APPENDIX V. MANUMISSION VINDICTA BY A FILIUSFAMILIAS.

It is clear that manumission vindicta was a legis actio^[2547]. It is also most probable that a filiusfamilias was incapable of legis actio. It appears to follow that he could not free vindicta, even iussu patris.

Yet this power is repeatedly credited to him, and is nowhere expressly denied. On the texts as they stand there is therefore something like an absolute contraВdiction.

There seem to be two ways of dealing with the matter, assuming the truth of the proposition that a.filiusfamilias cannot lege agere. One of these is that of Mitteis², to refer all the texts which do not specify the form to the informal methods and to treat the others as in some way interpolated. The other course is to accept the texts and to treat their rule as one more case in which the character of the process was disregarded. The following pages state as briefly as possible the grounds on which the present writer has held*, and holds, this the better view.

The relaxations stated on p. 452 are no doubt for the most part merely evidences that the process was not really regarded as judicial. Some can hardly be so disposed of⁴, but they are much less important than the texts directly touching the question, of which the chief are set out and discussed in the following pages.

I. Schol. Sin. 18. 49 (Krüger):...ό υπεξούσιοί o>s μή ων legis ( )

δεκτικοί ου δυναται in iure cedere έτερω την επιτροπήν.

This text leads Mitteis to reject all the others. He infers that in the judgment of Ulpian a filiusfamilias could not lege agere, and that thus all the texts which speak of him as freeing vindicta must be in part post- classical.

Fifth century greek scholia are not perhaps the best evidence of what Ulpian said, and it may well be that the rule is UlpianвЂ™s, the reason the scholiastвЂ™s. But admitting that it is in effect Ulpian who speaks, the text is but a doubtful starting-point. It gives an odd result. The tutela in

question must be legitima, for Ulpian allows only legitim! tutores to cede¹. The case is thus one of a patron, i.e. a miles or former miles, who can, as we know, free vindicta. The proposition thus is: certain persons who can certainly free by legis actio cannot cede the tutela acquired by the manuВmission, because they are incapable of legis actio. This is at least something like a contradiction, and such a text seems hardly clear enough to put all the others out of court.

II. P. Sentt. 1. 13 a. Filiusfamilias iussu patris manumittere potest, matris non potest.

This text is perfectly genuine and thus ought to cover all cases of manuВmission inter vivos. Mitteis considers it arbitrary to apply it to manumission vindicta. It seems more arbitrary to understand a tacit limitation to manuВmissions which produce only a truncated result. The effect is to make the text give a misleading result, which Paul elsewhere carefully avoids. In view of the language of P. Sentt. 4. 12. 2, it is difficult to understand our text of a manumission which did not give iusta libertas. It is one thing to state a general rule ignoring exceptions : it is another to lay down in general terms a rule which does not apply to the normal case at all.

III. C. 7. 15. 1. 3. In this enactment Justinian extends the power of authorising manumission to ascendants of either sex in respect of any descendants. He says he is abolishing the old restrictions of persons, but he says nothing of any extension in point of form. The first case he names is per iudicem.

IV. 37. 14.13, Modest.; 40. 1. 16, Idem ; 40. 1. 22, Papin. These texts are general and if written as they stand must fairly be applied to all manuВmission inter vivos.

They may have been abridged, but there is no sign of this, and, at least as to 40. 1. 16, the reference to manumission vindicta is strongly suggested.

V. 38. 2. 22, Marcian. Si filiusfamilias miles manumittat, secundum luliani sententiam...patris libertum faciei: sed quamdiu, inquit, vivit, praeВfertur Jilius in bona eius patri. Sed divus Hadrianus Flavio Apro rescripsit suum libertum eum facere non patris.

This text, adduced by Mitteis, deals with a miles and is not strictly in point. Its only importance is that its language shews the practice to have been older than HadrianвЂ™s enactment², and that as it is not easy to see how the father can have been thought entitled to the goods of such a man otherВwise than by descent, the manumission must have given dvitas and thus been formal. The possible but uncertain inferences need not be entered on.

VI. 40. 1. 7, Alfenus Varus. This text mentioned by Mitteis has been so maltreated that little can be inferred from it. What can be made of the libertus who becomes a slave again at the end of the text 1 The fragment seems of little importance in the present connexion³.

VII. 40. 2. 4. pr., Julian. Si pater filio permiserit servum mamu- mittere et interim decesserit intestato, deinde filius iqnorans patrem suum

¹ Ulp. 11. 6, 8.

