Note 146 — BOOK III (continued 2)

Appius here contrasts two classes of persons, one consisting of individuals, who are in their own power; the other, of those who are not sui juris, but are under the control either of a parent, or some other person. If the question arise concerning a person who is sui juris, whether he is to be consigned to slavery, or to be restored to liberty, then "id juris esse," sc. that he remain free till the decision is made, because any person, as being homo sui juris, and consequently he himself, "may proceed by law;" but he says, that this does not hold good with respect to a person who is not sui juris, but is in the hands of others; such a person, he says, cannot be pronounced free, but must be subject to the power, either of the parent or master, so that no injury be done to either. Wherefore, since the girl is not sui juris, she must be in the power, either of Virginius, who says he is her father, or of Claudius, who says he is her master. But since Virginius is not present, that she can be in the power of no one but Claudius, until Virginius arrive.

I cannot resist the temptation of giving in full Mr. Gunn's note on the passage, as found in his very neat edition of our author.

"Appius for his own purposes, in interpreting his own law, introduces a distinction betwixt those who were sui juris, entirely free, and those who were subject to the patria potestas. The law, according to him, can apply only to the former, because in them only is there a true claim for liberty, and in them only could a judge give an interim decision secundum libertatem. To give such a decision in favour of Virginia, would be a variatio personarum; it would be introducing as entitled to the benefit of the law a class of persons, who were, even according to their own statements, not entitled to vindiciæ secundum libertatem. Besides, and most important of all, the law could act in the former, as any citizen was entitled to plead the cause of one presumptively free. But in this case no one could plead, but either the father as master on the one hand, or the alleged master on the other: as the father was not present, consequently no one had any legal claim to urge the law."