CHAPTER XVII. ENSLAVEMENT.

Justinian^[1419] classifies the Modes of Enslavement as being either lure Gentium or lure Givili, the former being those conceived of as common to all States, the latter as peculiar to Rome.

Modes of Enslavement, Iure Gentium.

These are two in number :

(1) Capture in war. This has already been discussed⁴. It was found convenient in considering the legal position of a captivus to treat, in anticipation, all the law of the topic.

(2) Birth. This is, in historic times, by far the most important of the causes of slavery. The general principle is simple. The child born

398 Slavery by Birth [pt. n

of a female slave is a slave, whatever be the status of the father, and conversely, if the mother is free the child is free, whatever the status of the father. This, says Gaius, is the rule of the ius gentium¹â€”the general rule that where there is no conubium the child takes the status of the mother, i.e. her status at the time of the birth^{[1420] [1421] [1422] [1423] [1424]. It may be added that the slave issue belongs to the owner of the mother at the time of birth, not at the time of conception3.}

This, however, is only the general rule.

Cases in which the child of a freewoman is a slave. There appear to be only three.

(a) By the Sc. Claudianum (a.d. 53) it was provided that if a free­woman cohabited with a slave to the knowledge of his dominus the child might, by agreement between her and the dominus, be a slave. This rule, which was abolished by Hadrian, will be discussed later in connexion with other provisions of this enactment and of legislation which arose out of it. It is hardly possible to isolate this provision for the purpose of discussion¹.

(b) · Gaius observes that if a freewoman cohabited with a slave, whom she knew to be one, the issue was a slave. This rule, operative in the time of Gaius, but of earlier origin³, is credited by him to a certain lex, the name of which is lost. It is difficult to see why Hadrian abolished the rule last mentioned without destroying this similar inelegantia. Accordingly Buschke^[1425] suggests that a hiatus in the manuscript should be filled by the words e lege Latina. His conjecture starts from the idea that the law was not a Roman law, but local, a view which gets some support from Gaius’ allusion to those apud quos talis lex non est^[1426]. Huschke adds that any such general rule as this would render meaningless the above provision of the Sc. Claudianum. The suggestion Latina, as opposed to any other people, is due to the fact that Vespasian, who, as Gaius says, abolished one provision of this law, is known to have innovated largely in the law of Latinity⁶. There is little trace of the rule in later times, a circumstance which further

ch. xvn] Case» in which child of Aucilla is free 399 supports the view that it was not a general law. "What may be traces of it are found in two or three texts.

(c) In a.d. 468 Anthemius⁴ enacted that any woman marrying her own libertus was liable to deportation, the issue to be slaves, and to belong to the Fisc.

Cases in which the child of an ancilla is free. There are several.

(a) Among the many rules introduced, we are told, favors libertatis⁵, was one that if the mother were free at any moment between conception and birth, the child is free⁶. The rule seems to have begun in an isolated humane decision of Hadrian⁷, adopted in practice as a general rule. So far as the rule is concerned that the child is free if the mother is free at the time of the birth, there is no favor libertaiis·. it is common law⁸. It may not indeed be necessary to appeal to favor libertatis in any case. There is a rule of much wider application that a child in the womb is to be regarded as already born so far as this makes to his own advantage, but not for the advantage of other people or to his own detriment⁹. But the present may well be its earliest application, as it is assuredly its most important, so that this wider rule may be only a further generalisation. It is repeatedly laid down in relation to the case we are discussing. Media tempora libertati prodesse, non nocere possunt¹⁰. Non debet calamitas matris nocere ei qui in ventre est^[1428]. It must be noted that Gaius¹⁸ cites a current opinion which would in part except from this rule the case of a civis Romana who was enslaved ex Sc.

(b) The principle was carried still further in the interest of the child. If the mother was a statulibera and the child is born after 400 Cases in which child of Ancilla is free [pt. n the condition is satisfied, it is free even if the mother never actually became free, owing to captivity¹ or condemnation. The supervening slavery which bars the mother’s liberty is not allowed to prejudice the child. In the first case the liberty will take effect by postliminium, even though the child was not conceived till the captivity had begun³. It is unlikely that this is also the case where the mother has been condemned: there is in that case no principle of postliminium to help it out. There never was a time during gestation in which there was a spes libertatis.

(c) Gaius⁴ tells us that, by the doubtful lex Latina already men­tioned, male issue of a freeman and an ancilla whom he thought free was ingenuus. Vespasian repealed this rule, though he left the other.

(d) By a Sc. Silanianum⁵ the inheritance of a man who is supposed to have been killed by someone of his household may not be entered on, or his will opened, till an enquiry has been held⁶. If, during the delay thus caused, an ancilla, freed by the will, has a child, Justinian decides, settling certain doubts, that if the will ultimately takes effect the child so born is an ingenuus'’.

(e) If the mother is a slave at the time of the birth, but already entitled to her freedom under a fideicommissum the child is an ingenuus if the delay is due to the fault of the fiduciarius*, the mother having demanded the manumission⁹, but not if it is an unavoidable or purely accidental delay¹⁰. If, in case of fault, the mother has not demanded it, the child is a slave, but the mother is entitled to have it handed over to her for manumission¹¹, and the same rule applies where the liberty is not strictly due, because the heir had delayed entry so that the child shall be born his slave.

(/) If there is a direct gift of liberty by will to a woman, and the heir delays entry, a child born to her during the delay will be declared free on application to the Praetor, on the same principles as in the case of fideicommissum¹⁴.

(g) If there is a direction that freedom is to be given to an unborn person, Justinian decides, settling doubts, that the child shall be free, whether the mother is still a slave or not¹⁵.

