CHAPTER XII. SPECIAL CASES (coni.). SERVUS FUGITIVUS. S. PRO DERELICTO. S. POENAE. S. PENDENTE USUFRUCTU MANUMISSUS. S. PIG­NERATUS MANUMISSUS.

X. Servus Fugitivus.

Broadly speaking a fugitivus is one who has run away from his dominus. The word is used, however, in two senses which must be kept distinct. One of the regular warranties exacted on the sale of a slave is that he is not fugitivus¹.

1 Ante, p. 55. ² C. Th. 2. 1. 8. ³ 21. 1. 17.

â€? 21. 1. 17. 7. ⁶ 21. 1. 17. 8,15.. · A. I. 9, 13.

⁷ 21. 1. 17. 7. The fact that the flight was the result of bad advice is no defence, A. i. 43. 2.

⁸ 21. 1. 17. 5, or by going to the statue of the Emperor or to the sale yard, A. I. 12. Conversely it was in itself no fuga to run to these places or to hide from punishment, or to attempt suicide, lb., A. 7. 4.

⁹ A. I. 11. ¹⁰ A. Z. pr., 4.

268 Fugitivi. Police Regulations [pt. i

from a bonae fidei possessor may be fuga whatever be the slave’s state of knowledge, unless it be with the intent of returning to the real owner¹.

On the other hand he must have done more than form and express an intention: he must have actually started², with intent to get away from his master. It is not fuga to run from enemies, or fire, or to escape punishment by teacher or commodatarius, if he run to the master³, a way of putting the matter which seems to imply that there would be a presumption of fuga. It is not fuga to run to a friend of the master to secure intercession, and in this case mere failing to return is not fuga : there must be some definite act of flight⁴.

Fugitivi were a great administrative difficulty, and no doubt a public danger. There was much legislation dealing with the capture and return of such people. Much of it was no doubt temporary and local: the most important permanent part having for its starting-point the edict, de fugitives⁵. This provided that the municipal magistrates must guard fugitivi brought to them, binding them if necessary, till they could be brought before the Praeses or Praefectus vigilum. They were to make full note of physical characteristics, scars, etc., and hand this on to the higher authority⁸. The edict was supplemented by senatus con­sulta, and constitutions, so that it is not clear what was done by each agency. There was a penalty for failing to report fugitivi to the local authority within twenty days of discovering them on your land⁷.

^I 21. 1. 43. 3. s 50 X6. 225. » 21. 1. 17. 1—3.

⁴ 21. 1. 17. 5; h. t. 43. 1. A slave sent to a province hears that his master is dead and has freed him. He Eves as though free: he is not a fugitive, though his master is not dead. Though he know he is not free, his so acting is not fuga whatever else it may be, if he stays where he is and carries on the business, 21. 1. 17. 16. The text is corrupt.

⁶Lenel, Ed. Perp. § 4.

⁶ 11. 4. 1. 6—8; P. 1. 6a. 4. A text which says that posting up such marks was enough is commonly regarded as a meaningless interpolation, on its merits and on grammatical grounds, 11. 4. 1. 8a. Lenel, loc. cit.; Pernice, Labeo, 2.1.107.

⁷11. 4. 1. 1; Apuleius, Met. 6. 4. 8 n. 4. 1. 2.

⁹ lb.; 11. 4. 4; P. 1. 6a. 5. Marcus Aurelius declared land of Caesar and the fisc liable to the search, 11. 4. 3; P. loc. cit.; special rules of later law as to fugitive slaves of the Emperor, C. Th. 10. 20. 2. 10 n. 4. 1. 3, 6.

^II 11. 4. 2. There was a temporary enactment of Macrinus requiring all fugitivi to fight in the arena. lul. Cap., Macrinus 12. No doubt there were many cases of special punishment. Those attempting to escape to barbaricos were to have a foot amputated or were condemned to penal slavery, C.

It was theft to conceal a fugitivus or aid him to escape⁴. There was a punishment for mala fide maintaining fugitivi in claims of liberty⁵. Heavy damages were payable, under legislation of Constantine, for retaining a fugitive without his master’s knowledge except in bona fide belief that he was a free man. These damages were increased on repe­tition of the offence, and punishment might be awarded if the damages were not recoverable. There seems also to have been a fear that the rules would lead to blackmailing, for the enactment provided that if the master had fraudulently sent the slave with a view to profit, a question which was to be determined by torture of the slave if necessary, the slave was to be forfeited to the fisc⁶. Though it was the duty, and interest, of persons to point out the whereabouts of fugitivi they had discovered, so as to avoid suspicion of theft, humanity or corruption might make them reluctant to give the information. Hence it was permitted to offer rewards, and these could be sued for: it was not a turpis causa⁷.

