status of civitas the rights, political or civil, of the private citizen, not the political attributes of the magistrate. Before we terminate our general remarks on the nature of status, it is necessary to distinguish from the law of Persons a department of law with which, in consequence of a verbal ambiguity, it is sometimes confounded. Blackstone deserves credit for having recognized Public law as a part of the law of Persons; but he also included under the law of Persons that department of primary rights to which belong the right of free locomotion, the right of using the bodily organs, the right to health, the right to reputation, and other rights which perhaps more commonly emerge in the redress meted out for their violation, that is, in the corresponding sanctioning rights, the right of redress for bodily violence, for false imprisonment, for bodily injury, for defamation, and the like. These, however, are not the special and exceptional rights of certain eminently privileged classes, but the ordinary rights of all the community, at least of all who live under the protection of the law; they belong to filiusfamilias as well as to paterfamilias, to peregrinus and latinus as well as to civis. The rights in question, that is to say, do not belong to the law of unequal rights, or the law of Persons, but to the law of equal rights, or the law of Things. The anomalous institution of slavery, however, furnishes a ground for controverting this arrangement; for, as by this legalized iniquity of ancient law, the slave, living, as he did, not so much under the protection as under the oppression of the law, was denuded of all the rights of humanity, including those of which we speak, we cannot say that these rights belong to servus as well as to liber. The same, however, may be said of contract rights and rights of ownership, for the slave had neither part nor lot in these any more than in the right of a man to the use of his own limbs. In defining, therefore, jura rerum to be the equal rights of all, we must be understood to mean, of all who have any rights. Perhaps, indeed, instead of saying that jura rerum are the rights of men regarded as equal, it would be more exact to say, that while jus personarum regards exclusively the unequal capacities, that is, the unequal rights of persons, jus rerum treats of rights irrespectively both of the equality and the inequality of the persons in whom they are vested, leaving their equal or unequal distribution to be determined by jus personarum. In order to mark the natural position of these rights in the civil code, I have avoided designating them, with Blackstone, by the name of Personal rights, a term which I am precluded from using by yet another reason. I have employed the terms Personal right and Real right to mark the antithesis of rights against a single debtor and rights against the universe. Now the rights in question are rights that imply a negative obligation incumbent on all the world, that is to say, in our sense of the words they are not Personal, but Real. From inability to find a better name, I have called them PRIMORDIAL rights, a name which is open to objection, as it may seem to imply a superior dignity of these rights, or an independence, in contrast with other rights, of positive legislation, characters which the name is not intended to connote. The strangeness of the name has one advantage, that it prevents any misconception as to the department of rights it is employed to designate. DE CONDICIONE HOMINUM. § 9. Et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi. § 10. Rursus liberorum hominum alii ingenui sunt, alii libertini. § 11. Ingenui sunt, qui liberi nati sunt; libertini, qui ex iusta servitute manumissi sunt. § 12. Rursus libertinorum tria sunt genera: nam aut cives Romani, aut Latini, aut dediticiorum numero sunt. de quibus singulis dispiciamus; ac prius de dediticiis. ON DIVERSITIES OF CONDITION. § 9. The first division of men by the law of persons is into freemen and slaves. § 10. Freemen are divided into freeborn and freedmen. § 11. The freeborn are free by birth; freedmen by manumission from legal slavery. § 12. Freedmen, again, are divided into three classes, citizens of Rome, Latins, and persons on the footing of enemies surrendered at discretion. Let us examine each class in order, and commence with freedmen assimilated to enemies surrendered at discretion. § 12. As Gaius has not marked very strongly the divisions of the present book, it may be worth while to consider what are the leading branches of the doctrine of Status. Status falls under three heads,-liberty (libertas), citizenship (civitas), and domestic position (familia). Under the first head, men are divided into free (liberi) and slaves (servi): the free, again, are either free by birth (ingenui) or by manumission (libertini). We have here, then, three classes to consider ingenui, libertini, servi. Under the second head men were originally divided into citizens (cives) and aliens (peregrini). The rights of citizens fall into two branches, political and civil, the former being electoral and legislative power (jus suffragii) and capacity for office (jus honorum), the latter relating to property (commercium) or to marriage (connubium). Aliens were of course devoid of the political portion of these rights (suffragium and honores); they were also devoid of proprietary and family rights as limited and protected by the civil law (commercium and connubium), though they enjoyed corresponding rights under the jus gentium. At a subsequent period a third class were intercalated between cives and peregrini, namely, latini, devoid of the political portion of the franchise, and enjoying only a portion of the private franchise, commercium without connubium. Here also, then, we have three classes, cives, latini, peregrini. The powers of the head of a family were nominally three, potestas, manus, mancipium: potestas, however, was either potestas dominica, power over his slaves, or potestas patria, power over his children, which, at the period when Roman law is known to us, were different in kind; so that the rights of paterfamilias were really fourfold. Manus or marital power placed the wife on the footing of filiafamilias, which was the same as that of filiusfamilias. Paterfamilias had a legal power of selling (mancipare) his children into bondage; and mancipium, as denoting a person, designated a filiusfamilias who had been sold by his