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but here also the right concerns men indirectly, so that essentially, and in respect of its purpose, it does but serve human interests."

omne ius

Hermog. Cum hominum causa
:
constitutum sit, primo de personarum statu
dicemus.-D. 1, 5, 2.1

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Inst. i. 2, 2 servitutes . . . sunt iuri naturali contrariae; iure enim naturali ab initio omnes homines liberi nascebantur.2

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Natural capacity for rights begins with the birth of men, i.e., the complete separation of a living human being from the mother.

Ulp. Partus antequam edatur, mulieris portio est vel viscerum.-D. 25, 4, I, 1.3

This is without regard to vitality. There are, indeed, cases where it is a question of rights that belong to the child at birth, in which the Law already bestows consideration in many ways upon the embryo in the mother's womb.

BOOK II.
Part I.

a §§ 68, 89.

Nasciturus

habetur.'

Paul. Qui in utero est, perinde ac si in rebus pro iain nato humanis esset, custoditur, quotiens de commodis ipsius partus quaeritur, quamquam alii, antequam nascatur, nequaquam prosit.-D. 1, 5, 7.*

:

Id. Quod dicimus eum, qui nasci speratur, pro superstite esse, tunc verum est, cum de ipsius. iure quaeritur.-D. 50, 16, 231.5

1 Since it has been on behalf of men that the whole Law has been established, we will first speak of personal status.

2 Slavery... is contrary to the Law of Nature; for according to the Law of Nature all men from the first were born free. 3 The fruit of the body before it is born is part of the mother or the womb.

* Attention is bestowed upon that which is in the womb, just the same as if it had come to life, whenever a question arises as to the embryo's own privileges, although in no way benefiting another before it is born.

5 Our speaking of him whose birth is anticipated as though he were in existence, is correct when the question is as to his own right.

M

BOOK II.
Part I.
a See Markby,
S. 132.

Id.: Antiqui libero ventri ita prospexerunt, ut in tempus nascendi omnia ei iura integra reservarent, sicut apparet in iure hereditatum.-D. 5, 4, 3.1

ROMAN CAPACITY FOR RIGHTS.
$33. IN GENERAL,

Man as such is not by Roman Law at the same time a Person; personality, rather, supposes freedom. A distinction thus arises between freemen and slaves. Not all freemen, however, enjoy like capacity for rights. Roman capacity for rights is conditional upon the possession of the right of citizenship (civitas) and by that belonging to a Roman familia,' which is inseparably connected with it. This embraces two constituents: 'comCf. § 79 ad mercium,' or capacity for all proprietary rights iure

init.

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civili and for dealings governed by the Civil Law, and 'conubium,' or capacity for a marriage iur civ., and accordingly, for Roman family relationships. But neither is Roman capacity for rights uniform; for according to the position he obtains in the familia,' every Roman citizen is either a person independent in a family (free from Power) or a person that is under control in such family (a domestic dependant), respectSee Brown, ively described as 'persona sui iuris' and 'persona alieno iuri subiecta.' Only the first-mentioned has full capacity for rights.

S. VV.

Thus, with respect to their capacity for rights, men are divided into

(1) 'liberi' and 'servi.'

(2) The 'liberi,' again, were on the one hand divided into free-born or 'ingenui,' and the enfranchised or 'libertini,' subject to the right of the Patron; on the other, into 'cives,' 'Latini' (who only possess the commercium, not the conubium of the Romans),

1 The ancients paid regard to the child in the womb in such way that they maintained all rights in its favour intact until the time of birth, as may be seen in the Law of Inheritance.

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and peregrini' (persons without either conub. or commerc.).

(3) The cives, either personae sui iuris' or 'personae alieni iuris.'

Paul. Tria sunt quae habemus: libertatem, civitatem, familiam.-D. 4, 5, II.1

Ulp. v. 3, 4: Conubium est uxoris iure ducendae facultas. Conubium habent cives Romani cum civibus Romanis; cum Latinis autem et peregrinis ita si concessum sit.-xix. 5: Commercium est emendi vendendique invicem ius.2

BOOK II.
Part I.

Markby,

The condition ('status' in the wider sense, or 'condicio')" of the individual is his position in the State, a See Austin, governing his capacity for rights; consequently, the lett. xl.-xlii.; belonging to one of the classes mentioned, which finds ss. 176-180. expression in Freedom, Citizenship, Latinitas,' 'Peregrinitas.' It is determined by birth.

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(1) The child begotten in a marriage according

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to the ius civile follows the condition of the $44.
Father; the child begotten in a marriage not recog-
nised by the ius civile, and also that born out of
wedlock, takes the condition of the Mother.

