. X. ON MARRIAGE.

Roman citizens are joined together in lawful marriage when they unite themselves according to the rules of law, the males having reached the time of puberty, and the females being of the age of child-bearing, whether they be heads of families or subjectmembers of families; provided only the subject-members of families have in addition the consent of the ascendants in whose potestas they are; for both civil and natural law so strongly insist on this being needful, that the authorization of the ascendant ought further to be precedent. Hence it used to be debated whether the daughter of a madman could be married, or the son of a madman take a wife; and since opinions differed as to the son*, we have ourselves published a decision whereby the son

1 As to the rights comprised in potestas see App. A.

2 A short historical sketch of the Roman law of marriage is given in App. B.

3 D. 23. 2. 2 and 3.

4 It had been settled before Justinian's time that the daughter could marry; for by marriage she went out of her father's family and so relieved him of a burden. The case of the son was different: for if he had been allowed to marry without his father's

consent, the father on recovering his reason would have found himself liable to support and make testamentary provision for the offspring of the marriage, as they would have been under his potestas, and he would have been under the same obligation as to the wife also, if by being married with conventio in manum she had acquired the rights of a daughter in relation to her husband, and therefore those of a granddaughter in relation to his father. See II. 13.