CHAPTER XXVI. FREEDOM INDEPENDENT OF MANUMISSION.

These cases may be most conveniently discussed under three heads.

(i) Cases of reward to slaves. In relation to this matter it should be observed that these are cases in which the State intervenes to give liberty to the slaves of private persons, usually, as a matter of course, compensating the former owners.

In some of the cases which follow either interpretation is possible on the recorded facts.

(a) A senatusconsult, elaborating the provisions of the lex Cor­nelia de iniuriis, punished those who wrote, or trafficked in, libellous writings. A reward was payable to the informer, fixed by the iudex, and varying with the wealth of the accused. Where the informer was a slave the reward might even be a gift of liberty, but only in a case in which the discovery was of public importance⁶.

² Ante, p. 410.

⁵ Willems, S4aat, 2. 683.

⁸ Port, pp. 602 ggg.

to have been payable out of the means of the accused, and it is possible that the text means that the master was compelled to manumit, being compensated from the accused’s estate. There is no suggestion that the public authority was to buy and free the man. But the whole allusion to liberty in this connexion is Byzantine in form¹: and it is almost certain that this part of the rule is the work of the compilers. It is therefore most probable that the method of application of the rule was not in fact worked out.

(6) A slave who denounced the commission of rape on a virgin or widow, which had been either concealed or compromised, was given latinity by Constantine, the parents, if parties to the concealment, being deported. Justinian adopts the enactment, declaring that the man is to get liberty, which in his time means civitas¹. Nothing is said of com­pensation to the owner, but on the analogy of the next case to be stated, it seems likely that where the owner was not the wrongdoer the Fisc paid compensation.

(c) Slaves who denounced coiners, were given civitas by Constan­tine, their owner being compensated from the Fisc^{[2075] [2076] [2077] [2078] [2079].}

(d) In a.d. 380 it was provided that slaves who denounced deserters should get liberty. Justinian adopts the enactment, and with him liberty means civitas: it may be doubted whether this was its meaning in the original enactment. The texts say nothing about compensation*.

(e) If a freewoman cohabited secretly with her slave this was capital in both. Constantine provided that a slave might inform of this with the reward of liberty on proof, and punishment if the infor­mation were false. Justinian adopts the law and speaks of liberty. Nothing is said about compensation, and it is clear that the case directly contemplated by the law is that of information given by another slave of the woman^[2080].

(/) Leo gave freedom and ingenuitas¹ to all persons given to the sacrum cubiculum, it being unseemly, in his view, that the Emperor should be served by any but freemen. But this was only where the man was voluntarily given to the cubiculum: an owner who alleged that this was not so could get the slave back with his peculium within five years. This is rather like manumission, but it is a general rule laid down once for all: nothing is done in the individual case, and it is not essential that the master have intended to make the man free ’.

(g) There are traces of a custom of giving ancillae liberty if they have a certain number of children, but it is not clear that this is more than a conventional title to manumission �.

(h) As part of the encouragement of monasticism by the Christian Emperors, Leo and Anthemius provided that a slave becoming a monk, volente domino, was free, but reverted if he left the monastery. In view of the civil incapacities of a monk, and of the revocable nature of the change of status, it is not quite clear that this amounted to freedom. All that the text says is that he escapes servitutis iugv/m, donee in eodem monachorum habitu duraverit^{[2081] [2082]. But Justinian went further. By a Novel[2083] he provided that any slave might, by entering a religious house and serving a novitiate of three years, become a monk and a freeman without his master’s consent. The only way in which the master can get him back is by shewing that he entered the monastery to avoid liability for theft or other misconduct. But even this claim must be made within three years : after that lapse of time the man is definitely a monk, and the master can reclaim only any property he brought with him. So far, the rule, though it favours the religious life at the expense of the dominus, is plain enough, but the text proceeds to say that if at any time the man leaves the monastery he reverts to his old slavery. This looks very like a revocable liberty, since in the earlier part of the text it is said that by his three years’ novitiate arripiatur in libertatem, and the case is compared with others in which liberty is given ex lege.}

