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dere jubent ac per hoc servare nec to be sold, and thus preserve them, occidere solent : qui etiam mancipia and do not put them to death. Slaves dicti sunt, quod ab hostibus manu are also called mancipia, because they capiuntur.
are taken from the enemy by (the
strong hand. 4. Servi autem aut nascuntur aut 4. Slaves either are born or become fiunt. Nascuntur ex ancillis nostris : so. They are born so when their fiunt aut jure gentium, id est ex mother is a slave ; they become so captivitate, aut jure civili, veluti either by the law of nations, that is, cum homo liber major viginti annis by captivity, or by the civil law, as ad pretium participandum sese ve- when a free person, above the age of numdari passus est.
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 vernæ 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, baving 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 jurtum 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 5. In the condition of slaves there differentia est. In liberis multae is no distinction ; but there are many differentiæ sunt: aut enim ingenui distinctions among free persons ; for sunt aut libertini.
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 glebæ, 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 A person is ingenuus who is free natus est, liber est, sive ex duobus from the moment of his birth, by ingenuis matrimonio editus, sive ex being born in matrimony, of parents libertinis, sive ex altero libertino, who have been either both born free, altero ingenuo. Sed et si quis ex or both made free, or one of whom matre libera nascatur, patre servo, has been born and the other made ingenuus nihilo minus nascitur : free ; and when the mother is free, quemadmodum qui ex matre libera and the father a slave, the child neveret incerto patre natus est, quoniam theless is born free ; just as he is if his vulgo conceptus est. Sufficit autem mother is free, and it is uncertain who liberam fuisse matrem eo tempore, is his father ; for he has been conceived quo nascitur, licet ancilla conce- promiscuously. And it is sufficient if perit. Et ex contrario si libera con the mother is free at the time of the ceperit, deinde ancilla facta pariat, birth, although a slave when she conplacuit eum, qui nascitur, liberum ceived ; and on the other hand, if she nasci, quia non debet calamitas be free when she conceives, and is a matris ei nocere, qui in utero est. slave when she gives birth to her child, Ex his et illud quæsitum est, si get the child is held to be born free ; ancilla prægnans manumissa sit, for the misfortune of the mother ought deinde ancilla postea facta peperit, not to prejudice her unborn infant. liberum an servum pariat? Et The question hence arose, if a female Marcellus probat, liberum nasci: slave with child is made free, but sufficit enim ei, qui in ventre est, again becomes a slave before the child liberam matrem vel medio tempore is born, whether the child is born free habuisse : quod et verum est. 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. Gar. 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. (Gal. i. 89.)
1. Cum autem ingenuus aliquis 1. When a man has been born free natus sit, non officit illi in servitute he does not cease to be ingenuus, befuisse et postea manumissum esse: cause he has been in the position of
sæpissime enim constitutum est, na- a slave, and has subsequently been talibus non officere manumissionem. 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, ard 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 ser Freedmen are those who have been vitute manumissi sunt. Manumis- manumitted from legal servitude. Masio autem est datio libertatis : nam numission is the giving of liberty.' quamdiu quis in servitute est, manui For while any one is in slavery, he is et potestati suppositus est, et manu- under the hand’and power of another, missus liberatur potestate. Quæ res but by manumission he is freed from a jure gentium originem sumpsit, this power. This institution took its utpote cum jure naturali omnes rise from the law of nations ; for by liberi nascerentur, nec esset nota the law of nature all men were born manumissio, cum servitus esset in- free ; and manumission was not heard cognita : sed posteaquam jure gen- of, as slavery was unknown. But tium servitus invasit, secutum est when slavery came in by the law of beneficium manumissionis. Et cum nations, the boon of manumission uno naturali nomine homines appel- followed. And whereas we all were delaremur, jure gentium tria genera nominated by the one natural name of hominum esse coeperunt, liberi et his 'men,' the law of nations introduced contrarium servi et tertium genus a division into three kinds of men, libertini, qui desierant esse servi. namely, freemen, and in opposition to
them, slaves ; and thirdly, freedmen
who had ceased to be slaves. Gal. 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 gruvem infirmitatem), was pronounced free by an edict of Claudius.
