CHAPTER XXVII. FREEDOM WITHOUT MANUMISSION. CASES OF UNCOMPLETED MANUMISSION.

If the slave entitled to freedom is alienated, we know that he does not lose his right to be freed^[2115]. Accordingly these provisions apply also^[2116]. Where the fiduciary sells the slave, and on the slave’s petition, he appears, but the vendee latitat, the Rubrianum applies, since he who should free absents himself¹⁰: it is the buyer who is under a duty to free. So when the rogatus is compelled by death or publicatio to pass the slave on to another, Ulpian holds that the “ constitutions ” apply, lest the conditions of liberty be made worse“. This does not refer directly to these senatusconsults, but to the rules, shortly to be considered, as to whose libertus the freedman will be. But it assumes the application of the senatusconsults. Julian is quoted by Pomponius as discussing a difficult case. A heres, directed to free a certain slave and to hand over the hereditas to X, hands it over without freeing. On such a will the better view is (so say Octavenus and Aristo, and Julian is in substantial accord), that the slave did not constitute part of the hereditas within

614 Fidsdcommissary Liberty overdue [pt. n the testator’s meaning, and therefore if there has been nothing but a general handing over of the hereditas, the heres is still owner and can free, being therefore liable to the proceedings under the senatusconsults. If, however, the slave has been long enough in the possession of the transferee to have been acquired by usucapion, then the transferee is owner and is bound to free, the rules applicable being those just laid down in the case of a buyer¹.

The rules which determine whose libertus the man will be are not altogether clear. In the case of servus hereditarius, apart from aliena­tion, if the fiduciary is absent without reasonable cause, the man is libertus orcinus^{[2117] [2118]: if the fiduciary was not in fault he does not lose the libertus[2119]. If the slave was not the property of the testator, then, apart from alienation, he is the libertus of the fiduciary, in fault or not[2120] [2121].}

Alienation creates difficulty. There are several allusions to consti­tutions of Hadrian, Antoninus Pius and Marcus Aurelius affecting the matter, but the scope of these enactments is not clear®. If the rogatus is dead, then so far as servi hereditarii are concerned his heres assumes his duties^[2122]. But if it was not a servus hereditarius and the rogatus dies (or is publicatus) we are told that the constitutions apply, with the result that when the man is declared free he will be libertus (orcinus) of the rogatus as if he had freed^[2123]. If the rogatus dies without a successor the liberty is still good^{[2124] [2125]. Paul asks the question whose libertus he will be, and answers, or is made by the compilers to answer, by reference to the sc. Rubrianum, applicable in strictness only where he was in fault, that the man is a libertus orcinus of the original testator. This is clearly ex necessitate2.}

It was clear law, apart from these constitutions, that the rogatus must not do anything to make the slave’s position worse^[2126], and there are texts discussing this in relation to sale. Julian lays it down¹¹ that one conditionally so freed ought not to be sold without a condition for reconveyance on arrival of the condition. Pomponius says¹² that one to whom such liberty is left is not to be sold without his consent to be the libertus of another rather than of the rogatus. While Ulpian says¹³ that such a slave can be sold before mora, cum sua causa, Marcian tells ch. xxvn] Fideicommissary Liberty overdue 615 us¹ that one to whom liberty is due cannot be alienated to another so as to bar his liberty or make his position worse^[2127].

How far these texts are influenced by the constitutions is not clear: so far as these are known they do not nullify the sale, but merely enact that the man may choose whether he will be freed by the buyer or the rogatus; if by the latter, he must be bought back for the purpose^{[2128] [2129] [2130]. Pius added that if already freed he could claim to be the libertus of the rogatus*. But the constitutions seem to have used general language which the jurists interpreted widely. They were to apply though the sale was while the liberty was still conditional, and though the person who alienated was not the original rogatus, but his successor, and though the man had not been the testator’s[2131]. In considering the ultimate position it must be remembered that the request to be freed by one or the other brings the senatusconsulta into operation. If having belonged to the testator he desires to be freed by the rogatus, and he makes default, or the buyer will not reconvey, the Rubrianum applies and the man will be orcinus6. If he was not hereditarius it is the luncianum which applies and whether there is default or not he will be the libertus of the person he chooses[2132]. The fact that in a given case he can claim to be orcinus does not prevent him from asking to be freed by the heres if he prefers8. If the rogatus dies without a successor, after the sale, the man must be the libertus of the vendee in any case, since otherwise he would lose both the man and his price, as he has no remedy over[2133]. One text observes[2134] [2135] that the choice did not exist if the testator did not wish it, but this is probably Tribonian11.}

In considering what is involved in the question whose libertus the man is, it must be remembered that in all cases of fideicommissary gift the patron has but a truncated right. The liberty is, as we have seen, somewhat independent of the fiduciary^[2136]. Thus the fiduciary manumitter has no personal patronal rights, except that he cannot be in ius vocatus^{[2137] [2138] [2139]. Hadrian provides that he cannot exact any operas'1. A person so freed can plead excuses from tutela as against the patron16.}

On the other hand the fiduciary has iura in bonis¹ and, what is a con­sequence of this, tutelar If he loses the liberties, he loses all these rights’, except in so far as he may inherit them as heres patroni*.

The matter is more complicated if there are several heredes, some or all of whom are rogati. If several are rogati, and they are all in default, the Rubrianum applies’. If of the rogati some are present and some absent, the senatusconsult (presumably the Dasumianum) requires the Praetor to pronounce which are in default". The slave will then be the libertus of those not so pronounced, as if they alone had been rogati⁷, the shares of the defaulters vesting in the others’. Where one rogatus was absent with cause, and one was dead without any successors, it was provided by Marcus Aurelius and Verus that the slave would be declared free as if duly freed by both⁹. This is a curious decision in view of the fact that if the heres who died sine successore had been alone, the slave would have been a libertus orcinus, i.e. of the testator¹⁰. As, however, that rule was clearly adopted ex necessitate, it may have been thought that the other rule met the testator’s intent more nearly in the present case, since the effect would be, not to make a share of the bona vest in the Fisc, but to vest it all in the other owner. If there are several heredes, of whom some are rogati, and these make default, the rules determining to whom the libertus belongs are the same, but all the rogati are nevertheless liable to those not rogati for their shares of the slave’s value, either by the indicium familiae erciscundae or by a utilis actio¹¹. If one of the heredes non rogati is an infans, then, even though there be no latitation, there is the difficulty that the infans cannot sell his share. For such a case it is provided by the sc. Vitrasianum, and a later rescript of Pius, that the slave is to be valued, and the shares of the non rogati are to pass automatically, the rogati being bound to the others to the extent of their shares, as if there were a judgment against them¹². Where a man has two heredes and three slaves and directs the heredes to free whichever two they like, and one heres makes his choice, but the other wrongly refrains, Papinian lays it down that these two can be declared free as if the one heres had been able to free them, while if one slave dies the

1 Vat. Fr. 225. 2 26. 4. 3. pr., 1. » h. t. 1. 3, 3. 3.

⁴ Even thus he may lose iura in bonis If he wrongs the man in serious ways, as a patron

would in like case, 40. 5. 33. 1; 37. 14. 10.pr., 1.

⁸ 40. 5. 28. 2. 6 h. t. 22. 2. ’ h. t. 28. 3.

⁸ h. t. 1. Pius enacts that a rogatus infans is absent with good cause, h. t. 30. 5. He says

also that the presence of infans makes the man the libertus, not of all, but only of those present or absent iusta causa. The point is that as infans could not free, this would prevent actual manumission by the co-owners, and thus it could not strictly be said that they had wrongfully abstained from freeing. And a Senatusconsult had expressly enacted that where the existence of an infans rogatus barred the manumission the slave was to be free, in terms so general that it might have been thought to make attendance needless. Hence the rescript which negatives these otherwise strong arguments, h. t. 30.1.

⁸ h. t. 30.13. io Ante, p. 614. ¹¹ 40. 5. 49.

¹³ 40. 5. 30. 6; cp. h. t. 51. 11.

others will be declared free, whatever the cause of non-assent of the other heres¹.

One case remains unprovided for. If a legatee is directed to free a servus hereditarius but has not yet become owner of him and is willing to free, while the heres latitat, the Praetor can do nothing on the slave’s petition : the senatusconsulta apply only to failure by the person bound to free. Accordingly there is no resource but to petition the Emperor².

The system was apparently remodelled by Justinian, in a Novel. He provided that if the heres or other person charged failed to carry out any direction for one year from monition by a iudex, other bene­ficiaries in an order prescribed by the Novel might enter and take some or all of what was given to him, giving security to carry out the direction³.

It remains to consider the effect of the decree on intervening events. In effect the liberty relates back. Everything the slave has acquired to his master after mora must be accounted for to the freed­man⁴. Both the texts which say this are from Paul: the second deals with a legacy to the slave. They are quite general in their terms: one must, however, suppose an exceptio doli available where the acquisition was plainly ex re domini⁶. Where monthly payments were to be made manumissis, and the slave became free absents herede, Scaevola held that the payments were due only from the actual freedom. But the writer is clearly treating the matter as purely one of construction⁸.

