1) he put an end to whatever difference, political or civil, still existed between them, except in one respect. To the Freedman Justinian granted the right of gold rings (1) and of regeneratio (2), but the rights of Patronage he left untouched. These rights consist, 1. In dutiful respect (obsequia). The Freedman having received civil life from his Patron, owed the same respect to him as a son to his father. Thus, he could not summon the Patron in jus without the leave of the magistrate, or sue him in an action involving infamia; and he was bound to supply his wants in case of need, &c. 2. In jura in bonis, i.e., the patron and his family sometimes succeeded to the property of the deceased Freedman (B. 3, t. 7). 3. In service (opera) due by the Freedman to his Patron, according to the terms settled at the time of enfranchisement, under a contract of stipulatio, or by oath.

TITLE VI.-OF THOSE WHO COULD NOT ENFRANCHISE, AND THE GROUNDS OF DISABILITY.

The power to enfranchise was not unlimited. It was defined by the laws Elia Sentia and Fusia Caninia. By the former law,

1. The slave enfranchised must be thirty years old. 2. Masters must not enfranchise, in fraud of creditors; or, 3. Unless they were twenty years old.

Pr. As a general rule, creditors might revoke alienations made by debtors in fraud of their rights; but it was a principle that liberty once granted was irrevocable (B. 3, t. 11. § 5). It was therefore necessary that the Lex Elia should annul the enfranchisement ab initio; hence it declared it null (nihil agit) as against those creditors who questioned it within ten years (D. 40, t. 9, 16. § 3): for the debtor could not himself take advantage of his own fraud, in order to annul his own act of enfranchisement. (C. vii., t. 8, 5.)

§ 3. It should be observed that an enfranchisement made in fraud of creditors is not of necessity null. Fraus means any damage; and in this sense the Lex Elia Sentia ought to have annulled enfranchisements as fraudulent, provided the enfranchiser was insolvent already, or in consequence of the enfranchisement diminishing his assets. Such, indeed, was the opinion of Gaius; but Julian thought, that besides the actual loss (eventus) there ought to be an intention on the part of the

(1) The right to wear rings, originally confined to senators, patricians, and equites, was afterward allowed to all ingenui.

(2). Restitutio natalium: or restitution to natural birth, for all men are born free.

(D. 40, t. 11, 1. 2). Illis enim utique natalibus restituitur, in quibus initio omnes homines fuerunt, non in quibus ipse nascitur, cum servus natus esset.

debtor to injure the creditor (consilium); this opinion prevailed, so that in order to prove an enfranchisement fraudulent there must be damage in fact, as well as intention to damage.

§ 1. There was however one exception to the rule that an enfranchisement in fraud of creditors was null: viz. :--when an insolvent debtor appointed his slave hæres, and bequeathed him liberty (cum libertate). For we must observe: 1. That on the death of a party insolvent and without hæres, the creditors were put into possession of the hæreditas, and sold it in the name of the deceased; for he had no legal representative, and that was considered injurious to his memory. 2. That a slave, when appointed hæres, was compelled, whether he liked it or not, to accept the hæreditas; hence the name hæres necessarius. A master, therefore, whose hæreditas was so encumbered that he knew no one would accept it, appointed his slave hæres necessarius, so that, if there should be a sale of goods, it should be in the slave's name, who was his successor and legal representative. This was the case in which the Lex Elia allowed the enfranchisement. But then there must be no hæres by testament, for, if there was one already, none other would be required; again, the master could enfranchise only one (solus) for this purpose; and when he enfranchised more, the first alone was free and hæres.

§ 2. Originally and strictly in appointing a slave hæres, it was necessary to grant freedom expressly; but Justinian, thinking that the fact of the appointment implied an intention to enfranchise (for a hæres institutus must be free), held it unnecessary, as a general rule, to grant freedom expressly to a slave appointed hæres by his master.

§ 4. According to the Lex Elia, a master under twenty could enfranchise only by the vindicta, and after proof before the Council (1) of a legal ground for enfranchisement. He might, however, enfranchise by testament a slave whom he intended to be his hæres necessarius. (D.40, t. 4, § 27.)

