CHAPTER XVIII. ENSLAVEMENT (coni.).

We have now to consider those cases of enslavement iure civili which Justinian introduced or retained. Several are recorded, but few are important in the general law. The less important will be treated first.

(a) Defaulting claimants of liberty. As we shall see later, Justinian abolished the need of adsertores (free persons acting on behalf of the claimant of liberty), in causae liberates, and allowed the claimants to conduct their own cases. He required them to give personal security, but if this were impossible, they were to give a sworn undertaking—cautio iuratoria. If after these preliminaries they failed to appear, and, being duly cited, remained absent for a year, they were adjudged slaves of the other party, whatever the real merits of the case may have been'.

(b) False pretence and collusion of dominus. If an owner by his fraud and collusion passed his slave off as a freeman and obtained a judgment to that effect, Domitian provided that the person so adjudicated free should be decreed a slave of anyone who denounced him². But as he can hardly be said to have been free before, this case will be more appropriately discussed later, in connexion with the general law as to the effect of such adjudication³.

(c) Slaves sold for export and freed. The Vatican Fragments⁴ contain a text, in part corrupt, to the effect that if a slave is sold with a condition that he is to be kept away from a certain place⁵, with a power of seizure on return, and he does return, still a slave, the vendor may seize him and keep him as his slave. If he is freed by the buyer and then returns, he is sold by the Fisc into perpetual slavery on the same condition. This amounts to re-enslavement, for the manumission by the buyer before he had broken the condition was perfectly valid⁶.

¹ C.

⁸ Post, Ch. xxviii.

⁵ As to this see ante, p. 69.

² A senatusconsult, 40.16.1.

< Vat. Fr. 6.

⁶ C. 4. 55. 1.

420 Enslavement lure Civili under Justinian [pt. n

The same rule is laid down by Severus and Caracalla¹. Some details are necessary to complete the statement. The power of seizure (manus iniectio) is merely a right to take the slave : it has nothing to do with legis actio. If the vendor has agreed not for a right of seizure, but for a money penalty, the Fisc seizes the man, though he is still a slave, and sells him as in the case of return after manumission². If the slave returns without the buyer’s consent, there is no right of seizure, for the slave cannot be allowed to deprive his owner of himself³. If the buyer instead of exporting him, frees him in the State, the manumission is void and the vendor has the right of seizure⁴. If the buyer resells him under the same condition and he comes to the forbidden place with assent of the second buyer, the original vendor has the right of seizure, not the first vendee, whose imposition of the same condition is merely regarded as notice to his vendee, to protect himself from liability³. As the vendor imposed the condition for his own protection, he can remit it at any time while the man is still a slave, and so either seize the slave and keep him at Rome, or free him, or, waiving the right of seizure, allow the buyer to keep him at Rome⁵. But the case is different if the slave returns to the place as a freeman. The vendor has now no means of control over him, and might be terrorised into remitting the prohibition. Accordingly the Fisc takes the matter in hand and sells the man as above⁶.

(d) Young children sold under pressure of poverty⁷. It was a rule of the developed Roman law that a father though he had, at least in theory, a ius vitae necisque over his issue, could not sell them into slavery.

¹ Ibid.

² C. 4. 55. 2. So, probably, if the conditions were imposed without expressed penalty.

s 18. 7. 9. ⁴ C. 4. 55. 3.

5 18. 7. 1; Vat. Fr. 6.

6 This seems to be the meaning of Vat. Fr. 6 jin., read in connexion with C. 4. 55. 1.

7 As to the practice of sale of self and children in eastern provinces, see Mitteis, Reichsrecht und Volksrecht, 358.

8 P. 5. 1. 1. 9 16.; D. 20. 3. 5. ¹⁰ C. 7. 16. 1.

11C. 4. 43. 1. 12 C. 8. 16. 6; cp. h. t. 1.

18 C. 7. 16. 37. Huschke makes Vat. Fr. 27 lay down the general rule, but this is doubtful.

14 Vat. Fr. 33; C. Th. 4. 8. 6. An enactment of 322 records the fact that provincials had

been in the habit of selling their children under pressure of poverty, and orders that, to prevent this, such people are to be relieved from the treasury, C. Th. 11. 27. 2. It does not appear that the sales were lawful. ch. xvm] Sale of Children under pressure of poverty 421 But a constitution, earlier than the first of these dates, introduces or mentions an exception. As early as 313, Constantine treats as valid the sale of a new-born child (sanguinolentus)¹, and in 329 he says that this is law established by earlier Emperors^{[1540] [1541] [1542]}.

