CHAPTER XX. MANUMISSION DURING THE EMPIRE. FORMS.

The period covered by this heading extends over nearly 600 years, if we regard Justinian’s reign as the end of things. It ought in strictness to be treated as at least three distinct periods, but as nearly the whole of our information is derived from Justinian’s compilations, it is not easy so to divide it.

It was no longer true in the Empire that all manumission made the slave a civis, but, for the present, we shall discuss the normal case, leaving the special statutory rules and restrictions for a later chapter.

The formal modes of manumission are (1) Censu, (2) In sacrosanctis Ecclesiis, (3) Vindicta, (4) Testamento.

1. Censu. This is practically obsolete¹.

2. In sacrosanctis Ecclesiis. This is a method which it seems somewhat out of place to consider so early, for, as we know it, it dates only from the time of Constantine. It is of little importance in the general development of the law, and therefore may be disposed of at once, and there is this further justification for treating it here, that it retains a trace of that element of public control which is dying out in the other forms, and which makes it more or less a successor of the method by Census.

A constitution of Constantine, addressed in a.d. 316 to a certain bishop, and plainly reciting only earlier law, remarks that it has long been allowed for masters to give liberty to their slaves in ecclesia

¹ Ante, p.

(a) Constantine in stating the rule says dudum placuit. What degree of antiquity this imports is uncertain. There is evidence that he published a third constitution on the matter⁴, which has been lost, and which may be earlier than those we possess: this may be the origin of the rule, since Justinian treats it as ex sacris constitutionibus^. The use of the word dudum does not exclude a recent origin⁶. In the Syro-Roman Law-book are traces of what may be this other enact­ment : there is a rule requiring bishop and priests to be present⁷.

(b) It would seem that under the original rule dvitas was not conferred. The enactment of 321 first speaks of this and calls it dvitas romana, which suggests that till then the process had given only la­tinitas, that in fact it began as an “ informal" mode before Constantine legislated at all. For what one might do inter amicos without other formality, one might surely do in full congregation. The expression, vice testium, imports the same suggestion⁸.

(c) The requirement of signed writing is mentioned in the enact­ment of 316, of which we have only Justinian’s edition, but not in that of 321 which gives the larger right and which we have in the earlier form of the Codex Theodosianus. It seems likely that the provision is added by him. The signature is to be vice testium, and the express requirement of witnesses in certain cases of informal manu­mission seems to be due to him⁸.

(d) The presence of the slave is not indicated as necessary.

(e) It is supposed that the institution descends from or is suggested by the manumission by offer to the temple of a deity¹⁰.

(/) Such manumissions are not subject to the rule as to the age of the slave" which is laid down by the lex Aelia Sentia¹². This again suggests its origin as an informal mode: latinity in no case requires a slave to be over 30. It may be presumed that they are subject to the other restrictive rules.

¹ C. 1.13.1. ² C. 1.13. 2 = C. Th. 4. 7.1.

² In. 1. 5. 1; Theoph. ad h. I.·, Gai. Ep. 1. 1. 2. ⁴ Gothofredus, ad C. Th. 4. 7. 1.

6 In. 1. 5.1. ⁶ Brissonius, De Verb. Sign. s.v. dudum.

7 Ed. Bruns-Sachau, 196. ⁸ Ante, p. 446. ⁹ Post, p. 554.

¹⁰ Ante, p. 447. See especially Mitteis, Reichsrecht and Volksr. 100, 376.

¹¹ C. 7.15. 2. But the reference may possibly be to the institution mentioned post, p. 451.

¹² Post, Ch. xxin.

(g) These enactments contain a further rule giving exceptional privileges to priests who own slaves. That of 316 tells the bishop to whom it is addressed that he may free his slaves in what manner he pleases, provided his intention is clear. That of 321, also addressed to a bishop, lays down a similar rule for all priests, expressly dispensing with witnesses, and declaring that the gift shall take effect from the moment of the declaration, even if it is postremo iudicio. The text seems to contemplate his making a will and declaring its effect at once^[1662]. No doubt the effect would be to give the slave citizenship. These provisions seem to have left no other mark on the sources.

3. Vindicta. The general character of this process has already been described². It is in form a legis actio: a claim of liberty on the lines of sacramentum, stopped by a tacit admission that the claim is well founded.

(i) The process is so plainly a modification of a true adsertio liber­tatis that the originally quasi-judicial nature of the magistrate’s act can hardly be doubted. Doubtless the real nature of the act would tend to appear through the form, but it is most unlikely that the vin­dictae impositio by the master contained originally any idea other than that of counter-claim.

(ii) The slap and turning round as part of a legal process are unexampled: they are simple enough regarded as conventional practices. They are mentioned in no juristic text^{[1663] [1664]. Moreover we are told that a mutus cannot manumit vindicta. As he need not speak, this is explained by the fact that the law requires as evidence of renunciation nothing but silence, which, in the case of a mute, can have no such significance. If the definite act of turning round was required by the rules of form, there would be no reason for excluding mutes[1665].}

The judicial character of the process, always somewhat unreal, is freely disregarded in the imperial law. The forms are much relaxed in all ways. It is impossible to fix a date for these relaxations, which are progressive, but it is clear that they are not complete till late in the classical age. Ulpian notes, as apparently a new relaxation, that he has seen such a manumission done in the country by the Praetor without the presence of a lictor^[1666]. It is no longer necessarily done pro tribunali: the Praetor may do it in transitu on his way to the baths or theatre, or his business, or anywhere^{[1667] [1668]. Hermogenianus says the whole thing may be done by lictors, tacente domino“. This is obscure, since there is no other indication that the dominus has to speak[1669]: it is probable that he means that no sacramental words need be spoken at all and that the vindictae impositio by the master may be dispensed with. The lictors can act as assertors, but it must not be inferred that the presence of the magistrate is unnecessary.}

ch. xx] Manumission Vindicta : Who may preside 453 litigation. Constantine allows it to be done on Sundays¹, and the 14 days round Easter, while excluding lawsuits. Later legislation follows apparently the same lines, though manumission is not mentioned’. An enactment of 392 forbids actus publici vel privati in the fortnight around Easter. Justinian adopts the same law so altered as to allow manumissions’.

It is the practice in all manumissions to give instrumenta manu­missionis*, which it is not necessary for the son of the manumitter to sign^{[1670] [1671] [1672] [1673] [1674] [1675]. It is hardly necessary to say that several can be freed together if present’.}

As it is in essence a legis actio, Ulpian lays down the rule that the person before whom it is done must be a magistrate of the Roman people (i.e. one who has the legis actio^[1676]), and he mentions Consul, Praetor or Proconsul^[1677], these being the magistrates most commonly mentioned in connexion with it^[1678]. But this must be understood to include legati Caesaris^{[1679] [1680] [1681], who govern imperial provinces, and are in fact pro­praetors11 : thus a number of texts speak merely of Praesides1’. Paul tells us, and a constitution of 319 (?) repeats, that a manumission may take place before a municipal magistrate, if he has the legis actio[1682]. The Proconsul has “ voluntary jurisdiction,” i.e. for such acts as manu­mission or adoption, so soon as he has left the City, though he does not acquire contentious jurisdiction till he has reached his province14. As to the power of his legatus, there is some difficulty. Paul definitely says that there can be manumission before him15. Marcian says that there cannot, because he has not talem jurisdictionem. Ulpian agrees, quia non est apud eum legis actio13. It seems clear however that the legate may have the legis actio17, but only by virtue of a mandatum jurisdictionis to him by the Consul. Such a mandate cannot be made so as to take effect till the Proconsul has actually entered his province18, but as the reason assigned is that he cannot delegate a jurisdiction he has not acquired the restriction may not apply to this case19.}

