CHAPTER XXVIII. EFFECT ON QUESTIONS OF STATUS, OF LAPSE OF TIME, DEATH, JUDICIAL DECISION.

But though the law of Justinian’s time is fairly clear, the texts make some difficulty as to earlier law. An enactment of a.d. 331 *, which says that prescription does not protect children of a slave mother and free father living in an equivocal quasi-free position with their parents (precisely because it is equivocal, has no iustum initium, no gift of substitute or money to the master, or other indication that they were meant to be free) says, incidentally, that the period of prescription for liberty was already fixed at 16 years, by a lex. This statute is not extant, and there is no other trace of this term of 16 years. The way in which the rule is stated does not indicate that it was ancient, and it is probable that, as Gothofredus^[2289] suggests, the reference is to a lost enactment of Constantine. He also suggests, tentatively, that it might conceivably be the lex Aelia Sentia, basing this on the fact that the rule that the Fisc could annul a gift of liberty for fraud, within 10 years, is stated in a book of Paul ad legem Aeliam Sentiam". But there is no probability that the lex dealt in any way with this sort of question^[2290].

Whether there was any rule on the matter in classical times may be doubted. The law of usucapion clearly did not affect the matter, nor is there any sign of, or probability in favour of, a praetorian form of liberty protected by actiones utiles³. On the whole it seems likely that liberty could not be acquired by lapse of time in classical law.

B. Lapse of time after a traceable manumission. A person who has been freed is obviously prima fade free and a libertinus. It is, however, over and over again laid down that the mere fact of manu­mission does not bar a man from asserting that he is an ingenuus^[2291].

From the other point of view, there is some difficulty in the rules. It is laid down that the heres cannot dispute his ancestor’s manumission³. The scope of this rule is doubtful. The texts make it clear that their basis is the respect due from the heres to the voluntas domini, and they seem to mean merely that the heres might not object on technical grounds (or on account of fraus creditorum) to a manumission prima fade valid and having the dead man’s full and real assent. Probably it did not prevent his opposing the claim of freedom, where the manumission had been compelled by force⁷. The manumission itself was no protection against a third party owner: he could still claim his slave⁸. It is clear, however, from the conclusion of the lex that there was some prescriptive period which would protect such a slave⁹, but it is not easy to say whether this differed from the period in the case of ordinary apparent liberty. Analogy suggests that in such a case the liberty would be indisputable after five years, if the manumission pro­ceeded from the owner. Rules suggesting this analogy are the following. A man’s status could not be disputed after five years from his death¹⁰.

ch. xxvm] Death: Effect on Questions of Status 651 five years, the man was handed back to his old owner¹. These last texts shew signs of interpolation, and rather suggest that some such five-year limit was developed by the compilers, for cases in which the manumission, though by the dominus, was defective, but that there was no rule other than the ordinary prescription where the manumitter was not the real dominus.

C. Death. The mere fact of death does not put an end to questions of status. They may not, indeed, be raised principaliter after the death, i.e. where that is the substantial issue^{[2293] [2294] [2295]. But that would be a rare case, for it is usually at bottom a property question. Thus where goods which were part of his estate are claimed as peculium, or the status of his or her child is in question, the action may be brought notwithstanding the death2}

But lapse of five years from the death produces much more effect. The general rule of later law was that a man’s status might not be attacked after he had been dead five years^{[2296] [2297]. Callistratus tells us that this rule was first laid down by Nerva in an Edict2. Nerva’s enactment was probably a statement of a general principle which was supple­mented by a senatusconsult referred to in several texts[2298]. It is clear that the rule is classical, but its application involves the settlement of details, and, for the most part, it is not possible to state the exact origin of each rule.}

There are no exceptions from the general rule that a man’s status may not be attacked more than five years after his death^[2299]. For the application of the rule it is essential that the person in question was in undisputed possession of the status at the time of his death^[2300]. It may be necessary to enquire as to whether the status was in fact undisputed at the death, and if the evidence leaves this doubtful, later times may be looked at^[2301]. Apparently the prescription is not barred by bringing proceedings within the time before a magistrate who has no jurisdiction¹⁰. However, if the man died in fuga, or latitans, he could 652 Death: Effect on Questions of Status [pt. n not be said to be living in undisputed possession of his status, and the rule did not apply^[2302].

It is plain that a dead man’s status is not likely to be disputed if he is the only person concerned: it is in connexion with his property and successors that the question will arise. To defeat A’s claim to certain property, it may suffice to shew that he claims it, e.g., as heres to X, who was in fact a slave. It is this that really needs prevention. Accordingly the rule is stated that even if the man has not been dead for five years, his status cannot be called in question if such an enquiry may affect the status of one who has been dead for that time. This is an odd sort of half-way house. Hadrian provides that a living person’s status cannot be disputed if the enquiry will affect that of a person who has been dead for five years³. Papinian declares the same rule: the status of a father or mother dead more than five years cannot be called in dispute, by raising a question as to that of a child’. Severus and Caracalla also say that if X’s patron has been dead for five years, the status of X may not be attacked through that of the patron⁴. In A.D. 205 it was laid down that where X was made heres by B, his right was not to be disputed by shewing that B’s mother who had been dead more than five years was in fact a slave’. The rule is then, not that the status of these living people may not be disputed, but that, if it is disputed, evidence affecting the status of persons dead more than five years will not be admitted⁶.

The rule applies only to attacks on status: there is nothing to prevent evidence at any time that the status was better than had been supposed. Marcian, Marcellus and Hermogenianus agree that evidence may be brought at any time to shew that a dead person was really a libertina and not an ancilla⁷. It is noticeable that these three jurists are very late: it is possible that the rule above stated had been couched in such general terms as to cover, in the opinion of some writers, this case also⁶.

D. Res Judicata. This topic will serve to introduce what is essential to a comprehensive view of the topic of slavery, i.e. the procedure in claims of liberty and in claims of a man, apparently free, as a slave. Both types of proceeding are called causae liberates. They

are civil suits¹, and as is the case with all suits, their form underwent historical changes, and had its own peculiar characteristics.

It is clear that under the system of legis actio, the procedure in such cases was by way of sacramentum. We learn from Gaius, that, favore libertatis, in order not to be oppressive to ads er tores, the sacra­mentum in such cases was fixed at 50 asses². The dominant opinion is that in causae liberates the vindiciae were always given secundum libertatem, which would practically appear to mean that not only the man whose status was in question was pro tempore treated as free, but also that the burden of proof was with him who claimed him as a slave. For though in sacramentum each side must claim and prove, the status quo would it seems be determining if neither proved his case³.

