naturalis facultas eius quod cuique facere libet, nisi si quid aut vi aut iure prohibetur. (2.) Servitus autem est constitutio iuris gentium, qua quis dominio alieno contra naturam subiicitur'. (3.) Servi autem ex eo appellati sunt, quod imperatores captivos vendere iubent, ac per hoc servare, nec occidere solent. qui etiam mancipia dicti sunt, quod ab hostibus manu capi untur. 4. Servi autem aut nascuntur, aut fiunt. nascuntur ex ancillis nostris. fiunt aut iure gentium, id est ex captivitate; aut iure civili, cum homo liber maior viginti annis ad pretium participandum sese venundari passus est. 5. In servorum condicione nulla differentia est. In liberis multae differentiae sunt: aut enim ingenui sunt, aut libertini. is a natural capacity of doing what each man pleases to do, saving only anything prevented by force or by law. 2. But servitude is a creation of the law of nations, by which one person is subjected to the power of another, contrary to nature'. 3. Slaves get their name of servi from the fact that generals order the sale of their captives, and therefore usually save (servant) and do not kill them. They are also called mancipia, because they are taken from the enemy by the hand. 4. Slaves then are such either by birth or by men's making. They are born to slavery when they are children of our female slaves; they are made slaves either by virtue of the law of nations, that is to say through captivity, or by the civil law, when a free man above the age of twenty has allowed himself to be sold, in order to share his own price. 5. In the condition of slaves there are no gradations. But amongst free men there are many gradations; for they are either ingenui or libertini. 1 II. 3. The paragraphs numbered 1, 2, 3 are quotations from Florentinus in D. 1. 5. 4. 2 See D. 1. 5. 5. 1, where Marcianus makes the same statement with regard to a man above twentyfive years of age; and twenty-five no doubt is the correct number, quinque having been accidentally omitted either by Justinian when compiling his work, or by some copyist. Twenty-five, as is well known, was the age of majority according to Roman law. See D. 40. 13. 1 and 3 on the subject of voluntary submission to slavery for a price. TIT. IV. DE INGENUIS. Ingenuus est, qui statim ut natus est liber est; sive ex duobus ingenuis matrimonio editus, sive ex libertinis, sive ex altero libertino, altero ingenuo. sed etsi quis ex matre libera nascatur, patre servo, ingenuus nihilominus nascitur; quemadmodum qui ex matre libera et incerto patre natus est, quoniam vulgo conceptus est. Sufficit autem liberam 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 pepererit, liberum an servum pariat? et Marcellus probat liberum nasci: sufficit enim ei qui in ventre est liberam matrem vel medio tempore habuisse. quod et verum est. TIT. IV. ON INGENUI. An ingenuus is one who is free at the very moment of his birth; whether born in matrimony from two freeborn persons, or from two persons who have been made free, or from one person made free and another born free; and even if a child be born of a free mother, but with a slave for father, still he is freeborn; just as a child is if born from a free mother but an unknown father, because conceived in prostitution. And it is enough if the mother be free at the time of the child's birth, even though she were a slave at the time of conception; and conversely if she conceive whilst free, and then bear her child after being reduced to slavery, it is ruled that the child is freeborn, because the misfortune of the mother ought not to prejudice the unborn offspring'. Hence this question has been started supposing a female slave be manumitted whilst pregnant, and subsequently bear a child after being a second time reduced to slavery, is that child free or slave? and Marcellus maintains that he is born free, for it is enough for the unborn child to have had a free mother even at an intermediate time; and this statement we hold correct. 1 See Marcianus, in D. 1. 5. 5. 2. I. Cum autem ingenuus aliquis natus sit, non officit illi in servitute fuisse et postea manumissum esse. saepissime enim constitutum est natalibus non officere manumissionem'. TIT. V. DE LIBERTINIS. Libertini sunt, qui ex iusta servitute manumissi sunt. Manumissio autem est datio libertatis. nam quamdiu quis in servitute est, manui et potestati suppositus est, et manumissus liberatur potestate. Quae res a iure gentium originem sumsit: utpote cum iure naturali omnes liberi nascerentur, nec esset nota manumissio, cum servitus esset incognita. sed postea quam iure gentium servitus invasit, secutum est beneficium manumissionis. et cum uno naturali nomine homines appellaremur, iure gentium tria genera hominum esse coeperunt, I. When any one is born free, the fact of his undergoing slavery and being afterwards manumitted does not affect his status, for it has been repeatedly laid down that manumission does no prejudice to the rights of birth'. TIT. V. ON LIBERTINI. Libertini are those who have been manumitted from a servitude recognised by the law; and manumission is the gift of liberty; for so long as a man is in slavery he is subject to hand (manus) and power, and when manumitted is freed from power. This process was derived from the law of nations; since according to the law of nature all persons were born free, and manumission was not known at the time when slavery was unknown. But after slavery was introduced by the law of nations the remedy of manumission followed; and whereas we were all called by