CHAPTER XXV. MANUMISSION. SPECIAL CASES AND MINOR RESTRICTIONS.

1 40. 9. 26.

⁴ 40.1. 8. See on these matters, s 40.9.29; C. 7. 8.2.

’ See ante, p. 550.

M C. 7. 8. 5; C. 40. 9. 26.

“ 40. 9. 29.pr.\ C. 7. 8. 2.

M 28. 5. 30.

» C. 7. 8. 5.

• Fr. Dos. 16.

Vangerow, Latini luniani, 58.

⁶ See, e.g., Krüger, ad h. I.

8 Ante, p. 455. ⁸ C. 7. 6. 12a.

¹¹ 40. 9. 5. 2, 6; Fr. Dos. 16.

“ 40.1. 3.

¹⁵ 40.1. 3; Lenel, Ed. Perp. xix.

II. Servus Communis. A man cannot be partly free, partly a slave. On the other hand the owner of half cannot free the other half. Hence the classical jurists held that if one of co-owners purported to free the slave, the manumission did not take effect. The act was not, however, necessarily a mere nullity. If the manumission was formal, i.e. done vindicta, censu or testamento, the effect was to vest the share of the freeing owner in the other owner by accrual. So far all were agreed. Proculus indeed held that the same effect was produced even by an informal manumission⁸, but it does not appear that any later jurist took this view: in this case the act of manumission was regarded as a mere nullity⁹.

576 Manumission of Common Slave [pt. n mission by one owner did not of course prevent the man from becoming free by other causes¹.

If all joined the slave was free, and they were joint patrons’. If they were under 20 it was enough if one shewed cause⁸. We are told that a minor common owner freeing⁴ must always shew cause: it is to be presumed that in this case, the fact that the other has a causa is sufficient⁸. If one owner is a minor, we are not told that the fact that the other desires to free is sufficient, but this seems to follow from this last rule. In general such manumission will be inter vivos, since, if the two gifts do not operate simultaneously, there will be accrual. But the case of manumission by will might occur. Thus, where one of common owners frees by will “ if my partner does,” and the partner afterwards frees inter vivos, the man is free, holding his liberty by two titles⁶. Indeed both manumissions might be by will, though the necessary hypotheses are rather artificial. Two cases are mentioned in the same text. In one two owners have freed and instituted the slave in their wills, and they die together in a catastrophe⁷.

Some points of interest and difficulty arise where the manumission is accompanied by an institution of the slave¹¹. If one of two owners institutes the man, he may do so either cum or sine libertate. In the latter case, the slave is quasi alienus. In the former he is quasi pro- prius¹². We know that if both free and institute him and the gifts chance to operate at the same moment, he is free and heres necessarius to both¹⁸. It is presumably to cases of this kind that reference is made in a text which says that if a common slave is heres necessarius to one or two or all of his owners, he cannot abstain from any of them “.

If the instituting and freeing owner acquired the whole of the slave, the man, having ceased to be a servus communis, was free and heres

¹ A common slave who detected the murderer of one master was freed: the other being entitled to compensation, 29. 6.16.

² 38. 1. 4; 2. 4. 23. ⁹ 40. 2. 6, â€?non.’ A. Faber, Jur. Pap. Sei. 266.

⁴ 40. 2. 4. 2. ⁶ A. Faber, loc. cit.

« 40. 4. 48. ’ 28. 6. 8. pr.

⁸ h. I. 1. ⁹ 40. 2. 8.

¹⁰ 29.1. 31; 40. 1. 2; 33. 5. 14. Fr. Vat. 84. This does not apply if the repudiated gift becomes a caducum: in that case the lapsed gift may vest in another so that the manumitter is not sole owner. Fr. Vat. cit.

¹¹ As to institution without liberty, see ante, p. 391. There is no reason to think that Justinian's rule that institution implied a gift of liberty covered this case: he is thinking of a sole owner. Ante, p. 553. In. 1. 6. 2; C. 6. 27. 5.1.

“ 28. 5. 90; Ulp. 22. 7, 10. “ 28. 5. 8.

i� 29. 2. 66.

necessarius¹, the testator having been part owner at the time the will was made². So, if a common slave was substituted to a pupillus by one owner, who afterwards bought the rest of him, he became a necessarius heres to the pupillus³. If, however, he was bought by the pupillus, Julian thought he would not be heres necessarius to him: he could not in any sense be said to have been the property of the testator at the time when the will was made⁴. Ulpian appears to add⁵ that, on grounds of equity, the man may be allowed to buy the share of himself from the other owner, and so acquire freedom and the hereditas. But it may be that this is an addition by the compilers, expressing Justinian’s rule shortly to be stated.

If the slave is simply freed and instituted, by one of his owners, and no change occurs till his testator’s death, the texts do not say what happens. It is generally held that he enters at command of and for the benefit of the other owners. It is likely that this was the case, though Salkowski observes⁶ that it is difficult to account for it logically. His difficulty is that the slave can get liberty only on acquiring the hereditas. That he cannot acquire till iussum, and that implies that accrual has already taken place. And accrual can result only from the manumission. Both ought, he thinks, to fail. The solution he suggests as most probable is, that, contrary to the rule in a case of servus pro­prius, the institution was allowed to stand good though the manu­mission failed. The same result may be arrived at on the view that if the manumission of a servus communis failed, where there was also an institution, the manumission was simply ignored, exactly as it was in the case of a servus proprius⁷.

The effect of manumission by one of common owners is completely changed by Justinian⁸. The rules he lays down are these:

1. If one owner desires to free inter vivos or by will the others shall sell their shares to him or his heres who shall then free⁹. If the price of the share is refused, it may be deposited with a public authority and the manumission can proceed. His accounts are to be gone into if necessary, and made up on a day fixed by a iudex.

2. The price is to be fixed judicially. A maximum tariff is settled ranging from 10 to 60 solidi, according to age, sex, function, training, education, etc., with an increase in each case if he is a eunuch, but a maximum of 70 solidi.

3. The peculium will go pro rata; the manumitter is sole patron, and can give his share to the libertus.

¹ 28. 5. 6. 3. ² Ante, p. 443. ⁸ 28. 6. 18./)r. See ante, p. 510.

⁴ 28. 5. 6. 3; 28. 6. 18./)r.; cp. 28. 6. 10. 1, 36. pr.; 40. 7. 2. 4.