Even as early as Augustus, the right to preside at such a manu­mission is conferred on the Praefectus Aegypto, the Procurator Caesaris in what is regarded as patrimonial property of the Emperor, an officer therefore who cannot at this time be regarded as a magistrate of the

454 Manumission Vindicta: Quasi Judicial [pt. n

Roman people¹. Constantine lays it down that there may be manu­mission apud consilium nostrum^{[1683] [1684]: this is a form of the judicial activity of the Emperor in council[1685].}

Just as a magistrate has jurisdiction for this purpose before entry, so conversely, he retains it on expiration of his office till he has notice of his successor’s arrival^{[1686] [1687] [1688]. The Praeses may act even though the parties are not domiciled in his province[1689] [1690], a rule laid down by the sc. Articuleianum. Either consul or both can conduct the manu­mission*. But what one begins he must finish, except, by virtue of a Senatusconsult of unknown date, where he is prevented by infirmity or other sufficient cause[1691].}

It is immaterial that the magistrate is a filiusfamilias, even a filius of the owner of the slave, though filiusfamilias has himself no power of manumission*. This is a mere illustration of the separation of public from private capacities.

It is settled law that a magistrate can free his own slave before himself’, either by himself or by authorising his filiusfamilias to free on his behalf^{[1692] [1693] [1694]. Thus he is at least in point of form judge in his own cause11. In the same spirit we are told that he may be tutor and autho- riser of a pupil who frees before him[1695]. On the other hand we are told by Paul that he cannot free before his collega, i.e. one with par imperium, though a praetor can, before a consul18. This is the more surprising in that, though he cannot be in ius vocatus before his equal colleague, a man can voluntarily submit himself to an equal or even to a minor jurisdiction[1696]. Moreover, whereas in one text we are told that a consul can free his own slave before himself, even though he be under 20, the same writer, Ulpian, in the same section of the same book, says that a consul under 20 cannot free his own slave before himself, as he would have to enquire into the causa, and he must therefore do it before his colleague18. Here Ulpian appears in conflict with himself on one point and with Paul on another. Probably Paul is expressing a rule already obsolete in saying that there can be no manumission before an equal colleague: the dominos, in the later classical law, may ch. xx] Manumission Vindicta: Suspended operation 455 do it before himself or before a colleague. If however he is under 20 he can do it only before a colleague: the text in which Ulpian seems to allow him to do it, apud se, is probably the work of the compilers.}

Manumission vindicta is a legis actio: it is an actus legitimus. Accordingly, if it be formally gone through, there is a manumission, if the parties were in the proper relation, whatever their state of mind, i.e., even though one or both parties wrongly thought they did not so stand^[1697]. But there is another more practically important result. An actus legitimus is vitiated by any express dies or condition². The point of such a manumission is an official declaration that the slave is free, and thus the freedom cannot be, expressly, in the future or conditional. But the text which lays down the general rule adds the proviso : non- nunquam tamen actus (legitimi) tacite redpiunt quae aperte comprehensa vitia adferunt. This proposition the text proceeds to illustrate, and thereby raises obscurely the question whether manumission vindicta can be subject to a tacit dies or condition. It is sometimes said³ that the text just cited implies that there may be tacit condition. But no such general proposition can be justified. The text illustrates its state­ment by the case of an acceptilatio of a conditional debt. It remarks that there is no acceptilatio till the condition occurs. But this is not a condition voluntarily created : it is one which inest in the transaction. The act is meaningless unless there is a debt. Analogous cases can readily be found in manumission vindicta. If a slave is legated the ownership is, in the Sabinian view, which clearly prevailed, determined retroactively by the acceptance or repudiation of the legacy. If, now, the heres has freed a servus legatus, the act is a nullity if the legatee accepts, but, if he refuses, the gift is perfectly good⁴. This is not a conditional manumission. In the events which have happened the slave was the manumitter’s at the time of the manumission, and it is an absolute manumission. The words of the text shew clearly that this is the proper view to take: retro competit libertas. It cannot be said that this text goes far towards authorising tacit conditions in manumission vindicta. Nothing in this or in the above general text suggests that a manumission vindicta can be so made, at the will of the parties, that the slave freed is in a certain event to remain the property of the manumitter. No text carries the matter further³, except in relation to manumission mortis causa, as to which there is one text which requires careful examination. This text remarks’ that a slave can be freed mortis causa, in such sense that quemadmodum si vindicta eum liberaret absolute, scilicet quia moriturum se putet mors eius expectabitur,

456

Manumission Vindicta: Conditions

[pt. n so too in this case the gift takes effect at death, provided the donor does not change his mind. However this rather obscure text is under­stood, it implies as it stands that if a slave is freed vindicta, mortis causa, the gift takes effect only on the death. This is hardly a con­ditional gift, for dies incertus is not a condition except in wills^[1698]. But whether it is strictly a condition or not is less important than the determination of the exact scope of the rule. On that point the following may be said.

(1) That part of the text which refers expressly to manumission vindicta has not been unchallenged. Mommsen, led presumably by the word absolute, would cut out the words mors eius expectabitur, in which case the text would say for our purpose no more than that it is possible for a man to free his slave when he thought he was dying. One other text is, however, understood by Huschke to assert the rule that in manumission mortis causa by vindicta, the gift does not take effect till the death. But the restoration is so hazardous that no great weight can be attached to it². If Mommsen’s emendation be accepted, we may infer that suspension in such cases till the death is an innovation of Justinian’s.

(2) The text does not, even accepted as it stands, shew that the power of revocation applies. On principle it is hardly possible that it should apply. The last part of the text, which alone speaks of revocation, is dealing with other manumission, contrasted with that vindicta³, and this may have been informal manumission, at least in Justinian’s time. The whole text looks corrupt and rehandled. It is worth noting that none of the ante-Justinian texts which deal with revocable donationes mortis causa speak of any which result from an actus legitimus, such as cessio in iure or mancipatio, and those which deal with land speak of traditio*. It is a fair inference that manu­mission vindicta, mortis causa, is not revocable as other donatio mortis causa is.

(3) Dies certus is nowhere mentioned in this connexion: there is no reason to think such a modality can occur.

(4) Within the very narrow limits in which this suspended effect can be shewn to occur, there is a question to which we have no answer, as to the actual condition of the man in the meanwhile. In the case of the legated slave⁵, no doubt the effect of transactions by him, e.g. aliena­tions and acquisitions, or affecting him, e.g. usucapio, will be determined retrospectively by the event. But in the case of the mortis causa ch. xx] Manumission Vindicta: Representation 457 vindicta manumissus we have no information and no good analogy to guide us¹.