A slave in fuga could not be bought or sold or given away, and there was a penalty due from each party to such a transaction⁸, these rules being partly contained in, and partly based on, the lex Fabia⁴. There were of course some necessary relaxations of these rules. Thus coheredes and common owners might reckon such slaves in the division⁹, and it was not uncommon to agree for the sale of a fugitivus, the agree­ment not to take effect till capture. Instructions to a fugitivarius (a person who catches slaves for reward¹⁰), to catch and sell him, were valid¹¹.

A fugitivus is still possessed by his owner: he is the only res se movens, possession of which is not limited by control¹². Various reasons

¹11. 4. 5.

² P. 1. 6a. 6, 7. Husclike ad h. I. thinks it should be four, referring to C. 7. 37. 1. A soldier

who had charge of a fugitive to return him to his master and lost him was liable to pay his value, 48. 3. 14. 7. » 11. 4. 1. 5.

⁴ Ante, p. 33. T by alleging himself to be owner obtained release of a fugitive who was in custody: this was furtum, 47. 2. 52. 12. It was not theft to point out the way to a fugitive who asked it, h. t. 63. For a case on the border line, see Aul. Gell. Noct. Att. 11. 18. 14.

⁵ C. 6. 1. 6.

^c C. 6. 1. 4. 4. In Asia the rule developed that a man might be enslaved for concealing a slave. Syro-Roinan Lawbook, Bruns-Sachau, 215.

⁷ 19. 5.15. For illustrations see Bruns, Fontes, 1. 320; Blair, Slavery among the Romans, 249.

⁸ 48. 15. 2, 4, 6. 2; P. 1. 6a. 2; Fr. d. i. Fisci, 9; Coll. 14. 2. 1, 3; C. 9. 20. 6.

⁹ 10. 3. 19. 3. '

¹⁰ 19. 5. 18; P. 1. 6 a. 1. Either hi an individual case or as a business. They were punished if they concealed the fugitives, C. Th. 10. 12. 1, 2.

n 48. 15. 2. 2; C. 9. 20. 6.

12 41. 2. 1. 14, 3. 13, 13. pr.\ 47. 2. 17. 3; P. 2. 31. 37. Modestinus does not contradict this (41. 1. 54. 4); he says there are cases in which we do not possess a fugitive.

are assigned in the texts for this odd-looking rule : ne ipse nos privet possessions¹; alioquin per momenta servorum quos non viderimus interire possessionem,'¹, or because he may have the intention of returning, which other res se moventes have not³, or, utilitatis causa ut impleatur usucapio“. The doctrine seems to have been definitely laid down by Nerva/siitis, though he appears to allude to earlier authority⁵. Girard⁶ considers it to be a merely empirical rule of classical law.

¹ 41. 2. 13. pr. ² A. t. 44. pr. ⁸ A. t. 47.

⁴ A. 1.1.14, the only text which extends the continuance of possession to anyone but dominus. See also 41 2 If)

« 41. 2. 1. 14, 8. 18, 47. « Manuel, 278. ’ Post, p. 272.

⁸ 41. 2. 1. 14, 50. 1. ⁹ Post, p. 272. M 41. 3. 15. 1.

1141.3.81.2. 12 41.2. 1. 6; 41. 1. 54. 4. «41.2.34.2.

« 41. 3. 15. 1.

texts on the view that a man pro libero se gerens is not necessarily in libertate, this state of things arising only on cesser of the owner’s possession¹. On this hypothesis the law may be thus stated : the owner possesses until a third person possesses, or the slave begins a causa liberalis, or pro libero se gerit in such a way as to shew that he is prepared to defend his claim of liberty against the master, or has been so long left to himself that tolerance by the master may be inferred²: in these latter cases he is said to be in libertate. But the evidence of the texts is more correctly represented by the proposition that they shew a tendency to the acceptance of these distinctions rather than an actual expression of them³.