⁵ 28. 6. 18. pr. ⁶ Sklavenerwerb, 18. ⁷ Ante, p. 462.

⁸ C. 7. 7.1. ⁹ C. 7. 7.1.1. The form is immaterial.

19

4. If several wish to free, the first is to be preferred. If all at once, there will be no question of price: peculium and iura patronatus are divided pro rata.

5. The ius accrescendi is wholly swept away.

6. If a part owner left to a slave his part in him it had been doubted what the result was, as the intent might have been to free in part or to benefit the socius. Whatever the testator’s intent may have been, it is now, favore libertatis, to be treated as a gift of liberty¹.

Hitherto nothing has been said of fideicommissary gifts. There seems no difficulty in such a gift, but there is the point that the other owner might decline to sell^{[2023] [2024]. Most of our information is contained in the obscure preamble to the foregoing constitution of Justinian. It is impossible to be certain of his meaning, but the following is a possible interpretation. Africanus had held not only that such gifts were valid, but that the co-owner could be compelled by the Praetor to sell his share, a view reported and apparently adopted by Julian, Marcellus, Ulpian and Paul[2025]. Further Marcian reports a decision of Severus that in a certain case, where a soldier had made a direct gift to a common slave, his heres was bound to buy and free the man, and, a little later, Severus and Caracalla lay down a general rule to this effect, the co-owner being bound to sell. This forms the model for Justinian: his language seems to imply that it had dealt only with milites, but was not confined to a specific case as the earlier one had been[2026].}

III. Servus Fructuarius. The fructuary or usuary, not being owner, could not free. His manumission vindicta was in form a cessio in iure, involving an acknowledgment that he had no right in the slave. We may infer that some jurists held that his usufruct reverted to the dominus, but that the view prevailed that the act was a nullity^{[2027] [2028] [2029]. Justinian regulated this matter in a way to be stated shortly[2030].}

If the owner freed by will, it seems clear that the gift was good, but conditional on the expiration of the usufruct. Thus where a slave was instituted cum libertate, and afterwards a usufruct was created in him, the institution and manumission were both good, but took effect

ch. xxv] Manumission of Servus Fructuarius 579 only on the expiration of the usufruct¹. Where the usufruct of a slave was given as a legacy, and he was to be free at its expiry, this was valid: the expiry of the usufruct was a condition on the gift, so that though the beneficiary compromised for a sum of money, the slave was not free till death or capitis deminutio of the donee^{[2031] [2032]. Where an owner instituted the fructuary, and gave the slave freedom on a condition, the confusio destroyed the usufruct, and the slave became free at once on the occurrence of the condition[2033]. The act of the owner shews that he did not contemplate the natural expiry of the usufruct as a condition[2034]. These texts are all from the Digest, but there is no reason to doubt that they represent classical law.}

The case is different with manumission inter vivos: a manumission by will can be conditional, while one vindicta cannot^[2035]. Such a manu­mission was good if the fructuary assented (even though he was under 20°, for he was not freeing), with the auctoritas of his tutor if he was a pupillus’’. But beyond this there is some uncertainty as to what the classical law was. Ulpian tells us that a servus fructuarius freed by his owner becomes a servus sine domino*. This is a perfectly logical effect to be produced by the cessio in iure. The same thing is said elsewhere^[2036], with the addition: sed latinum.... This text observes that the existence of the usufruct prevents the manumission vindicta of the slave. This leaves open several questions. Does the restriction apply only to formal manumission ? Does it nullify the act or merely suspend it till the end of the usufruct ? If the latter view be taken, does the slave become a latin or a civis at the expiration of the usufruct ? Various answers have been given to each of these questions^[2037]. Jus­tinian’s remarks in his reorganising enactment give us little help. It may be noted, however, that whatever the law was, it seems to have been clear: he does not refer to any disputes, but merely declares that he is modifying the law. He seems to imply in the same text that the manumission was merely void—libertatem cadere", but, on the other hand, it appears from another enactment of his that the existence of the usufruct had been only an obstacle to the slave’s being free statim^w. There is no reason why informal manumission should not have made

580 Manumission of Servus Fructuarius [pt. ii

the man a latin at the end of the usufruct, and probably the Dosithean fragment was about to lay down some such rule. A manumission vindicta, regarded as such, could hardly have had such a suspended operation'. But the process was at least a declaration of intent to free, even though void as a formal act, and thus might possibly operate, as a declaration inter amicos, to make the man a latin, when the obstacle was removed². It may be noted that, regarded as a cessio in iure, it was in no way defective: there was no condition to vitiate it: it was only the existence of the usufruct which prevented it from producing all the effect which was desired. Thus it makes the man, in the meantime, a servus sine domino³.

Of the origin of the rule it is hardly possible to say more than that it appears to be a civil law rule independent of statute. Justinian declares it to be a rule of observation which seems to mean “ of juristic origin.”

Justinian reorganised the system, laying down the following rules:

1. If owner and fructuary concur, the manumission is valid in all respects.

2. If the owner frees without consent of the fructuary, the slave is free, and his libertus, though acquiring thereafter for himself, must serve the fructuary, quasi servus, till the usufruct ends. If he dies before that event the property goes to his heredes.

3. If the fructuary alone frees, intending a benefit to the slave, the ownership is not affected, but, till what would have been the end of the usufruct, the judices will protect him from interference by his dominus. At that time he reverts and his mesne acquisitions go to his dominus. If the fructuary frees him by way of ceding to the dominus, full dominium is at once reintegrated⁶.

IV. Servus Legatus. If the slave has passed into the ownership of the legatee, he can free, even in the extreme case in which the slave has been conveyed by the heres under a legacy contained in a codicil after­wards shewn to be a falsum⁶. Where a legacy was left to two, and one of them, having accepted the gift, freed the slave, and the other legatee afterwards repudiated the gift, the manumission was good⁷. These texts, of Marcellus, Paul and Ulpian, accept the Sabinian view that in the case of a legacy per vindicationem refusal by the legatee acts

¹ Ante, p. 455.

² That Justinian does not mention it among the causes of latinity (C. 7. 6) is explained by the fact that his reorganising enactment (C. 7. 15. 1) was of a little earlier date. See, however, ante, p. 543 and App. iv.

⁸ It must be presumed that as to such acquisitions as did not go to the fructuary, he was in the position of a derelict slave, ante, p. 274.