In the case of an andlla difficult questions arise as to the status of her child born before the Praetor’s declaration. On strict principle he is a slave, but there are progressive relaxations of this rule, dating apparently from Antoninus Pius and continuing till the age of Jus­tinian. The general effect of them is, as Paul can already say, that a child born after there was mora in giving fideicommissary liberty is an ingenuus⁷. If he was born before the liberty was due, e.g. while a condition was unsatisfied, or a day not yet reached⁸, or it was charged on a pupillary substitute, and the pupill/us is still alive, the child is a slave and there is in general no relief⁹.

The first difficulty in dealing with the rules, is in connexion with the word mora. It appears to contemplate what is sometimes called

¹ h. t. 22.1..

² h. t. 26.10,11, 27. So the see. did not apply where the fiduciary was directed to buy and free but did not buy. But he could be compelled to buy and when this was complete the see. might be applied. Ante, p. 531.

⁸ Nov. 1.1. Not set out in detail, since it is far from clear that it was intended to supersede these provisions.

431. 84; 48. 10. 22. 3.

5 Ulpian illustrates the retroactivity: where a liberandus under 25 was cheated, after mora, he could get restitutio in integrum, 4. 4. 5.

636.2.27.1. 7 P. 2. 24. 4.

³ C. 7. 4. 3; D. 40. 5. 26. 5. But see post, p. 618. ⁹ 40. 5. 26. 5. mora ex persona¹, i.e. not only is the freedom due, but the woman has actually demanded it. In this case it seems clear that the child will be ingenuus^{[2140] [2141] [2142] [2143]}. If the woman has not demanded it there is some difficulty on the texts. If she is a minor it is clear that she has some excuse for not having asked: in such a case the mere elapsing of the time is sufficient mora, and the child is ingenuus³. But where she is not a minor the majority of the texts lay down the rule that if there is delay and no demand made, the child is bom a slave but the mother can claim, apparently by real action, to have the child handed over to her to be freed; the idea being that the heres, not having done his duty, ought not to have the benefit of the libertus*. But some of the texts go further. Ulpian, in a text in which he has said that on such facts they must be handed to the mother to be freed, remarks that since fear, or ignorance, etc., may deter a woman from asking, there ought to be some relief in such a case, and then repeats the rule. But he then proceeds to cite a case which will be discussed later, and, on facts in which nothing is said of any demand by the mother, declares the children ingenui^{[2144] [2145]}. This is not perhaps to be regarded as laying down any different rule. But Marcian*, after laying down the rule that if born after demand they are ingenui, adds that there are constitutions which lay it down that the child is ingenuus if born at any time after the liberty ought to have been conferred, and adds in somewhat clumsy latin that this is no doubt the right view, since liberty is a matter of public interest, and the person liable ought to offer it. It seems hardly necessary to give reasons for following the rule laid down in constitu­tiones, and it is not unlikely that these remarks emanate from Tribonian. We are told in the same extract^[2146] that in the opinion of Severus, Pius and Caracalla, it is immaterial whether the delay was wilful or acci­dental, and it is possible that there may have been constitutions, now lost, putting the case of wilful delay on the same level as that of failure on demand.

Even where the liberty is not in strictness due there may be relief in some cases. Where an ancilla was pledged and the owner, by will, ordered the heres to free her when the creditors were paid, the heres delayed paying, and the creditors sold children born after the debts ought to have been paid. Severus and Caracalla provided, following Antoninus Pius, that the price was to be repaid to the buyer, and they were to be ingenui as if the mother had been freed¹. It is not said that the mother applied for the freedom. Where the heres was directed to buy and free an ancilla cum filiis, and the ancilla and her children were valued, and another child was born before the price was paid, Scaevola held that if the heres was in mora, he had to buy and free the last child also^{[2147] [2148]. Here as the ancilla is to be bought and the purchase is not yet complete, the senatusconsulta do not yet apply: it is presumably for this reason that notwithstanding the mora, which seems to imply demand, the child is not ingenuus. Marcian tells us that if the liberty is not due and this is due to the delay of the heres, whether intentional or not, any child born in the meantime is to be handed to the mother to be freed[2149] [2150]. The case he is dealing with is delay in entry, and he adds that if there was no wilful delay on the part of the heres, but he did not know that he was heres, even in this case the child is to be freed, but here as the heres is in no way to blame, he may free the child himself and so acquire a libertus*. Ulpian quotes a rescript of Severus and Caracalla to the effect that if the will or codicil is opened only post quinquennium from the death, and there is a fideicommissum of liberty to a woman, children born meanwhile are to be handed over to their mother to be freed, and he adds that this, and the rescript of Antoninus Pius, already mentioned[2151] [2152], shew that the emperors did not mean even accidental delay to prejudice the freedom of the child5. One would have expected the heres to be allowed to free in this case[2153], as the delay is accidental, but it must be noted that the case under discussion is one in which entry was postponed under the see. Silanianum and Taurianum[2154], and it may well have been thought that the heres ought not to obtain an incidental advantage from the operation of a statute which had no such aim[2155].}

If the mother (or her successor) having received the child, fails to free, she can be compelled to do so^[2156]. Nothing is said as to the means. As she is compelled actually to free, it is clear the senatusconsulta are not considered to apply, and indeed she hardly comes within the notion

620 Fideicommissary Liberty overdue [pt. n of one bound to free under a fideicommissum. The child is not one to whom the fideicommissum referred¹.

In the same text^{[2157] [2158] [2159] Maecianus adds, apparently without any authority, that if the mother refuses to receive the child, or is dead without any successor, a reasonable way out of the difficulty is that the heres should free. The case of a child in the possession of the heres is here con­sidered. Nothing is said as to the mode of compulsion, or indeed on the question whether he can be compelled. Presumably here too the Praetor’s order would come into play.}

The rule, that, in some cases, these children were ingenui, brought with it the question whether they had rights of succession to their mother and father. As to the mother, the ancients doubted³. Ulpian, in a text probably genuine^{[2160] [2161], takes a favourable view. He holds that, just as the issue of a captiva, returning with her, could succeed to her by a rescript of Severus and Caracalla, quasi volgo quaesiti'1, so persons declared ingenui, under the sc. Rubrianum, ought to succeed to their mother. The ground of analogy is apparently that in both cases they are alike freed from slavery by the operation of a rule of law. Jus­tinian settles the doubt by providing[2162] that, saving the right of those otherwise entitled under the sc. Orfitianum, there are mutual rights of succession under that senatusconsult and the sc. Tertullianum. But what of succession to the father ? In another text Ulpian appears as still arguing from the case of captivitas, and holding that if both father and mother are entitled to freedom and there is mora affecting each, and thereafter a child is born, he is suus heres to his father7. His language suggests that he would hold this a fortiori if the father had been an ordinary civis—etsi pater eiusdem sortis fuerit.-.ipseque moram passus sit. In that case the analogy would seem to be with the case of children of whom a woman had been pregnant at the date of captivity. The rule is interesting as shewing that even slaves were capable of affectio maritalis.}

IV. Addictio Bonorum Libertatium Conservandarum Causa. The rules of this institution were of gradual development, beginning with Marcus Aurelius and completed by Justinian. The general principle is that if an inheritance is refused an applicant may have the goods assigned to him on giving security to the creditors : he then steps into the position of a bonorum possessor, and any liberties given by will or codicil take effect¹.

By the rescript of Marcus Aurelius, such an application could be made, and security given, where there was no successor and the goods were in danger of sale by the creditors, if liberties were given in the will, by any one of the slaves who were to have freedom. The right was extended, apparently by Gordian, to extranei^{[2163] [2164]. Justinian allowed even slaves not entitled to freedom to make the application[2165]. It seems at first to have been allowed only if there •were liberties, direct or fideicommissary, by the will, but to have been extended by juristic interpretation to the case of an intestate imposing liberties on the heres ab intestate, by way of fideicommissum in a codicil[2166] [2167].}

In later law it was enough if there were liberties given mortis causa or even inter vivos, if there was any possibility that they might be set aside as being in fraud of creditors : the goods might be addicta so as to avoid raising this question^[2168].

If some of the liberties were simple and others conditional or ex die, the addictio could proceed at once, the deferred liberties taking effect only if and when the day or condition occurred⁶. It could not be made if there were no liberties⁷, and the older view seems to have been that if all the liberties were conditional or ex die, nothing could be done till there was one capable of taking effect. But the text which states this rule, at least for dies, proceeds to argue the matter, and comes ultimately to the conclusion that it may proceed at once. Clearly where no liberty could yet take effect there could have been no present addictio till after Gordian, (if it was due to him,) had authorised addictio to extranei. As Ulpian, the writer of the text, was dead before Gordian came to the throne, and the text contradicts itself, it is probable that the compilers had a hand in it as it stands⁸, but it must not be inferred from this that they were making a new rule. If addictio to extranei really dates from Gordian, they may merely have incorporated a long established practice. On the other hand the origin of the rule that there could be addictio to extranei is obscure. The remark is added at the end of Gordian’s constitution, the main part of which is concerned with addiction to a slave⁹. But in one of Justinian’s constitutions, it is said¹⁰ that under the constitution of Marcus Aurelius there could be addictio to an extraneus. And the rescript itself is addressed to Popilius Rufus¹ and authorises addictio to him. Such a name denotes a freeman, and it is only Theophilus² who tell us he was a slave. More­over where no one was yet entitled to freedom, it is difficult to see how Ulpian can have had any doubts as to the impossibility of addictio, unless addictio to extranei was already admitted.