A question involving some difficulties may conveniently be taken here: how far and in what forms can manumission be carried out by a representative? We need consider only two cases, manumission vindicta and informal manumission^{[1699] [1700] [1701] [1702]. It is far from certain that the same rule applies to both cases, at any rate before Justinian. Leaving representation of a pater by a filiusfamilias out of account for thq moment, the texts are not numerous. It must be remembered that manumission vindicta is in point of form a legis actio, however degenerate. There can be no legis actio on behalf of another person except in certain cases of extreme urgency, and accordingly we are told that it is undoubted law that a wife cannot free vindicta, per maritum, or anyone, per procuratorem*. Other texts lay down similar prohibitions, not confining them to the case of vindicta. Thus a tutor cannot give the liberty due from his pupillus under a fideicommissum*, and a curator furiosi cannot free slaves[1703]. The reason assigned is that such an act is not included in administration. 'Octavenus is reported[1704] [1705] as suggesting a way out of the difficulty, where the manumission is due under a fideicommissum : the curator can convey the man to another person to free. This however gives the odd result that while manu­mission is not an act of administration, conveyance to another person, in order that he may free, is, for we are told that a transfer by a curator furiosi is void unless it concerns the administration. Whether a curator furiosi may “ lege agere,” on behalf of his charge, we are not told, but if he can, as seems most probable, and as is generally held, the prohibition seems an unnecessary inconvenience, resulting from a too rigid con­ception of administratio. In any case the texts do not help us.}

There are one or two texts which seem to imply that consent of dominus will validate a manumission by a third party. Thus we are told that manumission without consent of dominus is not valid, even though the manumitter become herres to the dominus⁹. Again, we are told that if a father frees his son’s slave, by his consent, the son being under 20, the manumission is invalid¹⁰, which seems to imply 458 Manumission Vindicta: Representation [pt. ii that if the son were over 20 the manumission would not be necessarily void. As there is nothing contrary to general principle in the idea that a man can authorise another to complete a formless manumission for him, it seems probable that the true rule deducible from these texts is that a man cannot manumit vindicta for another, that he can­not free informally without express authority, from one fully capax, but that there is nothing to prevent the appointing of a third person to make the necessary communication or declaration, a person so employed being in fact a mere nuntius¹.

Within the family there are powers of delegation which belong to the classical age. A filiusfamilias, not being owner, cannot free on his own account, but in classical law he can free by the authority of his paterfamilias, though not of his mother². The effect is to make the former slave the libertus of the paterfamilias*. The authorisation may be such as to give him a choice among the slaves⁴. But though carried out by the son it is essentially the father’s manumission⁶, and thus though the son be under 20, no cause need be shewn: the father’s consent suffices⁶. On one point two opposing views are set down to Julian. In one text he says that if the father authorises the manu­mission, and dies, and the son, not knowing of the death, carries out the manumission, the act is void, as it is if the father changes his mind⁷. In another text he lays down the same rule as to change of mind, but in the case of death says that the slave is free, favore liber­tatis, since there is no evidence of a change of mind⁸. This is no doubt a Tribonianism.

This statement of the rules as to authorisation by the paterfamilias leaves open a point of some difficulty for the law of the classical age. Some of the texts do not specify any mode of manumission : others speak of manumission vindicta. When it is remembered that so to manumit is lege agere, and that this cannot be by agent, and also that, according to the view generally held, and confirmed by a statement in one of the Sinaitic Scholia (on Ulpian⁹), a filiusfamilias is not capable of legis actio, it is clear that there may be doubt. Such a doubt has recently been raised by Mitteis¹⁰. The present writer has discussed the matter elsewhere¹¹; as a treatment of it is necessarily somewhat

^I The grammar of 40. 9. 20 is defective: the role may possibly be of Justinian’s age.

³ P. 1.13 a. 2. ⁸ 37.14.13; 40.1.16, 22. It might be a grandson exfilio.

* 40. 2. 22. * 23. 2. 51. 1; 40. 2. 22.

6 40. 1.16. The father can accuse for ingratitude: though he did not free the case is to be treated as if he had, 40. 9. 30.1. A deaf and dumb father can authorise, while a fnriosus, being incapax, cannot, 40. 2. 10. If’the son frees iussu patris matrimonii causa, no other person can marry the woman without the father’s consent, 23. 2. 51.1 (Mommsen).

7 40. 9. 15. 1. ⁸ 40. 2. 4.pr.

⁹ Schol. Sin. 49 (Kruger’s Edit.). ¹⁹ Mitteis, Z. S. S. 21.199.

^II Buckland, N. R. H. 27. 737. Reply by Mitteis, Z. S. S. 25. 379. ch. xx] Manumission Vindicta: Filiusfamilias Miles 459 lengthy, he has placed in an appendix a statement of the reasons which lead him to accept the numerous and unanimous texts and to hold that even in the classical law a filiusfamilias could free, vindicta, under the authorisation of his pater¹.

Though manumission by a filius without authority is null, it may have some legal importance, in relation to questions of construction, e.g. in legacies. A son has a servus peculiaris, and purports to free him, but without authority. The father in his will leaves the son his peculium. The gift does not include this slave, who therefore is common to all the heirs, for the peculium must be taken as it is at dies cedens, and the son’s manumission was an abandonment of him, as a part of the peculium, whether it was before the will was made or after’. In another text a similar case is discussed by Alfenus Varus^[1706], but he decides as a matter of construction, that if the will was before the manumission, the testator must have intended to include him in the legacy, but not if the manumission came first. This view may seem to ignore the decisive fact that the slave is not in the peculium at dies cedens, and thus by a well-known rule is not covered by the legacy. But in fact all it shews is that the testator does not contemplate him as part of the peculium.

The rules are altogether different where the filiusfamilias is a miles. A slave in his peculium castrense he can free without authority, and from Hadrian’s time onward, he becomes patron for all purposes^{[1707] [1708]. Before that time it seems that the pater would have been patron, the son having preference in the 6ona’. Similar rules apply, by a rescript of Hadrian, to any servus castrensis peculii. The filius who manumits is patron[1709], having iura in bonis[1710], and the right of accusing for ingratitude8. The pater has no such right, such slaves not being reckoned in his familia", at least inter vivos1". On the same principle if the pater institutes a servus castrensis peculii, the son is heres necessarius11. The manumission of such slaves gives rise however to one knotty question, but this will be considered in connexion with manumission by will12.}

We have already discussed the rule that on manumission inter vivos, the peculium goes with the man unless expressly reserved¹⁸.

460 Manumission by Will: Form [pt. n

4. Testamento. It is evident from the texts that, as was naturally to be expected, this form of manumission always remained by far the most important. Apart from statutory rules and restrictions, to be considered later, a great change had occurred which revolutionised the law. This was the authorisation of codicilli, and therewith, and more important, of fideicornmissa. These introduced a wholly new set of rules which will have to be separately considered^[1711], since fideicommissary gifts require completion by an act of manumission inter vivos. Direct gifts alone can be properly regarded as manumission by will, and we shall deal with these alone for the present.

Some points in relation to the form of such gifts have already been touched on². It must be an express gift, and the legitima verba, liber esto, liberum esse iubeo\ and the like, are analogous to those used in legatum per vindicationem, though Greek words would do as well, at least in the later law⁴. Not only must the gift be express, it must be peremptory—words expressing mere desire, such as volo, do not suffice⁵. It must also be nominatim, a rule which Gaius attributes to the pro­visions of the lex Fufia Caninia⁶, to be considered later⁷. But a correct description is enough. Thus Paul tells us that qui ex ilia andlla nascetur, or a description of the office he fills, is enough⁸. He adds that this is a regulative provision of the sc. Orphitianum, and that if there are two, of the same office, it must be shewn which is meant. Thus a gift of liberty to Stichus, by one who has several slaves of that name, is void⁹, but a mere error in name will not bar the gift if it is clear who is meant: falsa demonstratio non nocet¹⁰. The rule that such a gift cannot be made to an incerta persona has probably nothing to do with the rule of nominatio, for an incerta persona can be exactly de­scribed : it is a mere application of the general rule forbidding gifts by will to incertae personae, though Gaius connects it with the same lex^[1712].