140.7.6.1. ² A. l.pr.

s h. I. 2. o P. 3. 5; D. 29. 5.

au ancilla entitled to immediate

i G. 1. 85. ⁶ Ante, p. 94.

’ C. 6. 35. 11. He did not here deal with the case of freedom under a jideiconimissum.

« 1. 5. 22; 38. 16. 1. 1; 38.17. 2. 3; 40. 5. 53; C. 7. 4. 3; P. 2. 24. 4. o 40. 5. 26. 1; C. 7. 4. 4. " "

10 The texts cited base the rule on mora.

io 40. 5. 53.

¹⁴ Perhaps due to Marcellus, 40. 5. 55. 1.

H 40. 5. 26. 1.

is Post, Ch. xxvn.

¹⁵ C. 7. 4. 14; post, Ch. xxiv.

ch. xvn] Modes of Enslavement lure Civili 401

(h) If a manumission is of a sort that is valid only on cause shewn before the consilium, and a child is born while the enquiry is in progress, the child is ingenuus if the manumission is ultimately allowed¹.

(i) Another possible case is suggested by a constitution of Justinian. He enacts that an ancilla whom her owner has treated as a concubine till his death is free, and her children are ingenui. The enactment is obscure: it may be that the gift is retrospective, in which case the ingenuitas of the children is not exceptional².

We pass now to the iure civili causes of enslavement. Several of these belong to early law, and do not really concern us. Such are :

(a) Furtum manifestum. By the XII Tables, while a slave who was caught in manifest theft was scourged and thrown over the Tarpeian Rock, a freeman was scourged and addictus to him from whom he had stolen³.

(b) Evasion of the census. Persons who were incensi were liable to be sold by the public authority⁷. The object of this was to punish avoidance of taxation. It became unimportant when the State ceased to tax cives, about 166 B.C., and passed into oblivion with the census itself⁸.

(c) Evasion of military service. Gaius, whose text is imperfect, and Ulpian, do not mention this. It might be by evasion of the census, or by desertion, or by self-mutilation⁹. Offenders were sold, presumably trans Tiberim¹â€ś.

¹ 40. 2. 19. A minor under 20 could free matrimonii causa. He must marry the woman within six months. If she is pregnant when freed, and a child is born before the marriage, its status will depend on the event, marriage or not. Post, Ch. xxin.

² C. 6. 4. 4. 3. Apparently part of a comprehensive enactment, mainly declaratory.

⁸ Aul. Gell. 11. 18. 8. i G. 3. 189.

5 Aul. Gell. 20. 1. 7. It is possible that a practice of redemption on payment of fourfold may have existed. ⁶ G. 3. 189; In. 4. 1. 5.

⁷ G. 160; Ulp. 11.11. See Cicero, Pro Caec. 34. 99 and Dion. Hal. 4.15.

⁸ Cuq, Instit. Jurid. (Ed. 1) 1. 542. Gaius says, pridem desuetudine abolitum est. See

Livy 1. 44. Cicero holds (Pro Caec. 34. 99) that the state is not depriving him of his liberty (no lex can do this), but that by not putting his name on the roll he has abdicated his rights. As to this see Mommsen, Strafrecht, 945. ⁹ See references in Willems, Droit P. R. 117.

¹⁹ The Digest shews it to have been long obsolete: there is no trace of it in the Empire, 49.16. 4. 10.

(lure Civili: Penal Slavery 403 slave or adscriptitius, but that such a child should retain his status as an ingenuus¹.

(c) Coloni fugitivi. These were an administrative difficulty: there is much legislation as to the penalties they incur. A constitution of Constantine says, of such fugitives, that in servilem conditionem ferro ligari conveniet...ut officio quae liberis congruunt merito servilis con­demnationis compellantur implere^{[1438] [1439] [1440]. This is not very clear: the interpretatio treats it as meaning actual slavery. It is not found in Justinian’s legislation.}

(d) The case of sale of sanguinolenti who were issue of a forbidden union with a barbarian, which was obsolete under Justinian, must be mentioned here, but will be treated in connexion with the general case of sanguinolenti³.

Two cases of greater importance remain.

(e) Servi poenae. The general rule may be shortly stated thus: a person convicted of crime and sentenced in one of certain ways suffered capitis deminutio maxima, and became a slave. It was essentially capital punishment^{[1441] [1442], and the capitis deminutio had all its ordinary results. It occurred at once on the final condemnation, when there had been no appeal, or when an appeal had been decided against the accused’, or in some cases when the Emperor had confirmed the rejection of the appeal[1443]. The sentence must be one legal in relation to both the person and the crime. Thus the man was not a serous poenae if the magistrate had no jurisdiction or if he, being a decurio, was sentenced to a punishment not legal in regard to that class’.}

