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Justinian I · The Digest of Justinian §49.15.21.pr-49.15.21.1

Ransomed Freeborn Women and Inapplicability to Civil War

Passage 8593 of 9271 · Latin

Summary

Ulpian clarifies the legal status of a freeborn woman redeemed from the enemy and her child, explaining that the pledge over her is released upon the intent to have children, and also asserts that the laws of captivity and postliminium do not apply to parties in a civil war.

[ULPIANUS libro quinto opinionum. ] §49.15.21.prSi quis ingenuam ab hostibus redemptam eo animo secum habuerit, ut ex ea susciperet liberos, et postea ex se natum sub titulo naturalis filii cum matre manumiserit: ignorantia mariti eiusdemque patris neque statui eorum, quos manumisisse uisus est, officere debet, et exinde intellegi oportet remissum matri pignoris uinculum, ex quo de ea suscipere liberos optauerat: ideoque eam, quae postliminio reuersa erat libera et ingenua, ingenuum peperisse constat.
[ULPIANUS, Book 5 of Opinions] If anyone has kept with him a freeborn woman redeemed from the enemy with the intention of having children by her, and has afterwards manumitted the child born of himself together with the mother under the title of a natural son: the ignorance of the husband and father ought not to prejudice the status of those whom he is deemed to have manumitted; and from that moment it should be understood that the bond of pledge over the mother was released, from the time when he had desired to have children by her; and therefore it is established that she, who had returned by postliminium free and freeborn, gave birth to a freeborn child.
quod si publice praeda uirtute militum reciperata nulli pretium matris pater numerauerit, protinus postliminio reuersa non cum domino, sed cum marito fuisse declaratur.
But if, the booty having been recovered publicly by the valour of the soldiers, the father paid the price of the mother to no one, she is declared, having immediately returned by postliminium, to have been not with a master, but with a husband.
§49.15.21.1In ciuilibus dissensionibus quamuis saepe per eas res publica laedatur, non tamen in exitium rei publicae contenditur: qui in alterutras partes discedent, uice hostium non sunt eorum, inter quos iura captiuitatium aut postliminiorum fuerint.
In civil dissensions, although the commonwealth is often injured by them, yet the struggle is not for the destruction of the commonwealth; those who separate into either party are not in the position of enemies, between whom the rights of captivity or postliminium would exist.
et ideo captos et uenumdatos posteaque manumissos placuit superuacuo repetere a principe ingenuitatem, quam nulla captiuitate amiserant.
And therefore it was held that those who had been captured and sold, and afterwards manumitted, superfluously petition the emperor for the status of free birth, which they had not lost by any captivity.

Notes

  1. §49.15.21.prignorantia mariti eiusdemque patris — Refers to the "ignorance" of the husband and father, who did not know that the redeemed woman was freeborn and that the child born between them was a legitimate free person, thus making any formal manumission unnecessary. This ignorance should not prejudice (officere) their status by treating them as if they had been enslaved and then manumitted (which would make them freedpersons rather than freeborn).
  2. §49.15.21.prremissum matri pignoris uinculum — Refers to the obligatory or pledge-like bond (pignoris uinculum) that the redeemer holds over the redeemed person until the ransom is repaid. From the moment the man intended to have children by her as his wife (ex quo... optauerat), this pledge relation is considered to have been tacitly released (remissum).
  3. §49.15.21.1uice hostium non sunt — The word uice is the ablative of uicis, used prepositionally with the genitive (eorum) to mean "in the place of" or "as." It explains that the parties in a civil war are not "enemies" (hostes) in the legal sense, and therefore the laws of captivity and postliminium do not apply to them.

Cite this passage

Justinian I, The Digest of Justinian §49.15.21.pr-49.15.21.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.15.21.pr-49.15.21.1

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