perit, deinde manumissa pepererit, qui nascitur liberum nasci, naturali ratione fit. nam hi qui illegitime concipiuntur, statum sumunt ex eo tempore quo nascuntur: itaque si ex libera nascuntur, liberi fiunt, nec interest ex quo mater eos conceperit, cum ancilla fuerit. at hi qui legitime concipiuntur, ex conceptionis tempore statum sumunt. (90.) Itaque si cui mulieri civi Romanae praegnanti aqua et igni interdictum fuerit, eoque modo peregrina fiat, et tunc pariat, conplures distinguunt et putant, si quidem ex iustis nuptiis conceperit, civem Romanum ex ea nasci, si vero volgo conceperit, peregrinum ex ea nasci. (91.) Item si qua mulier civis Romana praegnans ex senatusconsulto Claudiano ancilla facta sit ob id, quod alieno servo coierit denuntiante domino eius, conplures distinguunt et existimant, si quidem ex iustis nuptiis conceperit, civem Romanum

Roman citizen and be then manumitted and bear her child, such child is free born, is based on natural reason. For those who are conceived illegitimately take their status from the moment of birth; therefore if born from a free woman they are free, nor is it material by what man the mother conceived them when she was a slave. But those who are conceived legitimately take their status from the time of conception'. 90. Therefore if a Roman woman, whilst pregnant, be interdicted from fire and water, and so become a foreigner, and then bear her child, many authors draw a distinction, and think that if she conceived in lawful marriage, the child born from her is a Roman citizen, whiist if she conceived out of wedlock, the child born from her is a foreigner. 91. Likewise, if a Roman woman, whilst pregnant, be reduced to slavery in accordance with the senatusconsultum of Claudius, because she has cohabited with another man's slave in spite of the warning of his master, many authors draw a distinction and hold that if she conceived in lawful marriage, the child born from her is a

1 Ulpian, v. 10.

2 It was a rule of Roman law that no one could lose his citizenship without his own consent. The interdict from fire and water brought about the result which justice required but the law could not effect. The culprit by being debarred from the neces

saries of life was driven to inflict on himself banishment, and with it loss of citizenship. "Id autem ut esset faciendum, non ademptione civitatis, sed tecti et aquae et ignis interdictione faciebant." Cic. pro Dom. 30. 31. 84, 160.

ex ea nasci, si vero volgo conceperit, servum nasci eius cuius mater facta est ancilla. (92.) Item peregrina quoque si vulgo conceperit, deinde civis Romana facta sit, et pariat, civem Romanum parit; si vero ex peregrino, cui secundum leges moresque peregrinorum coniuncta est, videtur ex senatusconsulto quod auctore divo Hadriano factum est peregrinus nasci, nisi patri eius civitas Romana quaesita sit.

93. Si peregrinus cum liberis civitate Romana donatus fuerit, non aliter filii in potestate eius fiunt, quam si Imperator eos in potestatem redegerit. quod ita demum is facit, si causa cognita aestimaverit hoc filiis expedire : diligentius atque exactius enim causam cognoscit de impuberibus absentibusque. et haec ita edicto divi Hadriani significantur. (94.) Item si quis cum uxore praegnante civitate Romana donatus sit, quamvis is qui nascitur, ut supra diximus, civis Romanus sit, tamen in potestate

Roman citizen, but if she conceived out of wedlock, he is a slave of the man to whom the mother has been made a slave. 92. Likewise if a foreign woman have conceived out of wedlock, and then be made a Roman citizen and bear her child, the child she bears is a Roman citizen: but if, on the contrary, she conceived him by a foreigner to whom she was united according to the laws and customs of foreigners, he is considered, in accordance with a senatusconsultum which was made at the instance of the late emperor Hadrian, to be born a foreigner, unless Roman citizenship has been obtained by his father.

93. If a foreigner, and his children with him, be presented with Roman citizenship, the children are not in his potestas, unless the emperor has subjected them to his potestas1. Which he only does if, on investigation of the circumstances, he judge this expedient for the children: for he examines a case with more than ordinary care and exactness when it relates to persons under the age of puberty and to absentees. And these matters are so laid down in an edict of the late emperor Hadrian. 94. Likewise if any man, and his pregnant wife with him, be presented with Roman citizenship, although the child born is, as we have said above, a Roman citizen, yet he is not in the potestas of his father: and this is laid down by a

32

Patria Potestas. Latinitas.

patris non fit: idque subscriptione divi Hadriani significatur. qua de causa qui intellegit uxorem suam esse praegnantem, dum civitatem sibi et uxori ab Imperatore petit, simul ab eodem petere debet, ut eum qui natus erit in potestate sua habeat. (95.) Alia causa est eorum qui Latini sunt et cum liberis suis ad civitatem Romanam perveniunt: nam horum in potestate fiunt liberi. quod ius quibusdam peregrinis [desunt lin. 4]. (96.) magistratum gerunt, civitatem Romanam consequuntur; (special) rescript of the late emperor Hadrian'. Wherefore a man who knows his wife to be pregnant, when asking for citizenship for himself and his wife from the Emperor, ought at the same time to ask him that he may have the child, who shall be born, in his potestas. 95. The case is different with those who are Latins and with their children attain to Roman citizenship, for their children come under their potestas3. Which right (has been extended) to certain foreigners...... 96. When they who discharge the duties of a magistrate obtain Roman

1 Subscriptio was the emperor's reply to a case laid before him, such reply having authority upon that particular point only. It was almost equal to a Rescript or Epistola. See note on I. 5, and Dirksen, Manuale Latinitatis, sub verbo, § 2.