A fugitivus is a fur sui, and thus cannot be usucapted, even by a bonae fidei possessor*. We have already considered the rule in the case of partus ancillae furtivae*.

Where a fugitivus is left as a legacy, questions arise as to the resulting rights. The principle arrived at is that the recovery of the slave is at the cost and risk of the legatee, unless his non­production is in some way due to the negligence of the heres⁶. In that case the heres must pay his value. In the other, it is sufficient if he give security to hand him over if and when he is recovered. The same rule applies if the servus fugitivus legatus is alienus⁷. If “A or B” be left, and either be a fugitivus, the heir, not in mora, may give either the present one or the value of the absent one, the reason assigned by Ulpian for thus increasing the liability of the heres being totiens enim electio est heredi committenda quotiens moram non est facturus legatario⁶. The point seems to be that the legatee is delayed in getting his slave by the choice of the heres, a rather doubtful piece of logic. If both are in fuga the security must be that, if either return, the heres will give the value either of him or the other. This expresses the same principle⁹.

A fugitivus is none the less the property of his master, and thus acquires for him, apart from questions of possession. Thus we are told that where a fugitivus buys goods, and they are violently taken from him, his owner can bring the actio vi bonorum raptorum, because the goods were in his bona*“—quite independently of the question whether he has ever possessed them. Again, if my slave in flight buys a thing from a non-owner, Pomponius says I have the Publician, even though I have not acquired possession through him¹¹. The difficulties of this

1 As to the special rules in a pending causa liberalis, post, Ch. xxvm.

2 41. 2. 3. 10. ³ Post, p. 338.

4 47. 2. 61; C. 6. 1. 1; In. 2. 6. 1, etc. A protection to domini.

5 Ante, p. 24. Where such persons cannot be usucapted, the holder has no Publiciana, 6. 2. 9. 5.

6 30. 108 pr. 7 30.47.2. « h. I. 3.

9 Ante, p. 16. 10 47. 8. 2. 25. ¹¹ 6. 2. 15. text, which has been much discussed, do not here concern us¹: in any case, it shews that acquisition is not barred by the fact that the slave is a, fugitivus^{[1066] [1067] [1068]}.

Of acceptance of an inheritance there can be no question. No texts discuss legacies to fugitivi, but no doubt ordinary rules apply. There remains the case of possession. We have seen that a slave cannot acquire possession for his dominus, unless the latter knows of it, or has authorised it, or it is in re peculiari³. We have seen, or been told, for the authority is doubtful^{[1069] [1070], that the slave does not acquire possession to his master, if he does not intend to do so. Such rules and the fact that a fugitivus is not likely to have a peculium, since the owner can adeem it nutu[1071], would seem to preclude any question of acquisition of possession by a fugitivus. For though the ancients had held that we could not possess except through one whom we possessed, the converse was far from necessarily true. Yet, as in the case of res peculiares, there seems to have been a gradual recognition, utilitatis causa, of possession by the master through the fugitivus. Nerva filius, who seems to have accepted, with some reluctance, the view that we possess a fugitive, denies that we can possess through him6, and Pomponius appears to hold the same view7. But Ulpian tells us that possession can be continued through such a slave8, and Paul accepts the view, which he credits to Cassius and Julian, that a dominus can acquire possession through a fugitive, sicut per eos quos in provincia habemus3. These names suggest a school controversy. Hermogenianus adopts the same view with the characteristic limitation, “ unless he thinks he is free1’.” All are agreed, on the other hand, that we cannot possess through him, if another person possesses him11. But what is the exact force of Julian’s parallel, sicut per eos quos in provincia habemusl Cassius and Julian cannot have supposed acquisition of possession by a slave in provincia to be independent of the knowledge of the dominus: they are the very writers cited to shew that this was a special rule, in re peculiari13. But if we are to suppose the acquisition of possession by a fugitivus to the dominus to require knowledge or iussum of the latter, this is almost to deny its possibility, for all practical purposes, since ratification does not seem to have been retrospectively effective in such matters. And this is in accordance with principle, and could have caused little in-}

“ ⁴ 41. 2. 1. 19, ante, p. 133. « 41. 2. 1. 14.

⁹ 41. 2. 1. 14, in jin.

12 k. t. 1. 5.

’ 6. 2. 15. �0 h. t. 50. 1.

ch. xn] Acquisitions by Fugitivus in libertate 273 convenience : it is only the language attributed to Cassius and Julian¹ which raises difficulty.