⁸ Ante, p. 459.

¹ See 37. 14. 8. pr.; 38. 2. 3. 8 and ante, p. 459. mortuum, libertatem imposuerit, libertas servo favore libertatis contingit, cum non appareat mutata esse domini voluntas, sin autem ignorante filio vetuisset pater per nuntium et antequam filius certior fieret, servum manumisisset, liber non fit. nam ut filio manumittente servus ad libertatem perveniat durare oportet patris voluntatem: nam si mutata fuerit non erit verum volente patre filium manumisisse.

This text has been profoundly altered. It does not express JulianвЂ™s view¹, and some at least of the talk about voluntas seems to be due to Tribonian.

It is difficult to see why it should have been placed under the heading de manumissione vindicta, unless originally written of this, since it contains no reference to form. Mitteis holds that it was written of informal manumission, mainly it seems, because h. I. 1 was. The force of this is weakened by the fact that h. I. 2 was certainly written of formal manuВmission, and, if contiguity is decisive, settles the question the other way for the whole lex. There is indeed little reason to think that h. I. 1 was written of informal manumission. The needlessly duplicated talk about voluntas looks like Tribonian seeking a reason good for all manumission. And though, as Mitteis has elsewhere shewn⁹, it is dangerous to be dogmatic as to what Julian cannot have written, he can hardly have written the reasoning put before us. He is supposed to have said that when Titius declares inter amicos that he frees a man, whom he thinks, in fact, to be the property of another, but who is his own, verum est voluntate domini servum manumissum esse. But that is not the case : the needed voluntas is not present. He intended a joke to deceive the man or his own friends: lex enim lunia eos fieri latinos iubet quos dominus liberos esse voluit*. On the other hand, as applied to manumission vindicta the decision is perfectly sound. As has been said by Wlassak^[2548] ^{^[2549] ^[2550] ^[2551] ^[2552] ^[2553]: вЂњbei allen Formalgeschäften des alten Rechts, so auch bei der manumissio vindicta, die rechtliche Geltung unabhängig war vom Dasein des durch die Wortformel...der Partei angezeigten Willens.вЂќ This is surely what Julian is laying down. There are other texts which shew that formal acts produced their effects irrespective of state of mind¹, and others which shew that, apart from form, the transaction was null in such a case of mistake unless there was a real voluntas which the transaction realisedвЂ™. Some of them refer to informal manumission.
VIII. 40. 2. 10, Mercian. Surdi vel muti patrie filius iussu eius manuВmittere potest.В· furiosi vero filius non potest manumittere.
It is not easy to see why this text is placed in this title, unless it was originally written of manumission vindicta. Here too there may have been alteration: apart from this its general form would have been misleading. Mitteis observes that it was of course necessary to mention here and there the powers of muti and surdi, and he cites three other examples. It may not be altogether insignificant that in two of theseвЂ™ the limit of the power is clearly stated, while in the third⁹ the negative form of the proposition makes this unnecessary.
IX. 40. 2. 18. 2, Paul. Filius quoque voluntate patris apud patrem manumittere potest.
As it stands this text is conclusive. Mitteis holds that there has been alteration and that Paul actually wrote: Filius miles apud patrem, etc. There is no evidence of change and indeed that remark seems hardly worth making. The point actually made is more important. If the manumission was voluntate patris, it was his own manumission and he was judge in his own cause. The words voluntate patris, redundant as they look, are essential to the statement of this point.
X. 40. 2. 22, Paul. Pater ex provincia ad filium sciens Romae agentem epistulam fecit quae permisit ei quem vellet ex servis quos in ministerio secum hic habebat vindicta liberare: post quam filius Stichum manumisit apud Praetorem: quaero an fecerit liberum, respondi: quare non hoc concessum credamus patri ut permittere possit filio ex his quos in ministerio haberet manumittere 1 solam enim electionem filio concessit, ceterum ipse manumittit.
Mitteis supposes the compilers to have here interpolated the references to form, though they have omitted to do so in the other texts in this title which we have discussed. He considers the expression apud praetorem ill placed and redundant in view of the word vindicta earlier in the passage.
But the expression is inserted precisely because the authorisation was to proceed in a certain way, and the statement shews that the direction was followed. The form vindicta liberare is the usual classical form⁹. In 40. 1. 15 and 45. 1. 122. 2 it is clearly genuine, but it does not seem common in the Digest. In our text the words have all the appearance of being a quotation from the letter. XI. 40. 9. 15. 1, Paul. lulianus ait si postea quam filio permisit paler manumittere filius ignorans patrem decessisse manumisit vindicta non fieri eum liberum, sed et si vivit pater et voluntas mutata erit non videri volente patre filium manumisisse.
