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maior viginti annis ad pretium participandum sese venumdari passus est. in servorum condicione nulla differentia est. In 5
favour of the old principle of the ius gentium; (2) if a free woman cohabited with a servus alienus with the consent of the latter^ master, though she remained free herself the issue should belong to the master: this was repealed by Hadrian, Gaius i. 84; (3) if a free-woman knowingly cohabited with a servus alienus without the consent of the latter's master, and persisted in the intercourse after prohibition by him, after three denunciations on his part she was awarded to him as a slave by the magistrate, and her children, whether born before or after this award, shared her fate : her property passed to him with her person. This was only repealed by Justinian himself; Bk. iii. 12. 1 inf.
When a free person became a slave, he was said to suffer capitis deminutio maxima (Tit. 16. 1 inf.). Of this there was one mode iure gentium, and three iure civili. (1) It was a principle of ius gentium that a person becomes a slave by falling under the power of a foreign nation; this of course usually occurred in the form of capture in war, but it was sufficient if there was no friendly treaty or intercourse between the two peoples, Dig. 49. 15. 5. 2. Persons captured in civil war did not become slaves, Dig. 49. 15. 21. 1, nor did those who were captured by brigands, ib. 19. 2. Liberty lost in this way could be recovered by postliminium, Tit. 12. 5, and notes inf. ; Tit. 20. 2. (2) In certain cases the law allowed a free person to be sold as a slave, e.g. those who attempted to evade public burdens by not having their names entered on the census, or who shirked military service ; so too the insolvent debtor under the old law of execution by manus iniectio. In all these cases, which were obsolete long before Justinian, except possibly the last, it was necessary that the guilty person should be sold trans Tiberim, i.e. to a foreign people. From the time of Commodus, and possibly earlier, a libertus guilty of gross ingratitude to his patron might be sold as a slave by the latter or (later) revocatus in patroni servitutem, Cod. 4. 10.1. Lastly, there was the case noticed in the text. The rule stated in Cod. 7. 16. 6. 10 (' liberos privatis pactis non posse servos fieri certi iuris erat') had led to the kind of fraud referred to in the text as early as Plautus (Pers. i. 3. 58 ; iii. 1); and by the time of Mucius Scaevola it had become an established principle of praetorian law that if a free person twenty years of age collusively allowed himself to be sold as a slave, in the intention of sharing the price with the vendor, the praetor should refuse him the proclamatio in libertatem or liberalis causa and adjudge him actually a slave: this was confirmed by senatusconsulta, Dig. 40. 13. 3. (3) A freewoman might become a slave under the SC. Claudianum, see supr. (4) Persons condemned to death, to labour in the mines, or to fight with wild beasts, became servi poenae (Tit. r2. 3 inf.), i.e. slaves with no master at all: this was abolished by Justinian in Nov. 22. 8.
§ 5. For the twofold division of men into liberi and servi Ulpian in Dig. 1. 1. 4 substitutes one of three classes: 'liberi, et his contrarium servi, et tertium genus liberti:' cf. Cod. 4. 9. 3, Tit. 5. pr. inf. But
liberis multae differentiae sunt. aut enim ingenui sunt aut libertini.
between absolute slavery and complete legal freedom there were two intermediate conditions. The first of these is that of the statu liber ('qui statutam et destinatam in tempus vel conditionem libertatem habet ' Dig. 40. 7. 1. pr.) ; the other is that of the slave who was said ' in libertate esse,' i.e. who was manumitted in some mode not recognised as conferring full legal freedom (note on Tit. 5. 1 inf.), and who therefore remained a slave in the eye of the law, though protected by the magistrate in the actual enjoyment of liberty.
