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Justinian I · The Digest of Justinian §49.15.25.pr

Status of a Child Born to Parents in Captivity

Passage 8597 of 9271 · Latin

Summary

A rescript stating that if a captured couple has a child in captivity and all return, the family's legitimate status and paternal power are restored; however, if the child returns only with the mother, the child is deemed illegitimate.

[MARCIANUS libro quarto decimo institutionum. ] §49.15.25.prDiui Seuerus et Antoninus rescripserunt, si uxor cum marito ab hostibus capta fuerit et ibidem ex marito enixa sit: si reuersi fuerint, iustos esse et parentes et liberos et filium in potestate patris, quemadmodum iure postliminii reuersus sit: quod si cum matre sola reuertatur, quasi sine marito natus, spurius habebitur.
[MARCIANUS, Book 14 of Institutes] deified Severus and Antoninus replied by rescript that if a wife has been captured by the enemy along with her husband, and has given birth there to a child by her husband: if they have returned, both the parents and the children are legitimate, and the son is under the power of the father, just as if he had returned by the right of postliminium; but if he should return with his mother alone, he will be held to be illegitimate, as if born without a husband.

Notes

  1. 49.15.25.priustos esse et parentes et liberos — An accusative-with-infinitive (AcI) construction. 'iustos' is the accusative plural masculine of the adjective 'iustus', serving as the predicate of the subject accusative 'et parentes et liberos' (both parents and children). Here, 'iustus' means legally 'legitimate' or 'just' (i.e., the parents are in a lawful marriage and the children are legitimate).
  2. 49.15.25.prquemadmodum iure postliminii reuersus sit — The verb 'reuersus sit' in the clause introduced by 'quemadmodum' (just as) is in the perfect subjunctive because it is a subordinate clause within indirect speech (governed by 'rescripserunt'). Although a child born in enemy territory is not strictly a direct subject of postliminium, the clause expresses a legal fiction: the child is treated 'as if he had returned by the right of postliminium' upon the parents' return.
  3. 49.15.25.prquod si cum matre sola reuertatur — The subject of 'reuertatur' (present subjunctive) is the 'filius' (the son, i.e., the child born in captivity) mentioned above. If the father does not return and the child returns only with the mother, the father's paternal power cannot be restored, and thus the child is deemed a 'spurius' (illegitimate child, born out of lawful wedlock).

Cite this passage

Justinian I, The Digest of Justinian §49.15.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.15.25.pr

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