The rules as to evidentiary documents, as to issue of marriage with barbarians, and as to restrictions on sale of the person bought, seem to have disappeared, but the main principles are retained in a constitution of Constantine which is inserted in Justinian’s Code and represents the law of his time^[1544]. But traces remain in the Codex Theodosianus which shew that between the ages of Constantine and Justinian there had been variations of practice if not of law. In 391 it was provided that those who had been sold into slavery by their parents should be restored to ingenuitas and that a holder whom they had served, for non minimi temporis spatium, should have no claim to remuneration. This is not in terms confined to sanguinolenti and may indicate a practice of selling older children^{[1545] [1546]. It is not in Justinian’s Code. Again a Novel of Valentinian says that the prevalent distress throughout Italy had caused parents to sell their children, and that thus life had been saved at the expense of liberty. Where this had happened their ingenuitas was not to be affected and, in accordance with statuta maiorum, the sale was to be set aside, but so that the buyer received back the price he paid, plus 20 Any real price for them seems absurd if they were new-born infants, and in any case it must have been so small that 20 °/₀ added could have been no return for the cost of rearing.}

The language of these last two laws shews that the status was one of true slavery. But this is not so certain of the more permanent institution regulated by Constantine. The expression, reversion to ingenuitas, used by Constantine^{[1547] [1548] seems inconsistent with his being a slave, but as the law also speaks of the buyer as dominus and possessor[1549], it is generally held that it was genuine slavery. It is indeed conceivable that this was no longer so in Justinian’s day, for one of Constantine’s laws as reproduced by Justinian in his Code speaks of the buyer as entitled to use the man’s services[1550] [1551]. Justinian’s own enactment as to liberi expositi3 jars rather with the rule now under discussion, but, slavery or not slavery, it is clear from the insertion of Constantine’s enactment in Justinian’s Code that the institution continued to exist[1552].}

There remain two cases^[1553] of much greater importance.

(e) The libertus ingratus. The general principle of this matter is set forth in the Institutes^[1554] in four words: liberti ut ingrati condemnati. The rule referred to is that liberti might on complaint of their patron be re-enslaved on the ground of ingratitude. The history of the matter is somewhat obscure. Neglecting dediticii, there were up to the time of Justinian two kinds of freedmen, rives and latins; the liability applied more or less to the freedmen and to their issue; not only the patron but also some of his heirs had the right of complaint, and ingratitude did not always lead to re-enslavement to the old master, but was sometimes met by other punishments, ranging from reprimand to penal slavery. It is not easy to tell from the sources how all these factors were combined.

No legal text refers to the rules as to this matter during the Republic. It must not be assumed from this that ingratitude on the part of a libertus was not repressed, but only that the powers of domestic

ch. xvni] Libertus Ingratus 423

authority sufficed^[1555]. With the imperial system came a change: the old methods no longer served and legislation began. The lex Aelia Sentia (a.d. 4) allowed a formal accusation. We do not know by legal texts what were the penalties it authorised, but there is no reason to think they amounted to re-enslavement², and a non-legal writer seems to say that they did not go so far³. The Digest contains many references to these minor punishments. The matter seems to have been the sub­ject of repeated imperial regulation, and no doubt a wide discretion was left to the magistrate as to the degree of punishment in each case. Thus one text tells us that the magistrate was to sentence to fine, forfeiture of part of his property to the patron, or whipping, according to the nature of the offence⁴. Others are more specific. They tell us that for defect in obsequium, liberti were to be punished by whipping, repri­mand and warning as to severer punishment if the offence was repeated⁶. For convicium or contumelia the same punishments are suggested to­gether with temporary exile⁶. For assault or calumnia or conspiracy or subornation of delators they were to be condemned in metallum⁷. It is noticeable that though the list has an air of completeness no case is given in which the punishment is re-enslavement to the patron. It may be that the patron might choose whether the man should go in metallum or revert to his dominium³. One punishment is of special interest. Salvianus, who was Bishop of Marseilles about 440, uses language which seems to mean that patrons had the right to reduce their liberti to the position of latini for ingratitude⁹. Constantine, in 326, refers to a libertus reduced from citizenship to latinity¹⁰, and Suetonius, writing of the time of Nero, and speaking of ingratitude as involving loss of right of testation^[1556], seems to have the same rule in mind.

