APPENDIX IV. THE ESSENTIAL CHARACTER OF MANUMISSION1. ITERATIO.

To analyse the conception of manumission so as to express it in terms of other institutions is perhaps impossible. It has an obvious affinity with conveyance, and Vangerow^[2538] ^{^[2539], treating it as essentially an act of transfer, deduces from this character its main rules, so far as they are concerned with latinity.}

But though this affinity is clear, it is no more than an analogy, and it is not alone. What was given to the man was not dominium over himself: no man has that. The lex Aquilia gave no action to a man for personal damage, precisely for this reason. It is true that Vangerow⁸ holds this text^[2540] ^{^[2541] of no force in this connexion; he says that what Ulpian means is that the lex applies only to ownership of things in the ordinary sense, and this does not cover his ownership of himself. But what Ulpian says is that the man has no actio Aquilia, because he is not dominus of his members. That is, his right is not dominium. That it is analogous to ownership is true, but this does not justify VangerowвЂ™s inferences. Personal independence is not ownership of oneвЂ™s personвЂ™. We know that manumission by will is not a legacyВ·. What is conferred is liberty with citizenship. If the analogy with transfer of ownership were identity, or had been the most prominent factor in the minds of the lawyers, we might have expected a development of mancipation with safeguards; we should have looked for discussion of the question whether one freed informally or under 30 (thinking he was older), would acquire libertas ex iure Quiritium by one yearвЂ™s usucapion. The modes employed inter vivos are not those of ordinary conveyance. Census has little relation to them, and though manumission vindicta is in all probability a case of cessio in iure, it must be noted that that form is usually employed, precisely because the subject of the transaction is not dominium.
It is true that Schlossmann holds that cessio in iure is the primitive conВveyance and that mancipatio is a development from it⁷, but though there are early references to cessio in iure, there seems to be no evidence earlier than Gaius for its use in conveyance of a specific thing. The text of Varro⁸ sometimes cited may refer only to cessio in iure hereditatis. What passes to the man is not what belonged to the master: his liberty and civitas are not subtractions from those of the dominus. There are other cases in which cessio in iure is applied in the same way: the potestas which is acquired by the cessio in iure which is the last step in adopt/io* is not identical with the right which is destroyed. The cases seem parallel: what is released is something other than what is acquired. Rabel¹ holds this to be a disregard of logic, intelligible in adoption, but not admissible in manuВmission. But it is clear from the doubts as to the effect of an attempt to cede usufruct to an extranetВ» *, and as to ceaaio hereditatia by a necesaariuaвЂ?, and perhaps still more from the rule that ceaaio after entry released debtors to the estate* and from that as to the effect of attempted ceaaio by a tutor ceaaiciua*, that there was no very certain logical doctrine, as to the juristic nature of ceaaio in iure.
Manumission is not transfer of dominium: it is creation of a civic, and release not merely from ownership, but from the capacity of being owned. This seems a better way in which to express the matter than to speak, as Karlowa doesвЂ™, of the acquisition of personality. The Romans of an early age did not so think of the matter, still less would they have felt KarlowaвЂ™s difficulty that if the slave is a mere rea he cannot acquire, and manumission is an impossibility. This sort of subtlety is of a later time, as is his solution that the man acquires by virtue of a derivative personality, based on that of his master.
Manumission inter vivoa is probably due to the Pontiffs, who applied such analogies as presented themselves and, so far as their activity is known, do not appear to have been bound by a very strict logic⁷.
In the case of cenaua, there is no element of conveyance, and in manumission vindicta it is rather the fact that the case is not one of dominium which prompts the use of the form. It has indeed been contended that this is not a case of cesaio in iure^s, but a comparison of the accounts of the two transactions⁹ shews the closest similarity. It is true that there are differences: the prominence of the featuca is the most important. But nothing is more to be expected than distinctions of detail expressive of the particular application; there is no reason to treat them as shewing a difference of underlying principle, and it must be noted that we have a description not of ceaaio in iure in general, but of ceaaio in iure of the dominium in a specific thing. There is no doubt difficulty in the question whether ceaaio in iure, and therefore manumission vindicta is properly called a piece of fictitious litigation. Discussion of that wider question is not in place here. It has recently been thoroughly examined by Wlassak¹⁰: he declares against this view, holding that it is ab initio not an act of litigation, but of release by the dominua with official sanction, given in the form of addictio. He shews reason for thinking that there was no addictio where a defendant in a real action refused to defend, or admitted his liability; indeed he denies the applicability of the notion of confeasio to a real action, and considers that the form ad-dicto shews that what is done is in supplement to the act of another¹¹.
From this point of view the question whether it is fictitious litigation or not is rather a matter of words. Wlassak suggests that it is of the essence
1 on. cit. 326. В» G. 1.30. В» G. 1.36 sqq. _
⁴ Ibid. ⁶ Ulp. 11. 7. As to death of ceencius, see Babel, loc. cit.
t loc. cit. 1 G. 1.134, 2. 68.
⁸ See reff. in Wlassak, Z. S. S. 28.1вЂ”3. ⁸ See G. 1. 24, and ante, p. 461.
⁴⁸ Z.