A person was said to be minor or major when he was below or above a particular age. Here, as the prohibition to enfranchise applies only to minores 20 ann., it does not affect one in the last day of his 20th year; for, though not twenty years complete he is no longer under that age.

(1) Gaius says (1, § 80) that at Rome it consisted of five senators and five knights; in the Provinces, of five Recuperatores, Roman citizens. It was

in fact a jury, which, at the request of the Prætor or the president of the province, determined whether the ground of enfranchisement alleged was true or false. This shows that the enfranchisement by vindicta was in fact a fictitious suit. In the Provinces, the last day of the judicial sitting (conventus) was the

day for proving these grounds; and at Rome, on certain days, the Prætor and the Council discussed enfranchisements of this sort. As to those by masters above twenty, of slaves above thirty, which required no investigation, the vindicta was mere form, and might be gone through at any time. The magistrate need not even be on the judgment-seat, he might be merely passing along (in transitu), at the bath or the theatre (t. 5, § 2).

§ 5. As to the legal grounds (justa causa) of enfranchisement, they were as follows. When, for instance, a person enfranchised his father (1), his mother, his instructor, his nurse, or his foster-brother. So, when a man enfranchised a female slave, that he might marry her, or a male slave, that he might act as his procurator. But in the case of the female slave, the Patron must pledge his oath to marry in six months, and must marry, in fact, unless there be some legal impediment, i.., something arising after the enfranchisement; but a marriage, which the parties were not competent to contract, was not a good excuse. In the case of the male slave, he must be seventeen, in order postulare, i.e., to state the plaintiff's or defendant's case to the magistrate. These are* given by Justinian only as examples of justæ causæ. (D. 40, t. 2, 9, &c.)

§ 6. After the Council had approved the ground it could not retract its decision. It was final, whether the cause alleged were really true or false.

§ 7. Justinian modified in some respect the Lex Ælia Sentia. Thus by that law, one under twenty could enfranchise only by vindicta; therefore a master of full age (fourteen), who might by testament bequeath all his slaves to another master, could not, until twenty, bequeath freedom to a single slave. This Justinian thought absurd: not observing, like the authors of the Lex Elia, that the enfranchisement of a slave is much more important than the transfer of him to somebody else. To the state it is of little moment whether A. or B. is master; but it is of the greatest moment to take care that freedom and citizenship are not lightly bestowed. To remedy this supposed anomaly, Justinian decreed (as a kind of middle course) that a master of seventeen might enfranchise; and afterwards (Nov. 119, c. 2) he allowed any master to enfranchise when he could make a testament. As to enfranchisements inter vivos, the restriction of the Lex Elia remained.

TITLE VII.-OF THE ABOLITION OF THE LEX FUSIA CANINIA.

The same causes which gave rise to the Lex Alia, occasioned the Lex Fusia (A.D. 8). Many Roman citizens, in order to have a crowd of freedmen at their funerals, and to leave behind them a name for benevolence, enfranchised their slave by testament, and filled the town with unworthy citizens. The Lex Fusia put a stop to this, by fixing the number of slaves a man might enfranchise by testament, according to the number of his slaves, but in no case were they to exceed 100. the testator enfranchised more, the proper number were enfranchised,

(1) A party might have his parent as his slave in many ways; but it usually

If

occurred to a slave whom his master had appointed his hæres,

according to priority on the list; and if the names were written in a circle (orbem) none were enfranchised.

Justinian did not retain these provisions. He abolished this law, because he thought it unjust to give parties when living the right to enfranchise, and to deny it to them when dying; as if, indeed, it were not frequently necessary to deny to a testator a power after death, which might be safely intrusted to him if he could not exercise it without depriving himself of something during his life.

TITLE VIII.—OF PERSONS INDEPENDENT (SUI JURIS), AND DEPENDENT (ALIENI JURIS).

Pr. There is another division of persons as members of a familia. They are divided into those sui juris, dependent on themselves; and alieni juris, dependent on others. Every person must be either the head, or subject to the head of a familia. The head, if male, was paterfamilias; if female, mater-familias.