If the fugitive in libertate moretur, we are told by Paul that we do not acquire possession through him². This may mean one who is in such a state of apparent freedom, as exceeds what is implied in pro libero se ger ere'¹Â·, but we are told the same thing by Hermogenianus⁴ of the slave infuga who thinks himself free, a phrase which for this purpose means no more than pro libero se gerere. Julian says’ that if a fugitive pro libero se gerens sells a thing, a valid obligation (as it seems, ex empto) is created, from which the buyers are not· released by paying the fugitive. If this is not a solutio, that must be, assuming good faith⁸, because the possession does not vest in the dominus, for it is clear that the dominium does. Pomponius cites Labeo as holding a different view. Such a fugitivus lent money which he had stolen from his master (i.e. not ex peculio). Labeo says an obligation is created from which the debtor is released by payment to the fugitivus thinking him free: the money is made the master’s, and there is a quasi-solutum to him⁷. This implies that the dominus gets possession of the money. The contradiction is exact. No doubt here, as in the cases of a similar type we have just considered, harmony might be reached by conjectural additions to the hypothesis. But it is better to treat it as another instance of the constant flux of opinion in these matters in minds swayed alternately by considerations of logic and of convenience. It would be a mistake to suppose even that there was a steady unbroken tendency in one direction, or that the views of any one jurist represent necessarily any coherent scheme.

The power of the fugitivus to bind his dominus is necessarily limited. Though he have a peculium, he loses any power of admin­istration In the two texts last discussed, he appears as selling and lending money, both transactions involving transfer of property. But the text on sale speaks⁹ only of the contract: so far as we are told, the owner might have vindicated the property if he liked. And in the other case¹⁰, we are told only that an obligation is created. It need not have been mutuum', it may well have been a condictio based on consumption. Ulpian¹¹ deals with an exactly similar state of facts, and says that there is no mutuum, since the property does not pass. The money can be vindicated if traceable; if it is not, there is ad exhi­bendum or condictio sine causa, according as it has been made away with in bad or in good faith¹².

¹ 41. 2. 1. 14. 2 41. 3. 31. 2. » _4n(e, p. 270.

⁴41. 2. 50. 1. ⁵ 46. 3. 34. 5. « Ante, pp. 163, 4.

’ 46. 3. 19. ⁸ 15. 1. 48. ⁸ 46. 3. 34. 5.

io 46. 3. 19. �I 12. 1. 11. 2. See also 12. 1. 13.

¹² Presumably all authority is revoked ipso facto by the flight, without express withdrawal. It may also be assumed that there is no actio institoria, or quod iussu on transactions by a

It has been remarked above that a slave may be a fugitivus without being in libertate or even pro libero se gerens. The converse is equally true: a slave may be in libertate without being a fugitive¹. It does not appear that this would make any difference in the rights or liabilities of the dominus: the texts at least draw no distinction². Such a man may be in the apparent potestas of another acting in good faith. This is not a case of bonae fidei possessio. It is clearly laid down that the apparent father can acquire nothing through the apparent son, even though he is in good faith*. In all such cases it may be presumed that he acquires property for his dominus, but not possession. The liability de peculio can hardly arise, and the rule as to noxal liability would be as in the case of fugitivus.

XI. Servus pro Derelicto.

The expression servus derelictus is very rare: the usual form is servus quern dominus pro derelicto habet*. This is so not only in connexion with usucapio, or where the abandonment may not have been by the owner, where the usage would explain itself, but in all contexts. The explanation is historical. There was an old dispute as to whether derelictio was at once complete, or whether ownership was divested only when a third person took possession. The former view prevailed in relation to slaves as well as other things’.

We shall see that under imperial legislation abandonment of a sick slave might under certain circumstances make him free, and that in Justinian’s latest law any abandonment might have that effect*. Here, however, we are concerned with the normal case, in which a slave abandoned by his owner remained a slave⁷.

The developed Roman law permitted complete abandonment of ownership in slaves, at any rate so far as the advantages of ownership were concerned⁸. As to what amounted to a derelictio, this was a question of fact, which had few rules peculiar to the case of a slave. There must be intention to abandon⁹, coupled with an actual casting fugitivus·. the case is not mentioned. There may be de peculio (15. 1. 3. 8, 52. or.), and, though it would need rather improbable facts, de in rem verso. Tributoria is probably barred. Noxal liability, ante, p. 129.