There seems to have been some doubt as to the effect of a gift of liberty “ to A or B.” All that we are told of the earlier law is that it was disputed whether it was simply void, or whether both were free, or whether only one, and if so, which one; either the first, and if he die the second, a sort of substitutio, or the second as representing the last will, and so adeeming the first. As the gift is direct there can be no question of any choice in the heres. Justinian decides that both are ch. xx] Manumission by Will: Implied Gifts 461 free¹: the principle of later law is that in obscura voluntate manu­mittentis favendum est libertati^{[1713] [1714] [1715].}

Like legacies, such gifts are invalid if given before the institutions, except in the case of a miles. If they are in the middle of the institu­tions, e.g. between that of A and that of B, and both enter, they are void, there being an heir instituted after them : a fortiori, if B alone enters. If A alone enters they will be good, by early law. But the lex Papia makes a change. If B refuses to enter, the gift becomes a caducum². If A has either the ius antiquum or the ius liberorum this will make no difference, since he will take the lapsed gift. But in other cases the share will pass to other persons entitled under the lex Papia, and so the liberty will fail. Ulpian adds that there were some who thought it would take effect even in this case^{[1716] [1717]. The reason of this divergent view is no doubt that the devolution under the lex is not an institution, whatever it is, and thus the technical rule ought not to apply. It has no connexion with the rule that caduca go with their onera[1718]. On all these points the classical law seems to have treated legacies and manumissions alike.}

Manumissions might be made either in the will or in a codicil confirmed by a will either afterwards or by anticipation*.

The rule that the gift must be express cuts out implied gifts, but there may be cases in which it is doubtful whether there is or is not an express gift. Some texts shew by their language that in such matters the earlier tendency was to strictness. In one case the words of the will were Titius heres esto, si Titius heres non erit, Stichus heres esto, Stichus liber esto. Titius took the inheritance. Aristo held that Stichus was not free: his reason seems to be that the liberty was given only in connexion with the institution which did not take effect. Ulpian allows him to be free, as having received liberty not in one grade only but duplidter, i.e. as if it had been written out twice^[1719]. It might be supposed that favor libertatis would lead to ready acceptance of implied gifts. But it is one thing to accept informal words, and in this direction a good deal was done^[1720]: it is another to accept as gifts of

462 Manumission by Will: Implied Gifts [pt. n liberty what may not have been so intended, and this is the meaning of the refusal to recognise implied gifts. Several texts shew this. “ Let X not be free unless he renders accounts ” is not a gift of freedom even if he does'. “ I leave Stichus 10 because he was born after his mother was free,” is not a gift of liberty if he was not so bom^{[1721] [1722].}

On the other hand where the intent to free is clear, but it may be doubtful whether the gift is direct or fideicommissary, the tendency is to treat it as direct, if possible. If a man is freed twice it is in general the first effective one which operates^[1723]. But if one gift is direct and the other by fideicommissum, Marcus Aurelius enacts that he may choose in which way he will have it^{[1724] [1725]. One type of case seems to have given rise to doubts, though the texts as they stand give a coherent rule. It is the case of gift of a slave by will with a direction that, if the donee does not free him, he is to be free. Here if there is a simple direction to the heres, or legatee, to free, followed by a gift of freedom in default, the rule is clear that the slave is free directo, the gift of him being a nullity8. In some of the texts there is also a legacy to the slave and the rule has the incidental effect of making this valid. The decision rests no doubt on the fact that a mere gift, ut manumittatur, shews no intent to benefit the donee. But where there is no fideicommissum of liberty, but only a gift of liberty if the donee does not free, it is not clear that there is no intent to benefit the donee. Thus if the direction is that if he is not freed within a certain time or by the donee’s will, he is to be free, this is a direct gift of liberty, conditional on his not being freed by the donee[1726] [1727]. If no limit of time is set down, it might be sup­posed that the donee had all his life within which to free. But Paul lays down the rule that he must do it so soon as he reasonably can without seriously deranging his own affair's, otherwise the man is free directo. This seems to be a somewhat unwarranted interpretation of the testator’s words, no doubt, favors libertatis.}

Two cases of implied gift gave rise to some dispute. Gaius tells us positively that a mere gift of the inheritance without a gift of liberty did not imply such a gift and was therefore void. And as the heir must have had testamenti factio at the time when the will was made, the

ch. xx] Institutio sine libertate: Appointment as Tutor 463

matter is not mended by a manumission of the slave inter vivos^[1728]. No other surviving classical text states the rule², and Justinian altered the law. But the Constitution by which this was done’ declares that the old lawyers had had many disputes about the matter, and in the Institutes⁴ it is said that Paul quotes Atilicinus as holding that the institution implies the liberty. A similar question arises in connexion with the appointment of a slave by his master as testamentary tutor. Did this imply manumission ? It is clear that such an appointment implied some sort of gift of liberty even before Justinian®. But the language of the texts which justify this statement do not make it clear whether the gift was direct or fideicommissary, and they suggest that the whole rule was rather late. A text attributed to Paul shews that in Justinian’s time it implies a direct gift. The slave is free from aditio’. But the difficulty discussed in the text, i.e. that the slave being under 25 could not be tutor, was one created by Justinian’s new rule, and so cannot have been discussed by Paul. In his time the difficulty would have been that the man was a latin, and this was a permanent disability. This would suggest that Paul treated it as implying a fideicommissary gift, as, in the resulting manumission inter vivos, the difficulty would be met by shewing cause apud consilium. But that would apply only to cases of this type. In general there is no reason why it should be construed as fideicommissary rather than direct if it is recognised at all, though it would not be the only case in which a defective direct gift was construed as a fideicommissum, i.e. as imposing a pious duty⁷. That treatment however would create difficulties, since the man could not be tutor there and then, but only when freed, a difficulty which is noted by Papinian and Paul in respect of fidei­commissary gifts in general⁸. On the other hand an enactment of A.D. 260’ declares that it does take effect as a fideicommissum, and a text of Ulpian naturally understood says the same thing¹⁰. But it has been pointed out^[1729] that this text may mean merely that just as an appointment of your own slave as tutor implies a direct gift, so the appointment of a servus alienus implies one by fideicommissum¹*. It has also been noted that the enactment of 260¹³ uses the odd expression per fideicommissum manumisisse, which leads to the view that the words per fideicommissum are a hasty insertion by the compilers¹⁴, 464 Manumission by Will: Conditions of Validity [pt. n misled by the case in the immediate context. But similar language is found elsewhere. Marcian uses the same form in a text which looks genuine¹, and Paul uses similar language^{[1730] [1731] [1732], though the exact meaning of his words may be doubted. On the whole it seems most probable that the rule of later classical law is that appointment as tutor implied a fideicommissum of liberty, the appointment being magisterially con­firmed after the man is freed2.}

For the gift to take effect the slave must have been the property of the testator^{[1733] [1734], both at the death and at the date of the will’. This is a result of the analogy between this case and that of legacy per vindi­cationem*. We have already considered a text which treats aditio and not death as the critical date[1735]. The rule led to one apparently harsh result. The codicil is read into the will. If therefore the slave belonged to the testator at the time of the codicil, but was alienus at the time of the will, there was no valid direct gift, though, at least in later law, it was a good fideicommissum[1736].}

From the same analogy results the rule that he must be the quiritary property of the testator, not merely bonitary^[1737]. The testator must also be bonitary owner: the bare nudum ius Quiritium gives no right to free^[1738]. A buyer cannot free even if the slave has been delivered, unless he has paid the price or given security¹¹. As it must be the testator’s own slave, a gift of freedom “ if my heir sell him,” or “ if he cease to belong to my heir ” is regarded as bad, since it is to operate only at a time when the slave is alienus, and its operation is therefore impossible. The text notes that this is different from the case of sale of a statuliber by the heres: in that case there is a valid gift which the heres cannot destroy^{[1739] [1740]. With this rule can be compared another12, to the effect that if a slave is given in usufruct to T, and to be free if that interest ceases, this is a valid conditional gift: he is not by the usufruct rendered odienus[1741]. It should be observed that the gift cannot be treated as good on the analogy of such rules as that a slave can acquire hereditas and liberty at the same moment or that a contract for performance at death is ch. xx] Manumission of Servus Peculii Castrensis 465}

valid: in the present case the wording of the gift definitely postpones it to the event which renders the gift impossible.

