Page images
PDF

Promotion from Latinitas to Civitas.

erint adhibitis non minus quam septem testibus civibus Romanis puberibus, et filium procreaverint, et is filius anniculus /uerit, permittntur ris, si velint, per earn legem adire Praetorem vel in provinciis Praesidem provinciae, et adprobare se ex lege Aelia Sentía uxorem duxisse et ex ea filium anniculum habere; et si is aput quem causa probata est id ita esse pronuntiaverit, tunc et ipse Latinus et uxor eius, si et ipsa eiusdem condicionis sit, et ipsorum filius, si et ipse eiusdem condicionis sit, cives Romani esse iubentur. (30.) Ideo autem in ipsorum filio adiecimus "si et ipse eiusdem condicionis sit," quia si uxor Latini civis Romana est, qui ex ea

this in the presence of not lcss than seven witnesses, Roman citizens of the age of puberty1, and have begotten a son, and this son have attained the age of one year, shall be allowed, if they please, to apply, in virtue of that law, to the Praetor, or in the provinces to the governor, and adduce proof that they have married a wife in accordance with the provisions of the Lex Aelia Sentia, and have a son a year old; and if he before whom the case is proved, shall declare that it is as they say, then both the Latin himself, and his wife (if she be of the same condition), and their son (if he also be of the same condition), are ordered to become Roman citizens*. 30. For this reason do we add with reference to their son, "if he also be of the same condition," because if the wife of the Latin be a Roman citizen, the child born from her is a Roman citizen by birth in virtue of a recent scnatusconsultwn,

1 I. Iq6. was to a very great extent a con3 I. 66, 80 ; III. 73; Ulpian, m. 3. firmatory enactment, embracing in There is an apparent contradiction it most of the regulations of the upon this subject between Gaius and prior lex passed in the reign of AuUlpian. The former, as we see, gustus, and therefore that the authors attributes the regulations respecting arc right in ascribing the regulations the proof in these cases to the Lex respecting Ûieprobaù'o causae to either Aelia Sentia, whilst the latter as- law. A French writer, M. Marchcribes them to the Lex Jimia Nor- andy, has contended with considerbana. Most modern writers on the able show of reason that the Lex history of the old Roman law agree Junia preceded the Lex Aelia, and in affixing a later date to the Junian was in existence in the time of Cicero: than to the Aelian law. To recon- see Thêmis, Tom. 8. The subject eile this apparent discrepancy, it is has been discussed at length by Hollsupposed that the later lex, which weg in his Dissertatio de causae prowas passed in the reign of Tiberius, batione.

Promotion from Latinitas to Chitas. i 1

nascitur ex novo senatusconsulto quod auctore divo Hadriano factum est, civis Romanus nascitur. (31.) Hoc tamen ius adipiscendae civitatis Romanae etiamsi so/i minores triginta annorum manumissi et Latini facti ex lege Aelia Sentia habuerunt, tamen postea senatusconsulto quod Pegaso et Pusione Consulibus factum est, etiam maioribus triginta annorum manumissis Latinis factis concessum est. (32.) Ceterum etiamsi ante decessent Latinus, quam annic«// filii causam probarit, potest matir eius causam probare, et sie et ipsa fi«1 civis Roman« [desuní 39. lin. (33. 34.)]. (35.) я quis alicuius et in bonis et ex iure Quiritium sit, manumis

which was enacted at the instance1 of the late emperor Hadrian.

31. Although they alone who were manumitted under thirty years of age and made Latins, had this right of obtaining Roman citizenship in virtue of the Lex Aelia Sentia, yet it was afterwards granted by a senatusconsultum*, enacted in the consulship of Pegasus and Pusio, to those also who were manumitted and made Latins when over thirty years of age3. 32. Further, even if the Latin die before he has proved his case in respect of a son one year old, the mother can tender proof, and thus she will herself also become a Roman citizen.