We are left in the dark as to the mode of trial under the system which superseded that of legis actio. It is generally held that the trial was by pradudidum, a view which rests mainly on the fact that we are expressly told that this was so in later law⁴. There is, however, no direct evidence for this in earlier law. The opinion has in its favour the fact that pradudida had no condemnatio, and under the formulary system, when every action sounded in damages, a condemnation in such a case seems out of place. Nevertheless Lenel⁰ remarks that it is very doubtful whether it was in fact a praeiudicium. He points out that Gaius does not mention it in speaking of pradudida^. His main illustration is an libertus sit, a very much less important affair. Further, he points out that a pradudidum as such is essentially a preliminary matter affecting only indirectly the pecuniary interests of the parties. But this is one which directly affects them. We know that it was occasionally called a vindicatio in libertatem’. He admits the existence of texts which declare it to be a pradudidum*, and in relation to the text in the Code⁹ he rejects as inadmissible the rendering of the word pradudidum as meaning “disadvantage¹⁰,” which would destroy the force of this text. Even if these texts be accepted they would shew only that the process was a pradudidum in later law, after it had become a cognitio, and, for Justinian’s time, this is generally accepted. Lenel has no substantial doubt but that in the case of a claim in servitutem it was an ordinary vindication, resting his view on the fact

¹ C. Th. 2. 7. 3. ⁹ G. 4. 14.

⁸ As to the general question, see Jobb^-Duval, Procedure Civile, 855 sqq. The dominant view on the immediate question rests on the accounts of the case of Virginia (D. 1. 2. 2. 24; Livy, 3. 44 sqq.; Dion. Hal. 11; Diodor. Sic. 12. 24). The accounts have been much debated (Maschke, Der Freiheitsprozess, and earlier literature cited by him; Lenel, Ed. Perp. (2) p. 367; Schlossmann, Z. S. S. 13. 236 sqq., etc.}. Perhaps no conclusion can safely be drawn from narratives none of which is nearly contemporary, but Maschke seems to have shewn that it is possible to doubt whether the rule went further than that vindiciae were secundum libertatem if the man was in libertate when the issue was raised.

⁴ In. 4. 6. 13; C. 7. 16. 21. ⁶ Lenel, Ed. Perp. (2) pp. 367 sqq.

6 G. 4.44. ⁷ 10.4. 12. pr.

® In. 4. 6. 13; Theoph. ad h. 1.; C. 7. 16. 21. ⁹ C. 7. 16. 21.

¹⁰ Sintenis, Otto and Schilling, adh. l.\ Wlassak, Z. S. S. 25. 395.

654 Causae Liberales: Mode of Trial [pt. n that there exist several texts shewing that there was or might be an actual condemnation. It may be doubted whether the process was tried by formula for any long time. It became a cognitio very early^{[2303] [2304], at latest under Antoninus Pius. In the time of Cicero it was still tried by sacramentum, and went before the decemviral court[2305]. Mommsen thinks on negative evidence[2306] [2307] (i.e. that Dio and Pomponius do not say that they kept it, while they do record the fact in other matters) that Augustus took away this jurisdiction from them. Cuq thinks3 that it was transferred to the ceniumviri, which gives the same results, since all centumviral causes were tried by legis actio. Karlowa says that the citations from Ulpian de officio consults leave no doubt that the Consuls had jurisdiction perhaps concurrently with, perhaps in lieu of, that of the Praetor[2308] [2309]. He thinks the consilium sat and voted—hence such rules as that of the lex lunia Petronia, etc.’—and that[2310] [2311] the Decemviri had jurisdiction where an apparent ciiris was claimed as a slave, in other cases either recuperatores or unus index2. Lenel considers the formulary process to have continued as an admissible alternative to the cognitio, and he cites texts in which the iudex appears[2312] [2313]. It may be doubted whether the iudex here is the old unus iudex or the magistrate’s deputy11. The view that the magistrate habitually appointed permanent deputies to try particular types of case, especially outside Rome, probable in itself, would harmonise these texts and those dealing with the closely similar case of the querela'[2314].}

In Justinian’s time it is of course a cognitio. It is sometimes described as a praeiudicium, but that means little under the system of pleading then in operation, under which a condemnatio need not be for money in any case. Perhaps the chief text means^[2315] merely that it might be an actio praeiudicialis, as it certainly might, i.e. a matter to be settled as a preliminary to some other issue, e.g. to a claim of a hereditas'*. But it is frequently brought principaliter^ls, when it is not easy to see anything praeiudicialis about it.

We shall see¹⁶ that the de facto position of the slave when the question was raised, i.e. in libertate or in servitute, decided the burden of

proof. The fact might be doubtful and there was an edictal machinery for a preliminary enquiry on this point¹. So far as can be gathered from the Digest⁸ this was also a cognitio. Whether this was the case in classical law cannot be said. As Wlassak says^{[2316] [2317] [2318], the question of fact might have been referred to an arbiter by the magistrate who had charge of the case.}

The action has a good many preliminaries, a fact alluded to in the various texts which use the expression sollennibus ordinatis in this con­nexion⁴. The first point to note is that a person whose status is doubtful cannot postulare in iure, and therefore the action is brought, or defended, on the part of the person concerned, by an adsertor libertatis. This is expressed by the well-known rule that among the few cases in which it was possible lege agere, alieno nomine, was that pro liber tat e⁵. The adsertor was something like a procurator or cognitor, but under ex­ceptional rules, somewhat favourable to liberty. Thus it was no objection to an adsertor that he was disqualified by turpitudo or the like from acting as procurator, unless indeed the Praetor thought fit to reject him on his own authority, as suspect⁶. If an adsertor abandoned the case, the whole matter might be transferred to another, but if the one who abandoned the case did it without good reason, and in order to betray the claimant, he would be dealt with extra ordineni¹. There is an obscure enactment in the Codex Theodosianus, which may mean that if a second assertor presented himself when there was one already, he was admitted to the suit, but was liable to a severe penalty in case of failure⁸. It is plain, however, that in the later Empire there were difficulties in procuring adsertores: Constantine legislated elaborately on the matter⁹. He provided that if one in apparent liberty were claimed as a slave and could find no adsertor, he was to be taken about his province (circumductus) bearing a label, shewing that he needed an adsertor. If he failed to get one he would be handed over to the claimant. But if afterwards he could secure an adsertor, he could renew his defence, retaining the advantage that the burden of proof was on the other side. If at that hearing judgment was in favour of the alleged slave, he was entitled to claim, by way of compensation, a servus mulctatitius, although if the slave were a woman and had a child during the hearing, though his fate would be determined by the judgment, she could not claim one for him¹⁰. If the alleged slave died during the hearing the case went on and the servus mulctatitius went to his heres. If the claimant of the slave died, and his heres continued the suit, there would be the same penalty, but not if he withdrew. If the adsertor acted at his own risk, guaranteeing return of the peculium in case of failure, he was entitled to take security for the possible penalty¹. The text says that this circumductio is a substitute for the idle procla­mation. It may thus be assumed that until this time, if an adsertor did not appear there was a proclamation in court. It is probable that the whole legislation is part of the protection of the weak against the potentiores which is so marked a feature of legislation in the later Empire^{[2319] [2320] [2321] [2322] [2323]. The word proclamare appears in the Digest in the expression proclamare in (or ad) libertatem, the regular expression for the case of one in servitute claiming liberty ·.}

