§ Idem iuris est in earum personis, quae in manu BOOK II. Part 1. Paul. rec. sent. v. 1, § 1: Qui contemplatione extremae necessitatis aut alimentorum gratia filios suos vendiderint, statui ingenuitatis eorum non praeiudicant homo enim liber nullo pretio aestimatur. Iidem nec pignori ab his aut fiduciae dari possunt; operae tamen eorum locari possunt.a2 a Cf. sup. C. 8, Imp. Dioclet. Liberos a parentibus neque venditionis neque donationis titulo, neque pignoris iure, aut alio quolibet modo . . . in alium transferri posse, manifesti iuris est.-C. 4, 43, 1.3 46, 10. natos. Imp. Constant.: Si quis propter nimiam paupertatem egestatemque victus causa filium filiamve sanguinolentos" vendiderit, venditione in hoc a I.e., modo tantummodo casu valente, emptor obtinendi eius servitii habeat facultatem. Liceat autem ipsi qui vendidit vel qui alienatus est, aut cuilibet alii ad ingenuitatem eum propriam repetere, modo sit aut pretium offerat aut mancipium pro huiusmodi praestet.-1. 2 eod.* 1 All children, accordingly, whether male or female, that are under their father's potestas can be mancipated by him in the same way as slaves also are mancipated. The like rule obtains in respect of persons in manu.-But generally mancipation, as well by parents as by fictitious purchasers, alone takes place when the parents or fictitious purchasers wish to release such persons from their authority. 2 They that from consideration of dire need, or for the sake of maintenance, have sold their children, do not adversely affect their status of free birth; for a freeman is valued at no price. Neither can the same be given by them in pledge, or as a fiducia; but their services can be let. It is settled law that children cannot be transferred to another by their parents either by virtue of sale or gift, or by pledge-right, or by any other mode. If any one through dire poverty and need of sustenance have sold a new-born son or daughter, the sale shall be good merely BOOK II. a Cf. §§ 56, 113, and Holmes, 'Common Law,' pp. 8-15.-As to Mr. Roby's criticism of the form here (Int. to Dig.' p. 132), it may be remarked that 'noxae dare' is quite as common as, perhaps more frequent than, dedere ; on the other hand, 'noxae deditio' is certainly the more usual. Cf. §§ 149,150, and D. 3, 3, 35 pr. § 20 and Gai. ii. 96. (3) the 'ius noxae dandi;'" but this disappeared from the Law in its developed form. Gai. iv. § 75: Ex maleficiis filiorumfamilias servorumque, veluti si furtum fecerint aut iniuriam cominiserint, noxales actiones proditae sunt, uti liceret patri dominove, aut litis aestimationem sufferre aut noxae dedere: erat enim iniquum, nequitiam eorum ultra ipsorum corpora parentibus dominisve damnosam esse.1 Sed veteres quidem haec et in filiisfamilias masculis et feminis admiserunt. Nova autem hominum conversatio huiusmodi asperitatem recte respuendam esse existimavit: quis enim patitur filium suum et maxime filiam in noxam alii dare, cum in filiabus etiam pudicitiae favor hoc bene excludit?-§ 7, I. de nox. act. 4, 8.2 With regard to commercium,' the child in patria potestas is (1) incapable of having property of his own, but possesses full capacity to acquire for the paterfamilias. Gai. ii. § 87: Igitur quod liberi nostri, quos in potestate habemus, item quod servi nostri mancipio accipiunt vel ex traditione nanciscuntur, in this case, and the purchaser shall be entitled to acquire such services. But the one who hath sold him or he that was alienated, or any other, shall be empowered to restore him to his personal freedom, provided he either tender the price or supply another slave in his stead. 1 The wrongful acts of sons under power or of slaves, as for instance, if they have committed theft or outrage, have given rise to noxal actions, whereby the father or owner shall have the option either of bearing pecuniary damages or of surrendering the wrong-doer by way of reparation; for it was unfair that their offence should involve the parents or masters in loss beyond the value of their persons. 2 But the ancients allowed this even in the case of sons and daughters of the family. The modern manner of life, however, has rightly deemed it necessary to eschew severity of this kind; for who consents to give up by way of reparation to any one his son and, above all, his daughter, . . whilst in respect of his daughters even regard for decency justly forbids this? sive quid stipulentur vel ex aliqualibet causa Pomp. ad Sab.: Filiusfamilias suo nomine Ulp.: Iuliano placet, si filiusfamilias legationis vel studiorum gratia aberit et vel furtum vel damnum iniuria passus sit posse eum utili iudicio agere. . . . Unde ego semper probavi ut, si res non ex maleficio veniat sed ex contractu, debeat filius agere utili iudicio, forte depositum repetens vel mandati agens vel pecuniam quam credidit petens: si forte pater in provincia sit, ipse autem forte Romae agat.—1. 