It was not every capital punishment which reduced the criminal to penal slavery. Anything which deprived him of civitas was capital’: many cases were punishable by publicatio and loss of civitas, and nothing more. A man so punished was not a serous poenae: he lost quae iuris civilis sunt but not quae iuris gentium^[1444]. Such a punishment was deportatio¹¹. Opus publicum perpetuum, which meant road making and the like, was on the same level^[1445]. It was an ordinary way of punishing the lower class of freemen, but it could not legally be applied to decuriones on the one hand or to slaves on the other¹³. Such also

were proscriptio¹ and aquae et ignis interdictio². It was essential to servitus poenae to be lifelong, and thus it did not result from con­demnation to castigatio or vincula³. Even condemnation to perpetual chains did not involve it, for though such punishments were not unheard of, they were always unlawful⁴. Imprisonment was not a recognised mode of punishment: career ad continendos homines non ad puniendos haberi debet^b. Its essential purpose was the detention of persons accused of crime⁶. And though condemnation to work in the mines was a typical case of penal slavery, condemnation to help the miners (ad ministerium metallicorum), or even ad metallum, for a term, was not servitus poenae, and thus children born to women so condemned were free⁷. The most usual form of penal slavery was that resulting from condemnation in metallum or ad opus metalli³, the latter being a little lighter in the matter of chains⁹. These were essentially perpetual, and if the sentence were expressed in terms which made the punishment temporary, it was construed as ministerium metalli¹⁰, and thus was not slavery. There was no system of ticket-of-leave, but Antoninus Pius provided that old and infirm prisoners might be released, after 10 years’ service, if they had relatives to look after them¹¹. Another form of penal slavery mentioned in the Digest is ludum venatorium. This was a lighter punishment, involving hunting, with arms, wild beasts in the arena, applied to young offenders who had incurred capital liability. It involved some training and skill, and little danger, and on this account some jurists doubted whether it were really penal slavery. But it was perpetual, and the Digest is clear¹².

A death sentence also involved penal slavery for the interval between sentence and death¹³. This is not quite so empty a statement as it seems. The Roman law had a number of forms of execution, e.g. beheading, ad gladium (or ad ferrum) traditio, crucifixion, burning (of late introduction), etc.¹⁴ Even in these cases there might be an appreciable interval, for it was not unusual to keep condemned men in order to extract from them, by torture, evidence against other men¹³. 9.10. pr. a slave refused by his master after punishment is sent to opus publicum in perpetuum, but this is not exactly punishment.

1 C. Th. 9. 42. 24.....

2 P. 5. 17. 3, 26. 3, 29. 1; G. 1. 90 etc. Aquae et ignis interdictio though mentioned in the Digest (1. 5. 18; 48.1. 2) and Code (C. 5. 16. 24) is superseded by other punishments in later law, 48.19. 2.1.

» 48. 19. IQ.pr., 28. 4, 33, 34.

⁴ P. 5. 4. 22; 5. 18. 1; C. 9. 47. 6,10; D. 48. 19. 8. 13, 35. ⁵ 48. 19. 8. 9.

6 C. Th. 11. 7. 3. As to its use in coercitio, Mommsen, op. cit. 48.

7 48. 19. 8. 8, 28. 6. If no term was stated, temporary condemnation was for ten years.

8 48. 19. 8. 6, 36. Work in calcaria vel sulpuraria was in metaUo, h. t. 8. 11.

9 A. t. 8. 6. ™h.t. 28. 6. M.t. 22.

^>2 h. t. 8.11,12. For a full account of penalties, Mommsen, Strafrecht, 949sqq.

18 28. 3. 6. 6; 48.19. 29. As to the use of the word animadvertere in connexion with death sentences, Mommsen, Strafrecht, 911.

1⁴ P. 5. 17. 2; Coll. 11. 6, 7, 8; C. Th. 9. 7. 6; D. 28. 1. 8. 4; 48. 19. 28._pr. Mommsen, op. cit. 911 sqq.

i^fi 48.19. 29. Statutory rules fixing minimum delays, Mommsen, op. cit. 912.

But the classical law required those condemned ad gladium to be destroyed within the year, a rule which no doubt applied to other modes of direct execution and existed in the later law as well¹. There are however two cases which are on a different footing. These are condemnation to the arena, to fight either as a gladiator or with wild beasts. The former punishment was abolished by Constantine for the Eastern Empire in A.D. 325^s. In the West it continued till 404, when Honorius put a stop to such shows on the advice of Prudentius, on the occasion of the death of Telemachus, a monk who was stoned to death in the arena while exhorting the gladiators to peace³. But condem­nation ad bestias, a very common punishment in classical times⁴ and later⁶, is repeatedly mentioned in Justinian’s laws⁶, and perhaps was never abolished. In these cases much time might elapse between the condemnation and the death. Thus Ulpian tells us that after three years in the arena they might be released from further service, and if having earned this they continued for two years more, they might get a complete pardon⁷.

Freemen and slaves alike might be servi poenae⁶, but the law was not alike for all. Slaves were in general more severely punished than freemen⁹, and, apart from this, there were many special rules on this matter, which varied no doubt from time to time. Thus though death and other capital punishments might be inflicted on decuriones^â„– it was essential that the matter be referred to the Emperor before it was carried out¹¹, and the same rule seems to have applied to relegatio™. But to degrading punishments they could not be condemned at all¹³. Their ascendants and issue were similarly protected¹⁴, and the protection covered children born before the decurionate began, or after it ceased, pro­vided they were conceived before its end¹⁶. The practical result is that a decurio could rarely become a servus poenae. The only possible case left is that of death per gladium. But there is a sweeping rule laid

¹ P. 5. 17. 2; Coll. 11. 7. 4.

² C. Th. 15. 12. 1 = C. 11. 44. 1. J. Gothofredus thinks he forbade gladiatorial shows altogether, arguing from the word omnino, but the next lex treats such shows as still in existence, and G. quotes from Libanus an account of them at Antioch, in 328. Probably as a punishment this was never common.

³Theodoretus, Hist. Ecc., cited Gothofredus, loc. cit.

⁴P. 5 pass.; Coll, ll^a-ss. 5 C. Th. 9. 18. 1 (=C. 9. 20. 16), etc.