To the rule requiring an adsertor in all cases an exception was made in A.D. 393, by Theodosius, who provided that if a question of status was raised against one who had been living in libertate for 20 years, irrespective of bona fide origin of the condition (iustum initium*), and had to the knowledge of the claimant held some public office with­out objection during that time, he could defend his liberty without an adsertor¹. Under Justinian the need for an adsertor was wholly swept away. He provided that the person concerned might appear personally and that if the claim was one ex libertate in servitutem, he might appear by procurator, though not in the other case. Under the new system, the peculium and other property which may be affected by the result is to be assigned to safe keeping by the iudex, at least in the case of a claim ex servitute. Those who can give a fideiussor must do so, but if the index is satisfied that this is impossible they must give a cautio iuratoria*. Before Justinian it is not clear what the law as to security was. His enactment shews that he altered the law on the matter and suggests also that the earlier rules were more severe than those established by him. So far as peculium and similar matters were concerned, his language seems to imply that the adsertor had had to give security for these in all cases. The same consideration would cover the case of the man himself, which suggests that the same rule applied there. It is true that the analogy of the ordinary real action suggests that it was only where the adsertor was defendant that security needed to be given¹, and so Wlassak holds’. But the reason assigned by Gaius for requiring security, i.e. that the defendant is in possession of the disputed thing, applies in every case of adsertio libertatis, since, as we know, the man was in all cases pro libero during the hearing, whether the alleged dominus was plaintiff or defendant. Wlassak also considers it possible, though not proved, that no security was exacted if the man was in libertate voluntate domini, and he attaches to this hypothesis the discussion in two texts, which are concerned with the question whether in given circumstances a man can be said to be in libertate voluntate domini. But it is not easy to see why the fact that the dominus, either in error or out of kindness, had allowed the man to run loose, should have deprived him of his right to exact security. Wlassak, however, seems right in refusing to apply these texts to the hypothesis of an informal manumission. They appear, however, to admit of another interpreta­tion, elsewhere considered’.

Causae liberales were required—;jfavore libertatis*—to go before maiores indices. In the provinces this would be the Praeses*. The Procurator Caesaris had no jurisdiction in such matters’.

A causa liberalis 'tres not a fitting subject for arbitration, and if one was submitted, ex compromisso, to an arbitrator, he would not be compelled to issue a sententia’’, and probably his decision if given would be in no way binding. It must be borne in mind that his decision would not in any case be a judgment: it might give a right to an agreed poena, but it did not prevent the question from being again raised⁸. The law as to the effect of a transactio on such a matter is not quite clear. In one text, a constitution of Diocletian, we are told that no transactio between a dominus and his slave could be in any way binding on the dominus*. On the other hand we are told that Anas­tasius provided that transactiones as to status should be good and should not titubare, merely because they decided for slavery¹⁰. Elsewhere Diocletian had decided that pact could not make a slave free, nec his qui transactioni non consenserunt quicquam praeiudicare potest¹¹. This seems to be an allusion to a case in which a mother had, under a com­promise, been admitted to be free, her children remaining slaves, or some case of this kind¹â€™. Nothing in Diocletian’s enactments¹⁸ suggests a positive force in a transactio, but it would seem that a little later such compromises were made, and were regarded as binding on the parties

¹ G. 4. 89, 96. » Wlassak, Z. S. S. 26. 400. ⁸ Post, p. 661.

⁴ 4. 8. 32. 7. » C. 3. 3. 2; 7. 14. 1, 9; 7. 16. 11, 16.

⁶ C. 3. 22. 2. Whether the rule of 315 requiring cases in which the Fisc was concerned to go before the Rationabilis applied to causae liberales is not clear (C. 3. 26. 5). The older rules of Hadrian and Marcus Aurdius requiring fiscal officers to be present (49. 14. 3. 9, 7) are un­necessary in that case, but in the Digest they may be anachronisms.

’ 4. 8. 32. 7. 8 4. ₈. 29, 30; P. 6. 6a. 1, etc.

9 C. 2. 4. 13; cp. h. t. 26. w C. 2. 4. 43.

H C. 7. 14. 8; cp. C. 2. 4. 26. ¹³ C. 2. 4. 26.

i» C.2.4. 13,26; C. 7. 14.8.

658 Causae Liberales: Mode of Trial [pt. ii so far at least as the result was in favour of liberty. The practical outcome of the enactment of Anastasius¹ seems to be that a transact™ would now be valid, to the extent of preventing the owner from claiming the man as a slave, or in the converse case, of preventing the man from claiming liberty against that defendant or claimant, but not beyond.². There is no sign that the rule was carefully worked out: it does not appear in the Institutes or Digest, and in the Basilica where the matter is discussed³, the rule is made out that transact™ is effective, after litis contestatio in the causa, but not before.

Causae liberales might be tried and decided on privileged days, not open for ordinary litigation⁴. If the claim was one e libertate in servi­tutem it must be tried at the domicil of the alleged slave’. If it was e servitute it would be at the domicil of the alleged dominus^t.

Under the system of legis actio the person in question was of necessity present, and the adsertio appears to involve his presence in any case⁷. The machinery by which it was compelled is not very clear. The interdict quern liberum was not available because this assumes freedom, and to decide it would prejudge the causa liberalise. We are told that the actio ad exhibendum was available to one who wished vindicare in libertatem¹¹, but it is not easy to see the pecuniary interest needed¹⁰. There is no need for compulsion where the man himself is raising the question. The Institutes mention an interdictum exhibi- torium¹¹, for the production of one, cuius de libertate agitur. It is not mentioned by Gaius from whom the next interdict mentioned, libertum cui paironus operas indicere velit¹¹, seems to be taken. Lenel does not appear to think that the Edict contained such an interdict. It may be a late introduction, perhaps alternative to actio ad exhibendum, perhaps designed to meet the objection that an adsertor had not the pecuniary interest, which, according to the Digest, the actio ad exhibendum required¹³.

At least after Constantine, the case could be continued and decided in the absence of one party¹⁴. Justinian’s enactment abolishing adser- tores provided that if the alleged slave failed to appear for a year after summons by the claimant, judgment should go against him¹â€™. But there is nothing to shew, apart from this, that action could ever have been begun in his absence.

¹ C. 2. 4. 43. ⁸ See ante, p. 647. ⁸ Heimbach, 1. 726.

* 2. 12. 3. 1. ⁶ C. 3. 22. 3..

⁶ h. t. 4. One dolo male in libertate is treated for this purpose as in servitute, h. t. 1. Justinian seems to contemplate a double jurisdiction by providing that one who having begun suit in one jurisdiction starts another elsewhere, forfeits any right in the man, C. 7.17.1. 3. The text suggests that one is brought ex divali iussione in what would not otherwise be a competent jurisdiction. ⁷ Varro, de 1.1. 6. 64; cp. Accarias, Precis, § 797.

⁸ 43. 29. 3. 7. ® 19. 4.12. pr. ^h.t. 13.

ii In. 4. 15. 1. i^a G. 4. 162. ^w 10. 4. 13.

¹⁴ 40.12. 27. 2; C. 7.16. 4, 40. Presumably of the man himself, though he is not a party, w C. 7.17.1.

Subject to the possibility of being already barred by res iudicata¹ anyone interested in the matter may raise the question of a man’s status. The normal case is that of one claiming to own him, but a usufructuary may bring the action’. It is presumably barred to one who may not postulare in iure, and a freedman cannot bring it against his patron, but, apart from these cases, exclusions do not seem to be numerous. A pupil can bring it against his twtor’, but not tutores and ouratores against their former wards. A husband can dispute the status of his liberta whom he has married¹, as, indeed, a manumitter could in general prove his manumission invalid⁵.