But the title of pater-familias did not depend on the fact of paternity. A child might be a pater-familias at his birth; for unless it belonged to a familia, it was itself a familia.

Again, all persons subject to a pater-familias are not under the same kind of subjection. The pater-familias had over some the parental power (parentium), over others the master's power (dominorum potesta) (1).

§ 1. Slaves were subject to the potestas dominica, and its effect was this. The master was owner (dominus) of them. His potestas affected the person of the slave, who might be disposed of, sold, abandoned, and even put to death by the master: it affected the goods, for everything possessed or acquired by the slave was the master's. Such was the early law. During the Empire, however, it was modified; for, though a master might still sell, give away, or bequeath a slave, he no longer had

(1) These were the only two kinds of power (both denoted by potestas) in Justinian's time, but, in the old law, there were two other kinds, manus, and mancipium. These last, though originally applied to everything held by a Roman citizen, viz., slaves, wife, children, &c., acquired, after the Twelve Tables, a technical meaning. Manus was the power which a husband, or an ancestor to whom the husband was subject, had over the wife in certain cases; for every wife was not in the manus of her husband; she sometimes continued in the potestas of her father. This manus was acquired: 1. By confar

reatio, accompanied by its own pactum, a religious ceremony, in which a meal-cake was used. 2. By coemptio, the solemn sale of a wife to her husband. 3. By usucapio (usu), wherein the husband acquired a title to his wife by uninterrupted possession for one year, which, however, was broken by the wife sleeping for three nights away from the husband's roof. A wife, in manu, was regarded as the husband's daughter. Mancipium was the power of a pater-familias over a freeman, acquired by mancipatio, or solemn sale. Justinian finally abolished it.

the power of life and death. Antoninus Pius, by a Constitution, punished with death any master who, without lawful cause, killed his own slave, just as if he had killed another man's; and Justinian gives (§ 2) a rescript of the same Emperor, by which masters are forbidden to inflict excessive punishment on their slaves, and magistrates are authorised to hear complaints of slaves, and to compel the master, if the complaint is proved, to sell the slave bonis conditionibus, i.e., on conditions advantageous both to the slave and the master.

Thus a master was not obliged to sell on credit, or under the value. On the other hand, he could not impose on the purchaser terms unfavourable to the slave; e.g., that he should never enfranchise him, or should transport him to a severe climate.

§ 2. By imposing this condition, however, the Emperor did not intend to dispute the master's right of property. That right he declared to be unshaken (illibatum): he merely confined it within proper limits; for the right of property is not absolute, but subject to public interest. Expedit enim reipublicæ, ne quis re sua male utatur.

But the potestas dominica as to the goods of slaves was in no respect modified. The old law was strictly adhered to. The slave was part of his master's chattels (res), and everything he had was his master's. But sometimes he was allowed to manage and enjoy part of the master's goods. This was a peculium (separate, peculiar goods), but it was a mere indulgence, which might cease at any moment.

TITLE IX.-OF THE PATRIA POTESTAS.

Patria potestas is the power possessed by a pater-familias over those children who belong to his familia (filii-æ-familias), or who have entered it by lawful marriage (justiæ nuptiæ), by legitimatio, or by adoptio.

§ 2. This patria potestas was peculiar to Rome. Generally, by the Jus Gentium, a father's power over his children is a protecting power—a guardianship-expiring when the child reaches maturity. But at Rome it was different. Hence the patria potestas was part of the Civil Law, and confined to Roman citizens; whereas the master's power over slaves was part of the Jus Gentium, and belonged to every owner, whether stranger or citizen.-By the old law, a pater-familias, as proprietor both of his children and of his slaves, had the right of life and death over both. He could sell them (mancipare) (1), expose, or abandon

(1) A pater-familias, by the sale of his daughter, or any of his issue in the second degree, exhausted his potestas; but if it

was the sale of a son, and he was enfranchised after the first sale by the first purchaser, he became immediately again sub