twenty, should continue a Slave, provided that he had acted knowingly, i.e., knowing his free condition (status), and that he had actually received a share of the money. § 5. According to Justinian there is no difference between one Slave and another. The master had absolute rights over all (1), though the position of one might be better than that of another. Some Slaves (ordinarii) had a sort of authority over others (vicarii); and a Masterslave had often the direction of inferior Slaves. But these were mere private arrangements-not legal differences-and might be put an end to at any moment. § 5. There were however many legal differences between one Freeman and another (2). The legal division of them was into Ingenui and Libertini. TITLE IV.-OF INGENUI OR FREEBORN PERSONS. An Ingenuus was one who, being born free, had never ceased to be free. Of persons born free there are two cases:— Pr. 1. One born free is one born of a lawful marriage, contracted between two freeborn, or two freed persons, or between a freeborn and a freed person, for the child followed the father's condition at the time of its conception; and at that time the father must have been free, for unless persons are free there can be no civil marriage. 2. One born free, is one born not of a lawful marriage, but of a free mother, or of a slave mother, who was free at the time of conception, or during any time of her pregnancy. In the second case, no regard was had to the father. When the condition of the child was determined by that of the father, it was solely because there had been a lawfully-contracted marriage: under any other circumstances the condition of the child followed that of the mother, in accordance with the Jus Gentium. Therefore it mattered (1) In the Lower Empire, this was true only of Slaves proper. (2) During the earlier Empire, they were most numerous. Then there were several degrees between the Roman citizen (civis romanus) and the stranger (peregrinus),— a general name for the people of the various Roman provinces (gentes). There were two degrees of peregrinitas. There were ordinary peregrini, i.e., peregrini socii, and peregrini dediticii, a lower grade. Throughout Italy, no doubt, the social war had put an end to the distinction between (As the full jus Civitatis and the jus Latii, or not whether the father was free or a slave: nay, even though the father was known, it would be the same as if he was unknown (and the child was therefore vulgo conceptus), for it would follow the condition of its mother (1). § 1. If a man were freeborn, but mistaken for a slave and freed by his supposed master, he was not a Freedman but Ingenuus. Birth, not Enfranchisement, made him free, nor did he cease to be free because in fact he was treated as a Slave (in servitute). But a freeborn man, if he became a Slave, did not by Enfranchisement recover his Ingenuitas. TITLE V.—FREEDMEN (2.) A Freedman is one legally freed from real Slavery (3). A man was legally freed either by Enfranchisement (manumissio) (4), when a master, having lawful power, gave his Slave freedom by means sanctioned by law: or without Enfranchisement, but by some means allowed by the Constitutions, and described in the Digest, de his qui sine manumissione ad libertatem pervenerunt (D. 40, t. 8) (5). § 1. In later times there were very many legal modes of Enfranchisement. The text enumerates-1. Those made in churches, before the people, with the aid of the bishops, who signed the act of Enfranchisement. This mode, introduced by Constantine, took the place of that by the Census, which was when the master had the slave's name inscribed, as a Roman citizen, on the census lists, prepared once in (1) The condition of the mother at the child's birth is the great point. Hence, if the mother is then (quo nascitur) free, though she may have been a slave (ancilla) at the time of conception, the child is free. On the other hand, if the mother had been free at the time of conception, or during the pregnancy, but is a slave at the time of the birth, the child ought properly to be a slave; but from humanity, and in favour of liberty, such child was considered free born. It has been said, this followed from that fiction of law by which a child when conceived is regarded as born, in any case where its interests are concerned, infans conceptus pro nato habetur quoties de commodis ejus agitur: but this is not So. Ortolan observes, that when the status of the father determines that of the child, the time of conception is the point, because there the child's connection with the father ends; but when the status of the mother is to determine the matter, the time of birth must be the point, because, till then, the child is part of the mother. Pr. (2) A freedman was Libertinus, as opposed to Ingenuus, and Libertus, in relation to his Patron. (3) The text says manumissio; but as manumissio was not always required in order to a slave being freed, our definition, or that at the end of the section (qui desierunt), viz., those who have ceased to be slaves, is more accurate. (4) Manumissio, a putting out of hand or out of our power. (5) Thus, an edict of Claudius (D. 40, t. 8, fr. 2), declares free and without patron any slave abandoned by his master as diseased or infirm. A rescript of Marcus Aurelius declares (D. 40, t. 8, fr. 3), that any slave sold on the condition that he should be enfranchised after a period, should be free after the lapse thereof, even though the purchaser had taken no steps towards it, provided the seller, if still living, has expressed no intention different from that expressed at the sale. five years a custom long discontinued. 2. By the vindicta, before the magistrates, with solemn words and gestures. 3. By a declaration made verbally, inter amicos, before friends. Justinian fixed five as the number of witnesses to sign the written document attesting this declaration. 4. By letter, per epistolam, to be signed by five also. 5. By testament, or other act of last will; ie., codicil. 6. By various modes described in the Constitutions of Justinian and his predecessors (C. 7. 