¹ As to rules in a causa liberalis, post, Ch. xxvm.

² e.g. 15. 1. 3. 8, 52.J»·.; 41. 2. 3. 10; 41. 3. 31. 2.

⁸ 41. 2. 50. pr.; 41. 3. 44. pr. The case might arise where, e.g., a child abandoned by its slave mother was reared and given in adoption, or gave himself in adrogation.

⁴ In 45. 3. 36 both forms appear.

⁶ 41. 7. 2.1; 9. 4. 38.1. In relation to slaves the other view is not mentioned. Both these texts credit the rule to Julian.

⁶ Post, Ch. xxvi.

⁷ Jewish slavery did not admit of the existence of this class. Slavery being relative, liberty was only hidden by the power of the master. Winter, Stellung der Skiaven, 30.

⁸ 41. 7.1 and pass.; 45. 3. 36. C. Th. 5. 9.1 seems to hint at a right of preemption in an abandoning owner of an infans.

⁸ C. 8. 51.1.

ch. xn] Servus pro Derelicto: Acquisitions: Delicts 275

off of possession^[1072], and thus mere refusal to defend on a capital charge did not amount to a dereliction². The main effect of abandonment was to make the slave a servus sine domino, on whom his late master had now no claim. Thus he could not acquire through the slave, who had indeed no capacities, his derivative capacity having ceased to exist. Thus any stipulations or other transactions of his were merely null³. As he had no derivative capacity, and the institution of slaves depended on the testamenti factio of their domini*, it would seem that any in­stitution of such a person would be void, though absence of ius capiendi in the dominus did not prevent the institution, but allowed the slave to enter if alienated'. But our case is not discussed. And while we are told that corporations could not be instituted⁶, we are told that if the slave of a municipality was instituted, and was alienated or freed, the institution could take effect⁷. For Justinian’s own law this would hardly seem worth stating, since municipalities could then be instituted⁸. If it be accepted as a classical rule, it creates a doubt for our present case. But as it purports to be from ITlpian, and is opposed to his very general statement⁹ on the matter, it seems likely that it has been altered, perhaps by the omission of a negative. Whether this be so or not, the case of a dominus incapax is different from that of no dominus at all. The texts which bear on that state of facts are against admitting any possible validity in such an institution. Thus we are told that Antoninus Pius declared in a rescript that the institution of a servus poenae was absolutely null¹⁰. And Javolenus says servus hereditarius can be instituted quamvis nullius sit; an implication that an ordinary servus nullius could not be instituted^[1073].

The rule, noxa caput sequitur™, protected the former master against liability for past or future delicts. On the other hand, dereliction did not destroy any rights of action the master might have acquired on account of delict committed in respect of the slave¹³, any more than it would rights of action, on contract, already acquired through him. As to liability on past contracts, on derelictio the actio de peculio would become annalis, but any other existing edictal actions of this class would not be affected, as they are perpetuae. It must be supposed that the former dominus would not be liable on any contract made after the dereliction, except, indeed, in the improbable case of an owner who abandoned his slave, but retained his services as institor or the like.

276 Servus fructuarius abandoned by owner [pt. i

Difficulties might arise from contracts made, in ignorance, with a derelict slave, but they are more apparent than real. Any property handed over on the faith of such a contract could be vindicated. This would not indeed apply to consumables, or to services rendered at cost of time or money, and it does not seem that the law would give any remedy¹.

Curious questions arise where the slave abandoned is, at the time, the subject of lesser rights than dominium, vested in some third person. So far as these are mere contractual rights arising from commodatum or the like, the case is simple though the texts give us no help. The only right of the commodatarius is one on the contract. So long as he is undisturbed, no question arises. If a third party seizes the slave, his remedy is an actio commodati contraria against the lender. But there are greater difficulties if the right created was a ius in rem. Two typical cases alone need be considered.