The first effect of the addictio was to prevent bonorum venditio, and it might be made either after security had been given to the creditors, or conditionally on security being afterwards given’. Strictly, as Severus interpreted the rescript, there could be no addictio if the goods had been already sold by the creditors⁴. Ulpian appears to have suggested a more liberal view. He says that when a creditor has sold the slaves, one to whom fideicommissary liberty was due can get relief against the heres only ex iusta causa*. This may not refer to our case: the language does not suggest bonorum venditio, and the allusion may be to sale under a pledge, or seizure under a judgment in the life of the testator. But he must have held a broad view in our case, for Justinian, expressly following him, provided that addictio might be allowed within one year after the sale’. The addictio is allowed only where it is certain that there is no successor either by will or ab intestate⁷. If a heres who has refused is granted restitutio in integrum, the addictio at once becomes void, but, liberty being irrevocable, those gifts which have already taken effect stand good⁸. Conversely if a heres has accepted but is afterwards restitutus, there may be addictio*. Even though the heres is a suus, and therefore, in strictness, must be heres, still, if he has abstained, there may be addictio¹*. Here direct liberties take effect ipso facte, so that it is only fideicommissary gifts which need the addictio¹¹, except that even where the gift is direct, the addictio avoids the question whether it is in fraud of creditors¹². Direct liberties take effect imme­diately on the addictio : all others must be carried out by the addictee¹â€™.

The security which must be given in all cases must be for the debt and interest¹⁴. The presence or consent of the slaves affected is not necessary¹⁵. If the addictio is to two, they will have the rights and liabilities in common. They will both have to free those in favour of whom there is a fideicommisswm, and the liberti will be common¹⁸.

Upon the rule that all the liberties take effect, there is the restric­tion that if the testator was a minor under 20, the liberty will not take effect nisi si fideico-mmissam: haec enim competeret, si modo potuit

^I In. 3.11. pr., 1. ^a Theoph., ad In. 3.11. pr. 8 40. 5. 4, 10.

⁴ C. 7. 2.15. la. ⁸ 40. 5. 52. e C. 7. 2.15.1.

7 40. 5. 4.pr.; In. 3. 11. 4; C. 7. 2. Ib.pr. » 40. 5. 4. 2; In. 3. 11. 5.

9 40. 5. 4. 1. ¹⁰ In. 3. 11. 5.

^II The case in 40. 5. 30. 10 is one in which there was a/c. binding the testator.

¹² In. 3. 11. 6. ¹⁸ 40. 5. 4. 7; In. 3. 11. 1.

¹⁴ 40. 5. 4. 11. Any form of security may suffice, and the iudex must summon the creditors to nominate one to receive it on their behalf, h. I. 8, 9.

¹⁵ h. I. 3, 4. ¹⁶ h. I. 23, Familiae erciscundae, inter se.

CH. XXVIl]

Addictio Bonorum

623

causa/m probare minor...si vivus manumitteret¹. This is somewhat obscure: the meaning is probably, as has already been said, that it would stand good if the minor could have freed inter vivos². If a gift of liberty were conditional on payment, simply, or to the heres, pay­ment might be made to the addictee, but if it were in favour of a third person, the payment must still be made to him’. If liberty was to be given to slaves of a third person, the addictee must buy and free them. Even though legatees were to free, and the legacy of course failed, the addictee must free⁴.

The addictee will be the tutor of any minor slave so freed⁸. The constitution provides that those to whom direct freedom was given will be liberti orcini, except where the addictee, at the time of taking the addictio, makes it a condition that the slaves shall be his liberti. They will then be his⁶, and this, by interpretation of the constitution, without any act of manumission by him⁷. But though these and, in any case, those freed by him, are his liberti, he cannot impose services on them, since they are not exactly freed voluntarily by him⁸.

The main text which tells us that on addictio gifts of liberty in fraud of creditors take effect, comes to that conclusion only after argu­ment⁹. It remarks that in favour of this view there is the fact that the addictee has the facts before him, and it adds some obscure remarks as to the effect where the goods pass to the Fisc¹⁰, which will be considered shortly. Other considerations leave no doubt about the rule. No text says or suggests that they do not. Such gifts are declared void in the interest of the creditors¹¹. Here they do not suffer. The heres himself may not dispute the gifts¹⁹. We are told that addictio bars the action on fraudulent alienation, to which the present case is very near akin, and the reason assigned is ut rata sint quod (testator) gesserat, which covers this case¹³. Moreover we are told that the addictio had precisely the effect of avoiding the question whether such gifts were valid or not, which it would not do unless it confirmed them all¹⁴.

The exact position of the addictee is not quite clear on the texts. We are told that he is assimilated to a bonorum possessor, and that the rights of the deceased, even the iura sepulchrorum, pass to him in the

¹ A. I. 18.

² Ante, p. 541. Justinian's changes as to age must be borne in mind, ante, p. 555.

⁸ 40. 5. 4. 6. ⁴ A. 1.15,16; probably both late developments.

⁵ 40. 5. 4.14. He would be a latin before Justinian. As to tutela of latins, G. 1.167.

e 40. 5. 4. 12; In. 3. 11.1..

? 40. 5. 4.13. Justinian’s recital of the rescript of Marcus makes it appear that the slaves must consent in this case (In. 3.11.1) and the Digest text suggests the same. This may be genuine but it is rather in Justinian's way of thought.

⁸ 38. 1. 13. 1. 9 40. 5. 4. 19.

¹⁰ To the effect that if the goods had gone to the Fisc, such liberties would have failed. “ 40. 7. 1. 1; 40. 9. 10; ante, p. 565.

C. 7. 16. 7. As to the fact that they are void though heres enters and creditors do not suffer, ante, p. 565.

is 42. 8. 10.17. ¹⁴ In. 3. 11. 6.

[pt. n circumstances in which they would pass to a bonorum possessor^[MMCLXIX]. His remedies against debtors are thus indicated. We are also told, by Ulpian, that he can be sued on his cautio, but that the better view was that he can be sued only thereon, and not by the actiones hereditariae¹. Elsewhere we are told, also by Ulpian, that, plerumque, the creditors have utiles actiones against him³. This might conceivably mean merely that creditors other than the one to whom the cautio was given might be admitted to sue on it, and thus not be exactly in contradiction to the other statement of Ulpian. But it is more likely that it is a contradiction, and that it means that creditors could sue him on their claims, but only by actiones utiles. This development would be so much on the common lines as to be almost inevitable. It agrees with what is now the accepted view as to actions against the bonorum emptor*. There is no reason to accuse Ulpian of contradicting himself. This particular text was originally written by him of an entirely different person—the curator bonis datus⁶. It is the compilers who apply it to the present case, and in all probability they are respon­sible for the word plerumque. But there is one respect in which the position of the addictee differs from that of the bonorum possessor. The title of the latter is purely praetorian: the addictee holds under an enactment of the Emperor. His title therefore is good at civil law. So far as obligations are concerned this is not very material, since these are not transferable in any case at strict law. But as to property it is important. For if the addictee had only a bonitary title he could not free so as to make the slave more than a latin, till the period of usucapio had elapsed.

Justinian observes in his Institutes⁶ that he has made a complete enactment reorganising and completing the institution. Some of the changes made by this enactment⁷ have been stated, but it will be well to set out its gist in a systematic form. It provides:

(i) In accordance with Ulpian’s suggestion, there may be addictio even after the goods are sold, within one year⁸.

(ii) Securities must be given for the debts and the liberties⁹. This is the first appearance of security for the latter: in the other texts there is no sign of it. Probably it was not necessary, there being the same remedies against the addictee as against any other person bound by fideicommissum^w. The security for debts was given as we

have seen¹ to a nominated creditor, but it is not likely that he would be burdened with the duty of looking after the liberties. Probably in this case the security, if any was really needed, was given to a publico. Dersona, a tabellio or the like.

(iii) If security is given for all the liberties, addictio may be made, if the creditors agree, on security for only a part of the debts².

(iv) A slave may refuse the liberty. He will then be the slave of the applicant, but the addictio will proceed for the benefit of the others³. If all refuse there will be apparently no addictio. Justinian seems first of all to allow a slave to refuse the liberty and then to discourage his taking advantage of the right by providing that if he refuses he shall have for a master, forsitan acerbum, the man whom he has refused to have as patron.