6, 3-12): as when a master publicly called his slave "son," or, in presence of five witnesses, delivered to the Slave, or destroyed, the documents, proving his slave-condition. In order to explain the term vindicta it is necessary to go back to the earlier period of the history of Roman Law. It is now generally agreed that this mode, which dates back to the old actiones legis, consisted of a fictitious suit, in which Freedom was the thing claimed. When a free man was unjustly enslaved, any citizen might become his champion, and sue his alleged master. This process was the assertio in liberatem; and it was used in the following way, as a mode of enfranchising a real Slave. Any friend, or a lictor, became assertor libertatis, maintaining before the magistrate that the Slave was free: the alleged master did not deny the assertion, and the magistrate allowed the plaintiff's claim, and declared the slave free (aio te liberum more quiritium). All this was done with solemn word and gesture; a rod (vindicta, festuca) being also used, which the plaintiff held as the sign of dominion or property. Hence the name vindicta, for this mode of enfranchisement. § 3. Of Freedmen there were various classes. Before the time of Justinian they were divided into Cives Romani, Latini Juniani, and Dediticii. The mode in which these distinctions arose was as follows: At Rome, in early times, liberty was indivisible (una et simplex), and every Freedman became a Roman citizen. But no man was held to be legally enfranchised unless these conditions concurred:-1. The master must have had over the slave about to be enfranchised, ownership according to the Civil Law (dominus ex jure quiritium) (1). 2. The master must have used one of the three modes of enfranchisement recognised by the Civil Law: censu, vindicta, testamento (2).—Now, if (1) At Rome there were two kinds of property: 1st. Quiritarian property, which was acquired by a Roman, according to the conditions and forms of the civil law (dominium ex jure Quiritium). 2. Prætorian property, a mere right of possession, which was protected by the Prætors, and possessed most of the benefits peculiar to the former. This was the property, according to the Jus Gentium, and was expressed by in bonis habere or esse. Some commentators called it bonitarian, as opposed to quiritarian. An enfranchisement by one who had a slave in bonis, was void according to the Civil Law: but though the slave was still a slave, he enjoyed, by aid of the Prætor, liberty in fact, which was afterwards regulated by the L. Junia Norbana. (2) These three were the modi solemnes: the nonsolemnes were originally part of prætorian law, conferring only that temporary freedom which was possessed by the the enfranchisement wanted either of these conditions, e.g., if the master, instead of owning the slave ex jure quiritium, held him in bonis, or if an informal mode, as inter amicos or per epistolam was used, the enfranchisement was void by the Civil Law, and the master might reclaim (revindicare) his slave. But the Prætor, in obedience to the spirit of the times, protected the liberty of any slave whom his master intended to enfranchise. This liberty de facto, however, was far from complete. The slave was only relieved from service: in other respects he was still a slave: thus whatever he acquired was his master's, in whom it vested after the slave's death. Such was the law at the close of the Republic. But at that period the right of enfranchisement was so grossly abused, and such a host of corrupt men had become citizens, that various laws were passed to remedy the evil. Amongst these was the Elia Sentia. This law (passed A.D. 4, under Augustus) added several new conditions (vide next Title) to those required by the old law for a valid enfranchisement; amongst others, the slave was required to be thirty years old; the master must be twenty years old, unless the enfranchisement was vindicta, and the grounds thereof were approved by a special council (vide next Title). Again, no slave enfranchised after suffering an infamous punishment, as stigmata, could become a citizen; he could have the rights only of the Dediticii. These were people who, having taken up arms against the Romans, had been vanquished, and surren dered at discretion. Amongst the subjects of the empire, their condition was the worst (§ 3). The Dediticii enjoyed personal liberty, but that was all. They could not trade except as peregrini; they could not make a testament; they were forbidden to live within 100 miles of Rome, on pain of being themselves sold with all their property; they could never become citizens; and their masters, at their death, took all their property by right of succession if their emancipation had been complete, and if not, by the right an owner always had to the slave's peculium (G. i. 12-15, 25-27; iii. 74-6). As for those slaves whose liberty (de facto) was protected by the Prætor, but who were not de jure Freedmen, the Lex Junia Norbana (A.D. 17) settled their position by securing them in the same rights (1) as were formerly possessed by the old colonists of Latium; hence their name Latini Juniani: Latini, for they had the jus Latii, Latinitatis ; Latini Juniani: it was not till Justinian's time that they were incorporated into the general law. The civil law doctrine of enfranchisement was based upon the principle, that as a new citizen was thus added to the state, the state ought to be represented in the ceremony of enfranchisement. Thus, when it was censu, the censor, when vin dicta, the Prætor, when testamento (which was made calatis comitiis), the populus respectively acted as representatives. (1) Or rather, the temporary enjoyment of such rights: for on the death of a Latinus his goods belonged to his former master, just as if he had been a slave (B. 3, t. 7, § 4). Juniani, for they were freed by the Ler Junia. These Latini might Thus a Thus, there were three classes of freedmen: 1. Enfranchised citizens: -the three conditions concurring, (1). The slave thirty years of age; (2). His master quiritarian owner; (3). One of the formal modes of enfranchisement used. 2. Deditici, who, during slavery, had suffered certain punishment. 3. Latini Juniani, whose characters were unblemished, but whose enfranchisement wanted one of the three conditions. § 3. But Justinian did not retain these distinctions. The class of Dediticii (practically unknown in Justinian's time) and the Latini Juniani he expressly abolished; he then decreed that all Freedmen should have the name and rights of Roman citizens, without regard to the age of the enfranchised, the nature of the enfranchiser's property, or the mode of enfranchisement adopted. It must not be supposed that, after Justinian's time, even a master might enfranchise his slave in any way he pleased without observing any legal form. On the contrary, the effect of the new law was, that those modes of enfranchisement, inter amicos, per epistolam, &c., which would formerly have given the freedman only the rights of a Latinus, now gave him the full rights of a citizen, just as if he had been enfranchised by one of the Civil Law methods. A party was at liberty to choose any one of the numerous modes of enfranchisement allowed in Justinian's time, but one he must choose. But although Justinian abolished the distinction between different classes of Freedmen, there were still to be found in the Institutes, distinctions between the Ingenui and the Freedmen. By a Novella (78: |