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Justinian I · The Digest of Justinian §40.11.2.pr

Restoration of Birthrights and Patronal Consent

Passage 6562 of 9271 · Latin

Summary

It discusses how those born slaves can become freeborn through the imperial restoration of birthrights, its effect on the patron's right of succession, and the necessity of the patron's consent.

[MARCIANUS libro primo institutionum. ] §40.11.2.prInterdum et serui nati ex post facto iuris interuentu ingenui fiunt, ut ecce si libertinus a principe natalibus suis restitutus fuerit.
[BY MARCIANUS, from the first book of Institutes.] Sometimes even those born slaves become freeborn by the subsequent intervention of law, as, for example, if a freedman has been restored to his birthrights by the emperor.
illis enim utique natalibus restituitur, in quibus initio omnes homines fuerunt, non in quibus ipse nascitur, cum seruus natus esset.
For he is indeed restored to those birthrights in which all men were in the beginning, not to those in which he himself was born, since he was born a slave.
hic enim, quantum ad totum ius pertinet, perinde habetur, atque si ingenuus natus esset, nec patronus eius potest ad successionem uenire.
For this person, as far as the entire law is concerned, is treated just as if he had been born free, and his patron cannot succeed to his estate.
ideoque imperatores non facile solent quemquam natalibus restituere nisi consentiente patrono.
And for this reason, emperors are not accustomed easily to restore anyone to his birthrights unless the patron consents.

Notes

  1. §40.11.2.prcum seruus natus esset — The cum clause with the subjunctive pluperfect natus esset expresses cause ("since he had been born a slave"), providing the logical reason why he cannot be restored to his literal state of birth, which was enslavement, but rather to the original natural state of freedom.
  2. §40.11.2.prperinde habetur, atque si — perinde... atque si is a comparative conditional construction meaning "just as if". The following subjunctive pluperfect natus esset expresses a past contrary-to-fact condition (as he was in fact born a slave).
  3. §40.11.2.prconsentiente patrono — An ablative absolute consisting of the present participle consentiente and the noun patrono. In combination with nisi, it expresses a negative condition ("unless the patron consents").

Cite this passage

Justinian I, The Digest of Justinian §40.11.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.11.2.pr

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