6 In. 1. 12. 3; C. 9. 47. 12; D. 28. 1. 8. 4: 48. 19. 11. 3, 12, 29, 31; 49. 16. 3. 10,4. 1; 49. 18. 1, 3.

7 Coll. 11. 7. 4. Constantine’s enactment (C. Th. 9. 18. 1) that, for offences under the lex Fabia, a freeman should be made to fight as a gladiator on the terms that before he could defend himself he should be gladio consumptus, is really a direction to execute per gladium.

8 C. 9. 47. 11; 14. 2. 3. See ante, p. 277. ⁹ 48. 19. 16, 3; ante, p. 93.

10 C. Th. 9. 42. 24 = C. 9. 49. 10.

11 48. 8. 16, which exempts persons holding any honor. See also 48. 19. 27. 1, 2. ⁱ² Ibid.

1³ Fustibus caedi, metallum, opus metalli or ministerium metalli, furca, burning, fighting with beasts, etc.: such penalties were altered or discharged by the Emperor. Even opus publicum was forbidden, C. Th. 12. 1. 47, 80; C. 9. 47. 3, 9, 12; D. 48. 19. 9. 11.

i< 48. 19. 9. 12, 13; C. 9. 47. 9, 12.

¹⁵ 48. 19. 9. 14, 15; 50. 2. 2. 2, 3, 6. A child conceived and born during temporary removal from the ordo was protected, though his father died before the time expired, 50. 2. 2. 5.

406 Penal Slavery: Special Cases [pt. n

down by Hadrian that a death penalty was not to apply to a decurio except for parricide¹. It may be that this, like those already noted, is only a requirement that the Emperor must intervene before it could be carried out. Certainly another text contemplates a death penalty under this condition^{[1446] [1447]. In any case it is clear that these persons could not be ordinary servi poenae.}

Milites and veterani and their children were in much the same position : they were not punishable by metallum, opus metalli, fighting with beasts, furca, fustigatio, or, generally, any penalty from which a decurio was protected^[1448]. Nothing is said of parentes, and the privilege may not have applied to remoter issue^{[1449] [1450].}

Other privileged classes are mentioned who could hardly become servi poenae, but we have no details’. There is, however, at least in later law, a general rule. We learn that, by various Imperial enact­ments, honestiores were not liable to fustigatio^{[1451] [1452] [1453], and also that those who were not liable to fustigatio were to have the same reverentia as decuriones had’, and so could not be condemned in metallum6. This is in the Digest, but rules of this kind are laid down in relation to a number of different crimes, by a large number of earlier texts. There are, of course, many texts in which a capital punishment is declared without distinctions[1454]. But there are many cases in which, while humiliores are killed, or condemned in metallum, honestiores are deported[1455] [1456] [1457] or even merely relegati11, which involves no capitis deminutio. There are others in which honestiores appear as liable to capital punishment, but in less degrading forms than those which apply to humiliores11. In one text a similar distinction is drawn between ingenui and others[1458], and in another it is between slaves and free[1459].}

The goods of a person capitally condemned were forfeited to the

ch. xvn] Penal Slavery: Forfeiture 407

Fisc¹, but this publicatio occurred only on final condemnatio, not on death pending appeal^{[1460] [1461], unless the prisoner committed suicide in order to avoid liability for crime[1462] such as would involve forfeiture[1463]. From the forfeit­able fund were excluded certain things in which the criminal had only a limited interest, and also gifts to emancipated children made before the accusation, although the hereditas would practically include this in consequence of the rules as to coZZatw[1464] [1465] [1466]. A dos given by him to his daughter was not forfeited by his condemnation, even though she died, unless it was given in expectation of condemnation[1467], and thus a dos which he had promised to give might be recovered from the Fisc by the husband. If her marriage was dissolved before the father’s condem­nation and she had assented to the father’s receiving the dos, the Fisc could claim it: if she had not, it was her property’. All this shews that what was forfeited was what was his own, including, however, what had fallen to him after the condemnation8. It must further be noted that collusive or gratuitous alienation after the accusation would not save the property so dealt with[1468], and that the Fisc here, as in other cases, took the estate subject to all debts. If it was solvent the Fisc paid the creditors and took the surplus: if insolvent the goods were sold and the Fisc took nothing[1469] [1470].}

This rule of forfeiture was subject to restrictions, dating from the classical law, in favour of the criminal’s natural heirs. From the title of, and some citations from, a book of Paul’s on the matter, it can be inferred that no relatives but liberi iusti had a claim, and that their claim was only to a part of the goods, though Hadrian, by way of grace, allowed the whole to be divided where there were several sons¹¹. Any children conceived before the condemnation were entitled to share^[1471], and even children adopted in good faith before the accusation^[1472].

The rules as to the persons who were entitled to share, and as to the proportion of the estate to be so restored, were the subject of 408 Penal Slavery: Forfeiture: Restrictions [pt. n much legislation, of which, though the record is not complete, a general account can be given. Some constitutions refer only to deportati, but in most cases it seems clear that they cover damnati also. The general principle that children are to be entitled to a share is laid down by Callistratus in terms which suggest that part only went to them¹, though it may be that by a.d. 241 the whole was available^{[1473] [1474]. All details must be looked for in the Codes. In 356 it was enacted that all relatives to the third degree were to have a claim, before the Fisc, to all the goods, except in cases of maiestas and magic in which even liberi were to get nothing[1475]. Two years later this was repealed: all was to go to the Fisc in all cases[1476] [1477]. In 366 it was enacted that children were to have all the goods except in case of maiestas’1. In 380 Theodosius I legislated comprehensively on the matter. His enactment dealt, in terms, only with damnatus interfectus, but it no doubt covered the servus poenae. He gave children and grandchildren all the estate, while if there were only remoter issue, through males, they shared half. He added provisions giving a constantly lessening share to father, mother, with or without ius liberorum, paternal grandparents, and brothers and sisters, agnatic, emancipated and uterine[1478]. No one else was to exclude the Fisc. In 383 he included postumi, probably to settle doubts’. In 421 all claims were suppressed except those of parents and children[1479]. In 426 Theodosius II seems to have suppressed all claims but those of filii, who were to have half[1480]. Justinian accepted this enactment, changing filii to liberi and giving the language a more general form[1481] [1482]: as Theodosius wrote it, it might have referred only to a special case. He also accepted the rule admitting emancipati and postumi”. This represents the law of his time12 till 535 when he gave all the property to successors, suppressing any claim of the Fisc”. Three special cases need mention.}

