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three reagee. 38, 39.. un to Romes terminate
vate, the slave lived in a state of freedom, and the prætor forbad the master to exert bis strictly legal power of reasserting his right to the services of the slave; but the condition of the slave as regarded the state was not that of a citizen, and at his death his master took all his property. | By the lex Ælia Sentia, A.D. 4, it was enacted that, to make the emancipation complete, that is, to make the slave a citizen, a third requisite should be added. He was to be thirty years old (Gal. i. 18); or else, if he was under that age, the ceremony was to be performed by vindicta, after the reason for the emancipation had been held good by a consilium, consisting, at Rome, of five senators and five equites ; in the provinces of twenty recuperatores, i.e. judges specially appointed, and who were necessarily Roman citzens. This council sat under the presidency of the prætor at Rome, and of the proconsul in the provinces.
The lex Junia Norbana was made A.D. 19; and the effect of its provisions, coupled with that of the lex Ælia Sentia, was to place those whose emancipation was defective in any one of these three requisites on the footing of Latini colonarii. (Gal. i. 17; see Introd. sec. 38, 39.) The old relation of the Latini in the sense of dwellers in Latium to Rome, some of whom enjoyed the connubiram and others did not, was terminated by the lex Julia, B.C. 90, by which all such Latini were made Roman citizens. But the status of being a Latin (Latinitas), but without the connubium, was preserved as an artificial creation of the law, and was bestowed on towns or peoples. The Transpadani, for example, received the Latinitas in B.c. 89. Those receiving the Latinitas were Latini colonarii, and such Latin colonies seem to have existed in the days of Gaius (Gal. i. 28). The effect of the lex Junia Norbana was to place the liberti Latini to whom it applied nearly but not quite on the footing of Latini colonarii.
Latini (liberti) Juniani, as having this Latinitas, might trade with Romans on the footing of Roman citizens, but could not vote at elections or fill public offices, and had not the connubium, and therefore their children were not in their power. They could not make a testament, or become heirs, legatees, or guardians under a testament, although they could receive the benefit of fidei commissa (Gal. i. 24); and at their death their original owner took their property exactly as if they had never ceased to be slaves. (See Bk. iii. Tit. 7, see. 4, in ipso ultimo spiritu simul animam et libertatem amittebant.) But there were many ways in which a libertus, in this position, could attain citizenship: as by an imperial rescript; by holding a magistracy in a Latin colony; by proving before a magistrate his marriage with a Roman or Latin wife, or a person he believed to be a Roman or Latin, and the birth of a son who was a year old; or by going through the ceremony of emancipation again and fulfilling the three conditions requisite (this was called iteratio); or by the modes noticed by Ulpian (Reg. 3. 1) in the words militia, nave, ædificio, pistrino, that is by military service, building a ship and carrying wheat for six years, making a building, or establishing a bakeshop. (Gal. i. 22, 23, 24–28, 31; ii. 275; iii. 56, et seq.)
The lex Ælia Sentia provided that slaves who had been guilty of a crime for which they had been put in chains, branded, or put to the torture, should, by emancipation, be only raised to the level of dediticii, that is, of people who have surrendered themselves to their conquerors in war. They enjoyed personal liberty, but that was all. They could not trade except on the footing of strangers; could not make a testament; were forbidden to live within a hundred miles of Rome, on pain of being themselves sold, together with all their property; they could never become citizens; and at their death their master took all their property by right of succession if the emancipation had been complete; and, if not, by the right an owner always had to the slave's peculium. (Gal. i. 12– 15, 25-27; iii. 74–76.) The children of the Latini Juniani were Latini, and those of the dediticii were peregrini, and the patron had no rights over them. (DEMANGEAT, i. 194.)
Where above we speak of a Latin libertus holding a magistracy in a Latin colony, or marrying a Latin, i.e. a member of a Latin colony, it must be understood that we are speaking of the law as it stood before the time of Caracalla, when all the free inhabitants of the empire received the civitas, and consequently the position of Latini, other than Latini Juniani, was swept away; and in the same way, after the legislation of Caracalla, there were no peregrini (see Introd. sec. 39), but the children of liberti in the position of dediticii were treated as peregrini.