On the other side the natural person to move is the alleged slave himself, and he can choose his adsertor freely. But, though he is not inclined to move, others may do so on his behalf, even against his will. Thus we learn that if he assents to the slavery to annoy his relatives, his parents may bring a causa liberalis, whether there is potestas or not. So children can for their parents, and even cognates can, for the slur extends to them. So too can ' natural ’ relatives, e.g. the parents of a freedman’. In general the right applies to all necessariae, i.e. related or connected people⁷. If the person concerned is mad or infans, not only relatives, but other people, may proceed⁸. A patron has an interest in the freedom of his libertus either on the ground of succession or on that of operae, and can thus bring a causa liberalis on his account⁹. The man’s consent is immaterial¹⁰, and thus the patron may do it even where the man himself has sold himself into slavery¹¹, though not, presumably, where the man himself would be barred. It must be added that, if there are several relatives or patrons claiming to act, the Praetor must choose the most suitable¹².

We shall have to deal later with cases in which the causa liberalis may have to be postponed owing to the existence of other questions with which it is connected. But Ulpian tells us that there are consti­tutions which provide for postponement, if necessary¹⁸, even where it stands alone, and that Hadrian provided that there might be such postponement in the case of an impubes, if his interests required it, but not if he was sufficiently defended¹¹.

1 Post, pp. 667 sqq. a 40. 12. 8, 9. In later law, perhaps not in classical, pledge creditor, h. t. 8. 2. s C. 7. 16. 85. ⁴ 40.12. 39. 23; P. 5.1. 8, 9.

⁶ The status of one made limenarcha may be attacked by the appointing authority, C. 7. 16. 38.

⁶ 40.12.1—3. Even a parent who has sold the child may afterwards proceed, C. 7.16.1.

⁷ Dirksen, Manuale, s.v. necessaries. If there is no one else, female relatives or a wife may proceed, 40. 12. 3. 2.

^s h. t. 6. A miles may proceed for necessariaepersonae (h. t. 3.1).

⁰ 40. 12. 3. 3, 5.pr., 12. 5. ¹⁰ C. 7. 16.19. ¹¹ 40.12. 4.

¹² h. t. 5. 1. ¹⁸ 37. 10. 3. 2.

¹⁴ h. I. 5. He attributes a similar rule to Divi Fratres, 40.12. 27. pr. Augustus provides that where mother and child are claiming before different judges the mother’s case must be tried first. Hadrian says it must be so tried in any case unless they are taken together, 40.12. 23. 2.

Whether the claim is ex libertaie or ex servitute the action is essentially the same, but in the former case the man is defendant, while in the latter he is plaintiff and is thus under the burden of proof^[MMCCCXXIV]. Upon this matter very precise rules are laid down. If the alleged slave was in servitute or dolo malo in libertaie at the time the issue was raised, the claim is ex servitute and the burden of proof is on him². If his de facto status is uncertain, the edict provides that there shall be an enquiry whether he was in servitute or in libertaie, and if the latter, then whether it was or was not dolo malo. If it was, he is treated as in servitute³. There was evidently a good deal of discussion as to what was being in libertaie sine dolo malo. Julian cited by Ulpian⁴ lays down the simple rule that one who thinks he is free and acts as if he were free satisfies the rule. Varus is cited as making what purports to be a modification, but is in fact no more than a fuller statement. He says that even if the man thinks he is a freeman, so long as he acts as a fugitivus and hides, he is not sine dolo malo : indeed one who acts pro fugitive acts pro servo, and in fact is not in libertaie at all. Gaius adds’ what seems to mean that if he fled so as to hide from his master, and then in his distant place acted pro libero he is still pro fugitive and at any rate not in libertaie sine dolo malo. It follows, as Ulpian says, that a freeman may be dolo malo in libertaie, and a slave may be so sine dolo malo³. In fact, anyone who without fraud lived in liberty, and, with or without good reason, thought himself free, was bona fide in libertate and had the commoda possessoris'', i.e. is not under the burden of proof⁸. But just as a man might be in libertaie mala fide, so he might be in servitute mala fide. Two texts which leave something to be desired on the point of clearness seem, when fairly read, to mean that if one bona fide in libertate were about to be claimed as a slave, and the intending claimant, as a preliminary, seized the man and kept him in confinement, this would not settle the burden of proof, but that if it were substantially a claim ex libertaie, it would still be so: the claimant by this act of brigandage would not have acquired to himself the position of defendant⁸.

CH. xxvin]

Burden of Proof

661

It is, however, nowhere said that a man could not be in libertate sine dole malo, except in the cases laid down in the foregoing texts¹. Two texts which have never been conclusively explained’, discuss the question whether a particular man can be said to have been in libertate voluntate domini. It has been shewn by Wlassak that they cannot be applied to the question whether there has been an informal manumission, since there is no evidence of any animus manumittendi. He applies them to another hypothesis, elsewhere considered’, but it may be suggested that their application is, possibly, to our present topic. They give perfectly good sense if they are understood as resting on the view, which may well have been held by some jurists, that a man was in libertate sine dole malo, if he was in that position voluntate domini. The fact that in one of the cases the event under discussion happens after the ordinatio litis, is not material. If a man who had not been in libertate became so sine dolo malo after ordinatio litis, the only effect would be, if the classical law as to security was, as we have supposed^{[2325] [2326] [2327] [2328] [2329] [2330], to shift the burden of proof, a matter involving no change in the mechanism’.}

Caracalla provided that there could be no proclamation in libertatem until proper accounts had been rendered as to past administration*, so that from his time onward this must be regarded as another preliminary to the action.

The completion of the organisation of the case brings another and very important rule into play. As soon as the lis is ordinata, the man ceases to be in servitute if he was so before, and is treated pending the hearing as liberi loco от pro liber o’¹. The origin of this rule is doubtful. It is sometimes said to be based on the rule of the XII Tables that vindiciae were to be secundum libertatem, and the fact that the rule is treated by Gaius as merely traditional—volgo dicitwr*—which shews that it is not edictal, does not shew that it is not based on the XII Tables, since in any case it is a mere evolution from the supposed rule and not itself an express provision. It must be noted that its scope is less than that of the older rule: it has no relation to the question of proof. A person claiming ex servitute is pro libero, but must prove his case*.