4 C. 7.15. l.pr.

5 C. 7. 15.1. The form of manumission is immaterial.

⁸ Subject to compensation, C. 7. 4. 2; cp. D. 39. 6. 39; ante, p. 568.

7 Fr. Vat. 84; D. 29.1. 31; 40. 2. 3.

ch. xxv] Manumission of Servus Legatus 581 retrospectively, to vest the thing in him to whom it would have belonged apart from the legacy¹: in. this case the other legatee. The two were at no time joint owners of the slave. The liberty dates from the manumission².

No authority is necessary for the proposition that if the heres has ceased to be owner he cannot free. But as to his position while the slave has not yet become the property of the legatee, it is difficult to say what the law was at different dates, in the various possible cases.

If the legacy was of a slave of the heres, it is clear that in classical law, at any rate, he was the slave of the heres till delivery. According to the view generally held this was also the case under Justinian³. Ulpian quotes Marcellus as saying that if, where there was such a gift, the heres freed the slave, the manumission was good⁴, and this text which is in the Vatican Fragments, no doubt expresses classical law. The Institutes express the same rule, crediting it to Julian, and remarking that the state of knowledge of the heres is immaterial³. The Digest quotes the same doctrine from Marcian⁸. But elsewhere the rule is laid down and attributed to Paul, that the manumission is void whether the heres knew of the legacy or not⁷. The reasoning of the text is ill-fitted to the rule it states, and it seems likely that the decision is of the compilers, and is a misapplication of the enactment of Justinian⁸, as to manu­mission and alienation of legated property, shortly to be considered.

The case of the slave of the testator left pure per damnationem should, it seems, be dealt with in the same way, but there are no texts : the case was obsolete under Justinian. Where he was left pure per vindicationem the case was complicated, for classical law, by the controversy which existed as to the state of the ownership pending acceptance by the legatee. It is generally held, notwithstanding the language of Gaius⁹, that the view which prevailed was that of the Sabinians, that the ownership was in suspense till the legatee made up his mind, and that, if he refused, the thing was treated as having been the property of the heres from the date of operation of the will. This view is confirmed by the surviving texts dealing with the matter, which declare that the manumission by the heres is void if the legatee accepts, valid if he refuses : retro competit libertas¹â€ť. Upon the same principle, if a slave is left pure to two, and one, having accepted, frees the man, the manu­mission is good if the other refuses, unless, before Justinian, the effect of the refusal was to make the gift a caducum, in which case the lapse

¹ Girard, Manuel, 922.

² 40. 2. 3; D. 29. 1. 31 is not really in contradiction.

8 But it is not possible to be certain as to the exact meaning of his enactment, C. 6. 43.1.

< Fr. Vat. 84. ⁶ In. 2. 20. 16. ⁶ 30. 112. 1.

7 40. 9. 28. ⁸ C. 6. 43. 3.

9 G. 2.195; see, e.g., Girard, Manuel, 922.

¹⁹ 29. 1. 31; 40. 1. 2; 40. 2. 3.

might not benefit the other legatee¹. In an enactment of a.d. 531², Justinian lays down a rule that where a slave is left pure or ex die, the heres is to have in no case any power to free. It is plain from the context that this is intended to clear up doubts as to the effect of his general enactment assimilating all kinds of legacy³: there is no reason to suppose it was intended to alter in any way the rule which made the effect of a manumission by the heres, of a serous legatus, depend on the fate of the legacy.

Where the legacy was conditional, the Proculians held that,pendente conditions, the slave was a res nullius, and there could be no question of manumission by the heres. But the view prevailed that the res was in the interim the property of the heres*. On this view he ought to have been able to free, but two texts in the Digest make it clear that he cannot do so³. As Gaius seems to express a view which he rejects in his Institutes⁴, it is not unlikely that the rule is new in Justinian’s law, and that the old rule was that the heres could free, subject to com­pensation. It is noticeable that Justinian in his enactment, just cited³, in which he prohibits dealings with things legated, assumes a prima fade right to alienate things conditionally legated, but declares any such alienation irritum if the condition arrives. He says nothing about manumission in this part of the lex, and it is clear that such things could not be voidable. It seems that the texts in the Digest³ have been altered so as to state an arbitrary rule placing manumissions on the same level as other gifts, so far as is consistent with their irre­vocable nature⁶. It is hardly possible to apply the rule that the effect of the manumission in classical law was in suspense, so that it failed if the condition arrived, for this would imply that acquisition to the legatee was retrospective, and this does not seem to have been the case⁷. There are, however, two texts which deal with legacy of optio servi, which raise a difficulty. In one we are told⁸ that the legatee cannot by freeing lessen the right of the legatee, since each slave is regarded as conditionally legated. The other says that the man is not made free in the meantime, but that he will be free if the legatee chooses another slave⁸. These texts are not in conflict with each other, but they may seem difficult to reconcile with what has just been said. It is clear, however, that in Justinian’s law a legatum optionis was not

¹ Fr. Vat. 84; D. 29.1. 31; 40. 2. 3. If the other legatee accepted, the manumission would be void before Justinian, as having been made by one of co-owners. Presumably under his legislation the freeing owner would have to compensate the other, ante, p. 568.

a C. 6. 43. 3.2 a, 3. » h. 1.1.

⁴ 40.9.29.1; G. 2. 200. ’ 40.1.11; 40.9.29.1.

® This is more or less confirmed by the fact that there survives into the Digest a text which tells us that when there was a fideicommissum of a slave under a condition and the heres freed the man the manumission was good, but the heres had to pay compensation whatever his state of mind, 36. 1. 26. 2.

7 See the texts cited by Accarias, Precis, § 379, n. 3. ⁶ 40. 9. 3.

• 33. 5.14.

ch. xxv] Manumission of Servus Dotalis 583

conditional. Our text only speaks of each slave as quodammodo¹ conditionally legated, and in the Institutes’ Justinian says that formerly such a gift conditionem in se habebat. But he took away the intrans­missibility of right of choice, which gave such a gift its apparently conditional character, and we have seen³ that the passage in the Institutes is very doubtful history. It may well be that those jurists who thought the gift ought to fail if the legatee failed to choose, thought so, not because there was an unsatisfied condition, but because there was no slave who answered the definition in the will. In fact the expression optio servi covers two forms of gift—utrwm elegerit habeto, and optionem do. In the former case if he chooses none there is none which satisfies the definition, in the latter there is no sort of reason why the heres of the legatee might not choose. It is idle to attempt to reconstruct the debates⁴, but enough has been said to shew that we are not entitled to construe such gifts as conditional in all respects. For Justinian they are pure legata, and the rule laid down is the normal rule in such cases.