(a) Women. If a woman was condemned her children could claim nothing¹⁴. The rule is expressed as one of undoubted and, apparently, ancient law. This exclusion is shewn by Paul’s language to have been ch. xvn] Penal Slavery: Forfeiture: Restrictions 409 due to the fact that the real basis of the claim of the children in such cases was their civil law position as sui heredes'. He remarks that as parents could not arbitrarily exclude them by an expression of will, so they ought not to be able to do so by crime. None of this language applies to children of women: it is a late expression of the old civil law view of succession.

(6) Decuriones. The enactment of 426 provided that on condem­natio of a decurio his property should go to the Guria, which might keep it, or allot it to anyone who would take over his responsibilities. If, however, there were male issue alone they took the property and the responsibilities. If there were daughters alone they took half. If there were both the males took half on account of their curial responsibility, and divided the other half with the females. Justinian adopted this, adding that postumi were to be entitled, and excluding any claim in maiestas*.

(c) Liberti. The only statement we have of the rules in this case is in the Digest, and it may not represent classical law. A patron is to have the share he would have had in an ordinary case of death, the Fisc taking the rest³. This purports to be from Paul’s book on the matter. Another text, from Macer, applies a similar rule to liberi patroni* and adds that if there are children of the libertus they exclude the children of the patron, and as these exclude the Fisc, the latter has no claim⁵. This is rather obscure: on the face of it, it gives them all, while, both in Paul’s time and in Justinian’s, the children of ingenui took only half: the reasoning shews that the exclusion was only from the part the patron would have taken⁶.

A person condemned to penal slavery was ordinarily in that position for life, which, in the case of death sentences, would be short. But we have already seen that even persons condemned ad bestias had a hope of pardon’, and of course in the case of a damnatus in metallum the chance of pardon was greater: it is clear on the texts that the case was not uncommon. We hear of restitutio in integrum ius, and of simple pardon. Each such release was an express act of authority, and the warrant would state the terms of it, which might, and as we shall see, often did, give rights more than mere pardon and less in various ways than complete restoration. A striking point is that in this connexion

¹ 48. 20. 7. pr. Her dos is subject to special rules. In some important crimes it is forfeited subject to claims of vir: in others it passes as if she were dead, 48. 20. 3—5.

a C. Th. 9. 42. 24; C. 9. 49.10. ⁸ 48. 20. 7. 1.

⁴ 48. 20. 8. pr. Though they do not claim bonorum possessio they exclude the Fisc as to their part, h. I. 2.

⁸ 40. 20. 8.1.

⁶ The texts were written under the regime of the lex Papia, obsolete under Justinian. Complex questions arise but do not concern us.

⁷ Ante, p. 405.

410 Penal Slavery: Effect of Pardon [pt. n we hear nothing of manumission. A servus poenae was not the property of anyone, and could not well be released from anyone’s manus: he regained his liberty by the Emperor’s decree¹.

A pardon was commonly by indulgentia generalis or communis, no doubt on occasions of public rejoicing². It released from the labour and made a man, who had been free, once more a freeman⁸. But it did not restore his former private rights. His property remained with the Fisc⁴. He did not recover old rights of action⁵. He did not recover potestas, and thus he could not acquire through his children⁶. He was not liable to old actions’. In one remarkable text, Ulpian is reported as saying that a person merely pardoned, and not restitutus, could not have succeeded under the Sc. Orphitianum, but, humana interpretations, he was allowed to do so⁸. This last rule is no doubt Tribonian’s: it jars with the others. The question whether it expresses a rule applic­able in late law to other cases of succession must, on the texts, be answered in the negative⁸ One who had been a slave did not on pardon revert to his old dominus¹⁰. That ownership was gone, and though, up to the time of Caracalla, there seems to have been some doubt as to whether he vested in the Fisc, Ulpian, recording Caracalla’s doubt, declares this to be the law¹¹, as also does a rescript of Valerian¹². He was now an ordinary slave, capable of receiving fideicommissary gifts of liberty¹⁸, and presumably of being sold¹⁴. Such a state of things is hardly applicable to a case where the slave was ultimately proved to have been innocent: it involves an unjustified injury to the dominus. Nor was restitutio in integrum ius applicable to a slave. For such cases the proper provision was the revocatio of the sentence, the effect of which was to restore the slave to his former position. The effect of the condemnation being completely undone, the old ownership revived. In a case recorded he had been instituted by his dominus, and he became again a heres necessarius. So too, a statuliber revocatus would still be free on the occurrence of the condition¹⁵.

The release or pardon might be accompanied by a more or less complete restoration to his original position. The effect of complete restitution is illustrated in many texts. The man regained all rights of

¹ Servi poenae were released by local authority and put to work appropriate to servi publici. Trajan ordered them back to slavery, except old men who had been so released 10 years: these were put to inferior work. Pliny, Litt. Trai. 31, 32. In the early empire the Senate usually gave the pardon. Mommsen, Strafrecht, 484.