The rule applies from the moment when the lis is ordinata or inchoata or coepta^w. The exact point of time meant by these expressions is

nowhere indicated¹. Karlowa thinks the cause is ordinata at the moment at which the distribution of parts is determined’. Cujas thinks it is at the absolute beginning^{[2331] [2332] [2333], but the expression ordinata seems to imply that some matters have already been arranged[2334].}

The effect of this quasi-liberty is indicated in many texts. Thus a tutor can be appointed to the person in question, and the appointment will be valid or not, according as he is judged free or not^{[2335] [2336]. He may not be put to the torture on the question of his liberty*. He may have actions even against his alleged dominus, lest they be barred by death or lapse of time[2337], Servius holding that in all actiones annuae—the only ones in which in his day the point would have been material—time began to run from the moment the lis was ordinata*. This must pre­sumably apply only where it is ex servitute, and thus the rule forms some support to the view that the ordinatio is the distribution of parts. If he wishes to sue a third person, we are told that the question whether the lis is ordinata or not is immaterial, lest any person liable to action have the power to postpone such action by getting someone to raise a question of status. Any judgment will be valid or void according to the result of the causa*. The main argument of this text is not very clear. This last rule seems to refer to the case of one claimed e libertate, while as we have seen the primary rule itself can hardly have any bearing except on the case of a claimant ex servitute.}

The rule is, or may be, somewhat different if it is sought to make him defendant in an action. We are told that if the dominus (i.e. the other party to the causa) wishes to sue him in any personal action, the action will proceed to litis contestatio, but the hearing will be suspended till after judgment in the causa Uberalis, according to the event of which the indicium will proceed or be useless^[2338]. So if a third party wishes to charge him with theft or damnum, he must give security se iudicio sisti lest he should be in a better position than one whose status was not in dispute, but the hearing must be postponed to avoid prejudicing the causa Uberalis". So, if his alleged dominus is charged with furtum committed by him, and he proclamat in libertatem, the trial is postponed so that it

ch. xxvm] Condition of the, Man during the Trial 663

may be transferred to him if he is really free, and the actio iudicati rct&y go against him¹. So an interdict unde vi brought against him, while he is proclaiming, can result in a judgment of restitution after he is declared free^{[2339] [2340] [2341]. The difference of rule may be only apparent, since the main text dealing with action by the man does not say that it is to be fought out before judgment in the causa, and emphasises the importance of getting it as far as litis contestation.}

But the rule that he is pro libero has limitations. Thus a person whose status is in question may not enter any militia, whichever way the claim is made^{[2342] [2343]. If a person claiming ex servitude does so become a miles, he will be expelled, and as the text says he is to be treated like other slaves' he is presumably liable to capital punishment if he proves to be a slave[2344]. Our text adds that a miles calumnia petitus in servi­tutem is not expelled, but retlnetur in castris*. As it would be impossible to say whether there was calumnia, till the causa was decided, the rule deducible from the texts would seem to be that a man claimed e libertate was not expelled from a militia unless and until declared a slave, but that no such person could become a miles pending the causa.}

The law as to his relation with his master presents some difficulty. Gaius tells us that he still acquires to his master if he really is a slave. He adds a doubt for the case of possession, since he is not now possessed by the dominus, but disposes of it with the remark that there is no more difficulty in this case than in that of a fugitivus, by whom his master can certainly acquire possession⁷. It may, however, be remem­bered that a fugitivus is still possessed, and though this doctrine was disputed, and rests mainly on the authority of 'Sotns. filius, a Proculian⁸, it is certainly held by Cassius and Julian⁹, leaders of the school to which Gaius belongs. Paul discusses the matter in two texts¹⁰, the conclusions of which are that in a claim ex servitude, where there is no suggestion that the man was in libertate before the issue was raised, the dominus continues to possess the man unless he is declared free. So also if he has run away, but has been away for so short a time or in such a manner that he has not before his capture established himself in libertate. But if he has definitely attained the position of apparent freedom, and on capture, or without capture, raises, or is ready to raise, the question of status, the master no longer possesses him. It is clear that for Paul the decisive point is the definite and express repudiation of the master’s authority. This is more than is involved in fuga or even in acting pro

[pt. n libero, and we have seen that even in that case many jurists thought the master lost possession^[MMCCCXLV]. Paul does not actually consider whether possession could be acquired through such a man: probably it could where the master still possessed, and could not where he did not⁹.

It is clear that there were disputes. Traces of these are left in the case of an acquisition which required iussum, where that iussum was given and disobeyed. Justinian discusses the case in which X, claiming freedom from A, is instituted by B. A orders him to enter but he refuses. A cannot treat him as his slave: he is pro libero. Can any penalty or pressure be imposed? Justinian tells us there had been much doubt on this matter and he decides it by what he calls a subtle distinction. If in the institution the man was described as the slave of A, he can be made to enter and in that case whatever the issue of the causa liberalis he will get no benefit and incur no risk. If he was instituted as a freeman he will not be compelled to enter, whether the causa liberalis were e libertaie or e servitute; the hereditas will await the issue, and he will enter at his master’s iussum or, if he likes, on his own account, according to the result*. In the first case the decision may result in an acquisition by A through a slave in whom he had no right or possession.

The issue affects only the parties, and thus does not decide the status of anyone else. Thus if a woman’s status is being tried, the decision of it will not determine the status of her children born before the hearing. But Constantine enacted that if a child were bom to her during the causa, it should have the same fate as the mother, i.e. its status would be governed by the decision in her case⁴.

Though the person whose status is in question should die pendente lite, other matters may ultimately be affected by the decision. Thus he may have made a will, or the man who bought him may have a claim for eviction against the vendor. Accordingly the adsertor is bound to go on with the case, and in Justinian’s law, adsertores being abolished, the buyer can take up his claim, and require the vendor to prove the slavery’.

The lea; lunia Petronia provided (a.d. 19) that if the iudices were equally divided the judgment must be in favour of liberty, though in other cases of equality it would be for the defence’. There were also

many constitutions directing them to decide in favour of liberty if the evidence seemed equal¹.

If the judgment is against the slave it will be simply eum servum esse^{[2346] [2347] [2348]. But if it is in his favour the form of the proceeding affects the judgment. If he is defendant, and the plaintiff fails to prove his case, the judgment is eum servum (Agerii) non esse, i.e. that he is not the slave of the plaintiff. If the person claiming liberty is the plaintiff, the judgment will be eum liberum or (ingenuum) esse, which besides that it bars the defendant, puts the plaintiff into the position of one bona fide in libertate3. A result of this distinction is stated in a text which says that if the person claimed desires to take the burden of proof on himself he is to be allowed to do so ; the point being that, if successful, he will get a more satisfactory judgment[2349] [2350]. In one text we are told that if judg­ment goes in favour of the alleged slave because the claimant of him does not attend, the effect is to bar the claimant, but in no case to make the man an ingenuus. Ulpian thinks indeed the wiser course in such a case is to give the man his choice of a postponement, or a hearing there and then. If he chooses the latter and wins, the judgment will be eum servum (Agerii) non esse but not ingenuum esse. This can injure no one but the absent claimant. If, however, the man is claiming ex servitude, there should be an adjournment, to avoid a judgment eum ingenuum esse, unless, as Hadrian is reported as saying, there is some special reason, and a very clear case’.}

If the dominus wins he need not accept damages, but may take away the slave^[2351], and conversely, damages to the slave, in lieu of liberty, are inconceivable, since they will not go to him, and, moreover, Hberty is not capable of estimation in money^[2352]. But the pleadings may entitle him to an actio iniuriarum, or calumniae. To found such a claim the attack on his status must have been unjustified and improbus, i.e. made in knowledge that it was unfounded. Paul tells us that those trying such cases (in his day they were cognitiones) might punish calumnia with exile^[2353]. It was immaterial which way the action was brought^[2354]. It was iniuria to call a freeman a slave^{[2355] [2356]: a fortiori, if, when called on to support the allegation, the person so speaking failed to do so11.}

The alleged slave on getting judgment will be able to recover any property which the soi-disant dominus has detained¹. There may ob­viously be difficulties as to what this amounts to. In general one would suppose he would in any case take all but what his holder could claim to have acquired as a bonae fidei possessor of him. But there is a dark text credited to Paul, which says that a certain senaiusconsultum provides that he shall keep only those things which in domo cuiusque intulisset. It is not clear whether this means brought in with him or took away with him². The statement looks like a rule of thumb way of avoiding the difficult questions which might arise. Taken in conjunction with the cognate rules we have already considered⁸, the text, if it is to be taken as genuine, seems to imply that where possession of a slave ended by a causa liberalis, the traditional rules as to acquisition were set aside. But as to what the rule really was we have no information beyond this meagre text⁴.