Mitteis supposes the compilers to have interpolated the word vindicta. It is not clear why they should have so done. If the original text contained no reference to form the insertion would be misleading. If it did, it would be still more misleading to strike out that reference and also insert the word vindicta, though to do either without the other would be reasonable. The chief positive sign of interpolation is the fact that, in the Florentine index, the corrector of the ms. has altered a heading ad legem luliam, and made it luniain. I have suggested that the corrector was wrong, as he was far from infallible, and though Mitteis attaches no weight to this, the suggestion may not look quite absurd to one who will look at the surroundings of the correction at the place where it occurs. That is the Florentine index and not in the inscription of this lex. It is not indeed certain that it refers to
1 3. 3. 43. pr.; 29. 2. 5. ⁹ 39. 5. 33. 2.
³ G. 1. 17,18, 44; P. 4.12. 2; Fr. Dos. 10. Cp. Brissonius and Dirksen, s.v. liberare. the same book. There is no sign of correction in the inscription. It must be observed that the mistake, if it is a mistake, occurs twice quite indeВpendently, and that there is no trace but the correction in the index of any writing by Paul on the lex lunia. Moreover this text has not been generally overhauled, for it retains a view of JulianвЂ™s, which is elsewhere set aside¹. And the word vindicta, useless or worse under Justinian, may have served a purpose in the original. An informal manumission would be null if the authorising pater were dead, but some may have doubted if this was equally true where a legis actio had been gone through without notice of the death. It is easy to see many complications which JulianвЂ™s decision avoids.
Mitteis observes also that there is no known lex lulia which deals with manumission. The leges luliae iudidariae must have given occasion for the discussion of those quasi litigations which were still tried by legis actio, of which manumission vindicta was one. It is always difficult to say what a book may have contained.
XII. 49. 17. 6, Ulpian. Si militi filiofamilias uxor servum manumittendi causa donaverit an suum libertum fecerit videamus, quia peculiares et servos et libertos potuit habere, et magis est ut hoc (!) castrensi peculio non adnumeretur, quia uxor ei non propter militiam nota esset. plane si mihi proponas ad castra eunti marito uxorem servos donasse ut manumittat et habiles ad militiam libertos habeat potest dici sua voluntate sine pairis permissu manumittentem ad libertatem perducere.
The concluding words imply without actually saying it that where the slave was not in the peculium castrense, the Jilius with the fatherвЂ™s consent might have done what he is contemplated as doing without it if the slave is in the peculium castrense. And this is so to free a man as to make him habilis ad militiam. This must be formal manumission since a latin would not be qualified.
Texts in general terms, and thus applicable to latins, have not been cited, except where they contain something to suggest that they were intended to refer to formal manumission, and no doubt some relevant texts have been missed. Some, discussed elsewhere, have been omitted⁹, as having less weight than I had attached to them. No text in the Digest can be absolutely conclusive for classical law, since there may always have been alteration. But these seem rather a strong body, and if their force for classical law is to be destroyed it must be by the assumption of systematic interpolation, of which there is in many cases no trace and in most ot these no purpose. The texts are in all parts of the Digest and the compilers never seem to have made a mistake: they have left so far as appears, no trace, no suggestion, of the older doctrine. They are not often so exact in their workmanship. And the main reason for this opinion is a fifth century Greek scholion which does not directly deal with the point and is itself in somewhat ^[2554] ^{^[2555] ^[2556] ^[2557] self.contradictory form. After all there is a presumption in favour of the genuineness of a text even in the Digest.}
I venture to suggest that Professor Mitteis in studying these texts is giving them an importance they do not deserve in relation to his general theory. He has shewn us how inadmissible the idea of representation in formal acts was to the classical lawyer. But the foregoing chapters shew that favw libertatis led to the doing of things, the acceptance of interВpretations, and the laying down of rules, quite inadmissible in other branches of the law. Nec enim ignotum, est quod multa contra iuris rigorem pro libertate sint constituta^[2558].}

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Source: Buckland W.W.. The Roman Law of Slavery. Cambridge University Press 1908, repr.1970. вЂ” 754 p.. 1970

APPENDIX V. MANUMISSION VINDICTA BY A FILIUSFAMILIAS.

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