This rule that associates power of manumission and ownership has many illustrations, some of a striking kind. A vendor or promisor of the slave can free him before delivery¹. A manumission is good even though at the date of the will and of the death the slave is apud hastes: an application of the principle of postliminium^{[1742] [1743]. A heres, damnatus to hand over a slave of his own, can free him, though he will be liable for his value[1744]. A text of Paul is in direct contradiction with this[1745] [1746], but it seems probable that the case originally contemplated was one of a slave of the testator conditionally freed3. After Justinian fused the different forms of legacy, and gave a ius in rem in all cases, the only way to give any point to the word damnatus was to apply it to a slave of the heres, in whom, as he was not the property of the testator, the ownership could not pass. We are told that a heres under a trust to hand over the hereditas, can free before doing so, being liable for the value of the slave whether he knew of the trust or not[1747]. Though he is owner, we are told that this was only favore libertatis[1748].}

The fact, that if a son with a peculium castrense dies intestate it reverts to the father, leads to a difficult situation discussed in two texts. If the father by his will frees a servus peculii castrensis, what is the result if the son dies intestate ? Tryphoninus observes that he cannot be the separate property of both the son and the father and that after Hadrian’s enactment he certainly would be the son’s libertus if he freed him. However he concludes that if the son dies intestate the manu­mission by the father is validated by a sort of postliminium—the father having retrospectively reacquired ownership over the man. The father’s right is excluded only so far as the son uses his. How if the son does free him by will but his inheritance is not entered on? Here he decides that it is in suspense according to the event: he feels some logical difficulty, but concludes in favour of the manumission^[1749]. Ulpian’ dis­cusses only the simpler case of the son’s death intestate, and states the same result. There can hardly be said to be a principle under this: the institution itself is illogical¹⁰.

Of a rule stated above it is said: inter libertatem et legatum quantum ad hanc causam nihil distat¹¹. Gifts of liberty resemble

466 Gift of Liberty not a Legacy [pt. ii

legacies in many ways, and they have a close affinity to legato, per vindicationem. Thus gifts of liberty post mortem heredis, or pridie mortis, and the like were void, as such legacies were¹. A slave attempt­ing to upset a will loses a gift of liberty under it®. Such a gift may be subject to dies and conditio*, and we have already noted many rules of form, etc., which apply equally to both. But it is not a legacy and is carefully distinguished from one in the texts⁴. Accarias points out⁶ that it differs in some essentials, e.g. it is incapable of estimation in money; it cannot be refused ; it can be given to a sole heres. There are a number of differences in detail, turning for the most part on the fact that it is indivisible and incapable of estimation in money, and on favor libertatis*. Although a legacy given poenae nomine was void, there was doubt in the case of a gift of liberty, though Gaius treats the doubt as obsolete and puts them on the same level⁷. Justinian allows such penal gifts, striking out the condition, if it is in any way improper’. Thus a legacy to a woman provided she did not marry was good and the condition was struck out’. But if a slave was left to a widow to be free if she married, the whole disposition was good¹⁰. At first this seems rather contra libertatem: it might be thought that the condition, being contra bonos mores, would be struck out and the man be free at once. There are in fact however two gifts—one to the woman on the condition that she does not marry. This the law treats as an absolute gift. Then there is a gift of liberty to the slave if X marries. There is nothing objectionable in that. When she marries there are thus two conflicting gifts, and Paul tells us in accordance with principle that libertas potior est legato". The sc. Neronianum had no relation to gifts of liberty: it hardly could have¹â€™.

Like legacies, gifts of liberty may be adeemed, though there may at one time have been doubts of this¹â€™. In general the same principles are applied as in case of legacy¹⁴. Ademption of liberty is of course ademp­tion of any gift to the slave, for a legacy without liberty to a servus proprius is a nullity¹â€™. If several slaves of the same name, e.g. Stichus, are freed, ademptio of liberty to Stichus adeems all the gifts as in i G. 2. 233; Ulp. 1. 20. ² 34. 9. 5.15.

8 G. 2. 200;.Ulp. 2. 1; post, pp. 479egg. � 30. 94. 3; G. 2. 229, 230, etc.

⁶ Pr6cis, § 56, citing 50. 17. 106.

e A gift of liberty could not be adeemed pro parte, 34. 4. 14. 1. One who had liberty alone could not be burdened with jideicommisaa, though set down in the will as in lieu of operae, 30. 94. 3, 95. As to freedom on condition Of payment of money,poet, p. 496.

⁷ G. 2. 236. ⁸ In. 2. 20. 36; C. 6. 41. 1.

» 35. 1. 62. 3, 63.pr.. ¹⁸ 35. 1. 96. 1; 40. 7. 42.

¹¹ 35. 1. 96. 1; post, p. 468. If the gift over had been a legacy, e.g., the man himself was to go to another person, the logical result would be that each gift being good, the widow and the second donee would share.

¹² G. 2. 197, 212, 218; Ulp. 24. 11; Vat. Fr. 85. Other differences between legacies and

libertates, post, pp. 485, 491, 493. ¹⁸ 28. 5. 6. 4; 40. 4. 10; 40. 5. 50; 40. 6. 1.

ĐĽ e.g., 28. 5. 38. 4; 34. 4. 26. ¹⁵ 34. 4. 32. 1.

ch. xx] Ademption of Gifts of Liberty 467

legacy¹. A gift of liberty or a legacy left so uncertainly, is void: an ademptio is handled the other way, presumably because it intro­duces uncertainty into the gift. A curious difficulty is raised as to adeeming a condition. If a gift of liberty is conditional, can the condition be adeemed ? Julian thinks it cannot be done so as to make the gift simple, for which opinion Papinian gives the rather pedantic reason that adimere means to take away, and can apply only to what is datum, conditions being not datae but adscriptae. Ulpian thinks it best to ignore this verbal distinction, and to treat them as adeemable*.

Ademption is not necessarily by declaration in express words: it may be implied from certain dealings with the slave. An express ademption must no doubt be in the form required for ademption of legacies, and, in general, the tacit ademptions are of the same kind^{[1750] [1751] [1752]. The chief are the cases of alienation and legacy of the slave.}

Alienation of the slave is ademption of a gift of liberty to him, with a possibility of revival^{[1753] [1754], and ademption of the gift of liberty is ademption of a legacy to him[1755]. There is however a distinction to be drawn. S was given freedom and a legacy. He was sold and then the liberty was adeemed. Paul says that though the ademption was un­necessary, since the sale had adeemed the gift, it is not a mere nullity : it can be given a meaning, as the slave might be repurchased, and apart from the express ademption this would revive the gift. Thus the vendee will not get the legacy*. This implies that the mere sale, though an ademption of the liberty, would not necessarily have adeemed the legacy, the rule just stated being confined to express ademptions which have the effect of making the legacy a gift to servus proprius without liberty, and thus void. The sale of the slave might be regarded as mere translatio of the legacy[1756]. Paul’s text[1757] continues with the case of a man freed by will, then freed inter vivos, and the liberty given to him by the will adeemed by codicil. This ademptio is an absolute nullity, for though you may contemplate repurchase, you may not contemplate reenslavement, and therefore it will not destroy a legacy given to him by the will. So we are told that if a slave is legated, with a legacy to him, and is freed inter vivos, and then the legacy of him is adeemed, this ademptio is a mere nullity and does not prevent him from taking what is left to him by the will. The mere freeing has not}

468 Implied Ademption of Gifts of Liberty [pt. n of itself adeemed that gift. But an effective express ademption of the legacy of him would have done so. If instead of being freed he had been sold, an express ademption of the legacy to him would not be a nullity: the gift might otherwise take effect in the alienee¹.