V. Servus Dotalis. All the texts which deal with this case are from the Corpus luris, with the exception of one which has not been deciphered⁵. It does not appear, however, that Justinian’s changes in the law of dos affected the right of the husband to manumit during the marriage, so that these texts probably represent classical law. The vir is owner and can therefore free⁶, with the effect of becoming patron and heres legitimus'’. But though the vir could free it does not follow that he would not have to account for the resulting loss to the dos. On this matter elaborate rules are laid down⁸. If the wife assented to the manumission, and did so with the intention of a gift to her husband, he will not have to account for any of the rights he has over the libertus, either ipso iure or expressly imposed, or even for the slave himself⁹. The gift is valid, notwithstanding that it is a gift from wife to husband, just as a gift to him, ut manumittat, would be¹⁰. If the wife assented or did not oppose, but it was ex negotio, as a matter of business, the vir must account for all he gets ex bonis, or ex obligations, including anything specially imposed", even though after the manumission¹³. Thus if he accepts the man as debtor or surety iure patroni, the

¹ 40. 9. 3. » In. 2. 20. 23. ’ Ante, p. 19.

⁴ In 33. 5. 9. pr. Julian evidently adverts to an analogous difficulty of construction, and refuses on common sense grounds to accept the logical interpretation of the words of the gift, under which the legatee would be entitled to both slaves if he chose neither.

6 Response Papiniani, 9. 9. ⁶ C. 7. 8. 7.

7 38. 16. 3. 2; 48. 10. 14. 2 *, but he has no more right than any other owner, so that he cannot free if the slave is pledged to the wife or if he is insolvent, though the only creditor be the wife for the dos, C. 7. 8.1 *, D. 40. 1. 21.

⁶ See Demangeat, Foods Dotal, 18 sqq. ⁹ 24. 3. 24. 4, 62, 63.

io 24. 3. 63; P. 2. 23. 2. U 24. 8. 24. 4, 64. pr., 1.

ia h.t. 64. 8.

obligation so acquired must be accounted for^[MMXXXVIII]. And by the lex lulia the obligation covers not only what was received, but what would have been received but for dolus of the patron². On the other hand, two limits are expressed on this duty of accounting. He is liable for operae, if he receives their value, but not if they are actually rendered to him’. And while he is accountable for everything he has received iure patroni, he need not account for extraneous benefactions from the libertus, and thus not for any share of the estate of the libertus, to which he was instituted, beyond his share as patron⁴. If, however, the manumission was against the will of the wife it appears that he must account for everything he receives through the libertus, as well as for the value of the man himself’.

There is some difficulty as to the law in the case of manumission by will. In the classical law the remedy of the wife or other claimant for return of the dos was a personal action⁸: the slave was still the property of the husband or his estate, and thus he could free by will⁷. Though the slave could be claimed before the manumission was com­pleted, it was impossible to set it aside when it had been carried out. On the other hand Scaevola tells us⁸ that where the woman died in matrimonio she could free slaves by her will, at least if there had been a pact to restore the dos to her brother, under which pact he had stipulated for this return—a point which does not seem material. Some of the language suggests a direct gift, and a woman could certainly not free directly by will a slave who did not belong to her when she made the will⁹. But the concluding words of the text look as if the gift was fideicommissary, since the heredes are spoken of as bound to carry out the manumissions, and in that case there is no difficulty¹⁰.

VI. Divorce. A woman who divorces or is divorced^[MMXXXIX], whose mar­riage ends, indeed, in any way but bona gratia, or death, or civil death of a party, cannot free or alienate any of her slaves for 60 days from the end of the marriage¹², whether they had been hers during the marriage or not. The object is to prevent her from evading the quaestio for them, in the matter of adultery. The rule is laid down in the lex lulia de adulteriis, quod quidem perquam durum est, sed ita lex scripta est¹. Whenever under these rules they cannot be freed, they can be tortured². The paterfamilias, the mother, the avus or avia cannot free or alienate, for the same time, any slaves who had been employed on the wife’s service, nor can any person whose slaves would be liable to the quaestio in the matter⁸. If such persons; dying within the 60 days, manumit by will, the slave is a statuliber; the condition being that there is no accusation within the 60 days⁴. Though the husband dies within the 60 days the bar still continues, as the father can still accuse®. Africanus thought the time fixed by the lex was too short, since the trial would not be over in that time. Accordingly the rule develops that if a charge is actually begun, manumission is barred till it is over⁶. Similar rules are applied if the manumission is in fraudem legis, i.e. in contemplation of a divorce⁷. Justinian provides that death of the wife shall not end the prohibition, but that it shall go on for other two months, as it may still be important on the question of disposition of dos. After that time the heres may free, unless his culpa has delayed the husband in bringing the charge⁸.

With this matter may be stated the connected rule that, if a woman is accused of adultery with her slave, she cannot free the alleged accom­plice pending the accusation⁸. Under the juristic extension of the more general rule above stated this ceases to be important. Justinian preserves it only in connexion with, and for its bearing on, the law of institutio. ^[MMXL]

586 Manumission: Transfer ne manumittatur [pt. n when the gift would take effect, not on the date of the will¹. The inference that it is to be only temporary may be drawn from the facts. If the restriction is not imposed as a penalty, but, e.g., in order to have some person to look after the heres or his estate, it will be impliedly temporary and the bar will cease if the heres dies’. In some cases the reason is stated, perhaps to avoid implications. Thus in the will of Dasumius the heres is requested not to free certain slaves, so long as they live, because they have neglected their duty³. It is not anywhere expressly said that the condition runs with the slave, and in some cases words are used which seem rather to negative this. Thus in the text just mentioned the direction was that neither donee nor his heres vias to free. In the will of Dasumius³ the direction is that the heres is not to free. But from the way in which this case is grouped with that last discussed it seems likely that, apart from expressed intention, the restriction is quite general⁴. It may be applied to a slave of the testator or of the heres, but not it seems to one of a third person".