(v) There may be addictio on an undertaking to free only some of the slaves. But in this case if the estate proves solvent, all must still be freed⁴. It seems thus that if all debts are secured, some only of the liberties may be given, and if all the liberties are secured, some of the debts, but both relaxations cannot occur together⁶.

(vi) If several apply together they get addictio in common, giving security in common both for debts and liberties⁶. If they apply at different times, the addictio will be made to him who first, within the year, gives security for all the debts and liberties. On this matter the text says there had been doubts.

(vii) If there has been a grant to one who promised to free some and a later appears, whose undertaking applies to all, or to more than the first provided for, a grant will be made to him. And so also if there is a third. If the earlier grant has not yet taken effect this will supersede it. But if the first grantee has taken possession, and some liberties have taken effect, he will not lose his right of patronage though the goods and other rights and liabilities pass to the new demander. But all must be within the annus utilis'¹.

(viii) If no freed slave, or extraneus, gives full security, even a slave not entitled to liberty may take addictio, with what Justinian calls the venustum outcome, that one not entitled to freedom gives liberty to the others. Of Course he himself gets freedom. The appli­cation here too must of course be within the year⁸.

• Ante, p. 622. ⁸ C. 7. 2. 15. lb. ⁸ A. I. 2. < A. I. 3.

⁶ This language and that of the warning in the last rule seems to imply that under this system even slaves freed directly had to be freed by the addictee and became his liberty though by the older rule those directly freed were ipso facto free and liberti orcini, In. 3.11.1.

6 C. 7. 2. 15. 4; cp. D. 40. 5. 4. 23.

? C. 7. 2.15. 4—7. A fortiori if there had been application but no grant.

⁸ h. I. 5. Justinian calls the enactment plenissima (In. 3.11. 7), but it leaves much obscure. The spirit of the institution is changed: it is not a means of giving effect to liberties in the will, but, to a great extent, of gifts in substitution, with different effects. As we have just seen it seems that no gift takes effect ipso facto_} but this may not be meant: the law may be hastily drawn.

V. Hereditates passing to the Fiscus. There are many circum­stances under which this may happen, set forth in the title de iure fisd\ We are not concerned with these in detail, but only with the effect of such an acquisition by the Fisc on liberties given by the deceased. The topic is discussed in close connexion with that of addictio bonorum, because when an inheritance lies vacant, any of three things may happen to it: it may be sold by the creditors; the goods may be addicta according to the rules just discussed; it may pass to the Fisc.

The general proposition is laid down that wherever the estate goes to the Fisc, all liberties take effect which would have been valid if the heres had entered^{[2170] [2171]. Other texts say the same as to specific cases. Thus Caracalla and Pertinax decide that if the property passes to the Fisc on account of an unlawful tacit fiddcommissum, all liberties, both direct and fideicommissary, are due[2172]. Julian tells us that if bona vacantia go to the fiscus under the lex lulia (sdl. de maritandis), all fidd- commissa binding on the heres will take effect[2173]. Gaius tells us that when the fiscus acquires under the sc. Silanianum, all liberties are good[2174]. In another text he says that some have doubted this, and remarks that there can be no reason for the doubt, since in all other cases in which the fiscus takes the property, liberties are good[2175].}

Notwithstanding these strong texts, a different view is now commonly held. In one text it is said by Papinian^[2176] that the enactment of Marcus Aurelius, for the preservation of liberties, applies if, the will being irritum, the goods are about to be sold, but if the goods are taken by the fiscus as vacantia, non habere constitutionem locum aperte cavetur. Cujas^[2177] takes these words to mean that where there was no claim by the creditors and the goods were simply unclaimed, the Fisc took the property and all liberties failed. This interpretation appears to have been widely accepted⁹. It seems, however, to be based on a misappre­hension as to the purpose of Papinian’s remark. Even if the supposed rule were clearly stated in the text, doubt would be thrown on it by the very clear and specific contrary rule stated in the foregoing texts, and, even apart from them, by the fact that the acceptance of it compels us to make an irrational distinction. We know that the right of the Fisc is subject to that of creditors. The goods go to the treasury only in so far as they are in excess of debts: the bona are the nett balance¹⁶, a fact expressed in the Edictal rule that the goods are sold, si ex his fisco nihil adquiri possit^[2178]. Ulpian tells us that, if the goods are taken by the Fisc, the liberties will still take effect, by an express provision of the Constitution² as to addictio, and the words of the enactment as set out in the Institutes say the same thing⁸. This contradicts the interpretation we are discussing. To harmonise the views it must be assumed that the rule of the constitutio applied only where the estate was insolvent, so that the Fisc, though it had taken the goods and was liable to the creditors, had no prospect of getting any benefit, but that where there was a nett balance the Fisc could disregard the liberties. So absurd a distinction could only be accepted on very strong textual evidence, which does not in fact exist. It cannot be supported on the ground that the Fisc “comrne tout autre successeur ab intestat⁴” can ignore the provisions of the will. The texts cited shew clearly enough that the Fisc cannot ignore the provisions of the will. In fact it is not like any other successor ab intestato. In the very case to which this interpretation is made to apply we are told that all legacies and fideicommissa binding on the heres take effect⁶, but they would not be binding on the heres ab intestato. From all this it is clear that if the text of Papinian did say what Cujas understands it to say it would be in conflict with such overwhelming authority that it would have to be rejected. But in fact it says nothing of the kind. Cujas assumes that non habere constitutionem locum means “ the liberties are void.” But all it means is that, whatever happens to the liberties, the pro­visions about addictio have no bearing on the case. It by no means follows that the liberties fail: they may, (we have seen that they do⁶,) take effect, but it is not by the operation of this provision. There exists another text, already cited⁷, in which the same distinction is made in very similar language. Ulpian tells us that in the case of an insolvent estate, the liberties take effect and qonstitutio locum habet. But if alia rations (fiscus) agnoscat apparet cessare debere constitutionem. In view of the foregoing texts⁸ no one can contend that if the fiscus acquires the property alia rations (e.g., by forfeiture), the liberties fail. It is in fact the comparison of this text with that of Papinian which has created the difficulty. Papinian says’ that if the fiscus takes the property, non habere constitutionem locum aperte cavetur. Ulpian¹⁶ says: sive iacent bona fisco spernente, sive agnoverit, constitutio locum habet. The apparent contradiction is avoided by the distinction as to solvency and insolvency above adverted to and rejected. In fact there is no contra­diction. The enactment of Marcus Aurelius“ contains two distinct provisions. The first is that in a certain event there may be an addictio bonorum to save liberties. The second is that if the Fisc takes the goods there will be no addictio, but the liberties will stand good. Papinian tells us, and any reader of the enactment can see for himself, that the constitution expressly provides (aperte cavetur') that the rule about addictio is not applicable where the Fisc takes the goods. Ulpian tells us that where the goods are taken by the Fisc, as vacantia, the second part of the enactment applies, but that if the fiscus takes the property on some other ground, such as forfeiture, the constitution has no application. Both these statements are correct and there is nothing in either which contradicts the other¹.

At first sight it might seem that if the fiscus is bound to give effect to the liberties, there is no point in addictio. There is not, if the estate is solvent. But in these cases it is usually insolvent, and sale by the creditors would destroy all the liberties. In the very unlikely case of acceptance by the Fisc of an insolvent estate, the liberties will be good, but while under addictio all would be good, those in fraudem creditorum would fail if the Fisc took the estate^{[2179] [2180].}

It may be noted that if a vacant hereditas has been reported to the Fisc, and not taken by it, there may be an addictio, and no subsequent intervention by the Fisc can upset it. But if the addictio took place before the estate was reported, and it proves solvent, so that the fiscus claims it, the addictio will be set aside. This would create a difficulty on the view here rejected, as liberties would have taken effect. No doubt it could be met by a rule similar to that in the case of restitutio by a heres who had refused : the liberties would stand good. But the texts do not advert to any such difficulty in this connexion, and on the view here adopted the question would not arise.

