2. CREATION AND TERMINATION OF SLAVERY

How slavery arises. The two normal sources of slavery were birth and capture in war. Both were of the ius gentium, and from this two main consequences followed.

There were also a few cases of enslavement under the ius civile. Condemnation in a criminal proceeding sometimes in­volved slavery, and under Claudius it was enacted that a woman who persisted in cohabiting with a slave after warning by his master should herself become a slave. The practice in the later Empire of selling new-born children into slavery has already been mentioned.¹

How slavery ends—manumission. The Roman slave could always hope for manumission, and in the earlier Empire this hope must for many of them have been well-founded. It has been esti­mated that over eighty per cent, of the population of Rome were then either freedmen or descended, immediately or remotely, from freedmen.

The old civil law recognized three methods of manumission. All these of course were formal, but other, informal, methods developed later.

(a)   Manumissio vindicta.

¹ Above, p. 67.                                          ² See above, pp. 63 f. the probable origin of manumissio vindicta—the owner acquiesced in the claim of the adsertor and the Praetor adjudged the slave to be free—but in the form in which it survives in the classical law it has, like in iure cessio, lost many of the characteristics of an action. In particular, just as in iure cessio had the effect of a conveyance and not of a judgment, so here freedom dated only from the manumission, whereas in the true claim of liberty the supposed slave was necessarily declared not to have been a slave at all. And the process of degeneration, if such it was, had gone even further than in in iure cessio. For there the proceedings must still, like those of an ordinary action, take place in iure, whereas manumissio vindicta could be performed anywhere, even, Gaius tells us, when the Praetor was on his way to the theatre or the baths; and the part of adsertor was played by one of the Praetor’s escort of lictors.

There was one further difference between the in iure cessio and the manumissio, and that gave the manumissio its name. The adsertor, when making his claim, touched the slave with a wand —vindicta—and so did the manumitting master. This laying on of the wand, apparently as a symbol of ownership, occurred in the ordinary vindicatio of the legis actio procedure, but not, it seems, in in iure cessio.

(b)  Manumissio censu. With the consent of his master a slave might be added to the list of citizens by the Censors,¹ but since the census was taken only every four or five years and was not taken regularly at all after the end of the Republic (the last was apparently in a.d. 74) this method cannot have been of much importance.

(c)  Manumissio testamento. The most common form of manu­mission, which already existed in the time of the Twelve Tables, was by will. By a provision in his will in appropriate formal words a master could direct that on his death one or more of his slaves should be free, either immediately or subject to some condition (e.g. that the slave should pay so much to the heir). This method of manumission enabled a master to be generous without inconvenience to himself, and at the same time to satisfy the common Roman desire for a grateful cortege at his funeral. So popular indeed had this practice become by the end of the Republic that Emits had to be set to it by legislation.²

¹ See above, pp. 4 f.                                   ² See below, p. 76.

{d) Informal manumission. The Praetor, pursuing his usual policy of looking at the substance of a transaction rather than its form, gave a limited recognition to informal expressions of intention to manumit.

The lex Junta² replaced this unsatisfactory twilight condition by Latinity. The slave now became free, but not a citizen (a Junian Latin). He had commercium but neither conubium nor testamenti faction the latter disability being reinforced by a provision that his whole property should pass on his death to his former master. (The master’s right of succession to a fully manumitted freedman was much more limited, and was altogether excluded if the freedman had children.) It was pre­sumably this advantage to the master (and perhaps the avoid­ing of the 5 per cent, tax on full manumissions), rather than reluctance to go to the trouble of a formal manumission, which provided the usual motive for informal manumissions; for the formalities of manumissio vindicta were hardly very burdensome. On the other hand it is not so easy to see why the Junian Latin should have been denied also the other aspect of testamenti factio, namely the power to take under a will. But this disability was in any case circumvented.

The Junian Latin, though not a citizen, was not debarred

¹ The Praetor gave the same protection in one other case, mentioned above, pp.

²   See above, p. 65.

³  See above, pp. 64 f.

from obtaining citizenship. His master could at any time make the manumission fully effective by repeating it in one of the three recognized forms (iteratw), and we have seen¹ that there were various ways in which he could achieve the same end by his own efforts.

With the advent of Christianity a new informal method of manumission appeared, or rather a variant of the old manumissio inter amicos: the master made his declaration before the con­gregation in church. By the time of Justinian, however, the status of Junian Latin had become rare, and he therefore pro­vided that all manumissions, whether formal or informal, should confer citizenship.

Consequences of manumission. Latin has two terms for ‘freedman’. One (libertinus) indicates his relationship to society at large, the other {libertus} his relationship to his former master (his patronus').

As a libertinus he was free and either a citizen or a Junian Latin. Even as a citizen he was under some political disabilities (mainly exclusion from magistracies and from the Senate), though in the early years of the Empire freedmen achieved positions of immense power as members of the Emperor’s per­sonal civil service, and many in this way or in commerce made large fortunes.

As a libertus his status was an echo of his former subjection. He owed his patron the duty of obsequium—respect. This was largely a social matter but it had incidental legal consequences, especially that he might not bring an action against his patron without the Praetor’s permission.

This relationship of patron and freedman must be seen in its context. Until the Empire the patron could exercise over his freedman a power of life and death, just as he could over his son. Moreover manumission would often make very little difference to the freedman’s position in fact—he would often continue to live in his patron’s household and even to perform the same ¹ Above, p. 65.

functions as he did as a slave. Again, the relationship of patron and freedman was only one aspect of a much wider relationship of patron and ‘client’ which spread all through Roman society and of which we have a vivid picture in the satires of Juvenal. It has been said that ‘however high a man might climb in the Roman hierarchy, there was always someone to claim his homage. There was in fact no one in Rome, save the Emperor alone, who recognised no one greater than himself.’¹

The children of a freedman were normal citizens, subject to none of these disabilities.

Public control of manumission. A surprising feature of the law of the Republic is that although manumission conferred the much-prized privileges of citizenship, including the right to the corn-dole, there was, manumissio censu apart, no effective public control. It was not until the time of Augustus that any steps were taken in this direction. The lex Fufia Caninia of 2 b.c. limited manumissions by will (in which irresponsibility was obviously most likely) to a fixed proportion of the total owned by the testator (e.g. of a total of 10 not more than 5, of 100 not more than 25 could be manumitted, and in no circumstances more than 100). The lex Aelia Sentia of a.d. 4 required the approval of a special council for manumissions of any kind made by a master under 20 or of a slave under 30. It also provided that slaves whose bad character was evidenced by their having been subjected to serious punishment by their masters could become only dediticii—incapable of ever becoming citizens and for­bidden to live within 100 miles of Rome.

Justinian repealed the lex Fufia Caninia, partly out of favor libertatis (preference for freedom) and partly no doubt because the decline in wealth in general and in the ownership of slaves in particular had largely removed the problem with which the lex had been intended to deal. He retained, however, in a modified form, the restrictions of the lex Aelia Sentia.