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10

Promotion from

Latinitas to Civitas.

erint adhibitis non minus quam septem testibus civibus Romanis puberibus, et filium procreaverint, et is filius anniculus fuerit, permittatur eis, si velint, per eam legem adire Praetorem vel in provinciis Praesidem provinciae, et adprobare se ex lege Aelia Sentia uxorem duxisse et ex ea filium anniculum habere; et siis 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 less than seven witnesses, Roman citizens of the age of puberty', 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 senatusconsultum,

1 1. 196.

? 1. 66, 80 ; III. 73 ; Ulpian, III. 3. There is an apparent contradiction upon this subject between Gaius and Ulpian. The former, as we see, attributes the regulations respecting the proof in these cases to the Lex Aelia Sentia, whilst the latter ascribes them to the Lex Junia Norbana. Most modern writers on the history of the old Roman law agree in affixing a later date to the Junian than to the Aelian law. To reconcile this apparent discrepancy, it is supposed that the later lex, which was passed in the reign of Tiberius,

was to a very great extent a confirmatory enactment, embracing in it most of the regulations of the prior lex passed in the reign of Augustus, and therefore that the authors are right in ascribing the regulations respecting the probatio causae to either law. A French writer, M. Marchandy, has contended with consider. able show of reason that the Lex Junia preceded the Lex Aelia, and was in existence in the time of Cicero: see Thémis, Tom. 8. The subject has been discussed at length by Hollweg in his Dissertatio de causae probatione.

Promotion from Latinitas to Civitas.

II

nascitur ex novo senatusconsulto quod auctore divo Hadriano factum est, civis Romanus nascitur. (31.) Hoc tamen ius adipiscendae civitatis Romanae etiamsi soli 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 decesserit Latinus, quam anniculi filii causam probarit, potest mater eius causam probare, et sic et ipsa fiet civis Romana [desunt 39. lin. (33. 34.)]. (35.) si quis alicuius et in bonis et ex iure Quiritium sit, manumis

which was enacted at the instance 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 age. 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. 34*. .......

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 incommo “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 patrismaller and more manageable body; mony in the construction of a house but the senate had no free action, at Rome, he should obtain the Quitheir 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 2 A. D. 75.

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 (2) and (3) in $ 17 modii burden and uses it for carrying above.

corn to Rome for six years." 4 In the 19th and 20th lines of 5 11. 40.

12

Hindrances to Manumission.

sus, ab eodem scilicet, et Latinus fieri potest et ius Quiritium consequi.

36. Non tamen cuicumque volenti manumittere licet. (37.) nam is qui in fraudem creditorum vel in fraudem patroni manumittit, 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 citizen').

36. Moreover the law does not allow any one who chooses to manumit?. 37. For he who manumits with the view of defrauding his creditors or his patrono 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,

1 This passage is capable of two law-suits, &c. interpretations, either the one here (B) Jura in bonis: rights of sucgiven, which is in effect that a mas- cession on the part of the patronus ter could under the conditions spe- to the goods of the libertinus. III. cified, confer upon his slave either 39 et seqq. the Latinitas or the civitas; (the (0) Operae : services reserved by latter would be the result of a ma- special agreement as a consideration numission per vindictam ;) or else it for the manumission. may refer to the method of manu It is scarcely necessary to say that mission termed iteratio, and this, as a freedman is styled libertinus in Ulpian tells us, was the result of a respect of his class, libertus in refersecond manumission granted to one ence to his former master. who from a slave had been made 4 There is good reason for objecting a Latin, the manumittor being his to the words “except by vindicta," original master. See Ulpian, III. 4. for though they appear in the In

? See Ulpian, I. 12—25, for a com stitutes of Justinian, they are not plete list of the cases where manu- to be found in the Commentary of mission is not allowed.

Theophilus nor in the fragments of 3 The patronus is the former mas Ulpian, and it need hardly be said ter of a libertinus. The jura patro. that in matters of historical informanatus were

tion upon the old Roman law, Jus(a) Obsequia : duties attaching tinian's treatise is valueless. Nieupon the libertinus by operation of buhr and Göschen think the passage law, e.g. to furnish ransom for the should have the following collocapatron if taken prisoner, to assist tion of words, “non aliter vindicta in furnishing dower for his daughter, manumittere permittitur quam si and to contribute to his expenses in aput, &c.”

Hindrances to Manumission.

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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 causae, quas in minore xx annorum domino rettulimus, porrigi possunt et ad servum minorenn 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 abovein 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 Caninia, a certain mode of

11. 19.

2 This was one of the modes of manumission arising out of custom, and recognized by the Praetor. It was a very simple affair, for all that

was required was for the master to direct his slave to go free, in the presence of five witnesses.

3 Passed A. D. 8. Ulpian, I. 24.

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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. ei vero qui plures quam x neque 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 non 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 habet, 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 intellegemus, ut ex eo

proceeding was established for the manumission of slaves by testament: 43. for a man who 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

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