There were thus three classes of freedmen :-1. Those who were citizens; 2. Those who were in the position of Latini; 3. Those in the position of dediticii. (Gal. i. 112.) But these distinctions were abolished by Justinian, nullo nec ætatis manumissi nec dominii manumittentis nec in manumissionis modo discrimine habito (C. vii. 5 and 6); and under his legislation a slave. became at once completely free by any act of the owner signifying his intention to bestow liberty. By a Novel (78. 1) Justinian abolished all distinction between libertini and ingenui, retaining, however, the jus patronatus. The libertus owed his patronus reverence (Dig. xxxvii. 15), and also in many cases had to discharge certain services (Dig. xxxvii. 14) for him ; but the chief feature of the jus patronatus was the right of the patron to succeed to the inheritance of his libertus; for if the libertus died childless, the patron succeeded to his whole inheritance, supposing he left no testament; and if he left one, still the patron took a third part of the property. (Bk. iii. Tit. 7. 3.)
Tit. VI. QUI QUIBUS EX CAUSIS MANUMITTERE NON
POSSUNT. Non tamen cuicunque volenti It is not, however, every master manumittere licet. Nam is, qui who wishes that may manumit, for a in fraudem creditorum manumittit, manumission in fraud of creditors is nihil agit, quia lex Ælia Sentia void, the lcx Ælia Sentia restraining impedit libertatem.
the power of enfranchisement. Gal. i. 37.
A person, as the third section informs us, manumitted his slaves in fraud of creditors, who knew that he was insolvent, or that by the manumission he would make himself unable to pay his debts; and in such a case, as the Roman law held that liberty once given could not be revoked, the lex Ælia Sentia provided that the act of manumission was entirely void (nihil agit): the freedom was considered never to have been given. The slave would indeed be treated as free until the creditors attacked the manumission as fraudulent; but directly they did so successfully, he was exactly in the position in which he would have been if never enfranchised. If, however, though the master was insolvent at the time of manumission, bis debts were paid before the manumission was attacked, the creditors could no longer impugn the manumission, and the slave was considered to have been free from the date of the manumission. Probably there was a time limited, beyond which creditors were not allowed to attack the manumission. We learn from the Digest that if the manumission was made in fraud of the fiscus, it must be impugned within ten years; and it is not probable that the private creditor would have had a longer time allowed him. (Dig. xl. 9. 11.)
1. Licet autem domino, qui sol- 1. A master, who is insolvent, may, vendo non est, in testamento ser- however, by his testament, institute a vum suum cum libertate heredem slave to be his heir, at the same time instituere, ut fiat liber heresque giving him his liberty, so that the ei solus et necessarius, si inodo slave becoming free may be his only nemo alius ex eo testamento heres and necessary heir, provided that extiterit, aut quia nemo heres scri- there is no other heir under the same ptus sit, aut quia is, qui scriptus est, testament, which may happen, either qualibet ex causa heres non extite because no other person was instituted rit. Idque eadem lege Ælia Sentia heir, or because the person instituted, provisum est, et recte : valde enim from some reason or other, does not prospiciendum erat, ut egentes ho become heir. This was wisely estamines, quibus alius heres extaturus blished by the above-mentioned les non esset, vel servum suum neces- Ælia Sentia : for it was very necessary sarium heredem habeant, qui satis- to provide, that men in insolvent cirfacturus esset creditoribus, aut, hoc cumstances, who could get no other eo non faciente, creditores res here- heir, should have a slave as necessary ditarias servi nomine vendant, nec heir, in order that he might satisfy injuria defunctus afficiatur.
their creditors ; or that if he failed to do so, the creditors might sell the property forming part of the inheritance in the name of the slave, so as to pre
vent the deceased suffering disgrace. Gal. ü. 154.
The heirs under a Roman testament accepted all the liabilities of the deceased. When, therefore, the debts exceeded the value of the inheritance, the heir named in the testament would probably refuse the inheritance; and if no one would accept the heirship, the creditors stepped in and had the estate sold for their benefit. As this was thought a great stigma on the memory of the deceased, a slave was frequently enfranchised by the testator and named heir; and as the slave could not refuse to take the office upon him (being thence called heres necessarius), the sale of the effects, if necessary, was made in his name, and not in that of his master. Of course this could ply take place when the slave was the sole heir. If there was any other beir, the slave would not be heir by necessity; and hence, in the text, the expression solus et necessarius heres is used. A slave so emancipated became a Roman citizen. (Gal. i. 21.)