1. The case of a slave abandoned by his dominus when some third person has a usufruct in him. We are nowhere told what happens. We know that usufruct is not affected by death of the dominus. If this be understood as perfectly general, and as applying in the case of a man who dies without representatives, and whose estate the fisc will have nothing to do with, it is an authority for the view that usufruct is absolutely independent of the fate of the dominium. This brings us in face of a wider question, i.e. that of the possibility of the existence of servitudes without dominium. Our case is discussed by Kuntze^{[1074] [1075] [1076], who considers the usufruct as unaffected. There seems no reason to doubt his conclusion, which rests mainly on the analogy of the classical law in the cases of servus pendente usufructu manumissus, and that in which a man is a party to a fraudulent sale, to a bona fide buyer, of a usufruct in himself’. Two remarks may however be made. In Justinian’s latest law, every abandonment seems to have been a manumission[1077]. It follows that the present case would then be only an instance of a servus sub usufructu manumissus, who, under his law, is no longer a servus sine domino. The other remark is that no conclusion can be drawn from this case to that of praedial servitudes, sine dominio, partly because slaves may very well have been excep­tionally treated in such a matter6, but also because the classical texts give us no warrant for applying to usufruct in the classical law that dependence on dominium which is involved in the name servitus.}

There seems to be no text in the surviving ante-Justinian legal literature, which applies the name servitus to usufruct or the like, and there are obvious signs of a usage confining it to praedial servitudes¹.

2. The case of a slave abandoned by his owner while he is pledged. Pledge is not servitude. The creditor’s right is a right to possess, in a limited sense of that word, and no more. We have not the logical difficulty involved in the conception of servitus without dominium: pignus being only a praetorian right to hold, is never con­templated as a part of dominium. The title dealing with release of pledge^{[1078] [1079] [1080] makes it clear that no act of. the debtor’s can affect the creditor’s right of possession without his consent8. There can be no doubt that derelictio, whether followed by occupatio or not, leaves the creditor’s right intact.}

XII. Servus Poenae.

There is little to be said here of these persons: most of the points of interest will arise in connexion with the law of enslavement and manumission^{[1081] [1082]. A few points may, however, be discussed. A servus poenae may have been, before his condemnation, either a slave or a freeman. In the latter case he was destroyed by the enslavement, and if freed, was not the same person: slavery was akin to death8. If he had been a slave, the condemnation destroyed the ownership[1083], and it did not revive on pardon[1084]. What then was his position ? The matter seems to have been obscure till, under Caracalla or a little later, it was accepted that he vested in the fisc8. Servi poenae them­selves were not the property of anyone : they were slaves of punishment, not belonging to Caesar or the fisc9. Having no owner, they could have no derivative faculty or peculium, and, as slaves, they could have no faculty or property of their own. It seems obvious that they could not contract, though this is not stated. Their earlier made will was irritumP. Institutions of them or legacies to them were pro non scriptis, whether they were condemned before or after the will was made; the}

278 Servus Poenae. Servus fructuarius manumissus [pt. i

practical result being that the gift was not caducum, and did not go to the fisc¹. The texts refer to Pius as having resolved these points; it may have been doubtful before whether such people were not the property of the fisc. Gifts of liberty to them were void, though if, and when, they vested in the fisc, on pardon, effect would be given to any such fideicommissary gift to them³.

Tutela on either side was destroyed by condemnation³. Children of any condemned woman would be slaves⁴, subject to some exceptions, favore libertatis, to be later considered⁶. They would not however be servi poenae, but ordinary slaves, capable of receiving fideicommissary gifts of liberty*. There must have been some doubt as to the ownership of them. Antoninus Pius seems to have settled it, perhaps by the same enactment as that mentioned above⁷, by providing that they might be sold by the public authority*. We are told that servi poenae could not delate, i.e. were not allowed to report cases of fraud on the treasury, e.g. by way of unlawful fideicommissum or the like, in the hope of reward. But this was not a result of their position: it was a pre­cautionary measure, ne desperati ad delationem facile possint sine causa confugere⁹.

XIII. Servus pendente Usufructu Manumissus.

In Justinian’s time such a slave became free, and there is no question for us. The only points to consider arise in connexion with his relation to his former owner, in earlier times, when he became a servus sine domino as the immediate result of the manumission¹⁰. We have little authority, but, in general, there is no great difficulty. The fructuary’s rights were unaffected. The master necessarily ceased to be noxally liable for the man as to future acts, and as he had ceased to have potestas or dominium, he was free from liability for acts already done¹¹. Similarly he could have no action for damage to the slave or for theft of him. He would seem to have the same noxal rights against the fructuary or any bonae fidei possessor as any third person would have. He would not be liable on any future contracts, except, indeed, by the actio institoria, if the man still acted in that capacity, as any freeman or servus alienus might do. His liability on past contracts would not be affected so far as the actiones quod iussu, and de in rem verso were

¹ 29. 2. 25. 3; 34. 8. 3; 48. 19. 11. pr.·, 49. 14. 12.