The rights created would not necessarily be all on that side. The late master might well have claims against the quasi-slave for damage done to him in various ways. Gaius and Ulpian tell us that an actio in factum lay against the man for damnum done by him while bona fide possessed by his putative master, the former expressly limiting the action to the case of dolus malus*. Lenel holds’, on account of the remark of Gaius⁷ that the existence of the limit certum est, that the limitation to damage done dolo malo was not in the Edict. He seems indeed to think the limitation non-existent in classical law, since the illustration given by Ulpian is certainly not one of damnum dolo datum*. But this seems to be an interpolation: it purports to be a case of damnum to the possessor and is in fact nothing of the kind. And it speaks of the holder as bona fide dominus, which hardly looks genuine. There is no such remedy for furtum, perhaps because the possessor, being noxally liable for him, for theft, cannot have an action for theft by him⁹. For this purpose the holder is pro domino. The limitation to the case of dolus may mean no more than that the special remedy was aimed at mis­conduct.

Paul tells us¹⁹ that in the actual causa liberalis the iudex may cast the man in damages for theft or damnum, and there is no limitation to dolus. He is speaking of a cognitio and in all probability of wrongs done pending the causa. There is no difficulty in the claim for furtum here as the possession has ceased. It does not seem that under the formulary system the iudex would have had the same power¹¹.

> c. 7. 16. 31.

² 40.12. 32. The words in domo cuiusque intulissent are commonly taken to mean brought into the master’s house, and to express the ordinary rule as to acquisitions ex re or opens.

» Ante, p. 664. ⁴ See post, p. 674. * 40. 12. 12. 6,13.

« Ed. Perp. (2) § 181. » 40.12. 13. ⁸ 40. 12. 12. 6.

⁸ Ante, p. 107. ¹⁰ 40.12. 41. ¹¹ See Girard, Manuel, 705.

In addition to any claim against the man who has recovered his freedom, the putative owner may, as we have seen, have an eviction claim against his vendor, if he continues the causa to judgment¹. If, however, the judgment is in his favour, he can in an appropriate case proceed for calwnnia against the adsertor or any other person who set up the claim on behalf of the slave’.

There are other results, outside the field of obligatio. There is a general rule that any person who attacks a testator’s status forfeits any benefit under his will’. On the same principle, a patron of full age who claims his libertus as a slave has no bonorum possessio contra tabulas*, and one who so claims the libertus of his father cannot claim, unde liberi patroni or contra tabulas*. If the attack was begun before the patron was 25 the penal consequence does not result, whether it was he or his tutor or his curator who made it^{[2357] [2358] [2359] [2360] [2361] [2362] [2363]. It does not result if the claim is abandoned before judgment, or if, where a judgment is actually gained, wrongly, in the patron’s favour, he learns the truth and allows the apparent slave to go free—in libertate morari. Even where the patron is excluded, his children not in potestas are not affected, at least after a rescript of [2364] [2365] [2366] [2367] [2368] [2369] Divi Fratres[2370]. Most of these texts are expressed of the patroni filius, the commonest case, but the rule is equally applicable to the patron himself. It is edictal and thus does not directly affect civil law rights of succession, but they are no doubt sufficiently provided for under the general rule above stated, laid down in, or in connexion with, the lea: Papia Poppaea.}

The effect of the judgment on the man’s status has already been incidentally considered, but it is necessary to examine it more in detail.

(a) Where the judgment is in favour of the man whose status is attacked. The main rule is that the judgment finally bars that par­ticular claimant: he cannot proceed again⁸, and there is no restitutio in integrum, or rescission even on the ground of minority’. There may of course be an appeal, and as the court which tries the case is the highest, the appeal is to the Auditorium¹*. We have already considered the case in which the judgment is rescinded after five years¹¹. One text, of Macer¹â€™, tells us that if my libertus is adjudicated the slave of another, me inter-

[pt. n veniente, the effect is to bar me from any claim. The case is given as an illustration of the rule that one is barred by a judgment which is the result of his assent whether he is an actual party or not. In what capacity the patron is contemplated as intervening does not appear: it may be that he is adsertor.

We have seen that the claimant of the man may appear by procurator. There is here some risk, since res iudicata against a procurator is not necessarily so against his principal. And as there is virtually a claim of ownership in all cases, the security de rato is always exacted, though in general it is given only by the plaintiff’s procurator^[MMCCCLXXI].

The barring effect is only that of an ordinary judgment, and thus no one is barred who would not be barred by a judgment, and the bar applies only to claims under the old title, and not to a new title acquired from a third person, in no way affected by the judgment. Where judg­ment had been given for the slave, and the real owner of the slave, after the judgment, made the defeated litigant his heres, it was clear on the authority of Labeo and lavolenus, that the old judgment was no bar².

(b) Case in which the judgment was against the person claiming liberty. Merely bringing a claim, and abandoning it, has no effect on status either way². Texts dealing with the effect of judgment are few and are in at least apparent conflict. Gaius says that sometimes a claim may be renewed ex integro, as, for instance, where a condition is now satisfied which was not so at the first hearing⁴. The nature of the illustration shews that in the opinion of the writer, the decision was final between the parties. On the other hand Cicero says’ that where the Decemviri had decided wrongly on such a case it could be renewed as often as was desired—a solitary exception to the general rule as to res iudicata, based on the view that none could lose his liberty without his own consent. Quintilian in one text speaks of adsertio secunda, the case having been heard before⁶, and in another of secunda adsertio, tried before other judices⁷. Martial⁸ speaks loosely and allusively of a third or fourth hearing which is to have a decisive effect. Finally Justinian in his constitution⁹ by which he abolishes the need of adsertores, declares that the leges which formerly required such cases to be examined a second and third time are for the future to be out of application. He adds that the requirement was due to the absence of an appeal which he has now provided, and which, in turn, ad secundam inquisitionem minime deducetur, by colour of the aforesaid laws. With this collection