parent as a bondsman to another paterfamilias. In respect of his purchaser, such a bondsman was assimilated to a slave: in respect of the rest of the world, he was free and a citizen, though probably his political capacities were suspended as long as his bondage (mancipii causa) lasted. As slaves are treated of under the head of libertas, and the status of the wife (manus) was exactly the same as that of the son, we may say, that in respect of domestic dependence or independence (familia), as well as in respect of libertas and civitas, men are divided into three classes,-paterfamilias, filiusfamilias, and mancipium; paterfamilias alone being independent (sui juris), the other two being dependent (alieni juris) in unequal degrees. These nine classes are not examined by Gaius with equal minute ness. Under the first head he principally examines the libertini : the classes under the second head, cives, latini, peregrini, are only noticed indirectly, i.e. so far as they present a type for the classification of libertini ; and the bulk of the first book of the Commentary is devoted to domestic relations. DE DEDITICIIS VEL LEGE AELIA SENTIA. § 13. Lege itaque Aelia Sentia cavetur, ut qui servi a dominis poenae nomine vincti sint, quibusve stigmata inscripta sint, deve quibus ob noxam quaestio tormentis habita sit et in ea noxa fuisse convicti sint, quique ut ferro aut cum bestiis depugnarent traditi sint, inve ludum custodiamve coniecti fuerint, et postea vel ab eodem domino vel ab alio manumissi, eiusdem condicionis liberi fiant, cuius condicionis sunt peregrini dediticii. § 14. Vocantur autem peregrini dediticii hi qui quondam adversus populum Romanum armis susceptis pugnaverunt, deinde, ut victi sunt, se dediderunt. § 15. Huius ergo turpitudinis servos quocumque modo et cuiuscumque aetatis manumissos, etsi pleno iure dominorum fuerint, numquam aut cives Romanos aut Latinos fieri dicemus, sed omni modo dediticiorum numero constitui intellegemus. § 16. Si vero in nulla tali turpitudine sit servus, manumissum modo civem Romanum, modo Latinum fieri dicemus. § 17. Nam in cuius persona tria haec concurrunt, ut maior sit annorum triginta, et ex iure Quiritium domini, et iusta ac legitima manumissione liberetur, id est vindicta aut censu aut testamento is civis Romanus fit: sin vero aliquid eorum deerit, Latinus erit. FREEDMEN ASSIMILATED TO SURRENDERED FOES AND DISPOSITIONS OF THE LEX AELIA SENTIA. § 13. The law Aelia Sentia enacts that slaves who have been punished by their proprietors with chains, or have been branded, or have been examined with torture on a criminal charge, and have been convicted, or have been delivered to fight with men or beasts, or have been committed to a gladiatorial school or a public prison, if subsequently manumitted by the same or by another proprietor, shall acquire by manumission the status of enemies surrendered at discretion. § 14. Surrendered enemies are people who having taken up arms and fought against the people of Rome and having been defeated have surrendered. § 15. Slaves tainted with this degree of criminality, by whatever mode they are manumitted and at whatever age, and notwithstanding the plenary dominion of their proprietor, never become citizens of Rome or Latins, but can only acquire the status of enemies who have surrendered. § 16. If unstained by offences of so deep a dye, manumission sometimes makes the slave a citizen of Rome, sometimes a Latin. § 17. Aslave in whose person these three conditions are united, thirty years of age, quiritary ownership of the manumitter, liberation by a civil and statutory mode of manumission, i.e. by default in a fictitious vindication, by entry on the censor's register, by testamentary disposi DE MANUMISSIONE VEL CAUSAE PROBATIONE. § 18. Quod autem de aetate servi requiritur, lege Aelia Sentia introductum est. nam ea lex minores XXX annorum servos non aliter voluit manumissos cives Romanos fieri, quam si vindicta, aput consilium iusta causa manumissionis adprobata, liberati fuerint. § 19. Iusta autem causa manumissionis est veluti si quis filium filiamve, aut fratrem sororemve naturalem, aut alumnum, aut paedagogum, aut servum procuratoris habendi gratia, aut ancillam matrimonii causa, aput consilium manumittat. § 20. Consilium autem adhibetur in urbe Roma quidem quinque senatorum et quinque equitum Romanorum puberum; in provinciis auten viginti recuperatorum civium Romanorum. idque fit ultimo die conventus sed Romae certis diebus aput consilium manumittuntur. Maiores vero triginta annorum servi semper manumitti solent, adeo ut vel in transitu manumittantur, veluti cum Praetor aut Proconsule in balneum vel in theatrum eat. § 21. Praeterea minor triginta annorum servus manumissione potest civis Romanus fieri, si ab eo domino qui solvendo non erat, testamento eum liberum et heredem relictum[desunt lin. 24.] tion, becomes a citizen of Rome: a slave who fails to satisfy one of these conditions becomes only a Latin. OF ON MANUMISSION AND PROOF ADEQUATE GROUNDS OF MANUMISSION. 18. The requisition of a certain age of the slave was introduced by the lex Aelia Sentia, by the terms of which law, unless he is thirty years old, a slave cannot on manumission become a citizen of Rome, unless the mode of manumission is fictitious vindication, preceded by proof of adequate motive before a body of judicial assessors of the praetor. § 19. It is an adequate motive of manumission if, for instance, the slave whose manumission is justified before the council is a natural child or natural brother or sister or foster child of the manumitter's, or a governor of the manumitter's child, or is destined to be employed as an agent in business, or is a female destined to become the manumitter's wife. § 20. The council of assessors is composed at Rome of five senators and five Roman knights above the age of puberty: in the provinces of twenty recuperators, who must be Roman citizens, and who hold their session on the last day of the assize. At Rome the council holds its session on certain days appointed for the purpose. A slave above the age of thirty can be manumitted at any time, and even in the streets, when the praetor or proconsul is on his way to the bath or theatre. 21. Under the age of thirty a slave becomes by manumission a citizen of Rome, when his owner being insolvent leaves a will, in which he gives him his freedom and institutes him his heir (2 § 154), provided that no other devisee accepts the succession. |