The history of re-enslavement as a punishment for ingratitude, can be shortly stated, so far as it is known. Claudius provided that any libertinus who suborned delators, to dispute his patron’s status, might be re-enslaved by him¹². In the next reign the Senate seems to have tried to lay down some general rule of re-enslavement, but Nero refused his assent to this, requiring each case to be considered on its merits, but clearly contemplating re-enslavement as a possibility¹³. It was 4-24- Enslavement under Justinian: Libertus Ingratus [pt n reserved for that accomplished censor morum, Commodus, to lay down the general rule¹. He is said by Modestinus to have enacted that on proof that liberti had treated their patrons with contumely, or struck them, or neglected them in illness or distress, they were to be restored, to the potestas of their patrons, and, if that did not suffice, they were to be sold by the praeses and the price given to the patron^{[1557] [1558]. In 205 the power of re-enslavement is treated by Severus as existing[1559]. An enact­ment of Diocletian seems to refer to a general rule of re-enslavement for ingratitude[1560], but another notes[1561] that there is no re-enslavement for mere lack of obsequiund1. Constantine speaks more severely, and declares that liberti may be re-enslaved, if iactancia vel contumelia cervices erexe­runt or even if levis offensae contraxerunt culpam[1562] [1563]. Later enactments, of 423s and 426[1564] [1565] [1566] [1567], speak of re-enslavement without stating the limits on the power. It can hardly be doubted, however, that it was rare in the later Empire. The only texts mentioning it in the Digest are those giving the rule of Claudius and that of Commodus, together with one to the effect that if a woman, having offended her patron and thereby endangered her status, agrees to pay him something to avoid reduction to slavery, the agreement is valid and not a case of metusM. The texts from the Code and the words of the Institutes shew that the rule was still in operation, and in the Novels it is again laid down very generally11. Upon the whole record it seems that there could not at any time be re-enslavement for mere lack of obsequium (though Constantine’s rule goes very near to it), but that it might be incurred for any worse form of ingratitude. Other punishments might be chosen and usually were, so that the libertus ingratus re-enslaved to his patron was at no time common.}

Such accusations are deemed to require careful trial. They are tried as iudicia extraordinaria™ and must go before the chief magistrate of the province in which they arose^[1568], the Proconsul^[1569] or other praeses¹⁸, or, in the city, the praefectus urbi^K. Constantine speaks of them as going before indices pedaneos¹⁷. They are capital, and ought therefore ch. xvni] Libertus Ingratus: Who may accuse 425 to involve personal intervention of, at least, the accused—the general rule of capital charges¹. But the very enactment of Severus and Caracalla on which this obvious precaution is based^{[1570] [1571] allows a procurator to appear on either side, by way of exception[1572]. This, too, indicates that it was not often capital. The whole rule here excepted from does not, it may be supposed, apply to failure in obsequium, for though this is ingratitude[1573], it cannot lead to enslavement[1574], and we are further told[1575] that a case of this sort may be disposed of de piano.}

If there are several patrons they may all accuse (in which case they will reacquire the slave pro parte) or, if the ingratitude were clearly to one of the patrons alone, he can accuse (and so acquire the slave), but only with the consent of all^[1576]. Of a servus castrensis freed by the son he is patron and he can therefore accuse^[1577], but of any slave freed by him, iussu patris⁹, the father has the right of accusation as if he had manumitted¹⁰. All this merely illustrates the rule that it is the person who is substantially patron who can accuse. But there are several cases in which the patron has not the right of accusation. The principle is laid down by Caracalla that he has it only when the manumission is gratuitous and voluntary, and not when it is in pursuance of an obliga­tion¹¹. Hence he cannot accuse one whom he was bound by fidei­commissum to free¹², or whom he had bought with the “ slave’s own money” and freed¹³, or one conveyed to him on a condition that he would free him¹⁴, and this whether he actually did free him or the slave acquired his freedom under the Constitutio Marci¹⁵. All these cases turn on the fact that though the manumitter is technically patron¹⁶, he has conferred no favour: he has done no more than he was legally bound to do and there is no occasion for gratitude. One case looks indeed at first sight exceptional. If a master has taken money from his own slave, or a friend, as the price of freedom and has freed accordingly, he has the right of accusation; for, says the text, though it was not done for nothing he did in fact confer a benefit: he was not like a mere fiduciary manumitter who simply operam accommodat¹⁷. But his position is exactly that of one who has taken a legacy with a fideicommissum to free a slave of his own. Such a manumitter cannot accuse, though he shares with the case now under discussion the one characteristic which marks it off' from the other cases mentioned ; i.e., the fact that the ownership of the slave was not created merely