one natural name, viz., men, there began in consequence of the law of nations to be three varieties of 1 He would undoubtedly be a libertinus if manumitted after being reduced to slavery in accordance with the law; but the meaning of the present passage is, that if he be erroneously supposed a slave and be manumitted, the discovery of the mistake reinstates him in his true liberi, et his contrarium servi, et tertium genus libertini qui desierant esse servi. (1.) Multis autem modis manumissio procedit: aut enim ex sacris constitutionibus in sacrosanctis ecclesiis, aut vindicta, aut inter amicos, aut per epistolam, aut per testamentum, aut aliam quamlibet ultimam voluntatem'. Sed et aliis multis modis libertas servo competere potest, qui tam ex veteribus quam nostris constitutionibus introducti sunt. (2.) Servi vero a dominis semper manumitti solent: adeo, ut vel in transitu men;-freemen; their opposite, slaves; and a third class, freedmen, who had ceased to be slaves. 1. This manumission is effected in various ways: either in the face of Holy Church according to imperial constitutions, or by vindicta, or before our friends, or by letter, or by testament or any other mode of expressing our last wishes'. There are besides many other ways in which liberty can be conferred on a slave, introduced by constitutions either of old date or of our own enact2. Further, slaves can be manumitted by their masters at any time; in fact they can be manumitted "in passing3,” for ment. 1 In the time of Gaius there were only three regular modes of manumission, one or other of which had to be employed if it were desired that the freedman should be a full civis Romanus: these were vindicta, census or testamentum, Gaius I. 17. The process in manumission by vindicta was for a claim to be made by some free person as adsertor libertatis, who in the Praetor's presence grasped the slave with one hand and with the other laid on him a rod, vindicta or festuca; the proprietor thereupon relinquished the grasp he had hitherto maintained upon the slave, manumisit, and the Praetor, taking this for a confession of the justice of the adsertor's appeal, pronounced the slave free. Manumission by census was a thing of the past even in Ulpian's time, as we see from the description he gives in I. 8. The process was simply for the master to request the censor at his quinquennial visitation to enter the slave's name on the roll of freemen. When the irregular form of manumission was employed, i.e. a mere declaration of the gift of freedom in the presence of witnesses, manumissio inter amicos, the liberty conferred was in Gaius' day of the inferior grade styled Latinitas. But Justinian, as he himself informs us in I. 5. 3, abolished the lower varieties of freedom, and made all manumitted slaves full cives Romani. The other methods of manumission named in the text require but little comment. That in sacrosanctis ecclesiis was invented by Constantine and is described in the Code (1. 13). The gift per epistolam was contained in a letter from the master to the slave; that per testamentum aut per aliam quamlibet ultimam voluntatem was by bequest in a formal will, testamentum, or an informal will, codicilli; as to which see II, 25. 2 The Praetor's contentions jurisdiction was exercised in court only, pro tribunali, but his voluntary juris manumittantur, veluti cum Praetor aut Proconsul aut Praeses' in balneum vel in theatrum eat. 3. Libertinorum autem status tripertitus antea fuerat. nam qui manumittebantur, modo maiorem et iustam libertatem consequebantur, et fiebant cives Romani; modo minorem, et Latini ex lege Iunia Norbana fiebant; modo inferiorem, et fiebant ex lege Aelia Sentia dediticiorum numero. Sed dediticiorum quidem pessima condicio iam ex multis temporibus in desuetudinem abiit; Latinorum vero nomen non frequentabatur: ideoque nostra pietas omnia augere et in meliorem statum reducere desiderans, in duabus constitutionibus hoc emendavit et in pristinum statum reduxit, quia et a primis urbis Romae cunabulis una atque simplex libertas competebat, id est eadem quam habebat manumissor, nisi quod scilicet libertinus sit qui manumittitur, licet manumissor ingenuus sit. et dediticios quidem per constitutionem example, when the Proconsul or Praeses' is on his way to the bath or the theatre. 2 3. The status of freedmen at one time comprehended three gradations. For manumitted persons obtained in some instances full and legitimate freedom, and became Roman citizens; in other instances they obtained an inferior kind, and became Latins under the Lex Junia Norbana; in others one lower still, and were in the category of dediticii under the Lex Aelia Sentia. But the lowest class, that of the dediticii, long since disappeared, and the name of Latins had become of unfrequent occurrence. Therefore our benevolence, desirous.. of improving everything and bringing it into a happier state, has reformed this matter, and restored it to its original footing; utitur. for in the early infancy of Rome one and only one liberty was possible, viz., the same which the manumittor himself had, save only that the manumitted slave was a libertinus, whilst he who manumitted was an ingenuus. So we have abolished dediticii by a constitution, published amongst those decisions diction could be set in motion anywhere, and manumission is obviously a voluntary matter. 1 The governor of a province was styled praeses, which therefore is a general title, comprchending both proconsules and propraetores (or le- 2 C. 7. 5 and 6. |