S. S. 26. 84 eqq. вЂњ z. S. S. 26. 91. of a вЂњ Scheinprozess вЂќ that the true drift of the proceedings shall be concealed from the parties or the public. But this is hardly essential: our own вЂњ common recovery вЂќ was assuredly fictitious litigation, though everyone was aware that it was a mere device of conveyancing to enable a man to convey what in fact he had not. It is not deceit, but evasion of legal difficulties, at which the transaction aims. Wlassak has made it extremely probable that the addictio is a characteristic part of the cessio, and does not occur in real actions even on admission of the claim. It indicates that what is in hand is not true litigation. The nature of the transaction is evident from the beginning, and in that sense it may be said to have nothing fictitious about it. But this is to ignore the equally notable fact that it borrows the form of a causa liberalis, the vindicatio and the assertor, and is plainly based thereon¹. The question as to the exact significance, and place in the proceedings, of the masterвЂ™s touch with the wand, and as to the essentiality of the blow on the cheek, etc., are matters on which the evidence permits little but conjecture. And even on WlassakвЂ™s view, that addictio is characteristic, it is not possible to say with certainty whether it is, as some say, a mere recognition by the magistrate, or as others say, an act of grant by the magistrateвЂ™, or as he holds, and, as it seems, with much probability, an act of sanction. But on the view here taken of the nature of manumission, these points are of small importance. If conveyance, gift of ciiAtas, release from the position of a res are all present to the minds of the framers, and these are by no means slaves to logic, any one of these analogies may be the determining cause of a particular part of the form without entitling us to draw any inferences from the existence of that detail, as to the real nature of the transaction. The law of iteratio might be expected to provide a touchstone for some at any rate of these opinions.
The texts are few and somewhat obscure'. Vangerow^[2542] ^{^[2543] ^[2544] ^[2545] ^[2546], starting from his view that manumissio is essentially conveyance (and iteratio must of course proceed from a quiritary owner), holds that there may be iteratio after informal manumission, though the original manumission was before the slave was 30, and after manumission by the bonitary owner, in each case by the quiritary owner for the time being, even a transferee or heir. He refutes the opinion of Bethmann-Hollweg and others', who hold that only the original quiritary owner can iterate, not his heir or assignee, and not even he, if, before the first manumission, the man was in the bonitary ownership of another. He shews that this last view is plainly contradicted by the texts' and that the textual support of the others is only apparent⁷. But he holds that one who has formally freed a man under 30 cannot iterate, as he has by the formal act abandoned the ius Quiritium, though circumВstances prevent the slave from acquiring it. He does not distinguish between vindicta and will. He accounts for the language of Ulp. 3. 4, which requires the man to be 30 at the first manumission, on the ground that it is only of a slave first freed over 30 that the proposition he lays down as to iteratio is true generally. The texts¹ seem to leave no doubt as to the justice of his view in the case of informal manumission of a man under 30. Indeed since iteration in this case dates from before the lex Aelia, any other view requires this law or the lex lunia to have contained an express provision forbidding iteratio in this case. But his opinion as to formal manumission seems less certain. The textual authority is small: there is only the doubtful inference from Ulpian², and some indications in Gaius 1. 35, so defective that reconВstitution of the text is hopeless. On the other hand it must be admitted that while there are'texts speaking of iteratio as applicable to junian latins generallyвЂ™, there is none which unequivocally applies it to a latin freed vindicta or testamento.
Vangerow bases his opinion mainly on the view that as manumission implies ownership, it is impossible where there has been a formal manumission, since the formal act of conveyance, though the provisions of the lex Aelia prevent it from giving civitas, produces nevertheless the other effects of which it is capable. Thus it causes the dominium to pass out of the manu- mitter, though it does not pass to the manumissus. He supports this view by reference to the cases above mentioned in which cessio in iure tutelae, ususfructus and hereditatis, were treated as depriving the cedens though the primary purpose was not realised. But, apart from the fact that these texts shew evident signs of dispute, they appear to turn, not on the principle invoked by Vangerow, but upon the notion that cessio is an acknowledgment in court that the cedens has no right. This could have no bearing on manuВmission by will⁴. It may be observed that in some cases, and in the opinion of some jurists, the cessio might be pleaded by persons who were not parties to it⁶, and it is also noticeable that in every recorded case it is used as a defence to a claim set up by the cedens. It may also be noted that VangerowвЂ™s theory leads to the result that if an owner under 20 manumitted vindicta, though the manumission did not take effect, it would be impossible for the owner ever to make the man a civis. For the texts do not say that his act is a nullity but only that the statute bars the freedom*. Indeed on VangerowвЂ™s view it seems that the man should have become a servus sine domino, for it is not merely the ius Quiritium which is affected by a cessio in iure. Analogous difficulties arise in the case of manumission by will. As we have seen, it is by no means clear that a manumission vindicta could make a man a latin in classical law⁷, and it may be that this is the real reason of the silence of the texts. As to manumission by will Ulpian tells
¹ G. 1.167; Vat. Fr. 221. > Ulp. 8. 4, referring only to latins over 30.
В» Ulp. 3. 1; Fr. Vat. 221.
⁴ The rule of accrual when a common slave is freed vindicta or testamento by one owner (ante, p. 575) may seem to throw doubt on this. But the principle on which this accrual rested was very doubtful. Some thought it operated even in informal manumission. The view which prevailed seems to have been that it was confined not only to a formal manumission but to one which satisfied all the requirements of manumission (40. 2. 4. 2). Justinian observes (C. 7. 7. 1. pr.i that, as to the rules of accrual in this case, multa ambiguitas exorta est apud veteres iuris auctons.^ 35. ₆ n_eg _{f anUi p} 542 T ^nte, _p. 543, us expressly that the lex Aelia treats a man manumitted under 30 by will as if he had been freed informally, which he would hardly have said if there was the fundamental difference that iteratio was impossible in the case of the former. The result seems to be that any Junian latin could, when he was over 30, be made a ciins by iteratio, by the person in whom the quiritary ownership of him was now vested. But it is an open question whether in classical law a person freed vindicta could be a latin.}}

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

APPENDIX IV. THE ESSENTIAL CHARACTER OF MANUMISSION1. ITERATIO.

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