(i) Slaves denouncing the murderer of their master. There is a general rule, stated many times in the Digest, that a slave who has discovered and denounced the murderer of his dominus is entitled to liberty. The history of the matter is obscure, but the rule seems to have been introduced by the senatusconsultum Silanianum and thus to have applied at first only where the murderer was supposed to be one of the slaves, (perhaps only where this was proved,) and to have been made a general rule¹ by later legislation. The rule itself is simple : the slave is entitled to his freedom and will be declared free by the Praetor^{[2084] [2085]. But its working gives rise to many questions. What is the effect of a bar upon manumission ? Here, at any rate in cases under the Silanianum, the reward prevails: the slave is free even though he has been legatus by the testator[2086], and even though he was acquired by the owner with a proviso against manumission[2087] [2088] [2089]. What is the rule where there are other interests in the slave ? For the case of common ownership the rule is laid down that the man is free, the other owner being compensated“.}

The slave may or may not have been sub eodem tecto, and so may or may not have been himself liable to torture ex Silaniano". If he was, he has no claim to liberty unless he has declared the murderer volun­tarily, i.e. before he himself is denounced or tortured^[2090]. Here, however, a distinction arises. If the slave is due to an extraneus, ex stipulatu, and is freed in this way, the stipulator has an action ex stipulatu if the slave was not under the same roof, but if he was, then the stipulator has no remedy, since he loses no more than he would have lost if the slave had been put to torture, which might lawfully have been done⁸.

A question on which the texts are not quite clear is that as to whose libertus the freedman is. According to Ulpian, who gives the fullest statement, the Praetor may declare whose libertus he shall be. If no such declaration is made he is the libertus of him whose slave he would have been, and that person would claim succession to him⁹. But Marcian tells us that one who so gains his liberty is a libertus orcinusℱ, and Paul remarks¹¹ that as he is free quasi ex senatusconsulto, it is clear law that he is the libertus of no one. It is impossible to be sure that there

602 Liberty as Punishment of Dominus [pt. n is here no conflict. The last two texts agree—all that Paul means is that the man has no living patron. But that does not account for the other texts.

In Justinian’s time the slave necessarily becomes a dvis, and we have no earlier texts. One of the texts speaks of him as dvis Romanus¹, but this may well have been Latinus in the original. It may be that the Praetor could declare which the man was to be“.

(ii) Cases of punishment or penalty imposed on dominus.

(Đ°) Slaves exposed on account of sickness. By an Edict of Claudius it was provided that if a master abandoned a slave who was seriously ill without making any provision for his care or cure, the slave became a latin⁸. Justinian provided that the slave should become a dvis, and the former dominus be barred from any rights of patronage, including that of succession. It is not clear whether his children were equally barred from succession⁴.

(б) An andlla whom her master had given in marriage to a freeman with a written contract of dowry became under earlier law a latin⁸. Justinian, as we have seen, turned this into citizenship⁶. There may be no fraud in this. But in the Novels Justinian lays down a general rule that if a dominus procures, or assents to, or connives by silence at, the procuring of, a marriage between a servus or andlla of his, and a free person who supposes the other party free, the slave shall be free and ingenuus so that there are no patronal rights⁷.

(c) By Justinian’s final legislation it appears that a slave treated pro derelicto by his master became free⁸. If this is to be understood literally⁰ it destroys the law of manumission inter vivos as to form, and also the significance of the texts which consider the position of a servus derelictus. As the case is dealt with in connexion with that of sick slaves, it is probable that the dominus in this case has no patronal rights.

(d) We have seen that eunuchs commanded a high price¹⁰. Thus there was a great inducement to owners to castrate slaves. By legisla­tion of Constantine and Leo this was made severely punishable, at least among Romans, though the purchase of eunuchs from barbarae gentes was not forbidden¹¹. The practice, however, continued, and Justinian found

> 38. 16. 3. 4.