One point is somewhat difficult. How far, in classical or later law, is a conditional manumission by will a direction to the heres not to free till the condition is satisfied ? Justinian tells us, as we have seen⁶, that in earlier law the effect was, where the heres was extraneus, to prevent him from making the slave more than a latin, and that he provides that the heres can make the man a civis, but that if the condition arrives, the man shall be libertus orcinus. Antoninus Pius is quoted by Marcian⁷ as laying down or mentioning the rule in most general terms, not confining it to heredes extranei, but it is quite clear that there were possibilities of making the slave a tivis in some cases⁸. Pomponius observes’ that some masters, desiring that their slaves should never be free, wrote gifts of liberty to them to take effect on their death, and quotes Julian as holding that such derisory gifts were mere nullities—nullius momenti. This appears to mean only that they were invalid as gifts, but, as expressed, it also means that they were of no force as restrictions, the idea perhaps being that, as there was no express restriction, one could not be implied from a gift which did not take effect. Pomponius goes on, however, to quote Octavenus¹â€™ as holding that if a testator, having given a conditional freedom, adds the words: nolo ante conditioner», eum ab herede liberum fieri, the addition is of no effect, nihil valere. In the law as we know it, it is clear that such a

¹ 40. 9. 17. 2. a C. 7. 12. 2.

⁸ Bruns, Fontes, i. 273. It does not of course bar the testator himself from freeing inter vivos, or even by will, 40. 5. 40. 1.

⁴ Cp. 31. 31; 35. 1. 37, where a legal prohibition (e.g. lex lulia) seems to be in question.

⁶ A gift of land to a third person if he do not free Stichns does not bar: it is a condition on the gift giving rise to cautio Mnciana bnt nothing more, 35. 1. 67.

’ C. 7. 6. 7; ante, p. 550. ’ 36. 1. 32. 1.

⁸ 28. 5. 3. 3; 4. 3. 32. See also 40. 7. 3. 15. Ante, p. 550. »40. 4. 61. pr.

1040. 4. 61. 2.

ch. xxv] Manumission by person under guardianship 587 restriction could ’be imposed. Pothier^[MMXLI] adopts the view suggested, with others, by the Gloss, that the words mean merely “ I do not desire my heres to free before the time,” and not “ I desire him not to free.” But the words do not mean this, and if they did their emptiness would be so obvious that Octavenus would hardly have made the remark, or Pomponius thought it worth citing. On the other hand if they are understood, as the Gloss also suggests, as useless, since they do no more than the very existence of the condition does, this is not true for the case of a suus heres, even if we ignore the fact that any heres could make the man a latin, and they are anachronistic in the time of Justinian. In any case the remark of Octavenus seems to be out of date. It must be remembered that the right to impose such a restriction is not a matter of course: we are told in two texts² (also cited by the Gloss) that a testator could not impose a general permanent restriction on alienation, apart from fideicommissum. Octavenus was an early writer, and it is possible that in his time the power had not developed. The implied restriction contained in a conditional gift is probably later still, and may not be earlier than Antoninus Pius, who seems to have legislated on these matters’. If that is so it is probable that the rule that in such a case the manumission, though void as such, was at least a declaration of wish that the man should be free, and thus made him a latin, was later still⁴.

VIII. The slave of a person under guardianship. Manumission by an infans is impossible, and thus if such a person is under a fidei­commissum, to free, the beneficiary will be declared free on application : it is in fact an ordinary fideicommissum which the fiduciary, without personal culpa*, has failed to carry out. Other pupilli and women under tutela cannot free without the auctoritas of the tutor, and, even if that is given, the manumission will not include a gift of the peculium*, as it ordinarily does in manumission inter vivos⁷. The reason is that a tutor has, in general, no power to authorise gifts⁸. It should also be noted that in any manumission, by a pupillus, or a pupilla under 20, causa must be shewn⁸. If the tutor refuses to authorise a manumission due under a fideicommissum the same rule applies as in the case of infans¹⁰.

A minor under 20 must of course shew cause whether he has a curator or not, and we are told repeatedly that a minor over 20 who frees cannot get restitutio in integrum¹. These texts do not in any way distinguish between the case in which there was a curator and that in which there was none, a fact which is somewhat opposed to the opinion now generally held, that a minor who has a curator is incapable of making his position worse².

A furiosus is incapable of freeing, and his curator cannot free for him, as manumission is not administration³. The imposition of a fidei­commissum on a furiosus creates an obvious difficulty. He cannot authorise his filius, if he has one⁴: his personal iussum is impossible. Octavenus³ suggests as a way out of the difficulty that the curator can convey him to someone else to free. That this should have been regarded as administrative while the direct act was not is rather surprising. Antoninus Pius settled the matter by providing that the rule above stated for infantia was to apply⁶.

IX. Slaves of corporate bodies’. Marcus Aurelius gave a general power of manumission omnibus collegiis quibus coeundi ius est^a, and they, and municipalities whose slaves are freed, have rights of succession and the other patronal rights⁹. It has been said¹⁰ that before these enact­ments such a slave if freed could not become a civis. But in fact Varro, the contemporary of Cicero, speaks¹¹ of libertini of towns, and of their names, in terms which shew that they were not merely in libertate morantes, but cives, and he makes allusion to slaves of other corporations, obscurely indeed, but in such a way as to suggest that they were on the same footing. An enactment of Diocletian¹² refers to an ancient law authorising municipalities in Italy to free, and speaks of the right as extended to towns in the provinces by a Senatusconsult of a.d. 129. Probably many corporations other than towns had the right, but there was no general right in collegia till the enactment of Marcus Aurelius.

As such manumissions were inter vivos, the libertus of a town, (and presumably of any corporation,) kept his peculium unless it was expressly taken away, so that debts to the peculium were validly paid to him¹³. The form of manumission by a collegium is not known¹⁴. Slaves of

¹ Ante, p. 566. ² But this opinion rests on little evidence. See Girard, Manuel, 231.

s 40. 1.13; 40. 9. 22. *40.2.10. 8 40. 1. 13; ante, p. 457. 6 40.5.30.7.

⁷ Mommsen, Z. S. S. 25. 39, 49; Mitteis, Rom. Privatr. 1. 385, 399; Halkin, Esclaves Publics, 142.

a 40. 3. 1. » 40. 3. 2, 3; 38.16. 3. 6.

10 Halkin, loc. cit.-, Rauter, SocidU, 37. ¹¹ Varro, de ling. lat. 8. 83.

¹² C. 7. 9. 3. The text calls it lex Vetti Libici. Of the suggested emendations, that of Mommsen (ad h. I.), lex veteris reipublicae, seems the most probable. See Mommsen, Z. S. S. 25. 49. ¹⁸ 40. 3. 3; ante, p. 205.