1. Multis autem modis manumis- 1. Manumission is effected in vasio procedit : aut enim ex sacris rious ways ; either in the face of the constitutionibus in sacrosanctis ec- Church, according to the imperial conclesiis aut vindicta aut inter ami- stitutions, or by vindicta, or in the cos aut per epistulam aut per te- presence of friends, or by letter, or stamentum aut aliam quamlibet by testament, or by any other expresultimam voluntatem. Sed et aliis sion of a man's last will. And a slave multis modis libertas servo com- may also gain his freedom in many petere potest, qui tam ex veteribus nther ways, introduced by the constiquam nostris constitutionibus intro- tutions of former emperors, and by our ducti sunt.
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
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 (Ulp. Reg. i. 8; Gal. 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.
2. Servi vero a dominis semper 2. Slaves may be manumitted by manumitti solent, adeo ut vel in their masters at any time ; even when transitu manumittantur, veluti cum the magistrate is only passing along, prætor aut proconsul aut præses in as when a prætor, or proconsul, or balneum vel in theatrum eat. præses, is going to the baths or the
theatre. 3. Libertinorum autem status tri- 3. Freedmen were formerly divided pertitus antea fuerat : nam qui ma- into three classes. For those who were numittebantur, modo majorem et manumitted sometimes obtained a comjustam libertatem consequebantur plete liberty, and became Roman citiet fiebant cives Romani, modo mi- zens ; sometimes a less complete, and norem et Latini ex lege Junia Nor- became Latins under the lex Junia bana fiebant, modo inferiorem et Norbana ; and sometimes a liberty still fiebant ex lege Ælia Sentia dediti- inferior, and were ranked as dediticii, ciorum numero. Sed dediticiorum by the lex Elia Sentia. But this quidem pessima condicio jam ex lowest class, that of the dediticii, has multis temporibus in desuetudinem long disappeared, and the title of abiit, Latinorum vero nomen non fre- Latins become rare ; and so in our quentabatur: ideoque nostra pietas, benerolence, which leads us to comomnia augere et in meliorem statum plete and improve everything, we reducere desiderans, in duabus con- have introduced a great reform by two stitutionibus hoc emendavit et in pri- constitutions, which re-established the stinum statum reduxit, quia et a ancient usage ; for in the infancy of primis urbis Romæ cunabulis una the state there was but one liberty, the atque simplex libertas competebat, same for the enfranchised slave as for id est eadem, quam habebat manu- the person who manumitted him; exmissor, nisi quod scilicet libertinus cepting, indeed, that the person manusit, qui manumittitur, licet manumis- mitted was a freedman, while the sor ingenuus sit. Et dediticios qui manumittor was freeborn. We have dem per constitutionem expulimus, abolished the class of dediticii by a quam promulgavimus inter nos- constitution published among our detras decisiones, per quas, suggerente cisions, by which, at the suggestion of nobis Triboniano, viro excelso, quæ the eminent Tribonian, quæstor, we store, antiqui juris altercationes pla- have put an end to difficulties arising cavimus : Latinos autem Junianos from the ancient law. We have also, et omnem, quæ circa eos fuerat, ob- at his suggestion, done away with the servantiam alia constitutione per Latini Juniani, and everything reejusdem quæstoris suggestionem lating to them, by another constitucorreximus, quæ inter imperiales tion, one of the most remarkable of radiat sanctiones, et omnes libertos, our imperial ordinances. We have nullo nec ætatis manumissi nec made all freedmen whatsoever Roman dominii manumissoris nec in manu- citizens, without any distinction as to missionis modo discrimine habito, the age of the slave, or the interest of sicuti antea observabatur, civitate the manumittor, or the mode of manuRomana donavimus: multis additis mission. We have also introduced modis, per quos possit libertas servis many new methods, by which liberty cum civitate Romana, quæ sola in may be given to slaves, together with presenti est, præstari.
Roman citizenship, the only kind of
liberty that now exists. Gal. 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