² Ante, pp. 422 sqq. for a possible analogous discretion. One text suggests a possible wider discretion in later times. C. 7.13.1 may mean that the Praeses could decree liberty to one who had been active, though not the actual denouncer. But the lex is obscure and may be expressing only the general rule.

⁸ Ante, p. 36. * 40. 8. 2; C. 7. 6.1. 3. Similar rule, Nov. 22.12.

» Ante, p. 550. ⁸ C. 7. 6.1. 9. ⁷ Nov. 22.11.

⁸ Nov. 22.12. ⁹ The text may refer only to sick slaves.

¹⁹ Ante, p. 8. ¹¹ C. 4. 42. 1, 2. ch. xxvi] Liberty as Punishment of Dominus 603 it necessary to confirm the rule in a Novel¹, punishing everybody knowingly concerned in such a thing. It appears from the language of the Novel that even in earlier law the rule went further and that the slave was free². However this may be, the Novel itself provides that all persons castrated by anyone after a certain date shall be free, and that no validity shall attach to any consent of the victim however formally given. The same result is to apply, even if the castration is imposed for a reasonable medical purpose. The Novel says nothing about the rights of patronage.

(e) Slaves prostituted. In the Empire there is a considerable history of provisions against the prostitution of slaves. The rules have already been discussed³, but not completely as to their liberating effect.

If any owner compelled an ancilla to prostitution against her will it was provided by Theodosius that on appeal by the slave to the Bishop or Magistrate the master should lose his slave and also be severely punished⁴. The lex is not clear as to whether the slave was free or not, but a little later it was provided by Leo that the slave could be claimed as free by anyone⁶. Nothing is said here as to consent of the ancilla, and the wording of the lex seems rather to suggest that her consent did not affect the matter.

There is earlier and more elaborate provision for the case of sale with a proviso against prostitution. Three cases are to be distinguished.

(1) Where the sale merely contains a provision ne prostituatur. Here it is provided that upon prostitution the woman is free, even though all the owner’s goods are under such a pledge that he could not have manumitted her in an ordinary way⁶.

(2) Where it is provided that if prostituted the woman is to be free. If such an agreement accompanies the sale, even though only by verbal pact, the woman is free ipso facto if the buyer prostitutes her, and will be the liberta of her vendor⁷. Modestinus tells us that Vespasian decreed that if a buyer on such terms resold her, without notice of the terms, she would, on prostitution, nevertheless be free, and would be the liberta of the first vendor, i.e. the one who imposed the condition⁸.

The origin of the rule is uncertain. For Vespasian, it was clearly an existing institution. It was probably due to an Emperor. As we

¹ Nov. 142. ² Perhaps by another enactment of Leo. Cp. Krüger, ad C. 4. 42.

8 Ante, p. 70. * C. 1. 4. 12 = C. 11. 41. 6 = C. Th. 15. 8. 2.

5 C. 1. 4.14 » C. 11. 41. 7. No fees are to be paid in such a case.

6 40. 8. 6. Alexander provides that such provisions are to be liberally construed. The words ne corporis quaestum faceret covered a case in which she was employed at an inn and committed fornication. In the existing social conditions this was a mere evasion, C. 4. 56. 3.

7 2. 4. 10. 1; C. 4. 56. 2. In 21. 2. 34. pr. Pomponius says that if the buyer does prostitute her and she becomes free he has no claim against the vendor. This seems to mean that the ordinary Aedilician actions are not now available. Ante, pp. 52 sqq.

8 37.14. l.pr. This does not negative a right of action against his vendor by the second purchaser.

604 Liberty as Punishment of Dominus [pt. ii shall see in the next case, Hadrian legislated on the matter, but the reference to Vespasian is very clear. There is nothing to connect the rule with the Edict.