426 Libertus Ingratus: Who may accuse [pt. ii with a view to the manumission. And in later law the distinction is very unreal. In this case there is a right extorquere libertatem, as in the case of servus suis nummis redemptus, or one bought ut manumittatur^[1578]. But as it does not exactly come under the words of the Constitutio, and is clearly an extension, favore libertatis², and Marcellus, the author of our text, lived at the time of the promulgation of the original decree, the text was probably written long before the principle was extended to this case, and its retention by Justinian is thus an oversight³.

It hardly needs statement that the act basing the accusation may be one done only indirectly to the patron, e.g. refusing to undertake the tutela of a son of his⁴. But the rule goes further and allows the heres of the patron to accuse. The lex Aelia Sentia allows a filius heres patroni to accuse³, and Diocletian provides that as freedmen owe reverentia to the filii patroni these can accuse them for ingratitude⁶. Marcellus lays down a similar rule for filius et heres''. In 423 a wider rule seems to have been laid down, giving the right of accusation to any heres of the patron⁸, and this for ingratitude not to the late patron but to them. In 447 Valentinian seems to have utterly destroyed this right in sons or other heirs: he provides⁸ that they cannot accuse, but have ordinary actions (iniuriarum, etc.). This prohibition is not found in Justinian’s law. He adopts the law of 423 and there are texts in the Digest which give the right of accusation to filii heredes¹⁰, and again to liberi patroni^[1579]. In spite of the generality of the words in the Code⁸, it is doubtful whether any right exists in later law for heredes other than children, and it may be taken for granted that the right is so far connected with the right of succession to the libertus that one who is from any cause excluded from that succession cannot accuse. Thus Ulpian tells us that if the libertus is assignatus, only the assignee can accuse¹². It must also be noted that none of these texts dealing with accusation by a heres says anything about a right of re-enslavement to them, though there is one which may mean that condemnation in metallum is possible¹³.

Authority on the converse case, that of the filius liberti, is scanty. On the one hand we are told in the Digest that the heres liberti has all the rights of an extraneus against the patron¹⁴, a statement which, in ch. xvm] Libertus Ingratus: Case of Filing Liberti 427

view of its context, seems to mean that he owes him no reverentia or obsequium, and, as there is also no right of succession in the patron, it would seem to follow that there can be no accusation. But elsewhere we learn that in 426 it was enacted that children of a freedman even holding an office within the class of militiae can be re-enslaved for ingratitude. The enactment is, even in the Codex Theodosianus, in a mutilated form, and Justinian abridges it still more¹. In the earlier form it speaks of reverentia as due from the filius liberti, and Justinian, striking out this duty, on which the right to accuse logically rests, reserves, nevertheless, the right of accusation. In the earlier form the right extends to children of the patron, but Justinian omits this. The rule is again mentioned, but not so as to explain anything, in the Novels^{[1580] [1581] [1582] [1583] [1584]. It may be conjectured that the duty of reverentia is newly imposed on liberi, by the enactment of 426.}

An enactment of Constantine in the Codex Theodosianus dealing with these accusations, and dated 332, reappears in Justinian’s Code as of a slightly earlier date’. It contains here much that is not in the earlier form, and, no doubt, two constitutions have been run together. As given by Justinian it contains two rather strange rules. It provides that re-enslavement of a manumissus to his patron shall affect afterborn children, filiis etiam qui postea nati fuerint servituris, quoniam illis delicta parentum non nocent quos tunc esse ortos constiterit dum libertate illi potirentur. The only way in which this can be made intelligible is to refer this provision to manumissae*. The other curious rule is that the person enslaved for ingratitude after having been freed, vindicta, in consilio, will not be restored to liberty on petition except at the patron’s request. This, since it does not speak of manumission, seems to refer to servitus poenae, which suggests that the other constitution of Constantine, which is lacking in the Codex Theodosianus, but appears in Justinian’s Code in the form of a clause added to the one which is in the earlier Code, dealt with servitus poenae as a punishment for ingratitude^[1585].