² C. 9. 51. 5, 9.

⁸ Presumably to citizenship, though in a case in C. 9. 51. 3 this is expressly given.

< C. 9. 49. 4; 9. 51. 2. ⁸ C. 9. 51. 5. ⁸ h. t. 9.

? h. t. 4; D. 44. 7. 30. ⁸ 38. 17. 1. 6.

⁰ h. I. 4. See post, as to restitutio. ^w 48.19. 8.12.

11 40. 5. 24. 5. 12 C. 9. 51. 8.

i^fi 40. 5. 24. 5. 1⁴ Arg. h. I. 6.

¹⁶ 40. 4. 46. Restitution is not spoken of in connexion with those who had been slaves. ch. xvn] Penal Slavery : Effect of Restitution 411 succession¹; his will was revalidated^{[1483] [1484] [1485]}; he recovered his potestas⁰, his property^{[1486] [1487] [1488]}, honor es, ordo, munera and so forth®. He became a good witness®. He regained all rights of action, and conversely became liable to old debts^{[1489] [1490]}. The actions were not utiles but directae⁰: in short, the effect of the enslavement was completely annulled^[1491].

This complete restitution was expressed by the words per omnia in integrum^{[1492] [1493] [1494] [1495] ; in statum pristinum cum bonis11 ; or the like, or by the mere word restitutus'0. But less comprehensive forms are found giving a limited restoration. These naturally gave rise to questions of construc­tion, some of which are recorded in the texts. If part of his property was restored, old debts revived against him pro parte10, and presumably his old rights of action revived to the same extent[1496] [1497]. If his pardon was accompanied by a regrant of potestas, he again acquired through his children1®. Restitution to praecedens dignitas, with no reference to bona, did not restore any property or rights of action or any liabilities[1498]. It did not replace him in his old potestas11, for this involves property rights : it dealt only with public rights.}

It is obvious that a restoration of bona may create complications where part of the property has passed to heirs. We do not know how these were dealt with at the time when even collateral heirs took some of the property : the rules we have are embodied in legislation of Constantine at a time when, so far as we know, the claim was confined to children. It is laid down on Papinian’s authority, that acts done by a son of full age are confirmed, and not affected by his reentry into potestas—even any will he may have made. As to any acts done by a pupillus, auctore tutore, the law is obscure. The tutela of course ends unless, in the bad character of the father, there is a special reason for retaining it. The law is confirmed by insertion in Justinian’s Code¹⁸. It will be remembered that by his time the rule confining claims to children was restored¹⁹. Justinian adopts the constitution with none

412 Enslavement under the Sc. Claudianum [pt. n but very slight verbal changes, a circumstance which is unfortunate in view of its rambling and obscure character¹.

In 536 Justinian by a Novel^{[1499] [1500], adverting to condemnatio in metallum as the typical form, definitely abolishes the rule that a convict becomes a servus poenae. His primary object is to prevent dissolution of marriage, and he lays down this rule, very characteristically in the middle of a long and comprehensive set of provisions on the subject of marriage’.}

(/) Cases under the Sc. Claudianum and connected legislation.

By this enactment, of a.d. 52, it was provided (no doubt, inter alia), (1) that, if a free woman^{[1501] [1502] [1503] [1504] [1505] [1506] [1507] lived with the slave of another person after notice (denuntiatio) by the owner that he forbade it, she, and the issue, became his slaves’; (2) that, if the owner consented, she could remain free ex pacto, the issue being slaves’. This second rule Gaius tells us was abolished by Hadrian as being harsh and inelegans. For the future if the owner consented so that the mother remained free, the child was also to be free’. The text of Tacitus cited above says that there might be an agreement that she should be a libertas. A point of status seems to be left to private agreement notwithstanding the maxim : Gonventio privata neque servum quemque neque libertum facere potest*. The fact is that these are not mere private agreements : they are confirmed by the Senatusconsult[1508] [1509].}

The woman became the slave of the owner of the man if she persevered in the cohabitation after denuntiatio by him. It appears that one denunciation did not suffice: it must be three times repeated¹¹, and the third denunciation had, by an enactment of a.d. 317, to be in the presence of seven Roman witnesses^[1510]. One constitution speaks of the three denunciations as expressly provided for by the Sc. Claudianum^u, but it is at least equally probable that it was a juristic interpretation of ch. xvii] Enslavement under the Sc. Claudianum 413

the word perseveratio, which is used in comments on the Sc.¹, and may have been contained in it. The enslavement was completed by a magisterial decree, following the third denunciation^{[1511] [1512]. Neither Ulpian nor Gaius refers to the need for three denunciations, or to the decree, and Justinian in abolishing the whole rule speaks of Claudianum senatus­consultum et omnem eius observationem circa denuntiationes et iudicwm sententias[1513], language which suggests a construction of the lawyers[1514] [1515].}

In a.d. 314 Constantine seems to have enacted that no denunciations were needed, but, if this is really the effect of his enactment, it must have been repealed almost at once, for three years later we find the three denunciations assumed to be necessary^{[1516] [1517]. In 331 he reverts to the rule of 314, declaring that no denunciations shall be neede [1518]d[1519]. In 362 Julian confirms the Sc. Claudianum, repealing all contrary laws, so that a freewoman cohabiting with a procurator or actor or any other slave, is not to be enslaved till after three denunciations’. The language sug­gests that in another law it was provided that the harsher rule should apply only where the slave was in a position of trust8. A law of 365 seems to shew that the three denunciations had gone out of use again*. In 398 Honorius and Arcadius again assert the need of them[1520] [1521].}

We are nowhere told expressly what becomes of her property. The Institutes say that she loses liberty et cum libertate substantiam¹¹, which does not prove that her dominus gets it. Another text says that if liberty is lost with capitis minutio there is actio utilis against the dominus for the debts^[1522]. This implies that he gets the property, but it does not expressly mention this case, and it would not strictly be true for all cases, e.g. captivitas. The only other view possible is that it goes to the natural heirs as on death: servitutem mortalitati comparamus^[1523]. But though this gets a certain support from the expression successio misera­bilis¹*, it is most improbable in view of the general language of the texts above cited. Assuming that the dominus gets the property he is liable to actiones utiles already mentioned, and also to noxal actions¹⁸.