of statements telling a similar story, but differing in details, it is not easy to say what the law really was. One hypothesis is that up to the time of Justinian there was a right in the defeated claimant of liberty to bring the matter up again, either as often as he liked, or for a limited number of times, and that Justinian provided a regular system of appeal, and suppressed the rule, inserting the text of Gaius in a modified form so as to make it represent the current law¹. Schlossmann® observes, with reason, that the text of Gaius looks perfectly genuine, and he distinguishes. He thinks that Justinian, Cicero, and Quintilian, are considering a claim e libertate, and laying down the rule that this case could be brought up again if the decision was against liberty, while Gaius is certainly dealing with one e servitute. But there are some difficulties in this, perhaps in any, solution. It is not advisable to attach much weight to Cicero’s text’. He bases his rule on the ancient tradition that civitas could not be taken away, but if lost at all was always voluntarily resigned, a principle of which little is left in the Empire. His allusion is to a rule which differs materially in substance from that suggested by the other texts. He speaks of a privilege by which one who has, so to speak, become a slave by judgment, may yet repeatedly make his claim to liberty and civitas. Justinian bases the rule he is abolishing on certain leges*, and the language of Martial^{[2372] [2373] [2374] [2375] [2376], Quintilian[2377] and Justinian seems rather to refer to a necessary pre­cautionary repetition which every adsertio had to go through, and none of these texts contains any hint that the rule was confined to the case in which the alleged slave had been defeated. Moreover Justinian’s abolition of a rule which gave an alleged slave several chances, if that is what he did, is an odd provision to call a clementior terminus. This all points to a conjecture that there was a rule, of which the source is now lost, requiring all adsertoriae lites to be gone through twice (or more) before different indices[2378], before a decision was come to. The whole thing would be one trial, and would amount to res iudicata whichever lost[2379]. Such a rule would be a natural descendant of the principle invoked by Cicero. It avoids the apparent conflict created by the text of Gaius, and it gets rid of another difficulty observed by Schlossmann8. Constantine, in his enactment as to circumductiow, provided that the slave handed over to the claimant by decree of the magistrate, for lack of an adsertor, could renew his claim if he ever found an adsertor. There is little point in this if he could always do so, since there is no reason to suppose the decree more binding than a judgment. But it is quite intelligible on the view here adopted. It must, however, be admitted that it does not express the same law as that Cicero is discussing: it is necessary to the present contention to suppose that his principle was superseded by express legislation, providing for exceptionally careful trial.}

There might be more than one claimant. It is clear that persons claiming lesser rights, such as usufruct or pledge, can raise a causa liberalis, although some one is already doing so as owner¹. In such a case both claims are sent to the same iudex, and it is immaterial whether the lesser right is claimed through the same owner or another². If claimants of usufruct and ownership are acting together and one is absent, Gaius doubts whether the case ought to proceed, since the one present may be injured by the carelessness or collusion of the other. He, or more probably Tribonian, settles the point by saying that one case will go on without prejudice to the other, and, if the other claimant appears soon enough, the same iudex will hear them both, unless the litigant who appears late has some objection to that iudex on the ground, e.g., of enmity⁸. So where two are claiming common ownership a senatusconsult provides that they shall ordinarily go to the same iudex. But if two claim separately, each in solidum, this is not necessary, since there is not the same danger of a conflicting decision⁴.

If there are two claimants of a common ownership and, for some cause, their cases are not tried together, it may happen that one loses and the other wins. What is the result ? Gaius asks the question if the victory of one ought to benefit the other, and says that, if you hold that it does, then the defeated one can sue again, meeting the exceptio rei iudicatae by a replicatio. If it does not benefit him, to whom does the share go ? Does all go to the one who gained the action ? Does part vest in the opposite party to the suit ? Is it a res nullius 1 Gaius appears to think it all vests in the winner⁸, the reason assigned being that a man cannot be pro parte free. In form, Gaius is merely settling the question what is to happen if we reject the view that it may go to the loser. It is to be presumed that he does reject this view, though he does not exactly say so⁸. Julian discusses a similar case⁷: that of two separate claimants pro parte, and opposing judgments. The text remarks that the best plan is eo usque cogi indices donee consentiant, but it does not appear how or by whom this is to be done. If it proves

¹ 40. 12. 8.^>r. ² h. t. 8. 2. The claims might be hostile.

⁸ h. t. 9. pr. ⁴ h. t. 8. 1, 9. 1.

⁸ h. t. 9. 2, he will have an actio utilis to recover it.

⁸ 40. 12. 9. 2. Ulpian gives a like decision in the somewhat similar case of a free man selling himself to two men, one of whom knows of the fraud (A. t. 7. 3), but here the loser is a wrongdoer. ⁷ 40.12. 30.

oh. xxvni] Concurrence with other issues 671

impossible, Sabinas Cassius and Julian agree that all goes to the winner, since it is absurd to talk of a man being half free. The possi­bility of the loser benefiting by the judgment is not considered. The text adds that, favore libertatis, the man is to be free, paying a fair pro­portion of his value to the winner. Mommsen thinks this last remark is Julian’s, but the contrast between this and the earlier part of the text, and the nature of the rule itself strongly suggest the hand of Tribonian. The remark in the beginning of the text that the iudices, who have already given judgment, are to have pressure put on them, donee con­sentiant, may be from the same source.

The question of liberty might be entangled or combined with some other question. We have already had occasion to advert to the general rule as to pecuniary causes, not connected with hereditas: they are to be suspended so as not to prejudice the causa liberalis¹. If by chance such a case has been tried first it must not be allowed to produce any prejudicial effect^{[2380] [2381]. The rule is illustrated in many texts, of which the majority are in one title of the Code. Where A has a complaint against B, who alleges that A is a slave, the Praeses decides the causa liberalis first, and then, if the man is declared free, proceeds with the other matter8. An accusation is made against a woman. It is claimed, but disputed, that she is an ingenua. The causa liberalis must be brought first, in order that it may be known how she should be punish[2382] [2383] [2384] ed[2385]. A causa liberalis is pending: the alleged dominus seizes something said to belong to the man claimed as a slave. It is clear that the causa must be tried before the fur turn, and if it is e servitute, no rule is necessary. But if it is e libertate, he must give the thing back, security being given rem salvam fore. If no security can be obtained, the thing must be given to a sequester till the decision, an allowance being made, if neces­sary, out of it, for the man’s expenses. If it was stolen before any question of status was raised and, a decision being given that the taker is bound to return it, he raises the question of status to avoid doing so, he will have to restore it without any security8.}

On the same principle, if a hereditas is claimed, the question of the testator’s status, if raised, must be settled first⁸, though an interdict for the production of his will may issue meanwhile, as this can have no prejudicing effect⁷. Where a man is claiming an inheritance, and his claim is disputed on the allegation that he is a slave, but his freedom is 672 Causae Liberales: Concurrence with other issues [pt. n not claimed under that will, the causa liberalis must be tried, and the will may not be used as evidence that he is free¹. A similar rule is laid down in the Code, but the text goes on to say that if a claim for a hereditas is pending, and the defence is raised that the plaintiff is really a slave, a causa liberalis is to be set on foot. But, it seems, the action for the hereditas is to proceed and if judgment is now given for him in that action, he need prove no more in the causa liberalis. The point seems to be that as he is really in libertate the burden of proof is not on him. The text is obscure^{[2386] [2387] [2388] [2389] and it may mean that the court will decide the issue of status incidentally’.}

Where the liberty is claimed under the will, new rules apply. The validity of the will must be decided first: this is provided by senatus- consult, to avoid prejudicing that question by the decision of the causa liberalis*. Thus if the testator has been killed the causa liberalis will not be decided till the cause of death has been investigated^[2390]. Of course, res iudicata on a point arising out of the will will not affect the liberty^[2391]. Trajan provides that a causa liberalis must be postponed till a pending querela is decided^[2392], but Pius lays it down that there need be no postponement to await a querela. He enacts that where a man, freed and instituted by will, has his status disputed, and is in de facto possession of the hereditas, he can refuse to meet the liberalis causa on the ground that he is prepared to meet, first, claims affecting the validity of the will. This, says Pius, is because the other side can at once hasten matters by bringing the querela. But, if he is not in possession, a reasonable time must be allowed him in which to bring the hereditatis petitio, and if he does not, the causa liberalis will proceed^[2393].