33. 344

35. If a slave belong to any man both in bonis and ex jure Quiritium'", when manumitted, (by this same owner, that is

1 The comitia or senate in early the missing 39, Göschen proposes a

imperial times still legislated in ap- reading founded on the appearance

pearance, but their legislation was of the MS., which at that point is

according to the emperor's sugges- somewhat more distinct, as follows:

tion. The comitia being incomino- "By the Lex Julia it was enacted

dious tools, the work of legislation that if a Latin had expended not

was usually done by the senate, the less than a half (sixth ?) of his patri

smaller and more manageable body; mony in the construction of a house

but the senate had no free action, at Rome, he should obtain the Qui

their senatusconsulta were at the in- ritarian rights." stance of the prince. See Austin, Vol. From Ulpian, III. 1, a portion of

II. p. 200 (p. 534, third edition). the missing paragraph 34 may be

3 A.n. 7J. thus supplied: "A Latin obtains

3 Who were Latins, that is to say, Roman citizenship by a ship, if he by failure of one or other of the build one of not less than 10,000 conditions marked (1) and (3) in § 17 niodii burden and uses it for carrying above. corn to Rome for six years."

4 In the 19th and 20th lines of 6 II. 40.

12

Hindrances to Manumission.

sus, ab eodem scilicet, et Latinus fieri •potest et ius Quiritium con sequi.

36. Non tamen cuicumque volenti manumittere licet. (37.) nam is qui in fraudem creditorum vel in fraudem patroni manumite'/, nihil agit, quia lex Aelia Sentia inpedit libertatem.

38. Item eadem lege minori xx annorum domino non aliter manumittere permittitur, quam si vindicta aput consilium iusta causa manumissionis adprobata fuerit. (39-) Iustae autem

to say,) he can both become a Latin and obtain the "Jus Quiritium" (i.e. become a Roman citizen1).

36. Moreover the law does not allow any one who chooses to manumit2. 37. For he who manumits with the view of defrauding his creditors or his patron3 effects nothing, since the Lex Aelia Sentia bars the gift of freedom.

38. Likewise by the same law a master under twenty years of age is not allowed to manumit except by vindicta*, (after) a lawful cause for manumission has been proved before the council. 39. Lawful cause of manumission is, for instance, Hindrances to Manumission. 13

1 This passage is capable of two interpretations, either the one here given, which is in effect that a master could under the conditions specified, confer upon his slave either the Latinitas or the civitas; (the latter would be the result of a manumission per vindictam ;) or else it may refer to the method of manumission termed iteratio, and this, as Ulpian tells us, was the result of a second manumission granted to one who from a slave had been made a Latin, the manumittor being his original master. See Ulpian, i11. 4.

2 See Ulpian, I. 12—25, for a complete list of the cases where manumission is not allowed.

3 The patronus is the former master of a libertinus. The jura patronatus were

(a) Obsequia: duties attaching upon the libertinus by operation of law, e. g. to furnish ransom for the patron if taken prisoner, to assist in furnishing dower for his daughter, and to contribute to his expenses in

law-suits, &c.

(ß) Jura in bonis: rights of succession on the part of the patronus to the goods of the libertinus. HI. 39 et seqq.

(7) Operae: services reserved by special agreement as a consideration for the manumission.

It is scarcely necessary to say that a freedman is styled libertinus in respect of his class, libertus in reference to his former master.

4 There is good reason for objecting to the words "except by vindicta, for though they appear in the Institutes of Justinian, they are not to be found in the Commentary of Theophilus nor in the fragments of Ulpian, and it need hardly be said that in matters of historical information upon the old Roman law, Justinian's treatise is valueless. Niebuhr and Göschen think the passage should have the following collocation of words, "non aliter vindicta manumittere permittitur quam si aput, &c."

causae manumissionis sunt: veluti si quis patrem aut matrem aut paedagogum aut conlactaneum manumittat. sed et illae causae, quas superius in servo minore xxx annorum exposuimus, ad hunc quoque casum de quo loquimur adferri possunt. item ex diverso hae ca«sae, quas in minore xx annorum domino rettulimus, porrigi possunt et ad servum minorem xxx annorum.

