Page images
PDF
EPUB

Lex Furia Caninia.

15

numero, ex quo dimidia aut tertia aut quarta aut quinta pars liberari potest, utique tot manumittere liceat, quot ex antecedenti numero licuit. et hoc ipsa lege provisum est. erat enim sane absurdum, ut ex servorum domino quinque liberare liceret, quia usque ad dimidiam partem ex eo numero manumittere ei conceditur, ulterius autem XII servos habenti non plures liceret manumittere quam IIII. at eis qui plures quam x neque [desunt lin. 24]. (46.) Nam et si testamento scriptis in orbem servis libertas data sit, quia nullus ordo manumissionis invenitur, nulli liberi erunt; quia lex Furia Caninia quae in fraudem eius facta sint rescindit. sunt etiam specialia senatusconsulta, quibus rescissa sunt ea quae in fraudem eius legis excogitata sunt. 47. In summa sciendum est, cum lege Aelia Sentia cautum

shall interpret thus, that from a number out of which the half, third, fourth, or fifth part can be set free, it is certainly allowed to manumit as many as could have been manumitted out of an antecedent (i.e. smaller) number. And this provision is found in the lex itself. For it would indeed be absurd that a master having ten slaves should be allowed to manumit five, because he is at liberty to manumit to the extent of half out of the number, whilst one who had a larger number, twelve, should not be allowed to manumit more than four1. But that those who have more than ten and not..........

46. For also if liberty be given by testament to slaves whose names are written in a circle, none of them will be free, since no order of manumission can be found: for the Lex Furia Caninia sets aside whatever is done for its evasion. There are also special senatusconsulta by which all devices for the evasion of the lex are set aside.

47. Finally, we must observe that the provision of the Lex

1 The owner of twelve could manumit five, for he would reckon the 12 as 10, "ex antecedenti numero:" and so for other cases.

2 The lost portion of the MS. contained a further provision of the lex, that the slaves to be liberated should be mentioned by name, and that if the testator had nominated more than the number allowed by

law, those whose names stood first on the list should be liberated in order, until the proper number had been completed. Testators having adopted the plan of writing the names in a circle to evade this regulation, the interpretation of § 46 was brought to bear against them. Ulpian, I. 25.

sit, ut qui creditorum fraudandorum causa manumissi sint liberi non fiant [37.], etiam hoc ad peregrinos pertinere (senatus ita censuit ex auctoritate Hadriani); cetera vero iura eius legis ad peregrinos non pertinere.

48. Sequitur de iure personarum alia divisio. nam quaedam personae sui iuris sunt, quaedam alieno iuri sunt subiectae. (49.) Sed rursus earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt. (50.) Videamus nunc de iis quae alieno iuri subiectae sint: si cognoverimus quae istae personae sint, simul intellegemus quae sui iuris sint.

51. Ac prius dispiciamus de iis qui in aliena potestate sunt. 52. In potestate itaque sunt servi dominorum. quae quidem potestas iuris gentium est: nam aput omnes peraeque

Aelia Sentia, that those manumitted for the purpose of defrauding creditors are not to become free, applies to foreigners as well as citizens (etiam), (for) the senate so decreed at the instance of Hadrian: but the other clauses of the lex do not apply to foreigners'.

48. Next comes another division of the law of persons. For some persons are sui juris3, some are subject to the jus (authority) of another. 49. But again of those persons who are subject to the authority of another, some are in potestas, some in manus, some in mancipium. 50. Let us consider now about those who are subject to another's authority: if we discover who these persons are, we shall at the same time understand who are sui juris.

51. And first let us consider about those who are in the potestas of another.

52. Slaves, then, are in the potestas of their masters, which potestas is a creature of the jus gentium*, for we may perceive

1 This is one of the instances of the value of the discovery of Gaius's treatise in relation to historical information. The existence of this regulation of the Lex Aelia Sentia, by which an enfranchisement made for the purpose of defrauding creditors affected foreigners as well as citi

zens, was utterly unknown before the publication of these commentaries. 2 Ulpian, IV. I.

3 See Appendix (A).

4 But see Austin, Vol. II. p. 265 (p. 583, third edition), on the question of slavery being according to natural law or not.

Potestas over Slaves.

17

gentes animadvertere possumus dominis in servos vitae necisque potestatem esse. et quodcumque per servum adquiritur, id domino adquiritur. (53.) Sed hoc tempore neque civibus Romanis, nec ullis aliis hominibus qui sub imperio populi Romani sunt, licet supra modum et sine causa in servos suos saevire. Nam ex constitutione sacratissimi Imperatoris Antonini qui sine causa servum suum occiderit, non minus teneri iubetur, quam qui alienum servum occiderit. Sed et maior quoque asperitas dominorum per eiusdem Principis constitutionem coercetur. Nam consultus a quibusdam Praesidibus provinciarum de his servis, qui ad fana deorum vel ad statuas Principum confugiunt, praecepit, ut si intolerabilis videatur dominorum saevitia, cogantur servos suos vendere. Et utrumque recte fit; male enim nostro iure uti non debemus:

that amongst all nations alike masters have the power of life and death over their slaves. Also whatever is acquired by means of a slave is acquired for the master'. 53. But at the present day neither Roman citizens, nor any other men who are under the empire of the Roman people, are allowed to practise excessive and wanton severity upon their slaves. For by a decree of the emperor Antoninus of most holy memory, he who kills his own slave without cause is ordered to be no less amenable than he who kills the slave of another. Further, the extravagant cruelty of masters is restrained by a constitution of the same emperor; for when consulted by certain governors of provinces with regard to those slaves who flee for refuge to the temples of the gods or the statues of the emperors, he ordered, that if the cruelty of the masters appear beyond endurance, they shall be compelled to sell their slaves. And both these rules are just: for we ought not to make a