¹⁴ As the Senate freed slaves of the State and the Ordo freed slaves of towns, it seems likely that a vote of the collegium or its governing body, if it had one, sufficed. Probably, as Mommsen says (op. cit. 39), recognition of a given corporation would be accompanied by regulations hereon. He suggests authorisation to a delegate (actor?) to free v indict a, but this seems unlikely. towns were freed by a decretum of the local senate (or do, curia) with the consent of the Praeses or Rector¹. They took the name either of the town or of the magistrate who freed them². Bruns³ gives a case of wholesale manumission of slaves of a municipality, probably for services rendered, in b.c. 188, but this is an overriding decree of the Proconsul⁴. It seems to have been a common thing for them to give a mancipium in the place of themselves⁵, but there is no reason to think this was a legal requirement⁶: it occurred commonly in other manumissions’. Such a substitute was called in some cases vicarius, which, in this connexion, no doubt implies that he was qualified for the same function⁸.

Any person could give a fideicommissum of freedom to the slave of a municipality⁰. And conversely where any townsman suffered for­feiture of his goods, any slave he was bound to free was declared free by the municipal authority¹⁰.

It is a vexed question whether societates vectigales were, or might be, corporate bodies. The evidence is mainly one obscure text¹¹. Into the various solutions which have been offered of the problem it presents we will not enter¹². If (or when) it was a corporation it would be governed by the rules just stated. Varro seems to refer to freedmen of societates¹³, and may be thinking of this case, but the text is not strong evidence, and no surviving juristic text mentions the matter.

X. Servi Publid Populi Romani, Gaesaris, Fisd. Of the manu­mission of ordinary servi publid there is little trace¹⁴. Mommsen can find one case only under the Empire. No real case is recorded, it seems, in Republican times. The nearest approach to a case is that in which Scipio promised liberty, on conditions, to some captives whom he had declared servi publid¹⁵. But there are many instances of gifts of liberty as a reward for services to slaves who vested in the State. In some cases they are slaves of private owners, bought and freed as a reward for revealing crime, or betraying the enemy¹⁶, or for service in

¹ C. 7. 9. 1, 2, 3; 11. 37. 1. ² Varro, loc. cit. ⁸ Fontes, i. 231.

⁴ Acting apparently under the authority of the Senate. It is not, however, quite clear who these slaves were.

⁸ C. 7. 9. 1.

⁶ See, however, Wallon, Histoire de 1’Esclavage, 2. 500; Erman, Servus Vicarius, 432.

’ E.g. C. 6. 46. 6. pr.; C. Th. 4. 8. 7 ; D. 38. 1. 44; 41. 3. 4. 16,17; 41. 4. 9.

⁸ Erman, loc. cit. ⁸ 40. 5. 24. 1. ¹⁰ h. t. 12. pr. ¹¹ 3. 4. 1. pr.

¹² See Mitteis, Rom. Privatr. 1. 403 sqq. He gives references to earlier literature.

¹⁸ Varro, de 1. 1., 8. 83.

¹⁴ Mommsen, Staatsr. (3) 1. 322; D. P. R. 1. 369; Willems, S£nat, 2. 354; Halkin, Esclaves Publics, 22 sqq. The following references are mainly due to this writer who collects and discusses the texts. It is clear from Varro, de 1.1., 8. 83, that they were sometimes freed. He notes that anyone so freed had been called Romanus (cp. Livy, 4. 61), but was now called after the magistrate concerned.

is Livy, 22. 57, 26. 47.

¹⁸ Livy, 2. 5, 4. 45, 4. 61, 22. 33, 26. 27, 27. 4, 32. 26 ; Cicero, pro Rab. 11. 3, pro Balbo, 9. 24; Vai. Max. 5. 6. 8, 6. 5. 7 ; Dion. Hal. 5. 13; Sallust, Catil. 30; Plutarch, Popl. 7 ; Macrob. Sat. 1. 11. 40. But see, as to their ownership, post, p. 598. war¹: in others they are captives freed for betraying the enemy or for services after capture^{[2042] [2043] [2044]}. It may be assumed that the mode of manu­mission would be the same for all slaves of the people, and it is clear that the ordinary course is for the Senate to authorise the liberty and for the magistrate to declare it. In some cases this is stated^[2045]: in others we are merely told that liberty was given—an impersonal form, better suited to describe an act of the Senate than an independent act of the magistrate^{[2046] [2047]}. Sulla certainly freed on his own authority, but this was when he was dictator with almost absolute power®. Scipio perhaps freed captives on his own authority; it may be, as Mommsen says, he did this by virtue of the commander’s power to dispose of booty^[2048]. In many cases the libertus receives money as well: this and indeed the abandonment of property rights in the man seem to be essentially the business of the Senate^[2049]. For the act of the magistrate no form is necessary. Only in a very early and doubtful case is the use of the form of vindicta recorded⁸. The magistrate is usually a Consul or Proconsul, but this is not essential: in one case it was the Praetors^{[2050] [2051] [2052]}.

In most cases the freedman is declared to have libertas and civitas. In one case Cicero says : libertate, id est civitate, donari™. But in some cases liberty only is mentioned¹¹, and it is quite possible that in earlier days where the event occurred in a latin region the freedman may have received the status of the ordinary inhabitants of the district.

In many cases the slave to be freed has to be first acquired from his owner. We are not expressly told that he could be compelled to transfer. But resistance to the decree of the Senate was improbable, and a power of compelling sale was not without analogies^[2053].

The only known case in post-republican times appears to have been carried out by the Emperor¹⁸. Whether the Senate concurred or not cannot be said, but such a concurrence must have soon become merely a form.

There is a good deal of evidence as to the existence of liberti Caesaris but it is hardly possible to distinguish between the different grades¹⁴. No doubt the Emperor could free by will those slaves who

ch. xxv] Manumission: Guilty Owners and Slaves 591 were his own private property¹, but there is no sign of an attempt to do so in the case of those in any sense State property. Inter vivos the manumission was done by the Emperor himself, and there exists a constitution warning magistrates that it is unlawful for them to do it⁸. He did not manumit vindicta, since he was subject to no jurisdiction. But we are told that ex lege Augusti, at his mere expression of desire, the slaves are free³, and the Emperor has full patronal rights⁴. Whether they were always cives, or the Princeps could make them latins, or did so if they were under 30, is not clear. It may be noted that slaves in the peculivm of servi Caesaris could not be freed by them, even per interpositam personam, i.e. slaves could not be validly transferred ut manumittantur⁵. For this rule to be effective the conveyance for this purpose must have been ab initio void. Naturally, fideicommissary gifts of liberty could be made in favour of such persons.