40. Cum- ergo certus modus manumittendi minoribus xx annorum dominis per legem Aeliam Sentiam constitutus sit, evenit, ut qui xIIii annos aetatis expleverit, licet testamentum facere possit, et in eo heredem sibi instituere legataque relinquere possit, tamen, si adhuc minor sit annorum xx, libertatem servo dare non potest. (41.) Et quamvis Latinum facere velit minor xx annorum dominus, tamen nihilominus debet aput consilium causam probare, et ita postea inter amicos manumittere.

42. Praeterea lege Furia Caninia certus modus constitutus

if a man manumits his father, or mother, or personal attendant, or foster-brother. And those causes too which we enumerated above1 in reference to a slave under thirty years of age, can be applied to this case also about which we are now speaking. So, conversely, those causes which we have specified with reference to a master under twenty years of age, can be extended also to the case of a slave under thirty years of age.

40. As then a certain method of manumitting has been imposed by the Lex Aelia Sentia on masters under twenty years of age, the result is that one who has completed his fourteenth year, although he can make a testament and in it institute an heir to himself and leave legacies, yet cannot, if he be still under twenty years of age, give liberty to a single slave. 41. And even though a master under twenty years of age wish to make a man a Latin (merely), yet he must still prove the cause before the council and then afterwards manumit him privately (inter amicos)*.

42. Further by the Lex Furia Caninia3, a certain mode of

1 1. 19. was required was for the master to

2 This was one of the modes of direct his slave to go free, in the manumission arising out of custom, presence of five witnesses.

and recognized by the Praetor. It 3 Passed A.D. 8. Ulpian, I. Ц. was a very simple affair, for all that

14 Lex Furia Caninia.

est in servis testamento manumittendis. (43.) nam ei qui plures quam duos neque plures quam decem servos habebit, usque ad partem dimidiam eius numeri manumittere permittitur. e\ vero qui plures quam x «eque plures quam xxx servos habebit, usque ad tertiam partem eius numeri manumittere permittitur. at ei qui plures quam xxx, neque plures quam centum habebit, usque ad partem quartam manumittere permittitur, nec latior licentia datur. novissime ei qui plures quam c habebit, nec plures quam D, amplius noti permittitur, quam ut quintam partem neque plures manumittat. sed praescribit lex, ne cui plures manumittere liceat quam c. igitur si quis unum servum omnino aut duos ha^et, de eo hac lege nihil cautum est; et ideo liberam habet potestatem manumittendi. (44.) Ac nec ad eos quidem omnino haec lex pertinet, qui sine testamento manumittunt. itaque licet iis, qui vindicta aut censu aut inter amicos manumittunt, totam familiam suam liberare, scilicet si alia causa non inpediat libertatem. (45.) Sed quod de numero servorum testamento manumittendorum diximus, ita inteWegemus, ut ex eo

proceeding was established for the manumission of slaves by testament: 43. for a manwho has more than two, and not more than ten slaves, is allowed to manumit to the extent of half the number. A man, again, who has more than ten and not more than thirty slaves is allowed to manumit to the extent of one-third of the number. A man, again, who has more than thirty and not more than a hundred is permitted to manumit to the extent of a fourth part, nor is greater license allowed him. Lastly, a man who has more than a hundred, and not more than five hundred, is allowed nothing further than to manumit a fifth part and no greater number. But the law prescribes that no man shall be allowed to manumit more than a hundred. If, therefore, any man have only one or two slaves, there is nothing provided in this law with respect to him, and so he has unrestrained power of manumitting.

44. Nor does this law in any way extend to those who manumit otherwise than by testament. Therefore those who manumit by vindicta, census, or inter amicos, may set free their whole gang, provided no other cause stands in the way of the gift of freedom. 45. But what we have said about the number of slaves which can be manumitted by testament, we

« PreviousContinue »