Page:Philological Museum v2.djvu/129

119 Oil the Roman Coloni. 119 A person might become a colonus in three ways, by hirth^ prescription^ or agreement. Of these birth was the ordinary one, and on it is grounded the name originarius^. When both the parents belonged to this class and to the same master, the condition of the child was not liable to any possible doubt. On the other hand the following cases require a more specific examination. The father might be a colonus^ the mother a slave, or conversely. In such cases everything was determined by the class of the mother ^^, as well with regard to the condition of the child generally, as to the possible claims of different masters, if such could be brought forward. From the ex- pressions in Justinian''s constitution one might suppose that this rule was first laid down by him ; which however is very improbable, inasmuch as according to the oldest principles of Roman law it is scarce possible that the matter should ever have been decided otherwise ^^ Or the father might be free, the mother a colona. The children then in all ages were colo7ii^ and belonged to the master of their mother ^^. Or the father might be a colonus^ the mother free. The law on this case underwent many changes. Before the time of Justinian the child, following his father, became likewise a colonus ^■^; so that in this and the preceding case the rule was the same as among the Germanic nations with regard to 9 Originarius^ L. un. C. Theod. de inquilinis (v. 10). L. 7. C. J. deagric. (xi. 47). Origmarius colonus^ L. 11. C. J. de agric. (xi. 47). Colonics originalis^ L. un. C. Theod. de inquil. (v. 10). Originalis colonics^ L. i. C. J. de agric. et mancip. txi. 67). ^^ L. 21. C. J. de agric. (xi. 47) : Matris suae ventrem seqiiatur, " Gaius Lib. i. § 56, 67, 80. Ulpian Tit. 5. § 8. It is true that Gaius (§ 83—86) cites certain express exceptions to the principle, that the children of parents who had ho connubium were to follow the mother : but no such exception is mentioned in the Constitution of Justinian : on the contrary it seems to assume that the point hitherto had been wholly undetermined, and that this could not be allowed. '2 L. un. C. Theod. de inquilinis (v. 10). L. 16. 21. 24, C. J. de agric. (xi. 47). L. 4. C. J. de agric. et mancip. (xi. 67). Only in case the father was bound to any town or corporation by a special obligation of service, the children were to be divided for the first forty years, but not afterward. L. 16. Theod. de his qui condit. (xii. 19). This was not incorporated in the code of Justinian. [The words in the Theodosian code — qui tamen intra hos prooeime quadraginta annos docebuntur fuisse suscepti — seem rather to mean, those who have been born within the last forty years : and this would be a more reasonable limitation.]
 * 3 Nov. 54. pr.