VI. A slave transferred ut manumittatur. Where a slave was sold or given^[2181], to be freed either at once^{[2182] [2183], or within a certain time[2184], or after a certain time6, a constitution of Marcus Aurelius provided that if he was not duly freed by the receiver, he should become free by virtue of the original transaction, without more. There was no occasion for decree—non de praestanda libertate...litigare debuisti, sed libertatem quam obtinueras defenders[2185]. It seems probable that the constitution did not in terms apply to gift, but that this was an early extension, ex sentential The constitution is addressed to Aufidius Victorinus, and it is at least twice described as issued by Marcus Aurelius et filius, i.e., Commodus[2186] [2187]. The exact words ut manumittatur are not necessary[2188]. It is essential that the proceedings have been declared ab initio to be for this purpose. Thus the mere fact that after the transfer the buyer wrote a letter undertaking to free would not bring the constitu­tion into operation[2189] [2190] [2191]. The direction is good against all successors, operating independently of them, so that one sold to be freed before a certain time, becomes free when the time expires, though in the mean­time both vendor and vendee have died leaving no successors3. If it is to be done at once the constitution takes effect so soon as the holder, being able to free, fails to do so[2192].}

As the freedom takes effect whether the receiver frees or not, defects in him are immaterial. Thus where one who had made an express pledge of all his goods, present or future, bought a slave on this condition, the constitution took effect, even though the vendee were insolvent. A debtor to the Fisc could free in such a case, even though insolvent^[2193]; a text tells us that as the man would be free anyhow, the Fisc loses nothing by his being freed⁸. Under Justinian, slaves given to a filiusfamilias to be freed, were free and were not affected by the father's usufruct in bona adventitia⁹. The case of a minor owner is dealt with in many texts. The fact that the receiver is a minor is no bar. In one text we are told by Ulpian that the condition on which he receives is a sufficient causa'⁹. In another Papinian tells us that there is no reason to shew causa at all, since he becomes free by the constitu­tion¹¹. The latter is the more reasonable rule, and Ulpian himself seems to lay it down in another text¹², but the reasoning there does not look genuine. Where the vendor is a minor, we are told by Marcellus that if he sells and conveys a slave ut manumittatur, even with the intention that the freeing shall not be done till the transferror is over 20, not only does the constitution not apply, since the rule of the lex Aelia Sentia was intended to protect owners of immature judgment, but the whole transaction is void¹. This is declared to have been provided by senatusconsult^{[2194] [2195] [2196]. Accordingly Ulpian, quoting Scaevola, says that the constitution has no application if the vendor is under 20, but that it does apply if he is between 20 and 25, except that he has restitutio in integrum till the man is actually free. The text adds that the same rule applies where the transferee is a minor’.}

Presumably though the textual authority is not strong, a gift, with this purpose, of a slave who cannot be freed, is void^{[2197] [2198].}

A gift ut manumittatur is permitted between husband and wife’, perhaps, as Paul says, either favore libertatis, or because there was no real gift to the other party involved^[2199]. It might be at once or post tempus or intra tempus, a rule which is squared with the law as to gifts between husband and wife by a principle, laid down by Sabihus and accepted by Papinian and Ulpian, that in this case the slave does not vest in the donee until he or she proceeds to manumit according to instructions. It follows that the donee, where it is a wife, cannot free till the time appointed arrives, nor if it was to be intra tempus, after this has expired. From this several results follow. As the ownership has not passed out of the vir, it is possible for him to free at any time if he wishes: accordingly there is no reason for the automatic liberty under the constitution, which therefore we are told does not apply^[2200]. The conditions, being entirely different from those in an ordinary gift ut manumittatur, would be changed by a determination of the marriage: accordingly it is held that such an event absolutely destroys the gift^[2201]. Moreover as the gift is not compellable, and does not operate unless the woman carries it out, her position as patron is not quite ordinary. We are told that she can exact operae, and that this is not ex re mariti, since the promise is made by the man as a libertus, and further, that if she takes money to free, it is hers unless it is ex peculio, in which case it belongs to the husband^[2202]. We may also note that as the gift did not operate unless and until she freed, it was a nullity if the slave was one who could not be freed¹⁶. These rules are not peculiar to this form of gift: they are here worked out in special detail, but they seem, mutatis mutandis, to be equally applicable to other licit gifts between vir et uxor¹.

There is nothing to prevent ordinary commercial transactions between husband and wife, and thus these special restrictions apply only to cases of donatio ut manumittatur, not to sale with the same intention.

In an ordinary case, the liberty takes effect automatically, at the agreed time and thus children born thereafter are ingenui²: their position is not affected by any subsequent manumission of their mother, which is in itself a nullity⁸. The receiver becomes patron whether he frees or allows the constitution to operate⁴. His position is not, how­ever, quite that of an ordinary patron⁶. Marcellus says that as the receiver takes him under a trust to manumit he does not confer any real benefit in him, and thus cannot accuse him as ingratus². Another text, of Ulpian, seems, however, to imply that he would have such a right if he freed, but not if he allowed the constitution to operate, cum non sit manumissor’’. But the other rule was apparently expressed in an enactment of Severus and Caracalla, which prevents the manumitter from reenslaving the man⁸, and this must be taken to be the law, at least thereafter. Whether the man be freed or allowed to become free, no operae may be imposed". On the other hand in both cases the patron is protected against in ius vocatio"¹, will be tutor of the slave, if the latter is a minor¹¹, and has the ordinary iura in bonis¹², this being expressly provided for in the constitution¹⁸. In the case in which the buyer institutes the man cum libertate, an important distinction is drawn. If this is done before the time at which he was entitled to liberty, he is a necessarius heres. If it is afterwards, says Ulpian, he can abstain¹⁴. Paul appears to say that he can abstain in any case¹⁶, but his remarks in an earlier part of the text suggest a limitation to the case where the slave nihil commodi sensit, which would agree with Ulpian¹⁸.

Such a gift may be conditional. In one text we have the case of a man who is to be free at the end of three years, si continue triennio servisset. The man runs away before three years are over. Paul holds that he will

1 e.g. 24. 1. 5. 9,11. It will be observed that as the conveyance is by way of mancipatio, this is an instance of mancipatio subject to tacit condition or dies. But the modality inest: it does not spring from the will of a party. The gift cannot operate unless and until the wife is not profited, ante, p. 455. There is some difficulty in the rule that if the marriage ends while the manumission is still unperformed, the gift is null, but even this is said, by Gaius, inesse, 24. 1. 8. The jurists utilise theprimafacie invalidity of the gift to produce these results: they could not result from convention inter capaces.

2 1. 5. 22. 8 c. 4. 57. 3. ♦ 37.14. 8. 1.

⁶ Incomplete patronal rights occur in other cases, e.g. 37. 14. 3, 5.1, etc.

6 37. 15. 3, tn A- ⁷ 40. 9. 30. pr. »C.6.8.2.

⁹ 16.; D. 38. 1. iS.jpr. » 2. 4. lO.jpr. » 26. 4. 3. 2.

12 38. 2. 3. 3. _t

18 38.16. 3. 3. He has the usual control over the marriage of the liberta freed matrimonii causa, 23. 2. 45. pr.

i* 28. 2. 71. 1. w 28. 5. 85. 1.

18 h. l.pr. The time is that of operation of the will, not of making. be free at the end of the three years: apparently he treats servire as meaning “be a slave¹.” In another case the slave is to be freed after five years and to pay a sum monthly meanwhile. Papinian holds that this is not a condition, but a mere direction as to what is expected of him during his temporary slavery^{[2203] [2204]}.

It has been suggested that the constitution may have provided that the slave freed by its rules should be a latin^[2205]. There seems to be little evidence for this and it is negatived, as Gradenwitz shews, by a text already cited to the effect that the result is the same whether the man is freed by the receiver or becomes free by operation of the constitution^[2206]. The same result follows from the texts which say that the stipulation penalty cannot be recovered, since he becomes free by the constitution^[2207]. Still stronger is the text which says that the constitution itself declares that the man meus libertus est, et legitima eius hereditas mihi deferetur. Such language could not be used of a latin^{[2208] [2209].}

The mechanism of the transaction is not easily made out from the texts. In the time of Justinian it is clear, formal conveyances having disappeared, that any expression of intent either in the contract or in the conveyance, sufficed.

It may be noted that the transaction is sometimes a mere employ­ment, e.g. where the receiver is to free at once or intra tempos', sometimes coupled with a benefit to the donee, e.g. where he is to free after a certain time^[2210], and sometimes a sale in which the price, though real, may be reduced by reason of the modality^{[2211] [2212] [2213]. In the cases of employment and gift, mancipatio cum fiducia would be the appropriate mode, and it is clear that it occurs in some of the texts16. It is probable that it was the mode employed in nearly all the cases in which the texts associate the undertaking that the man shall be freed with the actual conveyance11. In the case of sale, with which the constitution directly deals, there is nothing to suggest fiducia[2214] [2215] [2216]. We have in one case an agreed right of seizure with an alternative money penalty. No doubt the pact associated with the sale may have been sometimes fortified by a fiducia attached to the conveyance1. In any case it is clear that the transaction sometimes contained a fiducia and sometimes did not.}

This fact is material in connexion with the much debated question as to the effect of change of mind on the part of the transferor^{[2217] [2218] [2219]. Many of these texts tell us that the constitution applies only if the transferor has not altered his mind. Others ignore this point[2220]. Most of the texts which speak of a right of revocation have obvious marks of interpola­tion[2221] [2222]. Hence have arisen the most diverse opinions as to the history of this right of withdrawal. The texts seem to indicate a historical development somewhat as follows. Before the date of the constitution, if there was a fiducia the donor could recall the man at any time by an actio fiduciae, and free him, if the receiver had failed to do so, or keep the man, if he had changed his mind. If there was no fiducia, but a sale with a pactum adiectum[2223], there might be agreements for return if the manumission were not carried out, or for a penalty or the like. There is no evidence of any right of pursuing the man in the hands of a third party8, and it is clear that there is no right of recovery on mere change of mind[2224]. The constitutio dealt only with this case and provided that the man should be free ipso iure when the agreed time arrived. It did not deal with the case of donatio, where the difficulty did not exist, but was soon extended thereto in practice8. The constitutio said nothing about revocation, but it did not abolish the principles of fiducia, and thus it did not apply if the donor had revoked the fiducia, whether he had reclaimed the man or not. Ultimately the practice grew of allowing revocation in all cases, to the exclusion of the constitution, but this is post-classical and is introduced into the texts by the compilers. It does not of course follow that it was new.}