An obvious mode of ademption is by making a legacy or fidei­commissum of the slave, but as a gift of liberty may be an ademption of a gift of him, rules are necessary as to which is to prevail, where both occur in the same will or one is in the will and the other in a codicil construed with it. The general rule where there is no further complication is that the later direction is the effective one, as repre­senting the last will, whether they are in one document, or not. If however the form of words raises a doubt, there is a general pre­sumption in favour of the manumission, favore libertatis². Whatever the order, a specific gift of liberty takes precedence of a general legacy, and thus where there is a legacy of his peculium to a slave and a gift of liberty to a particular vicarius in that peculium, the gift of liberty takes effect³. We are told that it is only effective manumission which bars a legacy of the slave, not the mere form of words, and thus, if the liberty cannot take effect, as being fraudulent, or of a pledged slave, or of one incapable of manumission, the legacy is still good⁴. It might have been thought that the attempt to free shewed intention to revoke the gift, but, of itself, it does not satisfy the requirements of ademption: the testator might still wish him to go to the legatee rather than to the heres. But there may be other complications. Though there is in general a presumption in favour of the liberty against the legacy, it must be noticed that they need not be incon­sistent. Thus a gift of the slave or a gift of liberty to him, according to a certain event, i.e. on mutually exclusive conditions, can create no difficulty. It is also laid down that if he is pure legatus, and condition­ally freed, the legacy is subject to the contrary condition. If the condition occurs the legacy fails: if it does not' occur the manumission fails. The text notes one important result of the treatment of the legacy as conditional: if the legatee dies before the condition is satis­fied, as the legacy has not vested, it fails. This does not make the gift of liberty independent of the condition but only makes the heres under the will benefit instead of the heres of the legatee⁵. On the other hand if the slave is legated, and freed ex die, the legacy of him

¹ 34. 4. 27. pr., 1. Paul’s reasoning creates difficulty in interpreting the text, which has already been considered, ante, p. 150.

² 40. 5. 50; 28. 6. 16. pr. Paul seems to think that, even if the legacy was last, the liberty is still good unless intent to adeem is clear, but probably no difference of rule is meant, 31.14. pr.; 40. 4.10. 1. The remark as to proof of intent may be interpolated.

⁸ 40. 4. 10. jw.

⁴ 30. 44. 7; 31. 37. A legacy of the slave with an institution of him, sine libertate, could have no more effect than to benefit the legatee. Even for it to do this the institution must be in some way suspended, 28. 5. 38.j>r.; cp. G. 2. 187. ⁸ 30. 68. 2 ; 40. 7. 42. ch. xx] Implied Ademption of Gifts of Liberty 469 is void, quia diem venturam certum est. This inevitable definite determi­nation is inconsistent with a gift of ownership of the slave¹. In a case in which the slave is left to T, with liberty after the death of T, Papinian tells us that both gifts are good, whether it is a legacy to an outsider, or a praelegatum to one of the heredes, and in the last case, whether the praelegatee enters on the inheritance or not, the liberty taking effect on the death of T’. On the other hand Gaius cites Julian as thinking that if a slave is left to T to be free after T’s death, the legacy is void, quia moriturum Titium certum est*. The explanation seems to be that Papinian applies the rule, and Julian does not, that dies incertus in testamento facit conditionem*. Julian regards the gift as ex die merely, and so annulling the legacy’.

In. another text we are told that there was a dispute as to the effect of the words: Stichum Attic do lego, et, si is ei centum nummos dederit, liber esto. Servius and Ofilius held that he was not a statuliber : Quintus Mucius, Gallus and Labeo held that he was, and Javolenus accepts this view^{[1758] [1759] [1760] [1761] [1762] [1763]. The point is that a statuliber is in general a slave of the heres, and if effectively legated, this he cannot be. All the jurists are early: the reason which leads Quintus Mucius and the others to disregard the difficulty does not appear. That which is given, apparently the view of Javolenus, is that he is the slave of the heres and not of the legatee. This expresses the classical lawyers’ way of surmounting the difficulty, just stated: the legacy is treated as under the contrary condition[1764].}

In a long and obscure text, of Scaevola, the effect of the following words is discussed^{[1765] [1766]: Titius heres esto. Stichum Maevio do lego·’ Stichus heres esto. Si Stichus heres non erit, Stichus liber heresque esto. If T had entered no question would have arisen’. But in the present case, T did not enter, and Scaevola construes the words ignoring the insti­tution of T. His view seems to be this: the two institutions of S are not a substitution, the second having no new condition. It is as if the words were “ let S be heir, if not, let him be heir.” It is thus in uno gradu. The gift of liberty, coming after, destroys the legacy of S, 470 Implied Ademption of Gifts of Liberty [pt. n and thus Maevius takes nothing and Stichus is free and heres. Scaevola quotes Julian as holding the same view1.}

We are told that if a gift of liberty is adeemed lege, it is to be taken aut pro non data aut certe observari ac si a testatore adempta esset*. We have no comments on this proposition, which is the only lex in the title de ademptione libertatis. It is from a treatise by Terentius Clemens on the lex lulia et Papia. The case in view is no doubt that of a disability under the lex lulia de adulteriis, and the expression ademptio implies that it is a supervening disability. The point is probably that it is not to be treated as a caducum³. The jurist’s correction of his language may be no more than an effort at greater accuracy, since the gift had once certainly been valid, but it seems to involve a distinction in effect. If the gift is pro non scripto there can be no question of revival, but, regarded as one adeemed, then, as the ademption is not express, it may presumably revive by the dis­appearance of the prohibition, with no act of revival, just as such a gift adeemed by sale revived on repurchase⁴.

The ademption of liberty may be conditional, the effect of which is to subject the liberty to the contrary condition⁸. It is laid down by Florentinus that ademption being a privative act cannot validate a gift. A legacy is made to a slave of the heres: it is conditionally adeemed. Although this makes it a conditional gift, and therefore prima facie valid, Florentinus denies it any such effect in this case*. The ademption of a condition may of course make the gift valid. Thus a manumission poenae causa is void, but if the condition is adeemed it may presumably take effect.

In general, manumissions stand or fall with the will⁷. One text however seems in its present form to contemplate validity in a gift of liberty though the will has failed. The difficulties of the text will be considered later: here it is enough to say that the text must probably be read, as Krüger suggests⁸, as of a dispute affecting the inheritance not of the donor of the liberty, but of his heir, so that the present difficulty is only apparent.

Legacies to freed slaves give rise to several points for discussion. Such legacies vest only on entry of the heres, a rule said to be due to the fact that if they were construed as vesting before they must neces­sarily fail, as he has not capacity to take till he is free. Till then it

¹ Mommsen refers to h. t. 10. 7 (Julian). The point is the same: of two institutions of the same person one is not necessarily in substitution.

² 40. 6.1. ⁸ Pothier, ad h. I. * Ante, pp. 443, 464, 467.

⁸ 40. 7. 13. 5. « 34. 4. 14. pr.

