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Lex Furia Caninia. 15
numero, ex quo dimidia aut tertia aut quarta aut quinta pars liberan potest, utiquc M manumittere Ucea/, quot ex antecedenti numero licuit. et hoc ipsa lege /rövisum est. erat enim sane absurdum, ut ex servorum domino quinque liberare liceret, quia usque ad dimidiam partem ex eo numero manumittere ei conceditur, ullerius autem x1 1 servos habend non plures liceret manumirtere quam ilii. at eis qui plures quam x neque [desuní 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 2.
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 ma• law, those whose names stood first numit five, for he would reckon the on the list should be liberated in 12 as 10, "ex antecedenti numero:" order, until the proper number had and so for other cases. been completed. Testators having
2 The lost portion of the MS. adopted the plan of writing the contained a further provision of the names in a circle to evade this regula?, that the slaves to be liberated lation, the interpretation of S 46 was should be mentioned by name, and brought to bear against them. Ul« that if the testator had nominated pian, I. 25.
more than the number allowed by
i 6 Sui juris, alieni juris. Potestas.
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 smt, 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 foreigners1.
48. Next comes another division of the law of persons. For some persons are sui juris*, 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 zens, was utterly unknown before the
value of the discovery of Gaius's publication of these commentaries,
treatise in relation to historical in- 2 Ulpian, iv. 1.
formation. The existence of this 3 See Appendix (A),
regulation of the Lex Aelia Sentia, 4 But see Austin, Vol. 11. p. 265
by which an enfranchisement made (p. 583, third edition), on the question
for the purpose of defrauding credi- of slavery being according to natural
tors affected foreigners as well as citi- law or not.
Potestas over Slaves. i j
gentes animadvertere possumus dominis in servos vitae necisque potestatem esse. et quewfcumque 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 IwjVratoris 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 nostra 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 master1. 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 allowed to have property, e.g. by the
is adquiritur, not adquiri; so that Germans, and that therefore Gaius
Gaius only asserts that the vitae ue- has intentionally used the indicative
cisque potestas is a creature of the mood to draw our attention to the
Jus Gentium: and makes no state- fact that the second incident springs
ment as to why the master had the from the Civil Law. "Savigny on
slave's acquisitions. Savigny says Possess, translated by Perry," p. 53,
that slaves were by some nations note.
ï8 Potestas over Slaves. Patria Potestas.
qua ratione et produis interdkitur bonorum suorum administrado.
54. Ceterum cum aput cives Romanos duplex sit dominium, (nam vel in bonis vel ex iure Quiritium vel ex utroque iure cuiusque servus esse intelleg/tur), 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 Hadriaxius edicto quod proposuit de his, qui sibi liberisque suis ab eo civitatem Romanam petebant, significavit. nec me praeter// 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)1, 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/z¿r 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. riage, for this sometimes denotes the
2 By justae or legitimae miptiae is contract which, though not complet
meant a marriage contracted and ed according to all the prescribed
established by the special forms pre- forms of the jus civile, is valid ac
scribed by Ûiejus civile: by non jus- cording to the jus gentium. This was
tae nuptiae, on the other hand, is an important distinction in reference
not necessarily meant an illegal mar- to the causaeprobatio.
Patria Potestas. Conubium. 19
56. Habent autem in potestate ¡iberos 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 conubium1. 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 patria potestas. Originally no doubt facultas. Conubium habent cives the potestas over sons was the same Romani cum civibus Romanis; cum as over slaves, including the power Latinis autem et peregrinis ita si of life and death, and the right to concessum sit: cum servis nullum all property which the son acquired, est conubium. Ulpian, v. 3—5. The The former power gradually fell into double aspect of conubium, viz. as abeyance, and the latter in ihe case it affected status, and as it related of sons was infringed upon by the to degrees of relationship, also had rules which sprang up regarding pean important bearing on the causae allium castrense and quasi-cast}ense, probatio; as far as the former is con- for which see D. 14. 6. 2, and cerned, conubium existed as an un- Sandars' Justinian, p. 239. Read disputed right between all free per- also Maine, pp. 135—146.
sons, but only as a privilege (and s Nuptiae and matrimonium seem
therefore requiring proof) between to be used indiscriminately by Gaius.
Latins and foreigners. Nuptiae properly would be the ce
2 Gaius does not here tell us what remonies of marriage, matrimonium were the rights of a father having the marriage itself.