XI. Guilty Owners and Slaves. It was provided by Antoninus Pius that a deportatus could not free®. The rule refers to slaves acquired since the deportation, for of the others he has ceased to be owner. As he is not a civis he cannot of course give civitas. But as he has all iure gentium rights, he could no doubt, apart from this express enactment, have given them the same rights as he had, just as a relegatus could free so as to give the man the rights he had but not so as to enable him to go to Rome⁷. A person condemned, even after his death, for maiestas, could not free, and thus gifts of liberty in his will were nullified by subsequent condemnation⁸. The same was true of other capital crimes, and the rule, though it is vaguely expressed, seems to have been, as laid down by Antoninus Pius, that any person actually accused lost his power of manumission for the case of his ultimate condemnation⁹.

Servi poenae could not be freed¹⁰. Even where the sentence was not capital, there were cases in which the magistrate might impose as part of the sentence on a guilty slave, an incapacity for manumission¹¹. In some cases there was a permanent rule that the slave could not be freed¹². A slave who had been guilty of some offence under the lex

¹ Marquardt, Org. financ. 394.

² C. Th. 8. 5. 58. There was now no practical difference between publici and Caesaris. As to freeing by the fisc,, post, p. 626.

³ 40.1. 14.1. There may have been a Sc. authorising the Emperor generally.

⁴ 38. 16. 3. 8. ⁵ C. 7. 11. 2 ; post, p. 595. 6 48. 22. 2.

⁷ 48.22.13. ⁸ C. 9. 8. 6; cp. D. 48. 2. 20..

9 40.1. 8.1, 2; 40. 9. 15. pr. This is not a condition: there is nothing future and uncertain. The incapacity depends on the guilt and the accusation: the conviction only brings it to light. No capitally convicted person can free (40.1. S.pr.), but manumission before accusation is good, 40. 1. 8.pr.; C. 4. 61. 1.

10 Ante, p. 410. ii 40. 1. 9.

i² Slaves who had been part of a band of robbers and had by decree become private property could not be freed, C. 7.18. 2. A servus relegatus who stayed in Rome could not be freed, 40. 9. 2, ante, p. 94.

Fabia, for which his master had paid the fine, could not be freed for 10 years. The text adds that in the case of a will the date of the death, not that of the will, is the date taken as that of the gift¹. Severus appears to have provided that persons condemned to perpetual vincula could not be freed. But as this punishment was always illegal^{[2054] [2055] [2056], and the enactment which recites this provision goes on to treat the case as one of temporary bonds, it is probable that the original enactment dealt with that case. The reciting enactment, which is so rubricated and described[2057] as to make its origin uncertain, but which is probably by Caracalla alone, or with Geta, provides that a gift of liberty which takes effect while the slave is undergoing the penalty of vincula is void. Expiry of the sentence would enable him to be freed, but would not revive the gift. Here, too, it is the date of the aditio, not of the will, which is determining. There was a still severer rule: Hadrian provided that a gift of liberty would be null if it were made only to prevent a magistrate from punishing the slave in the way appropriate to slaves[2058] [2059] [2060], who, for many offences, were more severely punished than were cives or any freemen®.}

XII. Cases connected in other ways with criminal offences. If any person wrote a gift to himself in any will, an edict of Claudius, based on the lea: Cornelia de falsis, voided and penalised the transaction. If, however, the testator noted specially that he dictated the gift in question, it was valid, and even a general subscriptio pre­vented the penalty from applying⁸. Similar rules were applied to gifts of liberty. If a slave wrote a gift of liberty to himself, it was in strict­ness void, but the penalty was remitted if it was shewn that the writing was at the dictation of the master, whom the slave was bound to obey^[2061]. If, moreover, the testator subscribed the will, the gift though not valid was declared by the Senate to impose on the heres a duty to free⁸—the words of the lea: being presumably too general and peremptory to be disregarded even in this case. Antoninus Pius had a freer hand and declared that the gift should be absolutely valid if the testator acknowledged in the will that the gift was written at his dictation⁹.

A master could not free his slaves so as to save them from the quaestio in any case in which they were liable to it, e.g. for adultery, which need not be adultery of the slave or his owner¹⁰.

The case of the senatusconsultum Silanianum has already been dealt with^[2062]. Here it is enough to say that where, under this senatusconsult, the will has not been opened, owing to the killing of the paterfamilias, and there is ultimately an entry under it, the gifts of liberty which take effect do so retrospectively, so that the slaves have, as their own, their interim acquisitions, and the child of a woman in such a case is born free. This is settled by Justinian, putting an end to doubts². If, however, some slaves had run away, and the enquiry had been held, and the will opened, a gift of liberty to them would not prevent their being put to the quaestio in the matter if there was any further enquiry’. But the language of the texts implies that the gifts were not void, but were only ignored so far as was necessary for the purposes of the enquiry and resulting steps. We are told that if any slave brings a claim of liberty under the will of one whose death has given cause to an enquiry under the senatusconsult, judgment on the claim may not be given till the enquiry is ended⁴.

XIII. Cases of Vis and Metus. A manumission is null if the slave compelled his master to do it by threats or force⁵. The same is true if the fear is inspired by a third person or by popular clamour·. On the same principle Marcus Aurelius nullifies any manumission ex accla­mations populi’’. By what may have been the same enactment—in form a senatusconsult—he nullified all manumissions, by anyone, of his own or anyone’s slaves at the public games⁸, and Dio Cassius credits similar legislation to Hadrian⁹. The reference to others is probably an allusion to a direction by some prominent person to free¹⁰. Conversely where a man compelled conveyance of a slave to him, and freed him by will, the manumission was null, the reason being that had it been allowed to take effect there would have been no remedy against the heres, as he had not benefited^[2063].

XIV. Slave in bonitary ownership. It has already been noted that a bonitary owner could make the slave no more than a latin¹². The only thing that need be said here is that mere traditio instead of mancipatio is not the only source of this inferios ownership¹â€™.