The matter might be further complicated by the Carbonian edict. If the claimant is alleged to be a supposititious child, and in fact a slave, the Carbonian edict requires the whole matter to be postponed till he is pubes. But this has nothing to do with the causa liberalis: it would be equally true if he were not alleged to be a slave*.

Claims of Ingenuitas e libertinitate are not within our real subject, but they are so closely connected with it, and so similar in principle, that it may be well to say a word or two about them. We have already seen ch. xxviii] Claims of Ingenuitas e libertinitate 673

that no such claim could in any case be made, after a lapse of five years from a traceable manumission^[2394]. Such cases would normally arise in connexion with property questions, and, apparently, they were always tried by praeiudicium³. Suetonius speaks of a recuperatory procedure’, but probably the reference to recuperatores was made only when, as in the case he records, the claim was e latinitate. The earliest traceable case of one is of Nero’s time, where the forced nature of the transaction suggests a cognitio*. Gaius speaks, however, of a formula*, and Justinian uses language with the same implication⁸. But it is clear from the language of Diocletian, who directed it to be tried without any deputy, by the Praeses, that this was already a possible mode of trial’. It was of less social importance than a causa liberalis and thus, though there is no evidence about arbitration, it is clear that it might be decided by iusiurandum⁸. Though a pact co&ld not give ingenuitas, it is clear that a transactio would bind the patron to regard the man as an ingenuus, though it would not bind any other person“. We have seen that ingenuitas could not be disputed after a man’s death¹⁰, though the question might be raised to shew that an apparent libertinus was really an ingenuus^[2395]. Conversely, one who had allowed himself to be sold and had afterwards been freed could not claim ingenuitas¹³. In the case of unwillingness, of the party directly affected, to proceed, others might act for him as in a causa liberalis¹³, and if, a decision having been given against him, he declined to appeal, his paterfamilias might do so, within the proper time, as if it had been his own case¹⁴. The burden of proof, says Ulpian, is on him if he is claiming e libertinitate, and on the claimant if it is ex ingenuitate, but if he wishes to take the burden of proof in order to obtain a more favourable judgment, he is to be permitted to do so¹⁶. Elsewhere he tells us that if the man admits being a libertus, but alleges that he is a libertus of another person, the ordinary prae­iudicium will be given whichever party asks for it, and that in such a case the burden of proof is always on the patron¹⁸. There seems little

674 Claims of Ingenuitas e libertinitate [pt. n reason for the exception if the claim is e libertinitate, which perhaps it would rarely be.

Pending the hearing he is in the position in which he apparently was when the issue was raised¹. The judgment will be ingenuum esse or non esse libertum Audi Agerii, according as he or the claimant had the burden of proof^{[2396] [2397]. There was a right of appeal[2398]: apart from this there is no evidence of any right or need of rehearing[2399] [2400]. As between the parties it was a res iudicata, and pro veritate however false6. And thus in the case of Paris where the judgment was glaringly false and compelled by the Emperor, he could recover what he had paid to secure his manumission6.}

It is clear that property relations would need adjustment. Paul and Pomponius tell’ us that the successful claimant of ingenuitas could keep what he had acquired unless it was ex re manumissoris, but must return what was ex re, together with gifts from him, and of course what had been taken without his consent. Both of them are commenting on the words of a senatusconsult which dealt with the matter, shortly stated else­where as enacting that quae de domo manumissoris habent ibi relinquant, words which there too are explained as covering even legacies by the late owner to the libertus as such⁸. A rule of this kind was necessary, in view of the fact that all that such apparent liberti acquired was their own, while their position in their supposed patron’s household gave them opportunities of acquisition through him, and in matters which really concerned him, somewhat to his detriment, and such as they certainly would not have enjoyed as ingenui. The rule is not, here, open to any such objection as that which can be made to it as applied to claims of ingenuitas ex servitute*.

These claims of liberty and ingenuitas were of course mere nullities if there was no iustus contradictor, i.e. the other side made no genuine claim to be patron or dominus^l. But, apart from this there was obvious room for collusion, and there were severe rules dealing with this possi­bility. In one text we are told that where a slave committed stuprum with his domina, and was by her collusion, with a pretence of captivity, declared free and ingenuus, this was void¹¹. And Gaius says that anyone who proved that a causa liberalis had been gone through collusively, and the man declared free, had a right, by a senatusqonsult of Domitian’s

ch. xxvni]

Collusive Claims

675

time, to claim the slave¹. In the case of claims of ingenuitas e liberti­nitate texts are more numerous. A senatusconsultum Ninnianum pro­vided penalties for such collusion, and a reward for the detector’. Marcus Aurelius seems to have legislated freely on the matter. He provides that collusion as to ingenuitas can be shewn at any time within five years from the judgment’: the quinquennium being con­tinuum, but not running till the person whose collusion is in question is pubes, as, otherwise, since he could postpone the case, the proceeding might be rendered impossible. It is enough that it be begun within the five years⁴, and time does not run to bar the real patron, if the original decree was given without his knowledge, alio agente¹. The collusion may be shewn even by an extraneus, if he is a person who is qualified postulare pro alio*, and if several come together to shew collusion there must be an enquiry to see which is the proper person on grounds of mores, age, and interest⁷. We are told by Hermogenianus that a judgment in favour of ingenuitas can be retracted for collusion only once⁸. This remark may mean that it can be attacked only once’, but this is open to the objection that it would provide a way to new collusion. As the same judgment could hardly be retracted twice, it is possible that the meaning may be, that if, after a decree has been “ retracted ” for collusion, the claim of ingenuitas is set up again, and the decision repeated, there can now be no further attack on the ground of collusion¹⁰.

When the judgment is retracted, the detector becomes patron“, and the original patron loses all patronal rights”. The man becomes a libertinus again, but only from the decision”, for this is not an appeal, and the res iudicata is pro veritate till rescinded. He loses the ius anuli aurei, if he had it before the collusive decree¹⁴.

The normal case is of course of one patron and we hear little of the more complex case. Papinian, however, discusses the case of one declared ingenuus by the collusion of one of his patrons, the collusion being detected by another. He decides that the alleged ingenuus loses the ius anuli aurei, and certain alimenta due to him from a third patron”, and it may be presumed that for the future two parts of the iura patronatus vest in the detector.

> 40.16.1. Ninnianum? C. 7. 20. 2. a C. 7. 20. 2.

» 40.10. 2; 40. 16. 2. pr. �40.16.2.1—3.

8 40. 14. 1, 5. « 40. 16. 2. 4.

I A. t. 5. 1. ⁸ Ji. l.pr.

8 Otto and Schilling, ad A. I.

io Death of the man affected ends the matter, 40.15.1. 3.

II 2. 4. 8. 1. “ C. 6. 4. 4. 6. U 40.16. 4.

1< 40.10. 2. “ At. L1.