[ULPIANUS libro septuagensimo primo ad edictum. ] §43.30.1.prAit praetor: 'Qui quaeue in potestate Lucii Titii est, si is eaue apud te est doloue malo tuo factum est, quo minus apud te esset, ita eum eamue exhibeas'. §43.30.1.1Hoc interdictum proponitur aduersus eum, quem quis exhibere desiderat eum, quem in potestate sua esse dicit.
[ULPIAN, On the Edict, book seventy-one.] The praetor says: 'Whosoever, male or female, is in the power of Lucius Titius, if he or she is in your possession, or it has been brought about by your malicious intent that he or she is not in your possession, you must produce him or her accordingly.' This interdict is issued against the person from whom one desires to have produced someone whom he claims to be in his power.
et ex uerbis apparet ei, cuius in potestate est, hoc interdictum conpetere.
And it appears from the words that this interdict is available to him in whose power that person is.
§43.30.1.2In hoc interdicto praetor non admittit causam, cur apud eum sit is, qui exhiberi debet, quemadmodum in superiore interdicto, sed omnimodo restituendum putauit, si in potestate est.
In this interdict, the praetor does not admit any excuse as to why the person who ought to be produced is with him, in the way he does in the previous interdict, but has thought that he must be restored in any event if he is in power.
§43.30.1.3Si uero mater sit, quae retinet, apud quam interdum magis quam apud patrem morari filium debere (ex iustissima scilicet causa) et diuus Pius decreuit et a Marco et a Seuero rescriptum est, aeque subueniendum ei erit per exceptionem.
But if it is the mother who detains him, with whom (for a most just cause, of course) the deified Pius decreed and Marcus and Severus wrote in a rescript that the son ought sometimes to stay rather than with the father, she likewise must be assisted by an exception.
§43.30.1.4Pari modo si iudicatum fuerit non esse eum in potestate, etsi per iniuriam iudicatum sit, agenti hoc interdicto obicienda erit exceptio rei iudicatae, ne de hoc quaeratur, an sit in potestate, sed an sit iudicatum.
In like manner, if it has been adjudged that he is not in power, even though it was adjudged unjustly, the exception of res judicata must be opposed to the person bringing this interdict, so that the inquiry may not be whether he is in power, but whether it has been adjudged.
§43.30.1.5Si quis filiam suam, quae mihi nupta sit, uelit abducere uel exhiberi sibi desideret, an aduersus interdictum exceptio danda sit, si forte pater concordans matrimonium, forte et liberis subnixum, uelit dissoluere? et certo iure utimur, ne bene concordantia matrimonia iure patriae potestatis turbentur.
If someone wishes to take away his daughter, who is married to me, or desires that she be produced to him, should an exception be granted against the interdict, if by chance the father wishes to dissolve a harmonious marriage, which is perhaps even supported by children? And we follow a settled rule of law, that well-harmonized marriages should not be disrupted by the right of paternal power.
quod tamen sic erit adhibendum, ut patri persuadeatur, ne acerbe patriam potestatem exerceat.
This, however, is to be applied in such a way that the father may be persuaded not to exercise his paternal power harshly.