1 II. 86...Observe that the reading is adquiritur, not adquiri; so that Gaius only asserts that the vitae necisque potestas is a creature of the Jus Gentium: and makes no statement as to why the master had the slave's acquisitions. Savigny says that slaves were by some nations

allowed to have property, e. g. by the Germans, and that therefore Gaius has intentionally used the indicative mood to draw our attention to the fact that the second incident springs from the Civil Law. 'Savigny on Possess. translated by Perry," p. 53,

note.

66

2

qua ratione et prodigis interdicitur bonorum suorum administratio.

54. Ceterum cum aput cives Romanos duplex sit dominium, (nam vel in bonis vel ex iure Quiritium vel ex utroque iure cuiusque servus esse intellegitur), ita demum servum in potestate domini esse dicemus, si in bonis eius sit, etiamsi simul ex iure Quiritium eiusdem non sit. nam qui nudum ius Quiritium in servo habet, is potestatem habere non intellegitur. 55. Item in potestate nostra sunt liberi nostri quos iustis nuptiis procreavimus. quod ius proprium civium Romanorum est. fere enim nulli alii sunt homines, qui talem in filios suos habent potestatem, qualem nos habemus. idque divus Hadrianus edicto quod proposuit de his, qui sibi liberisque suis ab eo civitatem Romanam petebant, significavit. nec me praeterit Galatarum gentem credere, in potestatem parentum liberos

esse.

bad use of our right, and on this principle too the management of their own property is forbidden to prodigals.

54. But since among Roman citizens ownership is of two kinds (for a slave is understood to belong to a man either in bonis or ex jure Quiritium, or by both titles)', we shall hold that a slave is in his master's potestas only in case he be his in bonis, even if he be not the same man's ex jure Quiritium also. For he who has the bare jus Quiritium over a slave is not understood to have potestas.

55. Our children, likewise, whom we have begotten in lawful marriage, are in our potestas; and this right is one peculiar to Roman citizens. For there are scarcely any other men who have over their children a potestas such as we have. And this the late emperor Hadrian remarked in an edict which he published with regard to those who asked him for Roman citizenship for themselves and their children. I am not, however, unaware of the fact, that the race of the Galatians think that children are in the potestas of their ascendants.

1 II. 40, 41.

2 By justae or legitimae nuptiae is meant a marriage contracted and established by the special forms prescribed by the jus civile: by non justae nuptiae, on the other hand, is not necessarily meant an illegal mar

riage, for this sometimes denotes the contract which, though not completed according to all the prescribed forms of the jus civile, is valid according to the jus gentium. This was an important distinction in reference to the causae probatio.

Patria Potestas. Conubium.

19

56. Habent autem in potestate liberos cives Romani, si cives Romanas uxores duxerint, vel etiam Latinas peregrinasve cum quibus conubium habeant. cum enim conubium id efficiat, ut liberi patris condicionem sequantur, evenit ut non solum cives Romani fiant, set et in potestate patris sint. (57.) Unde et veteranis quibusdam concedi solet principalibus constitutionibus conubium cum his Latinis peregrinisve quas primas post missionem uxores duxerint. et qui ex eo matrimonio nascuntur, et cives Romani et in potestatem parentum fiunt.

58. Sciendum autem est non omnes nobis uxores ducere licere: nam a quarundam nuptiis abstinere debemus.

56. Roman citizens then have their children in their potestas, if they have married Roman citizens or even Latin or foreign women with whom they have conubium'. For since conubium has the effect of making children follow the condition of their father, the result is that they are not only Roman citizens by birth, but are also under their father's potestas. 57. Hence by the Imperial constitutions there is often granted to certain classes of veterans conubium with such Latin or foreign women as they take for their first wives after their dismissal from service; and the children of such a marriage are both Roman citizens and in the potestas of their ascendants'.

58. Now we must bear in mind that we may not marry any woman we please, for there are some from marriage3 with whom we must refrain.

1 Conubium est uxoris ducendae facultas. Conubium habent cives Romani cum civibus Romanis ; cum Latinis autem et peregrinis ita si concessum sit: cum servis nullum est conubium. Ulpian, v. 3-5. The double aspect of conubium, viz. as it affected status, and as it related to degrees of relationship, also had an important bearing on the causae probatio; as far as the former is concerned, conubium existed as an undisputed right between all free persons, but only as a privilege (and therefore requiring proof) between Latins and foreigners.

* Gaius does not here tell us what were the rights of a father having

patria potestas. Originally no doubt the potestas over sons was the same as over slaves, including the power of life and death, and the right to all property which the son acquired. The former power gradually fell into abeyance, and the latter in the case of sons was infringed upon by the rules which sprang up regarding pe culium castrense and quasi-castrense, for which see D. 14. 6. 2, and Sandars' Justinian, p. 239. Read also Maine, pp. 135–146.

3 Nuptiae and matrimonium seem to be used indiscriminately by Gaius. Nuptiae properly would be the ceremonies of marriage, matrimonium the marriage itself.

« PreviousContinue »