Ulp. v. 8, 9: Conubio interveniente liberi sem-
per patrem sequuntur: non interveniente conubio
matris condicioni accedunt, excepto co, qui ex
peregrino et cive Romana nascitur: nam is pere-
grinus nascitur, quoniam lex Minicia ex alterutro
peregrino natum deterioris parentis condicionem
sequi iubet.-Ex cive Romano et Latina Latinus
nascitur, et ex libero et ancilla servus; quoniam,
cum his casibus conubia non sint, partus sequitur
matrem.3

1 1 We have three things: Freedom, Citizenship, and the Family. Conubium is the capacity for marrying a wife according to Law. Roman citizens have conubium with Roman citizens, but with Latins and foreigners it exists only if there have been a special grant.-Commercium is the reciprocal right of purchase and sale.

If conubium exist between the parties, the children always

BOOK II.
Part I.

a For the Engl. Law, see Brown, s. Legitimation.'

Gai. i. § 82: Illud quoque his consequens est, quod ex libera et servo liber nascatur.'

:

.

Ulp. Lex naturae haec est, ut qui nascitur sine legitimo matrimonio, matrem sequatur, nisi lex specialis aliud inducit.-1. 24, D. h. t. (=de statu hom. 1, 5).

(2) In the former case the time of conception, in the latter that of the birth, is regularly decisive."

Gai. i. § 89-hi qui illegitime concipiuntur, statum sumunt ex eo tempore, quo nascuntur; ... at hi qui legitime concipiuntur, ex conceptionis tempore statum sumunt.3

Marcian. Ingenui sunt, qui ex matre libera nati sunt; sufficit enim liberam fuisse eo tempore, quo nascitur, licet ancilla concepit; et e contrario si libera conceperit, deinde ancilla pariat, placuit eum, qui nascitur, liberum nasci. Nec interest, iustis nuptiis concepit an vulgo, quia non debet calamitas matris nocere ei, qui in ventre est.

Ex hoc quaesitum est: si ancilla praegnans manumissa sit, deinde ancilla postea facta . . peperit, liberum an servum pariat? Et tamen rectius probatum est liberum nasci et sufficere ei qui in ventre est, liberam matrem vel medio tem

follow the father: if there be no conubium, they approximate to the condition of the mother, save one who is born of a foreigner and a Roman woman, for he is born a foreigner, since the lex Minicia ordains that one born of a foreigner on either side shall follow the status of the inferior parent. The child of a Roman citizen and a Latin woman is a Latin, and that of a freeman and a slavewoman, a slave; because, as there is no conubium in these cases, the offspring follows the mother.

1 In keeping with this also is it that the child of a freewoman and a slave is born free.

2 The Law of Nature is this, that he who is not born of a legal marriage follows the mother, unless a special law prescribes something different.

3 They that are conceived illegitimately take their status from the moment of their birth; . . . but those that are conceived legitimately take their status from the time of conception.

pore habuisse.-1. 5, §§ 2, 3, D. h. t. (=pr. I.
de ingen. 1, 4).'

FREEDOM AND CITIZENSHIP.

§ 34. LIBERI AND INGENUI IN PARTICULAR. 'Ingenui' are as a rule, and according to the older Law, only those free by birth or by conception, i.e., of a free mother, who might be either free-born or enfranchised."

Gai. i. §§ 10, II: Rursus liberorum hominum alii ingenui sunt, alii libertini.-Ingenui sunt, qui liberi nati sunt: libertini sunt qui ex iusta servitute manumissi sunt.2

Iust. i. 4 pr.: Ingenuus is est, qui statim ut natus est liber est, sive ex duobus ingenuis matrimonio editus, sive ex libertinis, sive ex altero libertino altero ingenuo. Sed et si quis ex matre libera nascatur patre servo, ingenuus nihilominus nascitur: quemadmodum qui ex matre libera et incerto patre natus est, quoniam vulgo conceptus est.3

1 Ingenui are such as have been born of a free mother; for it is enough that she was free at the time of the birth, although she conceived as a slave; and reversely, if she conceived as a free woman, and afterwards bare the child as a slave, the received opinion is that the child is free-born. And it is all the same whether she conceived in lawful matrimony or in common intercourse, because the misfortune of the mother must not prejudice the child in her womb. Hence a question has arisen: if a woman in servitude with child is manumitted, and after having subsequently been enslaved, has brought forth, does she bear a freeman or a slave? It is nevertheless more justly thought that it is born free, and that it suffices the embryo to have had a free mother in the intervening time alone.

* Of free persons, again, some are ingenui, others libertini. The ingenui are such as have been born free; the libertini, those that have been liberated from lawful slavery.

An ingenuns is he that is free from the moment of his birth, whether the issue of a marriage of two free-born persons, or from persons manumitted, or from one manumitted person, the

BOOK II.
Part I.

a D. 1, 5, 2, 3.

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