dere jubent ac per hoc servare nec occidere solent: qui etiam mancipia dicti sunt, quod ab hostibus manu capiuntur.

4. Servi autem aut nascuntur aut fiunt. Nascuntur ex ancillis nostris : fiunt aut jure gentium, id est ex captivitate, aut jure civili, veluti cum homo liber major viginti annis ad pretium participandum sese venumdari passus est.

to be sold, and thus preserve them, and do not put them to death. Slaves are also called mancipia, because they are taken from the enemy by (the strong hand.

4. Slaves either are born or become So. They are born so when their mother is a slave; they become so either by the law of nations, that is, by captivity, or by the civil law, as when a free person, above the age of twenty, suffers himself to be sold, that he may share the price given for him. D. i. 5. 5. 1.

Children born out of the pale of lawful marriage always followed the condition of the mother; and as slaves were incapable of contracting a lawful marriage, in the peculiar sense of lawful' adopted by Roman law, the children of a female slave were necessarily slaves. They were called verna when born and reared on the property of the owner of their mother. (See Introd. sec. 46.)

In order to prevent a fraud, by which a person, having allowed himself to be sold in order to share the price with the vendor, turned round on the purchaser and claimed his liberty as being freeborn, a law, perhaps the Senatusconsultum Claudianum (D. xl. 3. 5), enacted that the perpetrator of the fraud should be bound by his statement, and be held to be a slave. In the early law of Rome, it may be observed, a citizen could really sell himself so as to lose his freedom; but he always retained a right of redemption.

There were other modes by which slavery could arise under the Roman law, as (1) when a free woman had commerce with a slave, or (2), when malefactors were condemned to the amphitheatre or the mines, the guilty parties were held in law to be slaves. These latter modes of legal slavery were abolished by Justinian. (Bk. iii. 12. 1. Nov. 22. cap. 8.) Lastly (3), an emancipated slave, if guilty of any gross act of ill behaviour towards his patron, i.e. his late owner, such as a violent attack on his reputation or person, might be reclaimed to slavery. (D. xxv. 3. 6.)

In the older law, addictio, that is, delivery of the person to a creditor by way of execution for a debt, the being detected in furtum manifestum, and omitting to be inscribed in the tables of the census in order to defraud the revenue, were each a cause of slavery; but these causes had become obsolete long before the time of Justinian.

5. In servorum condicione nulla differentia est. In liberis multae differentiæ sunt: aut enim ingenui sunt aut libertini.

5. In the condition of slaves there is no distinction; but there are many distinctions among free persons; for they are either born free, or have been set free.

D. i. 5. 5. 5.

In the later empire there was introduced an important novelty in the condition of slaves by the institution of coloni, that is, serfs attached to the soil, ascripti gleba, passing with it, and bound to remain on it, but having much of the position of freemen. They were of two kinds: if coloni inquilini or liberi, they were entitled to retain for their own use all they could gain from the soil beyond the value of a yearly payment, which they had to make to the owner of the soil: if coloni adscriptitii or censiti, they had no rights of property as against their masters. (C. xi. 47 et seq.)

TIT. IV. DE INGENUIS.

Ingenuus is est, qui statim, ut natus est, liber est, sive ex duobus ingenuis matrimonio editus, sive ex libertinis, sive ex altero libertino, altero ingenuo. Sed et si quis ex matre libera nascatur, patre servo, ingenuus nihilo minus 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 quæsitum est, si ancilla prægnans manumissa sit, deinde ancilla postea facta peperit, 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.

A person is ingenuus who is free from the moment of his birth, by being born in matrimony, of parents who have been either both born free, or both made free, or one of whom has been born and the other made free; and when the mother is free, and the father a slave, the child nevertheless is born free; just as he is if his mother is free, and it is uncertain who is his father; for he has been conceived promiscuously. And it is sufficient if the mother is free at the time of the birth, although a slave when she conceived; and on the other hand, if she be free when she conceives, and is a slave when she gives birth to her child, yet the child is held to be born free; for the misfortune of the mother ought not to prejudice her unborn infant. The question hence arose, if a female slave with child is made free, but again becomes a slave before the child is born, whether the child is born free or a slave? Marcellus thinks it is born free, for it is sufficient for the unborn child, if the mother has been free, although only in the intermediate time; and this also is true.

GAI. i. 11. 82. 89, 90; D. i. 5. 5.

If a child was born in matrimonio, a tie which could only, in the eyes of the civil law, be contracted between two free persons, the child was free from the moment of conception. If it was not born in matrimonio, then it followed the condition of the mother; and it was her condition at the time of birth, not at that of conception, which decided the status of the child. It was only by a departure from the strict theory of law that the enjoyment of liberty by the mother before the birth was allowed to make the child free. (GAI. i. 89.)

1. Cum autem ingenuus aliquis natus sit, non officit illi in servitute fuisse et postea manumissum esse :

1. When a man has been born free he does not cease to be ingenuus, because he has been in the position of

sæpissime enim constitutum est, natalibus non officere manumissionem.

a slave, and has subsequently been enfranchised; for it has been often settled that enfranchisement does not prejudice the rights of birth.

In servitute fuisse. This does not mean to have been a slave, but to have been in the position of one. As if a freeborn child was considered erroneously to be a slave, and was manumitted, and then his free birth was discovered, his status would be that of an ingenuus, and not of a libertinus.