(3) Where there was a condition ne prostituatur, with a right of seizure (manus iniectio) in the event of breach. The existence of such a condition negatives the liberty which would otherwise have resulted from prostitution and the condition is effective against ulterior buyers, even without either similar conditions, or notice of the condition¹. But even where such a condition exists, freedom may result. Hadrian seems to have provided that if the person, who has the right to seize, waives it and permits the prostitution, the woman will be free, and will be so declared on application to the Praetor². This is stated in an enactment of Alexander, which appears to be purely declaratory. Ulpian says that if the vendor, who has reserved the right of seizure, prostitutes the slave himself, she becomes free in the same way’, and Paul says that Imperator et pater (probably Caracalla and Severus) lay it down that if he gives up his right of seizure, for a price, she becomes free, since to allow the prostitution is the same thing as to prostitute her himself⁴. All these remarks seem to be glosses on Hadrian’s enactment, which we do not possess’.

A case is discussed which might have created difficulties. A woman was sold to be free if prostituted, and resold with a right of manus iniectio in the same event. Here, the subsequent transaction cannot lessen the right created by the first, and it is clear that on prostitution she will be free. But what if the order of conditions were reversed ? Logically she ought not to have been free, but it is held, favorabilius, that here too she is free⁶.

(/) Religious Grounds⁷. Under the Christian regime from Con­stantine onwards, similar rules were laid down in the interest of Christian orthodoxy. The rules we are concerned with were merely ancillary to the general purposes of the legislation, which were to crush heresy, and to prevent proselytising to the tolerated non-Christian faiths. Even before Christianity became the official faith, there was legislation on this matter against Judaism. Paul tells us that cives who allowed themselves or their slaves to be circumcised suffered forfeiture and relegatio, the operator being capitally punished⁸. And Jews who

> 18.1.56; C. 4.66.1. a C. 4. 56. 1.

» 2. 4. 10. 1. ⁴ 40. 8. 7.

& Although the vendor is technically patron, and preserves his rights of succession, the texts shew that his misconduct deprives him of the honour due to a patron, so that he can, e.gr., be in iu8 vocatus by the woman.

⁶ 18. 7. 9. The reason given is that both provisions are for her benefit, and the liberty releases her from her shame as much as the seizure would. But this is no reason: the true reason is favor libertatis and that in the text is probably an interpolation.

? For analogous rules among the Jews, Winter, Stellung d. Skiaven, 37—40.

8 P. 5. 22. 3.

ch. xxvi] Liberty as Punishment of Dominus 605 circumcised non-Jewish slaves, however acquired, were deported or otherwise capite puniti¹.

Our other authorities are all from the Christian Empire. The earliest legislation of known date on the matter was of a.d. 335. It provided that if a Jew acquired a non-Jewish slave, and circumcised him, the slave was entitled to freedom². It appears also that Constantine provided that a Jew might not have Christian slaves, and that any such slaves could be claimed by the ecclesia. This does not seem to give liberty’: its exact meaning will be considered shortly⁴. In 339 the sons of Constantine laid down a rule that if a Jew acquired any non-Jewish slave, the slave would go to the Fisc: if he acquired a Christian slave, all his goods should be forfeited, and it was declared capital to circum­cise. any non-Jewish slave“. In a.d. 384 it was provided that no Jew should acquire any Christian slave or attempt to Judaise any that he had, on pain of forfeiture of the slave, and, further, that if any Jew had any Christian or Judaised Christian slave, the slave was to be redeemed from that servitude at a fair price, to be paid by Christiani⁶, which Gothofredus takes to mean the local church⁷. Here too it is not clear what this means; i.e. whether the man belonged thenceforward to the Bishop or whether he was free. The more probable view is that he did not become free.

At this point a new factor came in: various heresies needed to be checked. In a.d. 407 it was provided that Manichaeans and some other heretics were to be outlawed and publicati, but slaves were to be free from liability if they avoided their master’s heresy and ad ecclesiam, catholicam servitio fideliore transierunt⁶. The meaning of this is not clear. Gothofredus thinks it means not that they belonged to the church (which indeed the text hardly suggests), but that they became free⁸. He bases this on the fact that by an enactment of a.d. 405 it had just been provided that slaves who had been compelled to be rebaptised under the Donatist heresy should acquire freedom by fleeing to the Catholic church¹⁰. But the argument is not convincing; the language of the texts is very different, as are the facts. The slave who has been compulsorily rebaptised has suffered a serious wrong, for which he gets compensation, in the form of liberty. The other has not, and is merely allowed to escape punishment by recantation. The text does not touch, at this point, on the question of the ownership of the

I P. 5. 22. 4. a C. Th. 16. 9. 1.