Many of the texts speak of the woman to whom these rules applied as civis Romana, and Gaius seems expressly to limit the rule to this case¹⁶. It is clear that it applied also to Latinae: Paul puts them on 414 Sc. Claudianum: Effect on children [pt. ii the same level¹. The later law seems to have been still more severe, and the enactments in the Codex Theodosianus speak simply of mtdieres liber ae'¹. The text of Tertullian already cited⁸ seems to hint of a possible application of the rule to freemen cohabiting with ancillae alienae. Whether his words really mean this or not, it is clear that some such view was propounded, for it is categorically denied by an enactment of 226⁴, while another, of 294, denies that such cohabitation could give the owner of the ancilla any right of succession⁸. This seems to mean that someone had an idea that the man might become a libertus, i.e. by the owner’s assent to the union. Justinian’s enactment abolishing the whole system makes it clear that it applied only to women⁶.

The state of the authorities makes it difficult to say what was the effect of the enactment on the woman’s children in case of prohibition. Most of our earliest authorities say nothing about children. Paul, dealing, ex professo, with the whole matter, does not mention them⁷. Nor does Ulpian, in his Regulae⁸. Nor do Suetonius and Tertullian’. Justinian’s general repealing enactment mentions no special rule about children¹⁰. The allusion in the text of Tacitus deals only with agree­ments as to the mother’s status¹¹. Gaius says that some thought that, apart from agreement, children already conceived were free if ex iustis nuptiis, slaves if volgo concepti¹². The language of the much later Epitomator of Gaius suggests that he thought this was the law¹³. But rules as to children were certainly laid down in the later law. Apart from any possible effect of agreement, the course of things may have been as follows. The Senatusconsult said nothing of children. As the rule making the child free, if the mother were free at any time between conception and birth, had not yet developed¹⁴, the effect would be that all children born after the enslavement were slaves. In time the rule was accepted that freedom of the mother at any intermediate time saved the child. This was a juristic development, and it was doubted how far it ought to apply to a case like this, where the child might well be the fruit of the forbidden intercourse¹⁶. This doubt ultimately led to legislation, in an enactment of 314, which provided that the filii should be slaves. This was confirmed in 366¹⁶. An enactment of 320 provides that if it were a fiscal slave the child would be a Latin¹⁷.

There remain for discussion several cases in which complications might arise owing to the position of one or other of the parties.

2 C. Th. 4.12. 1, 5, 7; In. 3. 12. 1; C. 7. 24. ------ s C. 6. 59. 9.

’ locc. citt.

¹³ G. 1. 91. _______ „__________________________ ______ ¹⁶ See G. 1. 91.

¹⁶ C. Th. 4.12.1, 6. Mitteis, Reichsrecht and Volksr., 370, following Zimmern, holds that it applied to children already born.

>’ C. Th. 4.12. 3.

¹ P. 2.21a. 1.,

³ Tertullian, ad uxorem, 2. 8. ⁴ C. 7.16. 3.

s C. 7. 24. ’P. 2. 21a. ³Ulp.ll.U.

¹⁰ C. 7. 24. ¹¹ Tacit! Ann. 12. 53; ante, p. 412.

¹³ G. Ep. 1. 4. 9. ¹⁴ Ante, p. 399. _,

(a) Cases of tutela¹. If the slave was the property of a pupillus the tutor could denounce^{[1524] [1525], while if he was the slave of a woman in tutela she herself could do so[1526] [1527]. The latter part of this text is imperfect, but the form of it seems to imply that the pupillus himself could not denounce1.}

(b) Common ownership of the slave. The only text dealing with this case says that, if all the owners denounced, the ancilla was common, but that in other cases she became the property of the owner who first denounces^[1528]. This was not a case of acquiring through the slave: it was acquisition by denunciation. The slave was no more than one of the facts basing the denunciation. But the rule as it stands hardly looks practical: probably it means that if any owners had, with know­ledge, refused to denounce, they could not afterwards claim any share in the ancilla.

(c) Cases of patria potestas. If the slave was in the peculium of a son, it was the son who denounced and the father acquired without his knowledge, and even against his will^[1529]. If the slave was in a castrense peculium the ancilla acquired on the son’s denuntiatio was also therein^[1530]. This text was written before the introduction of peculium quasi castrense: no doubt the rule must be extended to this and also to bona adventitia.

If the woman was a jiliafamilias she did not lose her status on denuntiatio, since this would involve her having the power to impoverish her father in a certain sense, by depriving him of a daughter^[1531]. But if she continued the cohabitation after she was sui iuris the ordinary rule applied^[1532]. If, however, she was acting under the iussum of her father she became a slave on denuntiatio, since, says Paul, fathers can make their children’s position worse^[1533]. The word iubere here cannot mean command but authorise: it is incredible that the father could have power to order such a connexion¹¹. But this makes the reasoning unmeaning: the father does not make the child’s position worse, but only enables her to do so. By assenting he waives his right.