From these cases differ certain others in which a person, though actually free, was subject to an external control which limited his freedom, and placed him to a considerable degree in the position of a slave: (1) the free person bona fide serviens, i.e. who thinks he is a slave ; in some matters, especially with regard to acquisition, he was treated as a slave, and all that he acquired under definite conditions belonged to his quasi dominus; see Bk. ii. 9. 4 inf., Gaius ii. 92. (2) The auctoratus, who hired himself out as a gladiator, Gaius iii. 199 ; the hirer could sue by actio furti if he were removed from his control. The gladiatorial fights were prohibited by Constantine, Cod. 11. 43. 1. (3) If a prisoner of war was redeemed, his owner had a kind of lien on him until the whole redemption sum was paid, and so long the ius postliminii was suspended. (4) The debitor addictus under the middle law of bankruptcy did not become his creditor's slave, but was bound to work for him until the debt was satisfied; see Gaius iii. 199 for a parallel between him and the auctoratus. (5) The free person in mancipio, for which see note on Tit. 8. pr. inf. (6) The colonus. Coloni (in this sense) were persons inseparably attached from birth to the soil of some particular estate or district (glebae adscripti) for purposes of cultivation; they were personally free, but as it were slaves of the land, 'licet conditione videantur ingenui servi tamen terrae ipsius cui nati sunt existimentur' Cod. 11. 51. 1 ; under the later Empire they composed the greater part of the agricultural population. In many respects they were completely assimilated to slaves; thus their property was called peculium, and was considered, like themselves, an appendage of the soil, and if they ran away they could be recovered by real action: for a longer notice of them see Mr. Poste's note on Gaius iii. 146. One theory of the origin of colonatus is that it is to be traced to the Roman practice of distinguishing between town and country slaves (familia urbana and rustica) ; the latter, being engaged in tillage, seem always to have enjoyed a certain freedom of action, and came more and more to be regarded as accessions to the land; their position was actually much the same as that of the colonus, except that the status of the latter was a legal one, and it is urged that the transition from the unfree to the free condition perhaps resulted from some statute empowering domini to manumit rural slaves on condition of their remaining glebae adscripti and paying a substantial rent (canon) for their holdings. Other writers on the subject however, among them Savigny, IV.
Ingenuus is est, qui statim ut natus est liber est, sive ex duobus ingenuis matrimonio editus, sive ex libertinis, sive ex altero libertino altero ingenuo, sed et si quis ex matre libera nascatur, patre servo, ingenuus nihilo minus nascitur: quemadmodum qui ex matre libera et incerto patre natus est, quoniam vulgo conceptus est. sufficit autem lîberam fuisse matrem eo tempore quo nascitur, licet ancilla conceperit. et ex contrario si libera conceperit, deinde ancilla facta pariat, placuit eum qui nascitur liberum nasci, quia non debet calamitas matris ei nocere, qui in utero est. ex his et illud quaesitum est, si ancilla praegnans manumissa sit, deinde ancilla postea facta peperit, liberum an servum pariat? et Marcellus probat liberum nasci: suff1cit enim ei qui in ventre est liberam matrem vel medio tempore habuisse: quod et verum est. Cum autem ingenuus aliquis natus sit, non officit 1 il Ii in servitute fuisse et postea manumissum esse: saepissime enim constitutum est natalibus non officere manumissionem.
Libertini sunt, qui ex iusta scrvitute manumissi sunt. manumissio autem est datio libertatis: nam quamdiu quis in
derive colonatus from repeated settlements of homeless and home-seeking barbarians in the Roman provinces.
Tit. IV. The law as stated in the words 'et ex contrario ... qui in utero est,' unless the child was conceived in lawful wedlock, is contrary to the principle laid down by G ai us i. 88. 92 ' qui illegitime concipiuntur, statum sumunt ex eo tempore, quo nascuntur : qui legitime concipiuntur, ex conceptions tempore ' which is confirmed by Ulpian, reg. 5. 10, and Neratius in Dig. 50. 1.9. By the time of Paulus, however, this had been altered, ' id enim favor libertatis exposcit' rec. sent. 2. 24. 1-3. Paulus also agrees with Marcellus upon the question for which the latter's opinion is cited: 'media enim tempora libertat i prodesse, non nocere etiam possum' loc. cit.
L For the meaning of ' in servitute fuisse ' see on Tit. 3. 5 supr.
Tit. V. By ' iusta servitus ' is meant a slavery which is legal as well as
servitute est, manui et potestati suppositus est, et manumissus liberatur potestate. quae res a iure gentium originem sumpsit, utpote cum iure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitus esset incognita: sed posteaquam iure gentium servitus invasit, secutum est beneficium manumissionis. et cum uno communi nomine homines appellaremur, iure gentium tria genera hominum esse coeperunt, liberi et his contrarium servi et tertium genus libertini, 1 qui desierant esse servi. Multis autem modis manumissio procedit: aut enim ex sacris constitutionibus in sacrosanctis ecclesiis aut vindicta aut inter amicos aut per epistulam aut per testamentum aut aliam quamlibet ultimam voluntatem.
actual, so that it is contrasted with mancipium, in servitute esse, and the slavery of a prisoner of war; i.e. the rights of ingenuitas were not destroyed by captivity, but could be recovered by postliminium; Dig. 49. 15. 21. pr.