⁸ C. Th. 16. 8. 22. The author of the Vita Constantini says, wrongly, that the slave was free. See Gothofredus, ad C. Th. 16. 9. 1.

⁴ Post, p. 606.

⁸ C. Th. 16. 9. 2; cp. C. 1. 10. 1. Noipjuristic texts, Gothofredus, ad C. Th. 16. 9. 1, and Haenel, Corpus Legum, 209.

⁸ C. Th. 3. 1. 5. ? Ad C. Th. 3. 1. 5.

⁸ C. Th. 16. 5. 40. 6=C. 1. 5. 4. 8. ⁹ Gothofredus, ad h. I.

¹⁹ C. Th. 16. 6. 4.2.

slave: that was already settled by the statement that the late master was publicatus. In a.d. 412 and 414 there was further legislation punishing Donatists, slave or free, and even orthodox owners of Donatist slaves, if they did not compel the slaves to abandon their heresy¹. In A.D. 415 an enactment² aimed at a certain Jewish dignitary called Gamaliel laid down a general rule punishing attempts to convert Christian, or other non-Jewish slaves or freemen, and circumcising them. The enactment added that, in accordance with a certain enact­ment of Constantine, any Christian slaves held by him could be claimed by the ecclesia. The concluding provision seems to refer only to Gamaliel’s own slaves and to take them away, not because he had them, but because he had tried to convert and circumcise them. The enact­ment of Constantine to which the law refers has not been traced: it has been suggested² that the reference should be to a law already mentioned of the sons of Constantine. But we have not such a complete knowledge of Constantine’s legislation that this correction is forced on us. It is unlikely indeed that the reference is to the rule, above cited, laid down in 335 *, since that confers freedom, and there is no real reason to suppose that the expression ecclesiae mancipentur⁶ implies a gift of freedom, any more than the expression fisco vindicetur⁶ does. But it is quite likely that in the same or another enactment Constan­tine provided in addition to his rule that circumcision involved liberty, another rule to the effect that any attempt to proselytise a Christian slave involved loss of him, just as it was clearly laid down in A.D. 384’. In the same year (a.d. 415) it was enacted that Jews might have Christian slaves (though they could not acquire them), provided they did not interfere with their religion : any attempt to do so was punished as sacrilege⁸. In a.d. 417 a new enactment elaborated this with some distinctions. No Jew was to acquire a Christian slave, inter vivos, on pain of forfeiture, the slave being entitled to liberty if he denounced the fact. Those a Jew had, or acquired by death, he might keep, being capitally punishable if he attempted to convert them to the Jewish faith⁹. An enactment of A.D. 428 enumerated over twenty different kinds of heresy, and punished them in various ways, prohibiting, inter alia, any attempt to proselytise orthodox slaves, or to hinder them in the exercise of their religious observances¹⁰. In A.D. 438 a similar prohibition was directed at all Jews, Samaritans, heretics or pagans¹¹.

It is noticeable that in all this considerable surviving mass of prae-Justinianian legislation there is only one statute which, dealing

1 C. Th. 16. 5. 52. 4, 54. 8.

2 C. Th. 16. 8. 22. * C. Th. 16. 9. 1.

⁸ C. Th. 16. 9. 2.

⁸ C. Th. 16. 9. 3.

⁸ For reff. see Haenel, ad h. I.

⁸ C. Th. 16. 8. 22; op. C. Th. 3. 1. 5.

7 C. Th. 3.1.5. - -

» h. t. 4. Confirmed as to its main prohibition, in a.d. 423, h. t. 5.

io C. Th. 16. 5. 65 = C. 1. 6. 3. ¹¹ Nov. Theod. 3. 4 = C. 1. 7. 5.