² 40. 5. 24. 5. But this is administration, not law. As to the general attitude of the fisc in such cases, post, Ch. xxvn.

⁸ In. 1. 22. 4. * 40. 5. 24. 6. ⁶ Post, Ch. xvn.

⁸ 40. 5. 24. 6. 7 See n. 1. ⁸ 40. 5. 24. 6.

⁹ 49.14.18. They shared the disability with women, clarissimi, veterani and others barred on different grounds.

w Fr. Dos. 11; U. 1.19; C. 7.15.1.

¹¹ Subject to liability for dolus, ante, p. 106. ch. xii] Slave informally freed before Lex lunia 279 concerned. The actio de peculio would presumably become annalis, subject to the rules already stated¹. To the actio tributoria he no doubt remained liable, if he retained the peculium². But if he gave the man his peculium, it is not quite clear what would be the result. It would pass to the fructuary only if this intent were declared, and in that case the rules as to the liability of the fructuary in the actio de peculio would apply⁸. If it did not go to the fructuary, it could not go to the slave himself. It must either remain with the master or become derelict: the effect would be the same in most cases so far as liability de peculio is concerned, since this would ordinarily be such dolus as is con­templated by the Edict⁴. It would seem from the wording of Justinian’s enactment that the master could acquire nothing through him, and the same result follows from general principle, since he was not now the slave’s dominus⁶.

XIV. Slave informally freed before the lex Iunia.

The state of facts here referred to will be considered later⁶. The class was so early obsolete that it is idle to try to lay down rules about them. It is enough to say that though the Praetor protected them in de facto liberty, so that their master could not make them work, they were still his slaves and he still acquired through them⁷. He would still be liable, de peculio et in rem verso: indeed in all respects he would still be liable for them as for ordinary slaves, though the point would presumably not often arise. Whether he was noxally liable or not depends on the unanswerable question, whether the theory of potestas in this matter had developed so early. As this theory does not apply to damnum², it seems that he would be liable e lege Aquilia. Conversely he could have no noxal action for anything done by such a man, so far as the lex Aquilia was concerned, but he might conceivably have had an action against a bonae fidei possessor for other delicts. Presumably he would have an action for damage to such people, as this would lessen their power of acquisition, and no doubt he had the actio furti. As they were still slaves it may be assumed that the child of an ancilla in such a position was an ordinary slave.

XV. Pledged Slave freed by the Debtor.

We are told in many texts, of Justinian’s time, that such a manu­mission was absolutely null’. It follows that the relations of master ¹ Ante, pp. 227 sqq. ² Ante, p. 237. ⁸ Post, p. 359.

⁴ Arg. 14. 4. 7. 2, 3. ⁵ C. 7.15. 1; G. 2. 95; In. 2. 9. 5.

6Post, Ch. xix. 1 Fr. Dos. 5. ⁸ Ante, p. 130.

⁹ e.g. C. 7. S,pass.; D. 40.1. 8; 40. 5. 24.10. Post, Ch. xxv.

280 Pledged slave freed by debtor [pt. i, ch. xn

and slave were absolutely unaffected by it. Two points may be noted. The case cannot be regarded as equivalent to a derelictio, for one who frees a slave acquires a libertus, a potential asset of some value^[MLXXXV]. Thus to treat an attempted manumission as abandonment would be to go far beyond the manumitter’s intention. Whether it can be treated as a case of informal manumission, for the earlier law, depends on the view that is taken of the only text⁸. It is defective but appears to mean that the slave became a Latin when the pledge ceased to be operative. This interpretation suggests that before the lex lunia, the praetor would have intervened and treated the case as one of informal manumission, so soon as, but not before, the pledge was in some way released, i.e. so soon as capacity was restored—overlooking the fact that there was no capacity at the time the act was done. Till then its effects were null. If Huschke’s view is accepted, that the slave became a Latin at once, this will imply that in the Republic the Praetor’s protection is given at once, and the case will come under the class last mentioned³.