This opinion rests mainly on the following considerations. We have seen that though the constitutio did not at first cover fiduciary gifts there is reason to think it was soon applied to them. To put the constitutio out of operation is not necessarily to give any right of action, and every text which gives the transferor a right of recovery, or anything which implies it, associates the undertaking with the convey­ance, not with a contract of sale¹. Conversely it has been pointed out that every text that sets out the constitution in detail refers to sale^{[2225] [2226] [2227], and it may be added that most of the texts which ignore any right of revocation are cases of sale’. The general result seems to be that, where the compilers found in the text a reference to a right of recovery ex fiducia, they converted this into an actio ex poenitentia or the like[2228] [2229], but if there was no sign of this they inserted, not consistently, but commonly, a provision for excluding the operation of the constitutio. That the power of recovery where it existed was independent of the constitutio appears from what seems the only text on this matter which mentions both the constitutio, and the right of recovery on change of mind. It deals with the constitutio in a separate clause and there mentions only the exclusion of its operation[2230].}

The foregoing conclusions differ from the verdict of Haymann mainly in that they attach significance to the fact that the right of recovery is never mentioned except in the cases which suggest fiducia (i.e. never in connexion with sale), so that the right of recovery is inde­pendent of the constitutio*. In the main the whole rests on 40. 8. 1. If that is genuine the other texts must be interpolated, and it is impossible to resist Haymann’s arguments directed to shewing that they are in fact altered, and the failure of the many attempts to get the text 40. 8. 1 out of the way^[2231].

Some of the texts raise other questions which call for short discus­sion. In four texts it is laid down that if the alienor has died without changing his mind, the intent of the heres is immaterial^[2232]. On the view here accepted that the allusions to ius poenitentiae, though attributed here and there to the constitutio, are really due to the compilers, it is not necessary to say more of this limitation than that there exist obvious analogies which seem to have suggested it⁸.

In one text Papinian is consulted on the question whether there is any action in a case in which there was a sale for manumission within a certain time, but before that time arrived the vendor changed his mind, and notified the vendee, who nevertheless freed the man. His some­what cryptic answer is: ex vendito actionem manumisso servo vel mutata venditoris voluntate evanuit¹. This is certainly not the whole of the answer. Probably it was to the effect that if there had been a fiducia there would have been a right of claim, but that on the facts the only right is to the enforcement of the contract made. This is ended if the man is freed or if you have notified a change of mind’.

A text of Julian^[2233], written almost certainly before the constitution, considers the effect of notice given by an agent, and lays it down that if the procurator had good reason, in the misconduct of the slave, for intervening, the receiver is liable if he disobeys the injunction. The text was probably written of fiducia*, and is, it seems, identical with one in the Vatican Fragments' restored by Mommsen. It has nothing to do with the constitution. In its earlier form it says nothing about cause for intervention, this limitation being probably due to the compilers'.

Some texts raise the question whether animus donandi is material. Ulpian^[2234] quotes Aristo, who wrote before the constitution, as holding that if the manumission was to be at a later time there was a gift implied, and the man could in no case be claimed till the time had run. Pomponius is more precise: he remarks that even if the gift is not to take effect at once, circumstances may negative any intent to benefit the alienee⁸. That this text is written of fiducia appears from the next following passage^{[2235] [2236], where Aristo asks whether in a case in which the element of donatio enters there can be usucapio if the slave was in fact alienus. Pomponius settles Aristo’s doubt by saying that there could be, as in the case of donatio mortis causa. This suggests fiducia™ for if it was a simple conveyance it is not easy to see reason for doubt. But in one text where the manumission was to be intra tempus, the alienor is entitled to reclaim the man at once. Presumably such a form was not here held to imply any intent to benefit the donee. In another it was to be post mortem, but here there was direct disregard of notice not to free, which would at once give rise to an action, in the case of fiducia. And both the texts seem to deal with fiducia11.}

It has been suggested¹² that even before the constitutio was enacted it may have been possible for the slave to appeal to the magistrate for an order that the manumission be carried out. In Hadrian’s time¹⁸ there seems to have been some enactment on the point, but if such a right had existed the constitution would hardly have served any purpose. It is clear that stipulations for seizure and penalties were employed, until they were superseded and declared nugatory under the system of the constitution¹. They were not effective as protections to the slave, but they were better for the late owner than an actio mandati, in which it might be difficult to shew any interesse. But a condictio ob causam dati might have sufficed^{[2237] [2238] [2239].}

It has been said that the rules afford a means of evading the statutory restrictions on manumission. But the texts nullifying trans­actions in fraudem legis prevent this’. On the other hand a sale ut manumittatur, after, e.g., one day, would seem a ready means of substi­tuting mancipation for cessio in iure as a mode of conferring civitas, but it would involve loss of the libertus.

The form of the rule, which makes the liberty date from the breach of duty without any need of claim^{[2240] [2241], puts the man in a rather better position than that of one entitled to fideicommissary liberty. It was perhaps designedly adopted to avoid some of the questions which had given the Emperor’s predecessor trouble in that case®. The remedy might seem worse than the disease, since it may have often been difficult to determine the earliest date at which it was possible to free. But similar difficulties arose in many other cases, and the texts say very little about them : where the question is one of fact the sources deal very lightly with difficulties of proof.}

VII. Servus suis nummis emptus. The rules of this matter are based on a rescript of Divi Fratres, i.e. Marcus Aurelius and Verus, and therefore date from between A.D. 161 and A.D. 169. The general principle is that a slave suis nummis emptus is entitled to claim imme­diate manumission^[2242], and if this is not done he can claim his liberty before the Praefectus Urbi at Rome, or the Praeses of the province^[2243]. If he proves his case, the Court will order the owner to free, and if he latitat, or refuses, will proceed exactly as in the case of an overdue fiduciary manumission^[2244]. It does not appear that the decree is in any way declaratory: it orders the owner to free. The text last cited says, indeed, that it makes him free from the date of the purchase, but its whole argument is inconsistent with this, and it is most probable that a non has dropped out’. This view is supported by the fact that no text speaks of him as being free ex decreto or ex constitutione—every text contemplates his being freed by the owner. And there is no text which raises the question of the status of children born before the decree. The fair inference seems to be that if freed they were free from the manumission, and if the holder neglected to free, then they were decreed free as in the case of fiduciary manumission, and the status of children was similarly determined¹.

The expression suis nummis emptus is found long before the rules now to be considered were developed^{[2245] [2246]. It is not strictly correct, since a slave can have no money: the real point is that it must not be the money of the buyer. So long as he gives only his name, it is immaterial where the money comes from. Thus it may be ex adventitia lucre, or from a friend, or borrowed on any form of security. It may even be ex peculio venditoris[2247]. If, as may be the case, the buyer has advanced the money with this purpose, the right arises as soon as accounts have been squared[2248] [2249]. It is essential that the sale have been of this imaginaria character from the beginning[2250]. Accordingly the mere fact that the slave, after an ordinary sale, restores his price to the buyer will not bring the constitution into operation6; the point being that the owner must have no ownership but what is taken under this confidential arrangement. Conversely, if it was originally for this purpose, but the slave fails to refund the price, the constitution does not apply. On the other hand if one who has bought under this arrangement pays the money himself before the slave has provided it, this does not prevent the rule from applying, if and when he has been satisfied[2251]. It is imma­terial how the slave makes up the price, whether by money or by services or in any other way[2252] [2253]. Where the sale is of this imaginary kind, the mere fact that the buyer agrees with the vendor that he will not free the man does not bar the operation of the rule : the buyer has no real interest0. But of course any preexisting bar to liberty, such as conditions on legacy or sale will prevent the constitution from applying10.}

The buyer may be anyone, male or female, private person, city or state, a pupil, or even a slave, there being no personal interest or risk of loss. The text adds the rule that the age of the vendor is immaterial¹¹. Such sales being in their very nature collusive, this rule seems at first sight to provide an obvious means of evading the rule forbidding a master under 20 to free. We have seen that a master under 20 could not sell ut manumittatur^[2254] but this case is essentially different. There no real price need be paid: here there must be a full price. There the freedom is automatic : here it is only after decree, and the Court will see that a full price has been paid. We are told that the reason of the 20 year rule is to guard against damage due to immaturity of judgment², and the safeguard seems sufficient.