(/) A freeman allowing fraudulent sale of himself. This is one of the many legal institutions which resulted from the fact that slave and free cannot be distinguished by inspection’.

The general rule is that any liber homo over twenty years of age who knowingly allows himself to be sold as a slave, in order to share the price, is enslaved, or, as it is more usually expressed, is forbidden proclamare in libertatem, i.e. to claim his liberty¹. It is a capitis deminutio maxima^{[1586] [1587]. The rules are stated in the Digest with a good deal of detail, most of which is fairly clear. It is essential that the object was to share the price[1588]. If it was not, then, whatever other fraud was contemplated, liberty can still be claimed[1589] [1590]. Even though the man had this object he is not barred unless he has actually received a part of the price[1591]. It is essential also that the buyer have been deceived ; if he knew, then there is no bar to the claim of liberty6. But if he in turn sell to an innocent buyer, the subject of the sale is barred from claiming if he has received part of the price, it would seem, on either sale[1592]. If there were two buyers, and one knew of the fraud while the other did not, there is a conflict in the texts. The man cannot be partly free. To allow him to be wholly free would make it easy to defeat the whole rule. Accordingly Paul says that as the wrongdoer can claim nothing the man must go wholly to the other: a rational rule, but one in which Ulpian sees a difficulty. He holds that the buyer bought only a share and can therefore be entitled to no more: the rest must therefore go to the buyer who knew the facts, who thus profits by the ignorance of the other buyer[1593]. But this rule that he cannot be entitled to more than the share he bought is not inevitable. The case is closely analogous to that of manumission by one of common owners in the classical law, in which case all vested in the other[1594]. In fact, the beginning of Ulpian’s text looks as if he was about to lay down the rule adopted by Paul: it is probable that the actual solution in the latter part of the text is not his but Justinian's10.}

A person under the age of 25 has in most cases a right of restitutio in integrum, but not in this case. The reason given by Ulpian, following Papinian, is that there can be no restitutio in integrum from status mutatio¹¹. This is sufficient: the texts which say that there is restitutio in cases of status mutatio¹² merely mean that actions that have been lost by the change can be restored by the help of a Praetorian fiction, not that the status can be restored¹³. They have no bearing on the present case¹⁴. If, however, he was a minor under 20, he is not barred even though he refrains from taking steps till he is over that age. But if, having been sold under 20, he shares the price after he has reached that age, then the rule barring claim applies to him¹.

The texts speak usually of sale, but it is obvious that many other transactions might have substantially the same result, and accordingly we are told that pledge, gift and giving in dos are all on the same level as sale^{[1595] [1596], though it is difficult to apply the notion of sharing price to these transactions[1597] [1598] [1599]. So, again, what is sold need not be the dominium. Thus Paul discusses the sale of the usufruct of a freeman as a slave, and says, on the authority of Quintus Mucius, that cessio in iure under such an agreement makes a slave of him: the buyer will have the usufruct of him, and, the vendor being fraudulent, he is a servus sine domino. If, however, the vendor was in good faith he acquires the nuda proprietas*.}

Questions of difficulty arise, and are not very clearly dealt with, where the person sold was not actually free, but was entitled to be freed. Where a person to whom fideicommissary liberty was due allowed himself to be so sold, a consultant of Paul remarks that while one feels he ought not to be better off than a freeman in the same case, there is the difficulty that there was a valid sale and a vendible thing sold. Paul’s answer is that the contract is valid in each case (which is hardly to the point), that if the buyer knew, no question arises, and that if he was innocent, then the slave who could have demanded liberty and preferred to be sold is barred from claiming his liberty as unworthy of the aid of the Praetor fideicommissarius. The fact that he was still a slave and could thus be sold against his will is no defence to him, since he had but to disclose his position to end the whole matter. The case is different, he says, with a statvdiber. Here a condition has yet to be satisfied, and when it arrives he will, notwith­standing his knowledge and fraud, be allowed to claim his liberty, even though the condition was one within his own power⁶. The point of this last remark is that though it be in his own power, it may be something substantial, and thus differs widely from merely having to state the facts. All this cannot be called satisfactory, though it seems to represent both classical and later law.