TIT. V. DE LIBERTINIS.

Libertini sunt, qui ex justa servitute manumissi sunt. Manumissio autem est datio libertatis : nam quamdiu quis in servitute est, manui et potestati suppositus est, et manumissus liberatur potestate. Quæ res a jure gentium originem sumpsit, utpote cum jure naturali omnes liberi nascerentur, nec esset nota manumissio, cum servitus esset incognita: sed posteaquam jure gentium servitus invasit, secutum est beneficium manumissionis. Et cum uno naturali nomine homines appellaremur, jure gentium tria genera hominum esse cœperunt, liberi et his contrarium servi et tertium genus libertini, qui desierant esse servi.

Freedmen are those who have been manumitted from legal servitude. Manumission is the giving of liberty.' For while any one is in slavery, he is under the hand' and power of another, but by manumission he is freed from this power. This institution took its rise from the law of nations; for by the law of nature all men were born free; and manumission was not heard of, as slavery was unknown. But when slavery came in by the law of nations, the boon of manumission followed. And whereas we all were denominated by the one natural name of men,' the law of nations introduced a division into three kinds of men, namely, freemen, and in opposition to them, slaves; and thirdly, freedmen who had ceased to be slaves.

GAI. i. 11; D. i. 1. 4.

In some few cases a slave could obtain liberty without manumission. Many of these cases are enumerated in the Digest (xl. 8). A slave, for instance, who was abandoned by his master on account of disease or infirmity (ob gravem infirmitatem), was pronounced free by an edict of Claudius.

1. Multis autem modis manumissio procedit aut enim ex sacris constitutionibus in sacrosanctis ecclesiis aut vindicta aut inter amicos aut per epistulam 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.

1. Manumission is effected in various ways; either in the face of the Church, according to the imperial constitutions, or by vindicta, or in the presence of friends, or by letter, or by testament, or by any other expression of a man's last will. And a slave may also gain his freedom in many other ways, introduced by the constitutions of former emperors, and by our

own.

GAI. i. 17; D. xl. ; C. i. 13; vii. 6. 1. 1.

A manumissio was said to be legitima when made in one of the three ways recognised by the old law. These three modes of

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effecting a legitima manumissio were census, vindicta, and testamentum. A legitima manumissio was made: 1st, censu, i.e. by the master and the slave appearing before the censor at the time of the census being taken, and the slave's name being, at the master's desire, enrolled on the census list. This mode became obsolete in the time of the empire (ULF. Reg. i. 8; GAI. i. 140), the census having been rarely taken under the early emperors, and not at all after Decius, A.D. 249. 2nd, vindicta, i.e. by means of a fictitious suit called causa liberalis (D. xl. 12), in which a person, termed the assertor libertatis, that is, a friend of the slave, or in his place a lictor, asserted before the prætor that the slave was free, by touching him on the head with a wand (which represented the hasta or symbol of proprietorship), and thus claiming him as against the master. In token of his consent, the master turned him round and then let him go, and the magistrate pronounced him free. 3rd, testamento (D. xl. 4), i.e. by testament. Freedom might be given by testament, either as a legacy to the slave himself, in which case the slave was called orcinus, because his patron, i.e. the person to whom he owed his liberty, was dead when he gained it; or the heir might be charged to grant or procure the liberty of the slave, in which case the heir would be the patron. If a slave was made by testament conditionally free, he was said to be statu liber-statu liber est, qui statutam et destinatam in tempus vel conditionem libertatem habet (D. xi. 7. 1). The solemnities attached to manumission by the vindicta ceased to be strictly observed long before the time of Justinian. Although the magistrate was at his country seat (D. xl. 2. 8), no lictors present, or the master silent, the manumission was still held good.

By manumissio legitima the slave became a Roman citizen, and the state, therefore, was represented in the proceedings by the censor and by the prætor in the two first-mentioned modes of emancipation, and in the third case by the Roman testament having always, theoretically, a public character attached to it; and it was when the state was so represented that the manumission was legitima. But manumission was not always legitima. Usage and the prætor's authority established gradually many other less formal methods of accomplishing the same object, and the imperial constitutions added others. Of those mentioned in the text, that in presence of the Church was established by Constantine, A.D. 316 (C. i. 13). The ceremony was generally performed at some one of the great feasts, and it was necessary it should take place before the bishops. Freedom could also be given by a master writing to a slave (per epistolam), or declaring before his friends (inter amicos), that he gave the slave liberty, or by his making a codicil to that effect (per quamlibet aliam ultimam voluntatem), witnesses, however, being necessary in each of these cases (C. vii. 6. 1; C. vii. 6. 2; C. vi. 36. 8. 3). Other methods are noticed in the Code (vii. 6. 3-12), all based upon an implied wish of the master to free the slave. Until the time of Justinian,

however, the slave emancipated by any of these private modes was only thereby placed in the position of a Latinus, and not in that of a Roman citizen.

GAI. i. 12-17; C. vii. 5, 6.

For a complete emancipation it was originally necessary that the owner should have quiritary, i.e. complete, ownership (see Introd. sec. 62) of the slave, and that the manumissio should be legitima. If the ownership was less full, or the ceremony pri