If the buyer already was part owner, or the owner bought in an outstanding usufruct, the rule did not apply for reasons already stated. But if a fructuary bought the dominium, semi nummis, the rule applied’, a distinction which seems more logical than reasonable. A case rather on apices iuris arose where two bought—one with his own money, the other with that of the slave. We are told that the constitution did not apply, unless the buyer with his own money was willing to manumit⁴. One might rather have expected that the rule would not apply, since the whole value of the slave has not been paid semi nummis, but the fact that the institution was in favour of liberty may account for the rule laid down. Obviously Justinian’s rule for joint owners cannot apply as this would require the nominal buyer to compensate the other owner'. Another somewhat remarkable case is put in the next text. If one buys a share of the slave semi nummis, and afterwards acquires the rest, e causa lucrativa, the rule applies. This gives a very odd result. So long as the acquirer owns only a part of the slave he has the use of him, pro parte, though he gave nothing for him, and in fact only holds by virtue of the slave’s wish and provision of money. If anyone desiring to benefit him, gives him the rest, he at once loses the whole. This seems to be the work of Tribonian: its grammar is eccentric’, and it imposes the obligation on an owner, part of whose interest is not of the imaginary kind contemplated by the rule. Other texts state some other complications of no great importance. If A gives T money to buy and free a slave, he can recover the money on notice before the slave is actually bought⁷. This is an application of the ordinary principles of mandate. But if the man be already bought and A does not wish him freed, he can still withdraw, (having paid the money,) taking the slave, whom T is bound to hand over to A unless he is dead or has run away without the fault of T, in which last case, T must promise to restore him if and when he returns to his potestas.

It does not seem clear that this is compilers’ work, though some details are interpolated¹. The remark towards the end of the next passage that if the giver of the money prefers to have the slave, either the man or the money must be given to him, belongs, no doubt, as Graden­witz says, to this case. All this looks a little hard on the slave. But it must be borne in mind that the case has nothing to do with the constitution we are discussing. This is merely a piece of philanthropy on the part of A of which he repents before it is carried out: the case to which the constitution applies is that of a purchase made as the result of a confidential arrangement to which the slave is a party—ut imaginaria fieret emptio, et per fidem contractus inter emptorem et servum agatur². Of all this there is no indication in the present case; the rule as stated is normal, though one would have expected an actio man­dati instead of a condictio ex poenitentia—a thing probably unknown to classical law.

Some nice points arise where the price is really provided by the vendor, as it might be’. It must of course be with his knowledge. Payment out of the peculium belonging to him, without his knowledge, is no payment and he can recover the money⁴. It follows that the buyer is not released⁶: the ownership has not passed and there can be no question of any right to demand freedom. A case which might very well happen was that of a slave who gave a mandate to buy him, the underlying intention being that he should be freed. Such a mandate would be absolutely void if there were no such intent, and the manda- tarius would have no actio mandati (contraria') de peculio*. If, however, there was such an intention, we are told that if after sale and delivery the manumission is not carried out, the vendor can sue for the price⁷, and even, affectus rationed, on the mandate. The text has been much discussed⁹. As the slave has not paid the price, the constitutio does not apply. Papinian seems to mean that the mandate to buy is essentially null, but the resulting sale is not, and the transaction may thus be treated as a sale coupled with a mandate to free the slave bought. If he is not freed there is an actio mandati, the difficulty as to interesse being met by confining the rule to a case in which the slave is related in some way to the vendor. There is presumably an actio mandati contraria for reimbursement if the man is freed. As the mandate is by the slave, i.e. to free him if bought, this is de peculio and may be useless¹⁰. But there may be an actio doli against the freedman for reimbursement¹¹.

¹ Gradenwitz, Interp. 166. ² 40.1. 4. 2. ⁸ h. 1.1.

⁴ C. 4. 49. 7; ante, p. 201. ⁸ C..4. 36. 1. 2. ⁸ Ante, p. 216.

⁷ 17.1. 54. or. ⁸ e.g. if the man is a natural son.

9 e.g., Pernice, Labeo, 3. 1.185; Van Wetter, Obligations, 1. 82; 2. 58.

10It is not contemplated as a sale ut manumittatur: the consent of the owner was of course

necessary for this. ¹¹ Cp. 4. 3. 7. 8.

Diocletian decides a similar problem in terms which seem to shew that he had this text before him¹. He gives further reasons for holding the mandate to be essentially void². But he says that, nevertheless, the dominus acquires an obligatio, as the object was to create a right of action not on the mandate, but on another contract, i.e. the sale, made on account of the mandate. This explains nothing, but it seems to be used as a reason for generalising the owner’s right ex mandate, at any rate nothing is said of affectus. Here the slave pays ex peculio without authority, but ownership is regarded as having passed, which is not impossible. The emperor decides that if the man is not freed, the old owner may sue either for the price, ex vendito, or for the man, ex mandate, the actions being treated as mutually exclusive. The practical outcome would be much the same. Nothing is said as to the resulting rights if he is actually freed³.

If the person who bought the slave, servi nummis, breaks his faith, so that the man is declared free by the magistrate, he is not patron for any purpose⁴. But even if he duly frees him his patronal rights are very restricted. Such a libertus is, we are told, in no respect like other liberty. The manumitter is in this case a mere instrument⁶: he has therefore no right to accuse the freedman for ingratitude or to impose operae''. He can never veto marriage⁸. If the slave is instituted by him, with liberty, he is not a heres necessarius, since he was in a position to compel manumission⁹. He has no right of bonorum possessio contra tabulae™. Yet he certainly is patron¹¹, and this position has some results. Thus his civil law right of succession is not denied¹², so that he will succeed on intestacy, and if instituted. And he is protected against in ius vocatio™.

VIII. The slave whose master has taken money to free him¹⁴. This case presents close analogies with both of the two cases last discussed, and it is clear that rules developed as to the enforcement of the liberty here too. But the remarkable state of the texts makes it difficult to say what the rules were, or when they developed. The transaction is referred to in many texts. Of those in the Digest, apparently only two refer to any compulsory completion of the manumission. One of these, by Paul“, says that the Constitution of Marcus Aurelius as to one sold ut manumittatur applies here too, i.e. the liberty takes effect auto­

* C. 4. 36. 1. ² Ante, p. 216.

⁸ The case gave the early commentators a good deal of trouble, Haenel, Diss. Domm. 425.

< 2. 4. 10.pr. ⁸ 27.1. 14. 3. ⁸ 37.15. 3; cp. 40.1. 5.

7 37. 15. 3; C. 6. 3. 8. ⁸ 23. 2. 45. 2. ² 28. 5. 85. 2.

¹⁰ C. 6. 4.1. 4. ¹¹ C. 6. 3. 8, notwithstanding the language of C. 6. 4.1. 4.

¹³ Cp. 37.14. 10, 11; 38. 2. 29. pr. ¹⁸ 2. 4.10. pr.

¹⁴ See for an illustrative surviving case, Girard, Textes, Appendice.

“ 40.12. 38.1.

matically. The other, by Papinian, says that in such a case the liberty can be compelled aib invito, as in the case of a servus suis nummis redemptus, i.e. on appeal to a magistrate the owner will be ordered to free¹. The same conflict occurs in the Code. Here three texts refer to enforced completion. An enactment of a.d. 240, of Gordian², says that where a master took money to free his slave at a certain time, and did not free him, the liberty took effect automatically at the time when it should have been given. But two enactments of Diocletian say in very similar language, that on such facts the Governor of the province will make the owner keep his word, i.e. the liberty does not take effect auto­matically³. The difficulty does not stop here. Paul, who tells us that the liberty takes effect automatically⁴ tells us elsewhere⁵ that if the freedom is not given, the money paid can be condicted, i.e. the causa has failed, and one of the constitutions of Diocletian, which says at the end that the manumission can be compelled, says at the beginning that the money can be recovered if the liberty is not given’. Papinian who tells us the liberty⁷ can be compelled, tells us also that if the owner does not free, the donor of the money can recover it, and has other remedies⁸, but there is no hint that, after all, he can have it carried out if he likes.

What conclusion is to be drawn from all this ? The fact that in some cases the money is paid by or on behalf of the slave and in others purely by an outsider suggests a distinction, but it proves useless. In the texts in which the liberty is not given and which ignore the consti­tutions, the payment is ab alio¹¹, but so it is in some of the cases in which the liberty can be enforced: in most of these it is merely enforce­able, in one at least it takes effect automatically¹⁰. In one of these which contemplate enforcement the money seems to have come from the slave¹¹. The fact that the texts which ignore the constitution deal almost entirely with payment ab alio, is due to the fact that the question in them is whether the money could be condicted—a point which could hardly arise between master and slave¹². With the ex­ception just cited the texts which deal with the case in which the money is provided by the slave do not speak of enforcement: they all assume him to have been simply freed. One text speaking perfectly generally says that where the freedom results from the giving of money for it, the patron has omnia iura patronatus™. So we learn that he could accuse as ingratus, which he could not do in the other two cases¹⁴.

1.40.1.19. >c. 4. 57. 4. ’ C. 4. 6. 9; 7.16. 8.

