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specialia senatusconsulta, quibus rescissa sunt ea quae in fraudem eius legis excogitata sunt.

§ 47. In summa sciendum est, cum lege Aelia Sentia cautum sit, ut qui creditorum fraudandorum causa manumissi sint liberi non fiant, etiam hoc ad peregrinos pertinere (senatus ita censuit ex auctoritate Hadriani); cetera vero iura eius legis ad peregrinos non pertinere.

Caninia itself and certain subsequent decrees of the senate declare null and void all dispositions contrived for the purpose of eluding the statute.

§ 47. Finally, it is to be noted that the provision in the lex Aelia Sentia making manumissions in fraud of creditors inoperative, was extended to aliens by a decree of the senate passed on the proposition of the Emperor Hadrian; whereas the remaining dispositions of that statute are inapplicable to aliens.

§ 47. The lex Furia Caninia, passed A.D. 8, four years after the lex Aelia Sentia, in the consulate of Furius Camillus and Caius Caninius Gallus, was abrogated by Justinian.

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sunt, licet supra modum et sine causa in servos suos saevire. Nam ex constitutione sacratissimi Imperatoris Antonini qui sine causa servum suum occiderit, non minus teneri iubetur, quam qui alienum servum occiderit. Sed et maior quoque asperitas dominorum per eiusdem Principis constitutionem coercetur. Nam consultus a quibusdam Praesidibus provinciarum de his servis, qui ad fana deorum vel ad statuas Principum confugiunt, praecepit, ut si intolerabilis videatur dominorum saevitia, cogantur servos suos vendere. Et utrumque recte fit; male enim nostro iure uti non debemus: qua ratione et prodigis interdicitur bonorum suorum administratio.

§ 54. Ceterum cum aput cives Romanos duplex sit dominium, (nam vel in bonis vel ex iure Quiritium vel ex utroque iure cuiusque servus esse intellegitur), ita demum servum in potestate domini esse dicemus, si in bonis eius sit, etiamsi simul ex iure Quiritium eiusdem non sit. nam qui nudum ius Quiritium in servo habet, is potestatem habere non intellegitur.

people of Rome, are permitted to indulge in excessive or causeless harshness towards their slaves. By a constitution of the Emperor Pius Antoninus, a man who kills a slave of whom he is owner, is as liable to punishment as a man who kills a slave of whom he is not owner: and inordinate cruelty on the part of owners is checked by another constitution whereby the same emperor, in answer to enquiries from presidents of provinces concerning slaves who take refuge at temples of the gods, or statues of the emperor, commanded that on proof of intolerable cruelty a proprietor should be compelled to sell his slaves and both ordinances are just, for it is proper that the abuse of a lawful right should be restrained, a principle recognized in the interdiction of prodigals from the administration of their fortune.

§ 54. Citizens of Rome having two kinds of dominion, bonitary and quiritary, or a union of bonitary and quiritary dominion, a slave is in the power of an owner who has bonitary dominion over him, even unaccompanied with quiritary dominion; if an owner has only naked quiritary dominion he is not deemed to have the slave in his

power.

The condition of the slave was at its worst in the golden period of Roman history. As soon as Rome found her power irresistible she proceeded to conquer the world, and each stage of conquest was the reduction of a vast portion of mankind to slavery. 30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator, the captor of Tarentum; 150,000 Epirots by Paulus Aemilius, the subjugator of Epirus. Julius Caesar retrieved his shattered fortunes by enormous operations in the slave market during his campaigns in Gaul. Thus, unfortunately for the slave, the slave market was continually glutted and slave life was cheap. The condition of the slave gradually but slowly improved under the emperors. A lex

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Petronia of uncertain date required a slave-owner to obtain the permission of a magistrate before exposing a slave to be torn to pieces by wild beasts, and only allowed such permission to be granted for some offence committed by the slave, Dig. 48, 8, 11, 2. Claudius prohibited killing slaves who fell sick, and enacted that the exposure of a slave to perish in his sickness should operate as a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7. 6. 3. Hadrian deprived proprietors of the power of putting slaves to death without a judicial sentence, Spartian, Had. 18. Antoninus Pius declared a proprietor who killed a slave to be guilty of murder, and subject to the penalty of the lex Cornelia de sicariis. We read in Justinian's Digest: Qui hominem occiderit punitur non habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 12. 'Homicide is punished without regard to the status of the person killed.' The punishment was generally capital. Legis Corneliae de sicariis et veneficis poena insulae deportatio est et omnium bonorum ademptio. Sed solent hodie capite puniri nisi honestiore loco positi fuerint quam ut poenam legis sustineant: humiliores enim solent vel bestiis subici, altiores vero deportantur in insulam, Dig. 48, 8, 3, 5. The law of Cornelius Sylla touching assassins and poisoners, punishes with transportation to an island and forfeiture of all property. But at present the punishment is usually capital, unless the criminal is of exalted station; húmbler criminals are thrown to wild beasts, only criminals of higher rank are transported.' Hadrian prohibited the castration of a slave, consenting or not consenting, under penalty of death, Dig. 48, 8, 4, 2. Antoninus Pius also protected slaves against cruelty and personal violation, Dig. 1, 6, 2. The Digest, 1, 6, 1, quoting Gaius, 1 § 53, after sine causa, interpolates, legibus cognita, thus placing slaves under the protection of the law, and almost recognizing in slaves some of the primordial rights of humanity, except that, as already observed, obligation does not necessarily imply a correlative right. Roman law to the end, unlike other legislations which have recognized forms of slavery, refused to admit any rights in the slave. Florentinus, however, not long after the time of Gaius, admitted that slavery was a violation of the law of nature. Servitus est constitutio juris gentium qua quis dominio alieno contra naturam subicitur, Dig. 1, 5,4. Slavery is an institution of Gentile law, making one man the property of another, in contravention of Natural law.' Ulpian says the same: Quod attinet ad jus civile, servi pro nullis habentur,