7 e.g., where bonorum possessio contra tabulas is given, 37. 5. 23. Exceptions, post, Ch. xxvn. ® 40. 7. 29. 1. Krüger, Z. S. S. 24. 193. Post, p. 502.

is a legacy to the testator’s own slave¹. This rule leads to another affecting the construction of such a gift. If the peculium is left to an extraneus he takes it as it was at the time of death, having no right to later accessions, except pure increment of existing res peculiares. If it is left to the slave he takes it as it is at the time of aditio. This rule Julian bases on an assumption as to the intent of the testator and thus it might be varied by evidence of contrary intent’. It is essential that the legacy be accompanied by a gift of liberty : if it is not it is void and it is not validated by the man’s getting liberty in any other way post mortem and before aditio³. The rule has no con­nexion with the regula Catoniana, which does not apply to legacies which vest only on aditio*.

So far as both gifts are unconditional and unrestricted the rules are simple and the texts deal only with questions of construction. Where the words were “ let S be free and I desire my heir to teach him a trade by which he may live,” Pegasus held the fideicommissum void for un­certainty, the kind of trade not being mentioned. But the rule stated by Valens is that it is valid, and the Praetor or arbiter will direct the teaching of a suitable trade®. Where liberty was given to A and B, and certain land was left to them, the will elsewhere praelegated to one of the heredes, T, “ all that X left me.” This included the land. The question was: did A and B have it, or T, or all three ? As a matter of construction Scaevola holds that the specific gift to A and B is to be preferred to the general gift to T".

More difficult questions arise where one gift is simple and the other conditional. If the gift of liberty is simple, the legacy may be either conditional or simple⁷. But if the legacy is simple and the liberty con­ditional, the general rule is that if the condition both can be and is satisfied before aditio, the legacy is good, but in other cases bad. Thus the legacy is necessarily bad if there is any condition on the liberty and the heres is a necessarius, or if the condition cannot be satisfied till after aditio³, or if in fact it is still unfulfilled at the aditio, though it need not have been⁹. It is observable that if there is a heres neces­sarius the simple legacy is declared null in any case, i.e. even if the condition on the liberty be satisfied vivo testatore. This harsh rule is a result of the regula Catoniana¹⁰. As the legacy in this case vests at

¹ 36. 2. 7. 6, 8; 35. 2. 1. 4; In. 2. 20. 20. ¹ 33. 8. 8. 8; In. 2. 20. 20.

⁸ 28. 5. 77; C. 6. 37. 4. Or before the death, 30.102. Codicils being read into the will a gift therein suffices, 29. 7. 2. 2, 8. 5. * 34. 7. 3; 35. 1. 86. 1. ⁸ 32. 12.

⁸ 32. 41. 3. Where the words were Pamphilus peculium suum cum moriar sibi habeto liberque esto, some seem to have thought this might be bad, as the gift of peculium comes first before he is free. Alfenus remarks (33. 8. 14) that as they take effect at the same time the order is not material. In the Syro-Roman Law-book the right to make such legacies seems to be confined to the case of slaves who are natural children of the testator. Ed. Bruns-Sachan, 199.

⁷ 30. 91.1. ⁸ c.ff., ** if he give the heres 10” or " if he go to Rome after the aditio."

⁸ 30. 91.1; 35.1. 86. 1; 36. 2. 7. 6, 8.

¹⁰ Machelard, Regie Catonienne, § 59; Dissertations, 517. death it is not protected by the rule which excludes the regula in legacies which vest only on aditio¹, and it would certainly have failed if the testator had died at the time of making the will*.

In applying these principles there is however a general tendency to save the legacy if possible by treating the condition as applying also to it, if this is possible on the wording of the will. Where a slave is to be free on rendering accounts, and the heir is to give him some land, Callistratus holds the legacy good, if the condition applies to it also, but not otherwise’. Where a slave is directed to give 10 to the heres and so be free, and to have a legacy, Maecianus, quoting Julian, says the legacy is bad unless the condition applies to both, which it may, by construction, though not expressly stated to be so applicable. It follows that if he is freed inter vivos, he cannot claim the legacy unless he pays the 10⁴. Where a slave is freed conditionally and receives a legacy pure, and the testator frees him inter vivos, pendente condition#, he takes the legacy whatever happens to the condition, but if the condition fails before he is freed, the legacy is void, as not accompanied by a gift of freedom : the subsequent manumission inter vivos being ineffective to save it, it is irritumA This is also from Julian: the difference between this case and the last is that here the condition is not one incapable of fulfilment before aditio, and thus it is not necessary to the saving of the legacy that the condition be read into it. Where the words were “ let my heres give S my slave 10, and if he serve my heres for two years, let him be free,” jurists so early as Labeo and Trebatius were agreed that even here the condition could be read into the legacy, which is thus saved·. But of course the terms of the legacy might exclude this resource⁷.

Other texts shewing rules of construction favourable to such gifts can be cited. A slave was to be free in 10 years and to have an annual allowance from the testator’s death. He will get the annuity from the liberty, and alimenta meanwhile⁸. This does not mean that he can enforce the payment of alimenta, but that the heres who has

1 34. 7. 3; 35. 1. 86. 1.

2 The same rules apply if the mannmiaainn though simple in form is delayed by some rule of law, e.g. that under the lex lulia de adulteriis, till after the aditio, 31. 76. 4, post, Ch. xxv.

» 35.1. 82.

⁴ h. t. 86. pr. So if there is a fideicommissum subject to the same condition as the liberty, and the heres frees the man pendente conditions, he is entitled to the Jideicommisswn when the condition occurs, 35.1. 66.

⁵ 28. 5. 38. 4. 6 32. 80. 2.

7 35.1. 86. pr. In 40. 7. 28. 1 Javolenus quotes Cassius, as saying that if there is a legacy of peculium and conditional liberty, acquisitions to the peculium will not go to the man unless the legacy in tempus libertatis coUatwn esset. He corrects by saying that mere accessions go unless taken away by the heres. The legacy ought however to be wholly bad. Pothier {ad h. I.) supposes the legacy conditional and explains these words as meaning, unless it is expressly given as it is at the time of liberty. This may be the solution of a question already raised, ante, p. 191. It should be noted that if the heres adeems the peculium ne does not destroy the legacy but only prevents additions to it.

8 33. 1. 16.

paid them can charge them against his coheredes, and they can be claimed by the person interested in the slave in the meantime¹. Thus, if the slave dies before the time is up, though the legacy is not due to him, and therefore the alimenta cannot be due either, the alimenta paid, if consumed, cannot be recovered, by the heres who paid them, from him who had the slave at the time of payment⁹. The last point is an ordinary result of the rules of bonae fidei possessio. The main provision is not exactly reading the condition into the legacy in defiance of the words of the will: it is treating the testator as having in one form, made two gifts, perfectly valid. The legacy of annual payments is to run from the liberty. There is also a direction to the heres to give a maintenance allowance at once. This is equivalent to a gift of cibaria, and it is expressly enacted by Severus and Caracalla that such a direction is binding on the heres*.

Where the will said, “ let S be free and let my heres give him 5,” he gets the legacy though he is freed inter vivos*. This is in accord with what has been said’. The result is the same if the words were “ let S be free," either now or at a future time, “ and, when he is free, let my heir give him 5·.” The text adds that if the words were “ let S be free and if I free him vindicta, let my heir give him 5,” here even if he is not so freed but the gift by will takes effect, the gift of money is still good, on grounds of humanity, says the text, though the condition did not strictly occur. Humanitas is a bad reason for de­spoiling the heres—the decision really is that the testator meant this.

There is no special difficulty in the application of the lex Falcidia to legacies to freed slaves⁷, but the relation of that lex to gifts of liberty does call for discussion. If the man is absolutely freed, and survives aditio, there is no difficulty. He does not count in the he­reditas*. If however he dies before aditio, then he never was actually free, and he must be treated as a slave and counted in the hereditas, a rule expressed in the form: heredi perit. But as he could never have belonged to the heir his value is merely nominal: Papinian tells us that he is to be valued as a dying slave⁹.