^I 40. 12. 38. 1. ⁵ 19. 5. 5. 2. « C. 4. 6. 9.

’ 40. 1. 19. ⁸ 19. 5. 7.

’ e.g. 12.1. 19. pr.: 12.4. 5. 3, 4 ; 19. 5. 5. 2, etc. ¹⁰ 40. 1. 19; C. 4. 57. 4, etc.

^II C. 7. 16. 8. ¹² C. 4. 6. 9.

18 C. 6. 4. 1; cp. C. 4. 6. 9; 6. 6. 3; 7.16. 8.

¹⁴ 37.15. 3; C. 6. 3. 2. Taking money does not destroy iura in bonis, 38.2.3.4 (Mommsen). The manumitter could not exact services, or money in lieu of them¹, but this is a result of the fact that the manumission was not gratuitous : having agreed to free for a certain emolument, the dominus has no right to burden the liberty further^{[2255] [2256] [2257]}. An enactment of Diocletian tells us that even though the manumission were done pecunia accepts,, it could not be revoked^{[2258] [2259]}. It is hardly credible that if such a gift operated automatically or could be enforced, such a question could have been aske ^[2260]d^[2261]. We are told that a promise by the owner to free when certain services were 'rendered was in no way binding on him⁸, and one would have thought that they would have been on the same level as money. On the other hand, in one text the question is raised whether if one has given money to be freed, and is instituted heres with liberty, he is a necessarius heres. Ulpian says puto huic omni­modo esse succurrendum. If this is genuine^[2262], guarded as the language is, it puts the person so freed on a level with the other two cases. And the allusion to the matter in Justinian’s constitution abolishing latinity^[2263] is at least consistent with automatic operation of the gift, before his changes.

The case differs in one fundamental point from both the others. There the owner who is to free has no ownership at all except such as is conferred on him, at another’s cost, for the purpose of the manumission: here he is the real owner of the slave. The importance of the distinction is brought out in several of the texts⁸. They point out that in our case the manumitter has conferred a real benefit on the man (for the gift of liberty in the beginning depended on his good will), while in the other cases—that of the fiduciary, the person who receives ut manumittatur, and him who buys servi nummis—they do nothing but lend their services. It seems probable that the whole law of enforcement is post-classical, and that the texts of Paul and Papinian are interpolated. This can hardly be doubted of Paul’s text, which Haymann gives good reasons, not all of equal weight, for thinking not genuine’. The same is probably true of that of Papinian. Haymann, indeed¹⁰, while shewing that there is alteration, considers the rule authentic but confined to the case of payment by a fellow-slave related to the liberandus, the rule being an analogous extension of the rule for servus suis nummis emptus.

ch. xxvii] Payment to secure Manumission 643 It is clear that Papinian knew of no general rule¹. But it is hardly credible that he should have held that a man who bargained with his own slave came under an obligation which would not have resulted from a similar bargain with a freeman. Nor is it likely that he would of his own authority have extended the rule for slaves suis nummis empti to a case so fundamentally different. The inference is that enforcement was not known to the classical law. As to the texts in the Code, there is some difficulty. Gordian’s text is no doubt mainly due to the compilers², but there may be a question as to those of Diocle­tian® They are both cases of payment by relatives, but the rule laid down is quite general, and though they are years apart the terms of the rule are identical, except that one inserts favore scilicet liberiatisi Haymann while accepting the rule, but as confined to the case of relatives, shews that this text has been fundamentally altered at the beginning : the other is grammatically defective’. The difficulty of principle which Papinian must have seen is less certain to have occurred to Diocletian’s adviser, but on the whole, in view of the state of the texts and of the intermittent way in which the rule is recognised in the Digest, it is probable that the whole enforcement is due to Justinian.

The truth seems to be that this institution is an exotic in Roman Law, though the frequency of allusions to it suggests that it was common in later classical times. On the other hand it is a well-known Greek practice. Extant documents give plenty of evidence that it was common for an outsider to provide the price of the manumission without taking a conveyance of the man, retaining a right to his services after the manumission till the money was in some way repaid. Often too it was done in the way indicated by the Roman texts, i.e. with no reservation of rights^[2264]. This suggests that it is an importation from provinces under Greek influence. The case above cited is from Egypt and contains clear evidence of Greek influence. The fact that it is not referred to by the Constitutions which enact compulsion suggests that as a common institution it is of a later day. The probable inference is that the references to compulsion in the Digest are, as is above suggested, interpolated^{[2265] [2266].}

The money might with the master’s consent be his own, but if his own money were used without his consent, an action was available

1 19. 5. 7...

⁸ C. 4. 57. 4; Haymann, op. cit. 42. Apart from textual points of varying importance he remarks that though a time was fixed the automatic acquisition of liberty occurs only on mora, which was not the rule of the constitutio, ante, p. 631.

⁸ C. 4. 6. 9 ; 7.16. 8.. sold or differently employed but for the bargain. It is likely that a good deal of this is Tribonian⁹. In a case in which the slave who was to be freed ran away, there is a similar discussion of hypotheses¹⁰. If the owner was going to sell the slave but did not because of this bargain, there is no condictio, but security must be given for the return of the money, less any diminution in value of the slave, if he came back. But if the payer still wished him freed, this must be done or all the money returned. If he was not going to sell him, he must return all the money unless he would have kept him more carefully but for the bargain: it is not fair that he should lose both slave and price. Here too Tribonian has clearly been at work¹¹.

If one slave was given that another might be freed, and after this was done, the slave given was evicted, there was an actio doli or in factum according to the state of mind of the person who gave him¹⁸. Conversely if a slave was given to secure the freeing of one who was not in fact a slave, the value of the slave given could be recovered by condictio ob rem dati¹*. But where money was promised to secure the freeing of a slave, and he was in fact freed, but by some other person,

1 16. 3.1. 33. On the facts, actio depositi. The manumission is apparently completed.

2 4. 3. 7. 8. Even where it had not been the master’s, he sometimes left it with the slave as part of thepeculium, 40.1. 6.

⁸ 12. 4. 3. 2; C. 4. 6. 9. Where each agreed to free a slave, and one did while the other did not, there was a claim for the value of the slave freed, 19. 5. 5. pr., 5.

* 19.5.7.

5 12.1.19. pr.; 12. 4. 3. 3; 19. 5. 5. 2. The wider questions as to the scope of this condictio do not concern us. See Haymann, Schenkung unter Auflage, 125 sqq.

6 12. 4. 3. 3, 5. 4. 7 12. 4. 3. 3. a ft. 5, 4.

⁹ Gradenwitz, Interp. 167. ¹⁰ 12. 4. 5. 3.

11 Gradenwitz, loc. cit. He remarks that the clause sed si cligat, etc., belongs to the discus· sion in the next preceding passage.

1219. 5. 5. 2. ¹⁸ C. 4. 6. 6.

the money was still due: nothing was said as to the personality of the manumitter¹.

The agreement was not always that he should be a dvis. In a recorded case^{[2267] [2268] the man was made a latin. The manumitter here was a dvis who had been a peregrine. Probably in such cases and in manu­mission inter vivos by libertini the slave was usually made a latin: otherwise there would have been no mark of inferiority as there was where the manumitter was a dvis ingenuus.}

If the freedom is carried out there can be of course no condiction of the money^{[2269] [2270] [2271]. But if the slave is not yet freed, and there has been no breach, two texts tell us that there is a condictio ex poenitentia*. It has been urged by Gradenwitz, not without predecessors, but with new and strong argument3, that this particular condictio is an invention of the compilers. His view has been widely accepted[2272], and at least so far as the present case is concerned hardly admits of a doubt. The texts themselves are so expressed as to make certain the fact that they are altered in some way, and they are definitely contradicted on the point[2273]. It is not necessary to restate the arguments, or to enter on the wider question, which does not concern us, as to the extent to which the classical law admitted a ius poenitentiae.}

It may be well to point out the essential differences between these last three cases, which do not seem always to be distinguished with sufficient clearness in current discussion. In the first case—transfer ut manumittatur—the transaction is expressly for that purpose and is initiated by the dominus. In the case of sale servi nummis the purpose is not necessarily express, and the initiative is in the slave. So far as appears the master receives a full price, and is merely a consenting party, who does not stand to lose anything by the transaction. In the first case the manumission is not necessarily, or so far as the texts go, normally, to take effect at once. In sale suis nummis it is always so. There is no suggestion in the second case of any right of withdrawal— a natural result of the fact that the initiative is in the slave, and no fiduda is imposed, or could be imposed, on the vendee. The various differences of rule which have been treated in this chapter are all fairly deducible from these differences.

In the third case the manumitter is the real owner of the slave.

No text speaks of a postponed manumission¹ (i.e. manumission post tempus) in this case, though there are cases in which the manumission is to be intra tempus. The initiative may be from the slave or an extraneus: it can hardly be from the dominus. There is no question of fiducia, but the money has been handed over for the express purpose’. ^{[2274] [2275]}