2 As stated in the note on § 22, Niebuhr held that the majus Latium meant the franchise of the old Latin towns whilst the minus Latium was the franchise of the colonists north of the Po. The Julian law gave civitas to all the old Latin towns, and therefore according to Niebuhr's notion, the majus Latium long before Gaius' time had become obsolete; the only Latin franchise remaining being the minus. Mommsen, however, propounds another theory, into the proof of which our limits preclude our entering, but we may state that the conclusion he arrives at is that the two franchises were both existent in Gaius' time, that neither had any thing to do with the old Latins, and that the difference between the two was that in the case of the majus Latium the full civitas was conferred on those who held office in the co

lony, and on their wives, parents, and children; whilst in the case of the minus Latium, the full civitas was conferred on the magistrate alone and not on his relations. See Mommsen, Die Stadtrechte der Lat. Gem. Salpens., and Gaius, I. 79. 131, III. 56.

With Mommsen's view of the subject agrees the account given by Appian (de Bello Civili, II. 26) of the settlement of the city of Novo Como by Caesar. Appian tells us the inhabitants received the jus Latii, and that the consequence of this was that any of the citizens who held a superior magistracy for a year obtained the Roman civitas. So also Asconius has a passage (in Pison. p. 3, edit. Orell.) which may be translated: "Pompey gave to the original inhabitants the jus Latii, so that they might have the same privilege as the other Latin colonies, viz. that their members by holding a magistracy should attain to the Roman citizenship." The passage in Livy XLI. 8, refers to the old jus Latii, which was turned into full civitas by the Lex Julia, but it is well worth reading.

minus latum [Latium?] est, cum hi tantum qui vel magistratum vel honorem gerunt ad civitatem Romanam perveniunt. idque conpluribus epistulis Principum significatur [1 lin.].

97. Non solum tamen naturales liberi, secundum ea quae diximus, in potestate nostra sunt, verum et hi quos adoptamus.

98. Adoptio autem duobus modis fit, aut populi auctoritate, aut imperio magistratus, velut Praetoris. (99.) Populi auctoritate adoptamus eos qui sui iuris sunt: quae species adoptionis dicitur adrogatio, quia et is qui adoptat rogatur, id est interrogatur an velit eum quem adoptaturus sit iustum sibi filium esse; et is qui adoptatur rogatur an id fieri patiatur; et populus rogatur an id fieri iubeat. Imperio magistratus adoptamus eos qui in potestate parentium sunt, sive primum gradum liberorum optineant, qualis est filius et filia, sive inferiorem, qualis est nepos, neptis, pronepos, proneptis. (100.) Et quidem illa adoptio quae per populum fit nusquam nisi Romae fit at haec

citizenship: (the franchise) is the minus Latium (or, is a less extensive one), when those only who hold some magistracy or office of honour attain to Roman citizenship. And this is stated in many epistles of the Emperors.

97. Now not only our actual children are in our potesias, according to what we have already said, but also those whom we adopt.

98. But adoption takes place in two ways, either by authority of the populus', or under the jurisdiction of a magistrate, for instance the Praetor. 99. By authority of the populus we adopt those who are sui juris: which species of adoption is styled arrogatio, for he who adopts is rogated, i. e. is interrogated whether he wishes the man whom he is about to adopt to become his lawful son: and he who is adopted is rogated whether he submits to that being done: and the populus are rogated whether they order it to be done. Under the jurisdiction of a magistrate we adopt those who are in the potestas of their ascendants, whether they stand in the first degree of descendants, as son or daughter, or in a lower one as grandson, granddaughter, great-grandson, great-granddaughter. 100. That adoption which is performed by authority of the populus takes place nowhere but at Rome: but the other is frequently

1 1. 3.

2 Ulpian, VIII. 1—3.

See Appendix (B).

34

Adoption and Arrogation.

etiam in provinciis aput Praesides earum fieri solet. (101.) Item per populum feminae non adoptantur; nam id magis placuit. Aput Praetorem vero vel in provinciis aput Proconsulem Legatumve etiam feminae solent adoptari.

102. Item inpuberem aput populum adoptari aliquando prohibitum est, aliquando permissum est. nunc ex epistula optimi Imperatoris Antonini quam scripsit Pontificibus, si iusta causa adoptionis esse videbitur, cum quibusdam condicionibus permissum est. aput Praetorem vero, et in provinciis aput Proconsulem Legatumve, cuiuscumque aetatis adoptare possumus.

103. Illud vero utriusque adoptionis commune est, quia et hi qui generare non possunt, quales sunt spadones, adoptare possunt. (104.) Feminae vero nullo modo adoptare possunt, quia ne quidem naturales liberos in potestate habent. (105.) Item si quis per populum sive apud Praetorem vel aput Praesidem provinciae adoptaverit, potest eundem alii in adoptionem

performed in the provinces also in the presence of their governors'. 101. Women, likewise, are not adopted by authority of the populus: for so it has been generally ruled. But before the Praetor or in the provinces before the Proconsul or Legate women as well as men may be adopted. 102. Further, in some cases it has been forbidden to adopt by authority of the populus one under the age of puberty; in other cases it has been allowed. At the present time, according to an epistle of the excellent emperor Antoninus which he wrote to the Pontifices, if the cause of adoption appear lawful, it is allowed under certain conditions. Before the Praetor, however, or in the provinces before the Proconsul or Legate, we can adopt people of any age whatever.

103. It is a rule common to both kinds of adoption, that those who cannot procreate, as eunuchs-born, can adopt3. 104. But women cannot adopt in any way, inasmuch as they have not even their actual children in their potestas“. 105. Likewise, if a man adopt by authority of the populus, or before the Praetor or governor of a province, he can give the same person

3

1 Ulpian, VIII. 4, 5.

2

I. U, note.

Ulpian, vIII. 6. 4 Ibid. 8 a.