The texts throughout speak of the rule as applying to liberi homines without any restriction to dues, and though it is not expressly so stated, it is clear that no such restriction existed. Thus in the chief enactment

430 Fraudulent Sale of Freeman: Effect [pt. n in the Code on the matter, the rule is applied, even though he be a civis¹. In fact the rule that a man cannot validly sell himself into slavery is based on the sanctity of liberty, not on that of citizenship^{[1600] [1601]. We have seen that private agreements could not make a man a slave or a libertus[1602] and we know that in the theory of the Republic, at least as expressed by Cicero, the State could not deprive a man of civitas or libertas: he was always regarded as abdicating his rights[1603] [1604] [1605]. Exile was voluntary. In like manner in this case the man enslaved is regarded as having abdicated his liberty, and similar language is used in relation to other causes of enslavement iure civili3.}

In most of the texts, though not in all, the offender is not described as re-enslaved but as forbidden proclamare in libertatem³. This rather suggests that he is not exactly enslaved, but is, so to speak, estopped from claiming his liberty. This way of looking at the matter receives some slight support from the words of a text which says that Hadrian, ■while laying down the general rule, nevertheless, interdum, allowed him to proclaim his liberty if he restored the price, i.e. he became free again without manumission’. From the fact that this is in the Digest it is likely that it was a general rule for later law^{[1606] [1607] [1608] [1609]. But though it suggests that the bar was only procedural, it is really only a case of restitution analogous to that mentioned in the case of servi poenae3 and liberti ingrati™, where there is no suggestion that the slavery was not real. The evidence that it was not mere estoppel but actual slavery is over­whelming. It is so described in many texts11. It is called a status mutatio, and restitutio in integrum is refused on that account[1610] It is a capitis deminutio maxima[1611]. Manumission is the normal mode of release, and on manumission the man is a libertinus, not an ingenuus1*, and this is noteworthy, as one might have thought that manumission ended the punishment. But he is barred from claiming ingenuitas even after manumission16. Again if a woman is so sold her children born during her slavery are slaves16. Such a man is the subject of dominium17. It}

CH.xvm] Fraudulent Sale of Freeman: Origin of Rule 431 is clear that it is true slavery, and the point could be raised without exceptio as a reply to an adsertio libertatis¹.

The rules set forth in the foregoing pages give an account of the institution as it appears in Justinian’s law. But the state of the sources raises a curious question as to the origin of the rules. Every legal text which mentions the matter, with two exceptions (a provision of Constantine which is in the Codex Theodosianus but not in Justinian’s^{[1612] [1613], and one in the Syro-Roman Law-book[1614]), is from Justinian’s compilations. The institution is of so remarkable a nature that one would have expected to find it frequently mentioned. Yet it appears also, though such a statement must be open to correction, that the historians, poets, grammarians, antiquaries, Christian fathers, and in fact all literature, are equally silent. Plautus handles such a fraud[1615] [1616] [1617], but he does not mention the rule. In view of this conspiracy of silence, we are driven to Justinian to find the origin of the rule. The result is not very informing. From one text we learn that Quintus Mucius was acquainted with it[1618]. Another tells us that Hadrian laid down such a rule8. In the Code, legislation on the matter is referred to by Gordian, who treats it as an existing institution[1619]. Paul treats the matter in a work on the Sc. Claudianum8, and Pomponius speaks of it as to be looked for in Senatusconsulta0. All this tempts us to think of the Edict, confirmed and extended by Senatusconsulta and constitutions, after the Edict had lost its vitality. Some commentators definitely treat it as Edictal10, but there is no direct evidence for this, except that the Edict did provide for an actio in factum, where there had been such a fraud, but the circumstances were not such as to bar claim of liberty. It seems hardly likely that this alone would be stated if both belonged to the Edict. Indeed the words in which Ulpian refers to the actio in factum are such as strongly suggest that this was the only Praetorian remedy, and that it first existed at a time when there was no other11. There is no trace in the remaining fragments of the Edict of anything remotely resembling a penalty of re-enslavement. And the fact that Marcian speaks of it as iure dvili is strong evidence that it was not of}

Edictal origin^[1620]. It is true that among the books in which it is treated are Paul’s and Ulpian’s commentaries on the Edict. But Ulpian’s Book ll² is on restitutio in integrum, and this matter comes in in­cidentally. Paul’s Book 50 and Ulpian’s Book 54³ are on a topic in which this matter would naturally come if it were in the Edict, i.e. de liberali causa*, and they are in those books of the commentary which according to Blume belonged to the Edictal group. But they are books which, it has been supposed⁶, were transferred to the Edictal group from the Sabinian to save time⁶.