The modes in which a slave could become free (and which are not systematically discussed by Justinian, who confínes himself in the main to manumission) are three in number, viz. (1) postliminium, note on Tit. 12. 5 inf.; (2) manumission, of which below; and (3) certain irregular modes in which freedom was conferred by positive law without manumission by the dominus (Dig. 40. 8 ' Qui sine manumissione ad libertatem perveniunt'). Thus (a) the SC. Silanianum of Augustus' period liberated slaves who discovered their masters' murderers, and the same was done by later enactments as a reward for the detection of certain other crimes, Cod. 7. 3. (ß) An edict of Claudius gave liberty to slaves exposed by their masters (see note on Tit. 3. 2 supr.). (y) An enactment of Vespasian did the same for ancillae who were exposed to prostitution against the terms of the disposition under which they were acquired, (й) If a slave were aliened under a promise to manumit, which the alienee failed to perform, the slas'e was declared free by a law of Marcus and Commodus. (f) A number of senatusconsulta beginning under Trajan provide in the same manner for the enfranchisement of slaves to whom liberty was bequeathed by a fideicommissum. (f) Certain less important modes introduced by Leo and Justinian are noticed in Cod. 12. 5. 4, and Nov. 5. 2. 1; 123. 4. 17.
§ 1. Manumission was an act of the master by which the slave became free. Its effect, under the older law, was to make the slave not only free, but a citizen of Rome; indeed, he might even become a member of a Roman family by being given in adoption to a paterfamilias by his master, Gellius 5. 19, but under the later law this was not allowed. The act was thus one of political import (see Mr. Poste on Gaius i. 17), and therefore was required to be performed in some mode or other in which the state, by participation, could give its sanction and consent.
Such 'iustae ac legitimae manumissiones' (Gaius i. 17) were three in sed et aliis multis modis libertas servo competere potest, qui tam ex veteribus quam nostris constitutionibus introducti
number. (1) Vindicta, a form of the praetor's voluntary jurisdiction, or prearranged suit at law: the slave was claimed as free in a real action (vindicatio) by an adsertor libertatis: the master, as defendant, instead of resisting the claim by laying the vindicta or rod on the slave before the praetor, released him (manu mittebat), thereby confessing himself in the wrong, whereupon the praetor adjudged the slave free (Plautus, mil. glor. 4. 1. 15). The procedure, which at first was strictly that of the 'legis actio sacramenti' (for which see Gaius iv. 16, and Index, inf.) was simplified in course of time by the part of adsertor being played by one of the praetor's lictors, and by the release of the master from all formal cooperation: finally, the necessity of an adsertor was altogether dispensed with, and it was held sufficient if the master, accompanied by the slave, declared his intention of enfranchising him to the praetor, whenever ('semper' in the text is explained by Theophilus 'mi iv SmpaKTa qfupa') and wherever he met the latter, and if the latter thereon formally adjudged him free: see § 2 of this Title, and for the process generally Poste's Gaius loc. cit. (2) Censu (for the census see General Introd. p. 20. supr.) The censor could make anyone a citizen of Rome by entering his name on the census or official list, and this was used for manumission by the master's taking his slave to the censor and allowing him to make his 'professio' before him without entering an objection. Ulpian speaks of the census as a thing of the past, only three having been held since the Christian era, the last A.d. 74; the form was revived but once afterwards, A. D. 249, so that Justinian does not mention this as one of the modes in which a slave could gain his freedom. (3) Testamento. The master could either bequeath a slave his liberty directly, in which case he became 'libertus orcinus,' Bk. ii. 24. 2 inf., and was free from the moment the heir accepted the inheritance, unless the manumission was conditional or ex die (note on Tit. 20. 1 inf.), or imposed on the heir (or some other person) an obligation to manumit him (libertas fideicommissaria), in which case he became the freedman of the person by whom he was manumitted; cf. Ulpian, reg. 2. 7. 8.
These were in Cicero's time the only modes in which a manumitted slave could become liber. If the master attempted to enfranchise him in any other way (e. g. by a declaration in the presence of witnesses— 'manumissio inter amicos' Ulpian, reg. 1. 18, Pliny, Ep. 7. 16, Seneca de vit. beat. 24. 2 — by a letter, 1 per epistolam,' Martial, ep. 9. 89, Isidores, orig. 9. 4, or by treating him as free, e. g. convivii adhibitione, by inviting him to sit at meat with him—which were called manumissiones minus solennes), the man remained legally a slave, but was said 'in libertate esse' Gaius iii. 56, note on Tit. 3. 5 supr. A legal status was first conferred on slaves manumitted in any of these informal ways by the lex Iunia Norbana, A.D. 19, for which see on § 3 inf. A new form of manumission (in ecclesiis) which had complete legal effect was introduced by Constantine, consisting in a declaration by the master in