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Justinian I · The Digest of Justinian §1.5.5.pr-1.5.5.3

Causes of Slavery and Criteria for Determining Free Birth

Passage 69 of 9271 · Latin

Summary

Marcianus defines the classifications of slaves and free persons, the legal origins of slavery, and the rules of status determination, ruling that a child is born free if the mother was free at any point during gestation.

[MARCIANUS libro primo institutionum. ] §1.5.5.prEt seruorum quidem una est condicio: liberorum autem hominum quidam ingenui sunt, quidam libertini.
[MARCIANUS, Institutes, book 1] And indeed, the condition of slaves is one and the same; but of free men, some are freeborn, and some are freedmen.
§1.5.5.1Serui autem in dominium nostrum rediguntur aut iure ciuili aut gentium: iure ciuili, si quis se maior uiginti annis ad pretium participandum uenire passus est: iure gentium serui nostri sunt, qui ab hostibus capiuntur aut qui ex ancillis nostris nascuntur.
Slaves are reduced into our power either by civil law or by the law of nations: by civil law, if someone over twenty years of age has allowed himself to be sold for the purpose of sharing the price: by the law of nations, those who are captured by enemies, or who are born from our female slaves, are our slaves.
§1.5.5.2Ingenui sunt, qui ex matre libera nati sunt: sufficit enim liberam fuisse eo tempore quo nascitur, licet ancilla concepit.
The freeborn are those who are born from a free mother; for it is sufficient that she was free at the time when the child is born, even though she conceived as a slave.
et e contrario si libera conceperit, deinde ancilla pariat, placuit eum qui nascitur liberum nasci.
And conversely, if a free woman has conceived, and then gives birth as a slave, it has been decided that the child who is born is born free.
nec interest iustis nuptiis concepit an uolgo, quia non debet calamitas matris nocere ei qui in uentre est.
Nor does it matter whether she conceived in a lawful marriage or out of wedlock, because the misfortune of the mother ought not to harm the child who is in the womb.
§1.5.5.3Ex hoc quaesitum est, si ancilla praegnas manumissa sit, deinde ancilla postea facta aut expulsa ciuitate pepererit, liberum an seruum pariat.
From this, a question has been raised: if a pregnant female slave has been manumitted, and then, having subsequently become a slave or having been expelled from the state, she gives birth, does she give birth to a free child or a slave?
et tamen rectius probatum est liberum nasci et sufficere ei qui in uentre est liberam matrem uel medio tempore habuisse.
And yet, it has been more correctly approved that the child is born free, and that it is sufficient for the child in the womb to have had a free mother at least in the intervening time.

Notes

  1. 1.5.5.1se maior uiginti annis ad pretium participandum uenire passus est — This passage contains several key syntactic structures. (1) `se... uenire` is an accusative with infinitive clause functioning as the direct object of the deponent verb `passus est` (from patior). (2) `maior uiginti annis` features the ablative of comparison `viginti annis` modifying the comparative adjective `maior`. (3) `ad pretium participandum` is a gerundive construction with the preposition `ad` indicating purpose ('for the purpose of sharing the price').
  2. 1.5.5.2licet ancilla concepit — Usage of the concessive conjunction `licet` ('although'). While classical prose strictly requires the subjunctive mood with `licet`, in post-classical and juristic Latin, it frequently takes the indicative perfect (`concepit`).
  3. 1.5.5.3sufficere ei qui in uentre est liberam matrem uel medio tempore habuisse — A nested accusative-with-infinitive structure dependent on the impersonal main clause `probatum est`. The infinitive `sufficere` ('to be sufficient') is used impersonally, taking the phrase `liberam matrem uel medio tempore habuisse` ('to have had a free mother at least in the intervening time') as its subject. The dative phrase `ei qui in uentre est` ('for him who is in the womb') depends on `sufficere`, and `liberam matrem` is the accusative object of the infinitive `habuisse`.

Cite this passage

Justinian I, The Digest of Justinian §1.5.5.pr-1.5.5.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:1.5.5.pr-1.5.5.3

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