§ 77. So if a female Roman citizen marry an alien with whom she has capacity of civil marriage, her son is an alien and a lawful son of his father, just as if his mother had been an alien. At the present day, by a senatusconsult passed on the proposition of the late Emperor Hadrian, even without civil marriage the offspring of a Roman woman and alien is a lawful son of his father.
§ 78. The rule we have stated that when a female Roman citizen marries an alien, the offspring is an alien, if there is no capacity of civil marriage between them, is enacted by the lex Minicia, which also provides that when a Roman citizen marries an alien woman, and there is no capacity of civil marriage between them, their offspring shall be an alien. This special enactment was required in the first case, as otherwise the child would follow the condition of the mother; for when there is no capacity of civil marriage between parents, their offspring belongs to the condition of his mother by jus gentium. But the part of this law which ordains that the offspring of a Roman citizen and an alien woman is an alien seems to be superfluous, since without any enactment this would be so under the rule of jus gentium.
§ 79. So much so that it is under this rule of jus gentium that the offspring of a Latin freedwoman by a Roman citizen with whom she has no capacity of civil marriage is a Latin, since the statute did not refer to those who are now designated Latins; for the Latins mentioned in the statute are Latins in another sense, Latins by race and members of a foreign state, that is to say, aliens.
§ 80. By the same principle, conversely, the son of a Latin and a Roman woman is by birth a Roman citizen, whether their marriage was contracted under the lex Aelia Sentia or otherwise. Some, however, thought that if the marriage was contracted in accordance with the lex Aelia Sentia, the offspring is a Latin by birth, because on this hypothesis the lex Aelia Sentia and Junia confer a capacity of civil marriage, and a civil marriage always transmits to the offspring the status of the father: if the marriage was otherwise contracted, they held the offspring acquires by jus gentium the status of his mother. However, the law on this point is now determined by the senatusconsult passed on the proposition of the late Emperor Hadrian, which enacts that the son of a Latin and a Roman woman is under every hypothesis a Roman citizen.
§ 81. Consistently herewith Hadrian’s senatusconsult provides that the offspring of the marriage of a Latin freedman with an alien woman or of an alien with a Latin freedwoman follows the mother’s condition.
§ 82. Consistently herewith the offspring of a female slave and a freeman is by jus gentium a slave, the offspring of a freewoman and a slave is free.
§ 83. We must observe, however, whether the jus gentium in any given instance is overruled by a statute or ordinance having the authority of a statute.
§ 84. For instance, the Sc. Claudianum permitted to a female citizen of Rome having intercourse with a slave with his owner’s consent, to continue herself in virtue of the agreement free, while she gave birth to a slave, her agreement to that effect with the owner being made valid by the senatusconsult. Subsequently, however, the late Emperor Hadrian was induced by the injustice and anomaly of the ordinance to re-establish the rule of jus gentium, that as the mother continues free the offspring follows her status.
§ 85. By a law (the name of which is unknown) the offspring of a female slave by a freeman might be free, for that law provided that the offspring of a freeman by another person’s female slave whom he believed to be free shall be free if they are male, but shall belong to their mother’s proprietor if they are female: but here too the late Emperor Vespasian was moved by the anomalous character of the rule to re-establish the canon of jus gentium, and declared that the offspring in every case, whether male or female, should be slaves and the property of their mother’s owner.
§ 86. But another clause of that law continues in force, providing that the offspring of a freewoman by another person’s slave whom she knows to be a slave are born slaves, though where this law is not established the offspring by jus gentium follow the mother’s condition and are free.
§ 87. When the child follows the mother’s condition instead of the father’s, it is obvious that he is not subject to the power of the father, even though the father is a Roman citizen: but in some cases, as I mentioned above (§ 67), when a mistake was the occasion of a non-civil marriage being contracted, the senate interferes and purges the defect of the marriage. and this generally has the effect of subjecting the son to the power of the father.
§ 88. If a female slave conceive by a Roman citizen and become herself by manumission a Roman citizen before giving birth to a son, her son, though a Roman citizen like his father, is not in his father’s power, because he was not begotten in civil wedlock, and there is no senatusconsult which cures the defect of the intercourse in which he was begotten.
§ 89. The decision that when a female slave conceives by a Roman citizen and is manumitted before childbirth, her offspring is born free, is a rule of natural law; for in illegitimate or non-civil conception the status of the offspring depends on the moment of birth, and the mother’s freedom at the moment of birth makes the offspring free, and the status of the father is immaterial; but in statutory or civil conception the status of the child is determined by the time of conception.
§ 90. Accordingly, if a female citizen of Rome being pregnant is interdicted from fire and water, and becoming thus an alien gives birth to a child, many jurists distinguish and hold that her offspring is a Roman citizen if begotten in civil wedlock, but if in promiscuous intercourse, an alien.
§ 91. So if a female citizen of Rome being pregnant is reduced to slavery under the Sc. Claudianum for having intercourse with a slave in spite of the dissent and denunciation of his owner, many jurists make a distinction and hold that her offspring, if conceived in civil wedlock is a citizen of Rome, if conceived in illicit intercourse is a slave of the person who becomes proprietor of the mother.
§ 92. Also if an alien woman conceive in illicit intercourse and afterwards becomes a Roman citizen and gives birth to a child, the child is a Roman citizen; but if she conceived by an alien, to whom she was married in accordance with alien laws and customs, it seems that upon Hadrian’s senatusconsult her offspring is only born a Roman citizen, if the father also has acquired the Roman citizenship.
§ 93. If an alien has obtained by petition for himself and his children a grant of Roman citizenship, the children do not fall under the power of the father except by express ordinance of the emperor, which he only makes if, on hearing the facts of the case, he deems it expedient for the interest of the children, and he makes a still more careful and minute inquiry if they are below the age of puberty and absent, as an ediot of the Emperor Hadrian intimates.
§ 94. Also if an alien and his pregnant wife receive a grant of Roman citizenship, the child, though a Roman citizen, as above mentioned, is not born in the power of his father according to a rescript of the late Emperor Hadrian; wherefore, if he knows his wife to be pregnant, an alien who petitions the emperor for Roman citizenship for himself and his wife ought at the same time to petition that his son may be subjected to his power.
§ 95. The rule is different for those who with their children are made Roman citizens by right of Latinity, for their children fall under their power; this right has been conceded to certain alien states either by the Roman people, or by the senate or by the emperor.
§ 96. The right of Latinity is either greater or lesser. Greater Latinity is the right whereby those who are chosen decuriones or hold some high office or magistracy acquire Roman citizenship: lesser Latinity is when only those who are magistrates or hold high office acquire Roman citizenship, a distinction intimated by several imperial rescripts.
§§ 76, &c. The rules relating to the status of the offspring of parents of unequal status are at first sight chaotic and bewildering, but they are reducible to a few canons. The most general canon is the rule of jus gentium, that children follow the condition of the mother. This is subject to two exceptions.
1. Children born in civil wedlock follow the condition of the father. Cf. §§