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[001] said above,1 ‘for wars broke out and captures were their consequence etc.’2 A free
[002] man is made bond by an acknowledgement made in the king's court, as where,
[003] being in the court of the lord king, he acknowledges himself a villein.3 4A free
[004] man is made bond if, after having once been manumitted, he is reclaimed into
[005] servitude for his ingratitude. And so when, being originally [bond], he is made a
[006] clerk or a monk [and] later returns to secular life, for he ought to be restored to
[007] his lord. The essential condition of bondsmen is one and the same. Whoever is
[008] bond is just as much a bondsman as any other, no more and no less.5

Who may be called free and who freeborn.

[010] 6He may be called free and freeborn who immediately at birth is free, whether he
[011] is the offspring of two free and freeborn parents, or of a freedman and a freedwoman,
[012] that is, persons manumitted from lawful bondage, or of one freeborn
[013] parent and one freed,7 or if he is born of an unfree mother and a free father,
[014] provided he was born outside a villein tenement and in a free bed, and provided he
[015] was born in wedlock.8 So too if he is born of a free mother and an unfree father out of
[016] wedlock.9 10It suffices [for him to be free] that the mother, though she [afterwards]
[017] was made a bondswoman [by the marriage], is free either at the time the offspring
[018] is conceived or at the time it is born, or at least at some time during the interval,
[019] for the misfortune of the mother ought not to injure him who is in her womb.11

Who are called freedmen.

[021] 12Free men are also made such, those, namely, who are manumitted from lawful
[022] bondage. A ‘libertinus’ is so called because he is liberated from bondage.13

Who may and may not be called children and reckoned as such.

[024] 14Those born of unlawful intercourse, as out of adultery and the like, are not
[025] reckoned among children, nor those procreated perversely, against the way of
[026] human kind, as where a woman brings forth a monster or a prodigy. But an offspring
[027] who has a larger number of members, as one who has six fingers, or if he
[028] has but four, [or only one,] will be included among children.15

Another classification of men.

[030] 16Mankind may also be classified in another way: male, female, or hermaphrodite.
[031] Women differ from men in many respects, for their position is inferior to that of
[032] men.17


1. Supra 30

2. Inst. 1.2.2; supra 28

3. Infra iii, 109, 309, iv, 309

4-5. Azo, Summa Inst. 1.3, no. 8

6. Br. and Azo, 52-55

6-7. Azo, Summa Inst. 1.4, no. 1

8. Supra 30

9. Ibid.

10-11. Azo, Summa Inst. 1.4, no. 1

12. Br. and Azo, 56-7, 63

12-13. Azo, Summa Inst. 1.5, no. 1; om: ‘qui dicuntur liberi,’ a rubric; infra 32, n. 3

14. Br. and Azo, 57, 60, 62

14-15. Azo, Summa Inst. 1.5, no. 4; Maitland's assumption that Br. here misunderstood Azo's ambiguous ‘liberi’ to mean ‘free men’ is unfounded: infra 203-4, iv. 361; cf. Kantorowicz, 111-12. An intervening section representing Azo's further classification of men into legitimate and illegitimate, Summa Inst. 1.5, nos. 2-3, has been inadvertently omitted

16. Br. and Azo, 57, 60, 63

16-17. Azo, Summa Inst. 1.5 nos. 4-5

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