If the gift of liberty was conditional or ex die, there are some diffi­culties. Some of them are caused by the fact that practice was not

¹ 34. 1. 15. 1. 2 10. 2. 39. 2.

⁸ 30. 113. 1; cp. 34. 1. 11. This gives no right to the slave: it makes money so paid irrecoverable and entitles any heres who has paid it to charge it against his coheredes. It does not appear that the slave after he was free could claim arrears. Presumably the person on whom the maintenance of the slave had fallen could claim.

legated. Here, apart from the death of the slave, the rule is that if the condition fails he is a part of the hereditas, and if it does not fail he is not: the lex Falcidia does not of course affect the gift of liberty itself^{[1773] [1774]. In the meantime the practice is to treat him as a part of the hereditas, the legatees giving security to refund if the condition arrives®. We are told by Hermogenianus’ that ch. xx] Manumission by Will: lex Falcidia 475 statuliber heredis non auget familiam, which seems to mean that if a heres has succeeded to an estate including a man given conditional liberty under the will, and he himself dies before the condition occurs, the man is not counted in his inheritance against his heres. It is not easy to see why this is so. The man was imputed against him as heres and might have been expected to be imputed against his heres. The fact that the deceased heres did not himself impose the condition does not seem to be material. It seems an avoidance of complication at some sacrifice of consistency.}

If the manumission is ex die, it seems, though there is little evidence, that the man is treated as part of the hereditas till the time comes¹. He is then deducted, and if this makes the legacies exceed three- quarters, the legatees must refund, less any profits the heir has made by the man.

If the man dies after the death of the testator, Papinian tells us that if the condition is satisfied (i.e. at any time), he does not perish to the heres, i.e. he is not charged as a part of the inheritance, but if the condition fails he is then to be included, sed quanti statuliber moriens fuisse videbitur*. Two remarks suggest themselves. If he is absolutely freed and dies before entry of the heres, it is Papinian who tells us⁸ that he is imputed, though only at a nominal value. In the present case where he dies after the condition is satisfied we should have expected the same result. But here he says the slave is not imputed at all. The difference is very slight: it may be that the meaning is the same. If the condition fails we should have expected it to be as if he had never been freed at all: in that case we are told that the death of a slave between death and entry of the heres leaves him imputable at his full value⁴. But here we are told he is to be valued as a dying statuliber, i.e., at a mere nominal sum. This may however conceivably mean the same thing, since we know that in the settled practice a statuliber is taken at his full value subject to readjustment if the condition occur⁸. But it is plain that the clause sed quanti... videbitur implies something different from heredi periisse, since it is stated as a modification of that proposition. It may be a representa­tion of a view analogous to, but not identical with, that held by some early jurists in the case of legacy, that he was valued ah initio as a statuliber, and that failure of the condition was not to disturb that estimate". But aS the writer has just told us that arrival of the condition causes him to be valued at nothing, this is hardly probable. It may be an addition of the compilers⁷.

¹ Arg. 85. 2. 56. 8. But see post) p. 522. ³ 85. 2. II. 1.

« h. t. 11. 4. * h. t. 30. pr.

» A. t. 73. 3. ⁸ Cp. A. t. 78. 1.

? The same may be said of h. t. 37.pr._t post) p. 522, in connexion with fideicommissa.

476 Manumission by Will, lex Falcidia [pt. n

Further questions arise, and there is really no textual authority, where the freed slave is also the subject of a legacy. Here there are to be considered two questions. How far is he a legacy counting towards the three-quarters ? How far is he counted in the hereditas towards the heir’s quarter ? Such a legacy is, as we have seen¹, regarded as subject to the contrary condition. As it is a conditional legacy, it is treated as no legacy, in the meanwhile^{[1775] [1776], and if the condition determines in favour of the legacy, the rule applied must be that already stated for conditional legacies: the legatees may have to refund something on account of the extra legacy, which may have brought the total above three-quarters, and they have a right to allowance, in that case, for anything the heres has received. If it is decided in favour of the liberty8, the legatees will have to refund whatever may be due by reason of the reduction in the total inheritance with the same right to allowance4.}

If the slave legated is also freed ex die, we have seen that the rule of later law is that the legacy is void⁸. But a legacy of the use of him till the day is valid, and in that case the interim receipts are a legacy and subject to a Falcidian deduction⁶.

The texts do not discuss the case of a slave conditionally freed and legated and dying before the condition is satisfied. Presumably, as in the case just discussed, the event of the condition determined the solution, which was as if there had been no liberty or no legacy as the case might be.

A question of some interest is: could liberty be given to unborn persons, directly ? Justinian, determining a long-standing doubt, de­clares such gifts lawful. The enactment⁷ was published three years before the Digest, so that we have little authority for the earlier law. But he expresses the doubt as relating only to fideicommissa: as to direct gifts he seems to be making new law. Paul admits the validity of a gift in the form qui ex ea ancilla nascetur liberum esse volo^s, which must be a fideicommissum. We have seen that direct gifts of liberty, though not legacies, are closely analogous thereto’, and the same principles may probably be applied. It might conceivably be doubted whether the validity of the gift is to be judged by the quality of the slave regarded as the thing given or as the donea Legacies of an oh. xx] Gift of Liberty to Unborn Person iVl

unborn slave or of a usufruct in one are allowed^[1777]. But in earlier law this could be only by damnatio (or perhaps sinendi modo if the slave were alive at the death²), not by vindication. But gifts of liberty in the form of damnatio could not have been valid except as fideicommissa*. It is on the whole more likely that such gifts would be regarded as gifts to the slave. They vest only on aditio*, and the language of the texts in other respects favours this view⁸. The result is the same. Gaius tells us that gifts of liberty to incertae personae are bad⁷. But he bases this on the lex Fufia Caninia, and not on anything which applies, as the rule does, to legacies. But, as the above text of Paul shews⁸, they are not incertae personae, but postumi alieni, a class usually kept distinct’. Legacies to such persons are void¹⁰, and it is likely that liberties are equally so^[1778].

The gift takes effect at the moment when any heir enters under the will¹², in eodem gradu ; not, for instance, if it follows the institutions, and all the heirs primarily instituted refuse, so that a substitution later in the will takes effect¹². The fact that some of the institutions fail is in general immaterial. Where A and B were instituted pure to one quarter each, and B was given one half conditionally, liberties were good even though the condition failed, since in any case A and B would take the whole hereditas'¹. Assuming a valid entry the liberty is not affected by subsequent happenings. Thus it is not delayed by an accusation of theft brought by the heres against the libertus: there are other remedies¹⁰. And where a heres refuses to give the necessary security to legatees who are on that account put into possession, liberty is not affected or delayed¹⁸. More striking is the fact that it is not affected though the heres gets restitutio in integrum¹⁷.

Many of the rules laid down in this chapter are departed from in the case of the will of a miles. A few of these relaxations may be given, but it is unnecessary to attempt an exhaustive list or to set out those relaxations in rules of form which apply to gifts of liberty as to all other kinds of gift. Nor are we concerned with the principle on which they depend¹⁸. The following may be noted.

478 Manumission in Soldier’s Will [pt. n, ch. xx

(a) The institution of a slave implies a gift of liberty^[1779] ; indeed even a legacy to him does’, and this though the legacy be conditional’.

(b) Words implying that the slave has already been freed consti­tute a gift of liberty if there is no error; e.g. Fortunato liberto meo do lego', Samiam in libertate esse iussi*.

(c) Liberty may be given before the institutio, and post mortem heredis“.

(d) There is a difference in treatment where the institutus and substitutus died before entry⁷.