18, § 1, D. de ind. 5, 1.3 Id. In factum actiones etiam filiifamiliarum BOOK II. Part I. a But see Gai. iii. 104, and Gai. Filiusfamilias ex omnibus causis tam- D. 50, 12, 2 pr. quam paterfamilias obligatur, et ob id agi cum eo tamquam cum patrefamilias potest.-1. 39 eod." 1 Therefore, that which our children whom we have under our potestas, also that which our slaves receive by mancipation, or obtain by delivery, or stipulate for, or acquire in what way soever, is acquired for us; for he who is under our potestas can have nothing of his own. 2 No action belongs to a fil. fam. in his own name, except that for outrage, and that for violent or clandestine dispossessions and those in respect of a deposit or loan, as Iul. thinks. 3 Julian is of opinion that if a fil. fam. is absent by reason of an embassage, or of his studies, and has suffered either a theft or damage with injury, he can take equitable proceedings. . . . I have therefore always supported the view, that if the matter do not proceed from a delict but from a contract, the son ought to sue by utile iudicium, when, it may be, he reclaims some deposit, or sues upon a commission, or claims money lent by him; if so be the father is in the province, but he himself happen to sojourn at Rome. 4 • Filii fam. also can bring actions for matters of fact. 5 A fil. fam. incurs obligation in all cases like a pat. fam., and can therefore be sued just as a pat. fam. BOOK II. § 44. Ulp. Tam ex contractibus quam ex delictis in filiumfamilias competit actio.-1. 57, D. de iud.' § 51. ORIGINATION OF THE PATRIA POTESTAS. THE NATURAL GROUND THEREOF LAID IN PROCREATION. 1. The patria potestas regularly arises-immediately and of itself by procreation in a 'legitimum matrimonium'"; according to later Law, in a marriage of general legal validity: it is immaterial whether the birth of the child takes place during marriage or after ♦ D. 49, 15, 25. dissolution thereof. Only children begotten in wedlock have a father, and indeed, since the fact of procreation never can be discovered, the husband, by virtue of legal presumption, is regularly regarded as father of the child; i.e., he with whom the mother lived in legal matrimony during the time of conception." The time of conception is taken to be the space from 182 to 300 days before the birth. If the paternity Inst. iv. 6, 13. is contested, a 'praeiudicium'd is needful for its discovery: the child and its mother has the 'actio de partu against the father for recognition as begotten in wedlock; and special measures were provided by the SC. Plancianum and the Praetorian Edict (edictum de iuspiciendo ventre custodiendoque partu) for the prevention of delay or of embezzlement of a child. § 42. 1 Ulp. Filium eum definimus, qui ex viro et uxore eius nascitur. Sed si fingamus abfuisse maritum verbi gratia per decennium, reversum anniculum invenisse in domo sua, placet nobis Iuliani sententia, hunc non esse mariti filium. Non tamen ferendum Iulianus ait eum, qui cum uxore sua adsidue moratus nolit filium agnoscere quasi non suum.-D. 1, 6, 6.2 An action lies against a fil. fam. as well upon contracts as upon delicts. 2 As son we designate him who is born of a man and his wife. But if, for example, we suppose a husband to have been absent ten years, and upon his return to have found a child one year Paul. Septimo mense nasci perfectum partum, iam receptum est propter auctoritatem doctissimi viri Hippocratis; et ideo credendum, eum qui ex iustis nuptiis septimo mense natus est, iustum filium esse.-D. 1, 5, 12.' Ulp. Post decem menses mortis natus non admittetur ad legitimam hereditatem.-De eo autem, qui centesimo octogesimo secundo die natus est, Hippocrates scripsit et D. Pius pontificibus rescripsit, iusto tempore videri natum.-D. 38, 16, 3, §§ 11-12. Children begotten in a non legitimum matrimonium' were free from patria potestas, but became subject to it contemporaneously with the attainment of citizenship, by means of anniculi caus. prob. ex 1. Aelia Sentia and the erroris caus. prob.'a BOOK II. Part I. a Gai. i. 29-31, Gai. i. §§ 93, 94: Si peregrinus sibi liberisque 67-8, 70, 95-6. § Item si quis cum uxore praegnante civitate old in his house, we take the view of Julian that this is not a son of the husband. We are not, however, says Julian, to tolerate him who, having lived along with his wife continuously, refuses to recognise [her] son as his own. 1 That a child is perfectly developed when born in the seventh month has already obtained acceptance upon the authority of the learned Hippocrates; and therefore we must suppose that the child born in lawful marriage in the seventh month is a legitimate son. 2 The child born after ten months from the death shall not be admitted to the statutory inheritance.-But as to the child born on the 182nd day, Hippocrates has written, and the late emperor Pius has stated by a rescript, that it must be regarded as born at the right time. 3 If a foreigner applies for Roman citizenship for himself and |