XV. Servus Incensi “. The only real authority is a very defective fragment of the Responsa Papiniani¹⁵, too imperfect to admit of certain

594 Manumission by Latins and Peregrines [pt.ii interpretation. Esmein treats the text as meaning that an incensus, though liable to capitis deminutio maxima, was not barred from manu­mitting merely by the fact that he was incensus, but only by actually being adjudged so. The persons so manumitted would be free, but if the manumission took place before the census was closed, they them­selves would be incensi, and subject to the same penalty. If, however, the manumission was after the census closed, they were in no way wrongdoers, and thus were not liable.

XVI. Servus Latini. The slaves of latins could possibly be freed vindicta, as latins had commercium, but not, it would seem, censu. A Junian latin could not, of course, free by will. The manumissus could never be more than a latin, though, apparently, he would always be that, if the manumission conformed to local rules, unless the rule of the lex Aelia Sentia as to dediticii applied to latins manumitting¹. The lex municipalis Salpensana provides for manumission apud Ilviros in a latin colony: the libertini are to be latins: causa, in the case of an owner under 20, is to be shewn before a committee of decurionesK Elsewhere language is used which confirms the view that the freedman of a latin was a latin^{[2064] [2065] [2066] [2067] [2068]. The rights of succession to such libertini were governed by the lex municipalis, and clearly differed from, and were more favourable to, patrons than those which applied to cives*.}

XVII. Servus Peregrini. Such slaves could not be freed censu or vindicta or by will, except under the local law. They could be no more than peregrines, indeed so far as the Roman law was concerned, they were only in libertate, as having been informally freed, subject, however, to the provisions of the relative lex peregrina*. In later law, the rule is clear that the manumitted slave of a provincial belonged to the com­munity of his manumitter^[2069], even fiduciary, though the slave had been an inhabitant of another region’. The rules as to manumission in fraud of creditors applied to this case, by a senatusconsult of Hadrian, though the other provisions of the lex Aelia Sentia did not⁸.

XVIII. Servus Fugitivus. A senatusconsult, based on the lex Fabia, forbade the sale of slaves in fuga'^J. It was allowed, however, to

authorise fugitivarii, persons who made it their business to capture such fugitives, to sell one when caught^[MMLXX]. Moreover any fugitivus whom his master did not claim would be sold by order of the praefectus vigilwm. The buyer could recover the price from the Fisc at any time within three years, and the slave could in no case be manumitted for 10 years without consent of the former owner². The rule as to recovery of price is obscure: it probably implies that the former owner was entitled to claim the slave at any time within three years³.

XIX. Deaf and dumb owners. A deaf mute could free informally but, before Justinian, not by vindicta. The distinction was important, since informal manumission gave only latinity. One way of evading the difficulty was no doubt to authorise a son to free: the defect was purely physical, and did not prevent iussum. It was also possible to convey the slave to a competent person with a condition that he should be freed⁴. A person born deaf was allowed to free, utilitatis causa⁶. This must refer to manumission vindicta, since such a person could not be worse off than a deaf mute, and it is clear that a deaf mute could free informally.

XX. Servus Indefensus. Where a slave is accused of a capital crime and his master does not defend him, and he is, in the event, acquitted, it is laid down that the dominus cannot free him⁶. This looks like a penalty on the slave for the master’s cruelty. The text may mean no more than that he cannot do so, so as to acquire the rights of a patron, but neither its language nor its position in the Digest suggests this meaning. It is more probable that it is an arbitrary rule, based on the idea that manumission is a reward and ought not to be used as a means of getting rid of a slave of whom one has a very bad opinion. It is clear that the refusal to defend does not amount to manumission or to derelictio: he is still the property of the old owner⁷.

XXI. Manumission by persona interposita. There was a general rule that if a person was incapable of manumission and he left the slave to someone ut manumittatur the direction was void and liberty given would be null. The texts differ as to whether the legacy itself was valid⁸. The rule must clearly be limited to cases in which the prohibi­tion was perpetual and not due to a merely physical defect, but with that limitation it seems probable that the rule was absolutely universal, and not confined to gift by will^[MMLXXI].

Similarly a slave could not free a slave in his peculium, even though he were a servus Caesaris and so had real rights in the fund². This applied even to a manumitter who was not found to be a slave till after the manumission³, and to servi poenae*, who had been ewes. And we are expressly told that a slave could not do it indirectly by interposita persona².

XXII. A dediticius enslaved for living within the prohibited area was sold into perpetual slavery beyond it⁵. If he was then freed, the manumission was not a mere nullity, but had a peculiar statutory effect. It made him a slave of the Roman people⁸. This does not mean that he became servus publicus populi Romani: this was a slave the property of the State, and devoted to the public service’. These were always men and a privileged class⁸. The person we are now dealing with, who might be man or woman, was in no way privileged, but at the disposal of the State. The rule is obsolete in later law’.

XXIII. Manumission in a will post mortem heredis was void—a rule based on the similar rule in legacies⁹. Justinian abolishes the rule in general terms¹⁹.

XXIV. A liberta cohabiting with a servus alienus without the patron’s knowledge was reenslaved without possibility of citizenship^[MMLXXII]. This rule disappears with the rest of the provisions dependent on the sc. Claudianum, under Justinian’s legislation¹².

XXV. Manumission poenae nomine. Such manumissions were void in classical law. It is not always easy to say what are poenae nomine: it is a question of the intention of the testator, i.e. whether his real object was rather to penalise the heres than to benefit the donee¹³. Justinian abolishes the rule which forbade such gifts¹⁴.

XXVI. An enactment of Alexander provides that a man may not free one whom he had been forbidden by his mother to free, ne videaris iura pietatis violare¹*. The words and the general character of the whole text shew that there is here no case of application of a legal principle.

XXVII. If an estate devolved on the Fisc, Severus and Caracalla enacted that the procuratores Caesaris were not to alienate servi adores of the estate, and that if they were manumitted the manu­mission should be void. The rule is one of obvious prudence: it is not safe, however, to infer from it that the procurator Caesaris ever had the power of manumission^[MMLXXIII].

XXVIII. The case of slaves sold for export has already been considered².

XXIX. It may be doubted whether alien captives could be freed by a private owner. There seems to be no real authority. Of course so long as they were the property of the State they could be freed by the public authority². But as to private owners, texts are wanting.

It remains to remark that there was a general rule applicable to each of these cases, that prohibition meant nullification⁴: it was not one of those transactions which non debent fieri sed facta valent.