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non tamen et jure naturali; quia quod ad jus naturale attinet, omnes homines aequales sunt, Dig. 50, 17, 32. Before the Civil law a slave is nothing, but not before the Natural law; for in the eye of Natural law all men are equal.' The belief in a Natural law, more venerable than any Civil law, was very prevalent in the ancient world, and one of the principal contributions of Philosophy to civilization.

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Slaves being recapite non minui

A slave by manuCum servus manu

The absolute privation of all rights was sometimes expressed by saying that a slave has no persona, caput, or status: e. g. Servos quasi nec personam habentes, Nov. Theod. 17. garded as impersonal men.' Servus manumissus tur quia nullum caput habet, Inst. 1, 16, 4. mission loses no rights, having none to lose.' mittitur, quia servile caput nullum jus habet, ideo nec minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. A slave who is manumitted, having no rights, cannot lose any, for all his rights date from the day of his manumission.' The word 'persona,' however, is sometimes applied to slaves: e. g. in personam servilem nulla cadit obligatio, Dig. 50, 17, 22. A slave can owe no obligation; see also Gaius, 1 § 17. So is caput in one of the above quoted passages.

DE PATRIA POTESTATE.

§ 55. Item in potestate nostra sunt liberi nostri quos iustis nuptiis procreavimus. quod ius proprium civium Romanorum est. fere enim nulli alii sunt homines, qui talem in filios suos habent potestatem, qualem nos habemus. idque divus Hadrianus edicto quod proposuit de his, qui sibi liberisque suis ab eo civitatem Romanam petebant, significavit. nec me praeterit Galatarum gentem credere, in potestatem parentum liberos esse.

§ 55. Again, a man has power over his own children begotten in civil wedlock, a right peculiar to citizens of Rome, for there is scarcely any other nation where fathers are invested with such power over their children as at Rome; and this the late Emperor Hadrian declared in the edict he published respecting certain petitioners for a grant of the Roman franchise to themselves and their children; though I am aware that among the Galatians parents are invested with power over their children.

§ 55. The most peculiar portion of the Roman law of status is that which refers to patria potestas, or the relation of paterfamilias to filiusfamilias. Patria potestas was founded on consuetudinary law (quum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and

may be considered under two heads, (1) as regarding the person of the son, (2) as regarding proprietary rights acquirable by the son.

1. Over the person of the child the father had originally a power of life and death. Patribus jus vitae in liberos necisque potestas olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parricidiis, enumerating the persons who could be guilty of parricide, or the murder of a blood relation, omits the father, Dig. 48, 9. Compare also the formula of Adrogatio, § 98, commentary. But in later times this power was withdrawn. Hadrian condemned to deportation a father who in the hunting-field killed his son who had committed adultery with his stepmother, Dig. 48, 9, 5. Constantine, A.D. 319, included killing by a father under the crime of parricide, Cod. 9, 17. Fathers retained the power of moderate chastisement, but severe punishment could only be inflicted by the magistrate, Cod. 8, 47, 3. Si atrocitas facti jus domesticae emendationis excedat, placet enormis delicti reos dedi judicum notioni, Cod. 9, 15. Trajan compelled a father to emancipate a son whom he treated with inhumanity, Dig. 37, 12, 5. It was originally at the option of the parent whether he would rear an infant or expose it to perish, but in later times exposition was unlawful.` Unusquisque sobolem suam nutriat: quod si exponendam putaverit, animadversioni quae constituta est subjacebit, Valentinian, Valens, and Gratian, A.D. 374, Cod. 8, 52, 2. Every parent must rear his offspring, and exposition will be punished according to law.'

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Originally also parents had the power of selling (mancipandi) their children into bondage, thus producing a capitis minutio, or degradation of status. In fact, the patriarchs of the Roman race were slave-dealers who, like some savage tribes in Africa and elsewhere, trafficked in the bodies of their own children. We must note, however, that the bondage into which a Roman father sold his children was, at least at the time at which this institution is known to us, a limited degree of subjection: the mancipation could only be made to another Roman citizen, and the bondsman continued to be liber and civis. But this power also was withdrawn in more civilized times. A law of Diocletian and Maximian declares the sale, donation, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript of one of the Antonines commences in the following terms: Rem illicitam et inhonestam admisisse te confiteris, quia proponis filios ingenuos a te venundatos, Cod. 7, 16, 1: 'You are guilty, by your own admission, of an unlawful and disgraceful act,

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