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 filiifamiliaruin possunt exercere.-1. 13, D. de O. et A. : (2) can validly bind himself." 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. A fil. fam. incurs obligation in all cases like a pat. fam., and can therefore be sued just as a pat. fam. BOOK II. a § 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 'a; 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 d 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. C € § 42. 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 1 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, 12.1 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, §§ 11-12.2 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.'" BOOK II. Part I. a Gai. i. 29-31, Gai. i. §§ 93, 94: Si peregrinus sibi liberisque 67-8, 70, 95-6. suis civitatem Romanam petierit, non aliter filii in potestate eius fient, quam si imperator eos in potestatem redegerit, quod ita demum is facit, si causa cognita aestimaverit, hoc filiis expedire. § Item si quis cum uxore praegnante civitate Romana donatus sit, quamvis is qui nascitur civis Romanus sit, tamen in potestate patris non fit, idque subscriptione D. Hadriani significatur." 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. 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 BOOK II. Part I. Cf. Steph. ii. pp. 285-290; Ld. Mackenzie, pp. 133-4; Westlake, pp. 83-87. As to subscriptio, see above, p. 43. Neither can children begotten out of wedlock be placed under the potestas of the person that begot them, since he is not juristically accounted their father. But legislation of the Christian imperial, and especially later, times in different ways enabled natural fathers to obtain legal recognition, as though begotten in wedlock, of their liberi naturales,' or children by concubinage. This is LEGITIMATION. It can occur (a) per subsequens matrimonium; (8) per curiae oblationem.—The legitimated children rank fully with those begotten in wedlock." : Inst. i. 10, § ult. Aliquando autem evenit, ut liberi qui statim ut nati sunt in potestate parentum non fiant, postea tamen redigantur in potestatem. Qualis est is, qui dum naturalis fuerat, postea curiae datus potestati patris subiicitur. Nec non is, qui a muliere libera procreatus, cuius matrimonium minime legibus interdictum fuerat, sed ad quam pater consuetudinem habuerat, postea ex nostra constitutione dotalibus instrumentis compositis in potestate patris efficitur: quod et aliis, si ex eodem matrimonio fuerint procreati, similiter nostra constitutio praebuit.-[Imp. Iustinian. : si quis mulierem quam in contubernio suo habuerat, praegnantem fecerit, postea autem adhuc gravida muliere constituta dotalia fecerit instrumenta et puer vel puella editus vel edita sit, iusta patri suboles nascatur et in potestate efficiatur.-C. 5, 27, 11, 3.]1 his children, the children shall not be under his potestas unless the Emperor have brought them into it, and this he does only if, upon investigation of the case, he consider it advantageous to the children. . . . Likewise, if Roman citizenship be bestowed upon any man and his pregnant wife, although the child when born is a Roman citizen, yet he is not under the potestas of the father; and this is declared in a rescript' of the late Emperor Hadrian. 1 Sometimes it happens that children who are not under the § 52. ARTIFICIAL CREATION BY AN ACT IN THE LAW ADOPTION." over BOOK II. a Cf. Maine, 'Anct. Law,' pp. 130-132. The Upon legal Fictions in ch. ii.; Savigny, i. Not merely over one's own children, but also strangers, can the patria potestas be acquired. legal transaction by which any one is at discretion general, ibid. subjected to the patria potestas of another-with whom Syst. 1. 295; he enters into the relation of a child or grandchild- Austin, pp. 629631; Long's is called ADOPTION in the wider sense. Two kinds of Cicero, vol. i. adoption are distinguished: adoption in the narrower Brown, s.v. sense, and arrogation, Ulp. viii. 1: Non tantum naturales liberi in potestate parentum sunt, sed etiam adoptivi.' pp. 181-2; For other instances of fiction, sec § 36, 53, 56, 90, 154, 194, 200, Paul.: Adoptare quis nepotis loco potest, etiam 204. si filium non habet.-1. 37 pr., D. h. t. (=de adopt. 1, 7).2 Mod. Quod adoptionis nomen est quidem generale; in duas autem species dividitur, quarum altera adoptio similiter dicitur, altera adrogatio. Adoptantur filiifamilias, adrogantur qui sui iuris sunt.-1. 1, § eod.3 Gaius, p. 92; power of their parents at the moment of their birth, nevertheless come under their power later on. Thus, for example, a natural son who has been afterwards offered to the municipal senate' is made subject to the power of the father. Likewise 3 Cf. Moyle ad one begotten of a free woman with whom marriage had in no loc.; Poste on way been forbidden by the law, but with whom the father had Hunter, p. 202. cohabited, afterwards, by virtue of our constitution, is brought under the power of the father upon deeds settling a dowry being drawn up. And this is granted by our constitution to others likewise if they have been begotten from the same marriage.—If any one have made a woman pregnant with whom he had cohabited, but subsequently, while the woman is still pregnant, has executed deeds settling a dowry, and a son or daughter is born, such child shall be by birth the lawful offspring of the father, and be rendered subject to his potestas. 1 Not only are natural children under the potestas of their parents, but adoptive children as well. A man can adopt in place of a grandson, even if he have no son. 3 The expression 'adoption' is indeed a general one, but it is divided into two kinds, of which one is also called 'adoption,' ន |