2. Idemque juris est et si sine 2. The law is the same also when libertate servus heres institutus est. a slave is instituted heir, although Quod nostra constitutio non solum his freedom be not expressly given in domino, qui solvendo non est, sed him ; for our constitution, in a new generaliter constituit nova humani- spirit of humanity, decides not only tatis ratione, ut ex ipsa scriptura with regard to an insolvent master, institutionis etiam libertas ei com- but generally, that the mere instipetere videatur, cum non est veri- tution of a slave implies the grant of simile, eum, quem heredem sibi liberty. For it is highly improbable, elegit, si prætermiserit libertatis that a testator, although he has omitdationem, servum remanere volu- ted an express gift of freedom, should isse et neminem sibi heredem fore. have wished that the person he has
selected as heir should remain a slave, and that he himself should have no
heir. 3. In fraudem autem creditorum 3. A person manumits in fraud of manumittere videtur, qui vel jam eo creditors, who is insolvent at the tempore, quo manumittit, solvendo time that he manumits, or becomes non est, vel qui datis libertatibus de- so by the manumission itself. It has, siturus est solvendo esse. Prævalu- however, been settled that unless the isse tamen videtur, nisi animum manumittor intended to commit a quoque fraudandi manumissor ha fraud, the gift of liberty is not inbuit, non impediri libertatem, validated, although his goods are quamvis bona ejus creditoribus non insufficient for the payment of his sufficiant: sæpe enim de facultati- creditors ; for men often hope their bus suis amplius quam in his est circumstances are better than they sperant homines. Itaque tunc in- really are. The gift of liberty is then tellegimus impediri libertatem, cum invalidated only when creditors are utroque modo fraudantur creditores, defrauded, both by the intention of id est et consilio manumittentis et the manumittor, and in reality ; that ipsa re, eo quod bona non suffectura is to say, by the insufficiency of the sunt creditoribus.
effects to meet their claims. D. xl. 9, 10; xlii. 8. 15.
Fraudis interpretatio semper in jure civili non ex eventu duntaxat, sed ex consilio quoque desideratur. (D. l. 17. 79.) Gaius informs us (i. 47) that peregrini were prevented from enfranchising slaves in fraud of creditors, though the other provisions of the lex Ælia Sentia did not affect them.
4. Eadem lege Ælia Sentia do 4. By the same lex Ælia Sentia, mino minori annis viginti non aliter again, a master, under the age of manumittere permittitur, quam si twenty years, cannot manumit, unless vindicta apud consilium justa causa by vindicta, and unless this proceeding manumissionis adprobata fuerit ma- in regard to the person manumitted has oumissi.
been approved of by the council on some
GAI. i. 38. This consilium was held on certain days at Rome, and in the provinces sat during a session, on the last day of which cases such as those referred to in the text were determined. (Gal. i. 20.).
5. Justæ autem manumissionis 5. Legitimate grounds for manucausæ sunt, veluti si quis patrem mission are such as these : that the aut matrem aut filium filiamve person to be manumitted is father or aut fratrem sororemve naturales mother to the manumittor, his son or aut pædagogum, nutricem, educa- daughter, his brother or sister, his torem aut alumnum alumnamve preceptor, his nurse, his foster-father, aut collactaneum manumittat, aut his foster-child of either sex, or his servum procuratoris habendi gratia, foster-brother; that the person is a aut ancillain matrimonii causa, slave whom he wishes to make his produm tamen intra sex menses uxor curator, or female slave whom he inducatur, nisi justa causa impediat, tends to marry, provided the marriage et qui manumittitur procuratoris be performed within six months, unless habendi gratia, ne minor septein prevented by some lawful cause ; and et decem annis manumittatur. provided that the slave who is to be
made a procurator, be not manumitted
under the age of seventeen years.
Gal. i. 19. 39 ; D. xl. 2. 11-13. The most common case of a person emancipating his father and mother, and other near relations, would be when a slave was made heir. Theophilus (paraphr, on this paragraph) gives as an instance of a person enfranchising his brother, the case of a man having a child by a slave and then a son by a legal marriage. The former would be the slave of the latter.
If the marriage was in any way impossible, the minor would not be allowed to enfranchise his female slave; and it was requisite that it should be he himself who intended to marry her.
A procurator (i.e. agent) below the age of seventeen could not represent his principal in any action (D. iii. 1. 1. 3), and it is this probably that makes Justinian here require that the slave should be seventeen years of age in order to be emancipated by a minor.
6. Semel autem causa adprobata, 6. The approval of a ground of sive vera sive falsa sit, non retrac- manumission once given, whether the tatur.
reasons on which it is based be true or
false, cannot be retracted. 7. Cum ergo certus modus ma- 7. Certain limits being thus asnumittendi minoribus viginti annis signed by the lex Ælia Sentia to the dominis per legem Æliam Sentiam power of persons under the age of constitutus sit, eveniebat, ut, qui twenty to manumit slaves, the result quattuordecim annos ætatis exple- was that any one, who had completed verit, licet testamentum facere possit his fourteenth year, might make a et in eo heredem sibi instituere lega- testament, institute an heir, and give taque relinquere possit, tamen, si ad legacies, and yet that no person, huc minor sit annis viginti, liber- under twenty, could give liberty to