If the slave was the property of the freewoman’s own son, respect for the maternal relation prevented the right of denunciation from arising^[1534].

(di) Cases of iura patronatus. If the woman was a liberta her patron’s rights came into play. If he was aware of the transaction and assented, the owner of the slave acquired the woman as an ancilla by denouncing’. But a patrona, so long as perpetual tutela lasted, could not lose her rights by assenting without the auctoritas of her tutor³. If the woman’s patron did not know, she became his slave and she could never be made a civis by manumission by him⁴. From the wording it seems that he could make her a Latin⁵, and that if she were sold the buyer had a complete power of manumission. The rule was no doubt the same in the case of a patrona, i.e. that though her assent was ineffective to give the owner the right to denounce, it was effective to bar her from exercising the analogous right. If the slave belonged to the woman’s patron the union produced no such legal effects⁶. If the owner of the slave was the libertus of the woman, he could not denounce for reasons analogous to those in the case in which he was her son’. These rules present no difficulty, but their origin is obscure. Some of them may be juristic, but some must have been express legislation, e.g. the rule making her the ancilla of her patron with limited power of manumission. This is probably part of the legislation of Vespasian referred to by Suetonius⁸.

(e) Municipal slaves. The few texts shew that special rules were applied to this case, but they are not complete enough to enable us to state the development of the law with certainty. We learn that in the classical law an ingenua who cohabited with a slave of a municipality, knowingly, became a slave without denuntiatio, but not if she was unaware that he was a municipal slave, and ceased from cohabitation as soon as she knew. Presumably a liberta was subject to the ordinary law. Nothing is said as to assent of the municipality: apparently the possibility of this was not considered⁹. The concluding words of a law in the Codex Theodosianus shew that improvidus error, vel simplex ignorantia, vel aetatis infirmae lapsus were to exclude this special rule, but it is not clear whether this is a new rule or a recital of the old¹⁹. The enactment of 362 confirming the need for three denunciations was not to apply to slaves of municipalities^[1535].

(/) Fiscal slaves. There were special rules of a somewhat similar character for servi fiscales. We learn that ingenuae who cohabited with fiscal slaves were, in classical law, deprived of their natalia, without regard to ignorance or youth. This is stated in the Codex Theodosianus¹, and confirmed by the fragment, de iure fisci, which speaks of libertae Caesaris coniunctione effectae². It is added that the rights of fathers or patrons not assenting are not to be affected. This differs from the rule in the last case, in that they became libertae and not slaves, and in that error was not material. The rule that they were to be libertae is no doubt due to the superior dignity of fiscal slaves: these frequently, if not usually, “ married ” freewomen³, so that the degradation was less, and the lesser effect of the union will account for the harsh looking rule that ignorance was not considered. The provision as to rights of fathers and patrons presumably means that if the father did not assent the general rule applied and the woman did not lose her status⁴. If the woman was a liberta already she had no natalia : here the proviso means that she remained the liberta of the patron, who could himself denounce her and claim her as a slave. It may be noted, that the rule as cited in the Codex Theodosianus deals only with ingenuae. If the patron assented the woman no doubt became a liberta Caesaris⁵. The law of 320⁶, reciting the old rule, lays down a new one. If an ingenua knowingly or in ignorance cohabits with a fiscal slave or with one belonging to the patrimonium or to the privata res Caesaris, her status is not affected, but the children are latins subject to rights of patronage in Caesar. Nothing is said about libertae, and it may be that the old rule still applies to them. It is probable that the declaration that the rule is to cover all kinds of slaves of Caesar is not new. The enactment of 362⁷, confirming the need of three denuntiationes does not apply to the case of fiscal slaves.

(g) An obscure enactment of 415⁸ refers to the Sc. Claudianum and seems to provide that if the woman was descended from a decurio any child of which she was pregnant at the time of condemnation was not only free, which is contrary to the rules already stated, but was also liable to serve on the Curia. The point is that descent on the mother’s side did not ordinarily create that liability⁹. At the end of the con­stitution it is said that servus actor sive procurator is to be burnt. Another enactment had provided that any servus actor of a municipality who connived at connexion between a decurio and an ancilla aliena was to be severely dealt with¹⁰. The aim of this is to secure successors to

¹ h. t. 3, ius vetus. ² Fr. de i. Fisci, 12. Text corrupt.

3 Ante, p. 324. The Fr. de i. Fisci does not distinguish between fiscal slaves and others of Caesar.

4P. 2. 21a. 9. ⁵ ft. *.7. ⁶ C. Th. 4. 12. 3.

7 ft. t. 5. ⁸ C. Th. 12. 1. 179.2?r.

⁹ See references cited Gothofredus, ad h. I. ¹⁰ h. t. 6 = C. 5. 5. 3.

418 Sc. Claudianum: Special Cases [pt. n, ch. xvn decuriones and so to keep the lists full. The purpose of the law with which we are more directly concerned is much the same. It may therefore be assumed that the slave so to be dealt with was not the slave with whom she cohabited¹, but any slave of the civitas in a position of trust who connived at this or any other matters forbidden in the constitution.

The whole of the law of the Sc. Claudianum disappeared under Justinian. We are told in the Institutes^{[1536] [1537] that it was not to be inserted in the Digest at all. The abolishing enactment® says nothing about that, and in point of fact the Digest does contain by oversight at least one reference to the abolished[1538] rule. The enactment in the Code retains a punishment for the slave concerned[1539].}