Examination of the texts raises another question. It is clear that in Justinian’s time, sharing the price was essential⁷. It is made the test as early as Gordian⁸, and even Hadrian is cited as regarding it as necessary⁹. Yet many of the texts do not mention this requirement¹⁰. This of itself would mean little, as they may be expressed too generally, but the omissions are noteworthy in kind. In none of the texts from Paul is the requirement mentioned^[1621], and it is he who cites Quintus Mucins¹², and in the same lex tells us that dos, donatio and pledge are on the same footing as sale¹³. It is difficult to square the notion of sharing price with this, and still more difficult to understand how he could have discussed the matter without adverting to this difficulty if the requirement had existed. The only Roman text independent of Justinian says nothing of this requirement¹⁴. The texts dealing with the actio infactum for cases of fraud where proclamatio was not barred do not speak of this as a distinguishing mark¹⁶ A text which says that a miles allowing himself to be sold as a slave is capitally punishable says nothing of this requirement¹⁶. It may be added that, while some texts speak of sharing the price¹⁷, others speak simply of receiving it¹⁸. On the other hand it is perplexing to find price sharing mentioned in every one of Ulpian’s texts¹⁹. So too the age rule is not treated uniformly. Some texts do not mention it²⁰. Others speak merely of maior and minor²¹. All this suggests that the rule as we have it in the Digest is the result of an evolution¹. But the stages in that evolution cannot be stated with any confidence. It is probable that the rule of enslavement is as old as Q. M. Scaevola, but even this is not certain, as the Quintus mentioned may be Q. Cerv. Scaevola^{[1622] [1623]. The rule of price sharing is probably not nearly so old. No text takes it further back than Hadrian, and in the text which treats the requirement as known in his time, the words referring to price are in a parenthesis. The course of events may have been as follows: A praetorian actio in factum was given covering all cases. Then, perhaps still under the Republic, but probably later[1624] [1625] [1626] [1627], the more drastic remedy was introduced apparently by Senatusconsulta*, which specified the cases in which proclamatio was refused. They were at least two, price sharing, and desire to exercise the function of actor". As time went on this last died out. In private life, as in public affairs, there was a great development of free labour, and the increased power of representation in the field of contract made it possible and usual to employ free adores". By the time of Justinian price sharing was the only case of importance left, and thus it appears as a general condition on the bar. The allusion to it appears in most cases in a parenthetical form[1628], and may well be, at least in some cases, an interpolation.}

The actio in factum above mentioned has, in strictness, nothing to do with enslavement, and thus it is not necessary to state its rules in detail^[1629]. It covered any possible case in which a freeman dolo malo allowed himself to be sold as a slave, not covered by the other rule. Ulpian so expresses its scope^[1630], a fact which indicates that its field varied with changes in the scope of the more severe rule. It required dolus, beyond mere silence, and thus capacity for dolus, on the part of the man; but, apart from that, his age was not material¹⁰. The nature of the fraud was not material, and he need not have profited. The action was for double any loss or liability: it was independent of any contractual remedies against the actual vendor, and the buyer must have been ignorant of the facts¹¹.

It remains to consider shortly the general effect of enslavement on the man’s preexisting rights and duties. It must be borne in mind that the vast majority of slaves were so by birth, and that as to them no such question can arise, while of the rest, a number, which must have varied greatly from time to time, were so by capture. Their position, which was abnormal, has already been considered^[1631]. The remainder, whom alone we have to discuss, must have been relatively very few.

A number of general propositions on the matter are familiar. Every enslavement is a capitis deminutio maxima, for this is declared to result wherever liberty and citizenship are lost², and it is mentioned expressly in several cases, e.g. those of servus poenae, libertus ingratus and fraudulent sale³. These are, of course, the most important cases in later law. For earlier law it is stated for incensi, dediticii reenslaved, and cases under the Sc. Claudianum⁴; this list also being representative rather than complete.