ŃĐœ. xxviJ Liberty as Punishment of Dommus 607 with the slaves of heretics gives them freedom in any event^[MMXCI]. On the other hand there are two’ dealing with Jews which do so, and some others³ the ambiguous language of which has led some commentators to understand their effect to have been to give liberty. It is quite possible that liberty may, as a matter of policy, have been more freely given in connexion with Jews. Judaism was necessarily tolerated while heresy was not, and it may have been necessary to use stronger inducements to prevent slaves from adhering to a faith which was allowed to exist. However this may be, the distinction is not traceable under Justinian, from whom the rest of our authorities come.

He inserts in his Code⁴, in an altered form, the enactment of Constantine’s sons of 339*, incorporating in it part of that of Honorius in 417*, and putting the result under the name of the latter. It now provides that no Jew is to acquire a Christian slave by any title what­soever, and that if he does and circumcises him, or any non-Jewish slave, he is capitally punishable and the slave is free⁷. He also includes some other provisions which have been mentioned⁸, but these have no direct connexion with liberty. He provides in two enactments’ that no pagan, Jew, Samaritan or unorthodox person is to have any Christian slave. The slave is free and a money penalty is payable to the Fisc¹⁰. Jews circumcising any non-Jews are to be punished like castrators^[MMXCII]. Whether this means that the slave would become free as he did in the case of castration¹â€™is not clear, but the affirmative seems most probable. Finally, by an enactment already mentioned, he provides that if any non-Christian slave of a Jew or heretic joins the Christian church the slave thereby becomes free, no compensation being payable to the dominus¹³.

(iii) Miscellaneous cases.

Here it is necessary to do little more than to refer to a number of cases which have already been discussed.

(a) Captivi. These were true slaves during their captivity, but they became free (retrospectively) by the mere operation of postliminium, with no process of manumission¹⁴.

(b) Servi Poenae. A convict might, during his life, cease to be a slave in either of two ways. He might be simply pardoned, or he might

608 Liberty without Manumission [pt. ii, ch. xxvi be restitutus, with retrospective effect, and there were intermediate cases. These different modes of release had very different effects, already considered. Justinian abolished this form of slavery^[MMXCIII].

(c) Slaves noxally surrendered. Under the law as stated in the Institutes⁸, if a slave was noxally surrendered by his master, and he had by acquisitions recouped the injured person for the damage done, auxilio praetoris invito domino manumittetur. The rule is clearly new and is not mentioned in the Digest. Its language shews some hastiness, for a person freed by the help of the Praetor invito domino is not properly said to have been manumitted ^s. It is a sort of happy thought of the compilers, an extension to slaves of the rule—obsolete in Justinian’s time—that a filiusfamilias noxally surrendered can claim release from mancipium when he has made good the damage⁴. Even if it be understood to mean that the Praetor will compel the owner to free, the rule is still open to the objection pointed out by Girard⁶ that such a man is better off than a slave who has committed no wrong, since he can compel his manumission.

(d) Liberi Expositi. The rules already stated shew that after Constantine, if an owner ordered the exposure of a child who was in fact a slave, a charitable person who picked him up had the right to rear him either as slave or as free⁶. If he took the latter course this was a case of a slave becoming free without manumission. The pro­hibition of exposure⁷ must have been disregarded. In A.D. 412 it was provided that the previous owner had no right to recover him, if the finder formally proved the facts before the Bishop⁸. Justinian in his enactment dealing with the matter definitely contemplates the case of a slave so exposed, and declares that if anyone takes charge of him and rears him, he shall be in all cases free; and further that he shall be ingenuus, so that the charitable rearer has no patronal rights over him. The reason given is, lest charity degenerate into commercial calculation⁹, but it may be doubted whether the new rule made for charity. A later enactment punishes the exposing owner who seeks to recover the slave¹⁰.

(e) Sanguinolenti. The rules as to sale of young children, slave or free, have already been considered“. It is enough to point out that so far as the institution created true slavery, the power of redemption into ingenuitas involves a release from slavery without manumission. How far it did amount to actual slavery was considered in the earlier discussion.