A slave is a mere nullity at civil and praetorian law'. He has no caput, or what seems to be the same thing, his caput has no ius*. The principle is summed up in the remark that supervening slavery is akin to death⁷. Yet this does not adequately express the matter: the event is in some ways more destructive than death. Like death it destroys usufructs and similar rights⁸. There needs no authority for the state­ment that it ends all those relations of private and public life which imply that the persons concerned are cives. It ends any office, private or public, such as tutela. It ends marriage. It ends partnership, precisely as we are told, because the man is regarded as dead⁹. It produces all the effects of other capitis deminutiones, which need not be particularised. But it does much more. A will, which death brings into operation, is rendered irritum by enslavement¹⁰. Death avoids any gift, to the person who dies, by a will not yet operative (subject to some exceptions), and so does enslavement, quia servitus morti adsimilatur^[1632]. But even if it was after dies cedens he could not claim, nor do we learn that his heirs could, as they could in case of death¹². It destroys all rights resulting from cognation or affinity¹³. We are told that iura sanguinis cannot be destroyed by any civil law^[1633], but slavery is iuris gentium.

In dealing with the effects on debts due to and by him we have to remember that persons made slaves fall into two classes: they pass either into private ownership or into none. For it is a noticeable fact that there is no case (with the exception, if it be an exception, of the captivus) in which he vests in the Fisc. In some cases the Fisc sells him, but it does not appear that the State has the dominium, even where the price vests in it.

For delicts committed by such persons we know that the new owner is noxally liable: noa>a caput sequitur^{[1634] [1635] [1636]. But where the man was free before, there is in addition to this noxal liability the personal liability of the man. This is a burden on his estate, and need not be distinguished from other debts, except that like all debts ea> delicto, it falls on successors only to the extent of their benefit, if any. In the case of servi poenae there can be no noxal action. There is no owner; more­over they cannot be allowed to pass from their terrible position into that of ordinary slaves because they have committed a wrong.}

As to contractual and quasi-contractual debts, direct authority is very scanty. It is fairly certain that the liabilities and rights, so far as they survive, go with the bona. We are told that this is so as to liabilities’, the man’s own liability being extinct^{[1637] [1638]. Another text tells us that there is an actio utilis against the dominus and if it is not defended in solidum, there is missio in possessionem of the goods of the former freeman[1639], a rule analogous to that in the case of adrogati*. This implies that the property goes to the dominus, which is no doubt the case under the Sc. Claudianum[1640] [1641], and in fraudulent sale.}

As to the converse case, that of debts due to the enslaved man, there seems to be no textual authority at all. It seems likely that the analogy with adrogatio governs this case also. If that be so the dominus acquires rights of action ipso iure*. The case is differentiated from that of bonorwm emptor in that there he has no civil law right; his succession is edictal, and thus his actions are indirect’. None of our cases is edictal, subject to what has been said above¹⁰ as to the case of reenslavement for ingratitude.

Altogether different considerations arise in relation to servus poenae. Here, in general, the Fisc acquires, though it does not own the man. There seems no reason to distinguish this from other cases in which the Fisc takes a succession *. On this view all that need be said is that the Fisc takes the estate subject to its debts². The creditors can make their right effective by bonorum venditio³. The Fisc can prevent the forced sale of a clearly solvent estate by paying off the creditors. On the other hand if the property has definitely vested in the Fisc, it can sue for debts due to the estate, having in such cases only such privileges as the private creditor would have had⁴. We must remember however that a share of the property goes to the children (and at some dates to other successors’). Where the Fisc takes no share at all, it seems clear from the language used in the different texts, that it is an ordinary case of succession⁶. So also where the man was a decurio, and part goes to the children (in some cases) and part to the curia⁷: both the children and the curia appear to inherit. So too where he was a libertus; the rights of patroni and filii patroni are not affected: they inherit as to their share⁶. But, at least in the time of Justinian, where the children, and they alone, get a share, they do not appear to inherit, but to receive a grant from the Fisc². As the Fisc takes only subject to debts and has a right of action, we must assume that the children have none, and are not liable. But we cannot be sure that this is the right in­terpretation, and, if it is, we cannot be sure that the classical rule was the same. Hadrian’s rule is expressed in the same language¹⁶. But that of the law of 380 is obscure and may mean that they are heirs pro parte, though the expression, fiscus concedit, appears therein, as in the abridged edition in the Code^{1 [1642].}