4. 3 Freedom and the law of slavery

Gaius states in this passage the primary classification in the law of persons: people either have freedom or they are slaves.

Florentinus, Institutes, book 9\ Freedom is one’s natural power of doing what one pleases, save insofar as it is ruled out either by coercion or by law. (D.1.5.4pr.) (cf. Inst. 1.3.1.; D.50.17.106.)

This definition recognized that freedom is a 'natural' condition—there is a pre­sumption that men are free. This is reassuring but somewhat hollow in view of the great importance of slavery as a social, economic, and legal institution in the Roman world. Definitions (in the modern analytical sense) were not commonly employed in juristic literature, as is clear from this attempt. Watson, in Spirit of Roman Law, considers that the jurists were generally wary of definitions; this con­tributed to a 'central indefiniteness' at the heart of Roman law (ch. 12). But then, concepts such as freedom are notoriously difficult to define satisfactorily. Of more practical importance was the definition of slavery:

Florentinus, Institutes, book 9: Slavery is an institution of the ius gentium, whereby someone is against nature made subject to the ownership of another. (D.1.5.4.1.)

Florentinus is using here the phrase iusgentium ('the law of nations') to describe the basic 'common' laws to be found in most States in contrast to the special laws of particular States. However, the phrase was sometimes used (not always consistently) in a secondary sense to signify the part of Roman law that applied to citizens and foreigners alike, in contrast to the ius civile. Since slavery was widely practised in ancient civilizations, its attribution to the iusgentium (in its primary sense) is under­standable. As for slavery being 'against nature', that is consistent with the defini­tion of freedom—if freedom is natural, slavery must be unnatural.

According to the previous definition, a slave was in the ownership of 'another'. This was broadly true. Slaves were mostly owned by individual masters (or mis­tresses)—but not always. For example, public slaves (servi publici) worked for the Roman civil service, and were not considered to be owned by anyone except per­haps the State. The definition omits to mention that slaves were without rights, as a general rule, although that is clearly implied—things generally do not have rights (see Lewis, 'Slavery, Family, and Status', 152-56). The rightlessness of slaves has often been seen as the essential feature of the Roman law of slavery. Nevertheless, there were circumstances in which slaves had certain privileges or the power to alter legal relationships, e.g. a slave could make contracts on behalf of his master in some circumstances, and public slaves could marry and make wills.

4.3.2 The slave in Roman society

Before examining the details of the law of slavery, it is important to appreciate the role of the slave in Roman society. The overall treatment of slaves varied from period to period. In early Rome, it seems that slaves were generally treated well, possibly because they were relatively few in number. Their treatment deteriorated when Rome's overseas expansion began in the third century BC. Wars of conquest fought abroad resulted in the enslavement of large numbers of foreigners.

Slaves played a vital role in Roman society and the economy. Many performed menial tasks and 'dirty' jobs, but a slave with talent could go far, especially in the cities. Such slaves were valued assets, capable of making fortunes for their masters. They were to be found in many walks of life—as business managers, entrepreneurs, accountants, physicians, doctors, actors, and actresses: 'The slave is regarded by many historians as the determining factor in the economic, social, and intellectual life of antiquity. There is scarcely a title of the Digest in which he does not figure' (Crook, Law and Life of Rome, 55).

The talented slave would usually be rewarded by his master with money and gifts that the slave could use and enjoy, even though he could not legally own the property. Such slaves, if cared for by a kindly master, were sometimes the envy of those citizens who were free, but poor. The treatment of slaves, therefore, often depended on how useful they could be to their masters. Social standing played a part as well—an important citizen, bent on impressing his peers, would probably not wish it to be known that he was mistreating his slaves.

4.3.3 Enslavement

Enslavement could arise mainly through the sale of children, through punishment, by capture, or by birth. (Cf. Inst.Gai.1.51., Inst.1.3.4.)

4.3.3.1 Sale of children

In early law, the paterfamilias had the right to sell children into slavery. This power fell into disuse during the Republic and was eventually banned. However, it was revived in the later Empire in limited circumstances: newly born children could be sold into slavery by their parents on the grounds of poverty. But a right of redemption was reserved to the parents should their circumstances improve. When redeemed, the child regained its original status.

4.3.3.2 Punishment

Enslavement could be imposed as a punishment in a variety of circumstances: ■ (a) Crime Under the Twelve Tables a thief who was caught stealing became the JSlave of his intended victim. If the thief was already a slave he would normally be executed, at least in early law. Moreover, enslavement could result from conviction for certain crimes—where the sentence involved working in the mines or fighting wild beasts. Such convicts were described as penal slaves (servi poenae) and were regarded as the most degraded category of slaves. The category included persons who had been sentenced to death and were awaiting execution. Penal slaves were regarded as ownerless and incapable of being manumitted. A pardon was their only realistic hope of survival (see Burdon, J., 'Slavery as a Punishment in Roman Criminal Law', in Slavery and Unfree Labour, 68-85, where the author demonstrates in which cases and to which class of offenders this form of punishment applied).

(b) Evasion of duty Those who evaded being listed in the census, and thus escaped liability to be taxed or to serve in the legions, could be enslaved by the State. Debtors who failed to pay their debts could be sold into slavery in early Rome, as the result of manus iniectio (see 3.2.3.1).

(c) Ingratitude A freedman (i.e. an ex-slave) who showed ingratitude to his patron (the former master) could be punished in a variety of ways, including re-enslavement in exceptional circumstances. A decree of the late classical period provided:

Modestinus, Manumissions, sole book: Where it is proved that a patron has been violently attacked by his freedman or badly beaten or abandoned while suffering from the effects of poverty or illness, he must first be placed in his patron's power again and forced to serve him as master. If he does not take this warning, he should be sold on the authority of the consul or governor and the price given to the patron. (D.25.3.6.1.)

The possibility of re-enslavement for ingratitude first arose in the early Empire when certain Emperors began to re-enslave freedmen in exceptional cases. It seems, how­ever, that there was never a general rule allowing re-enslavement for ingratitude.

(d) 5. C. Claudianum AD 52 This legislation ostensibly discouraged a female citi­zen from cohabiting with another person's male slave. If she persisted, following the owner's formal warnings, she could be enslaved by the owner in some circum­stances, but not without a magistrate's decree.

(e) Selling oneself What happened if a freeman tried to sell himself into slavery? Such a sale was invalid, prima facie: a free person could not in theory be the object of a contract of sale. However, attempts to sell oneself were punished—enslavement was imposed to try to deter such behaviour. Paradoxically, the very thing that the freeman could not do in Jaw, the law did for him. But why should a free person even contemplate selling himself into slavery? In some circumstances, slavery might be considered preferable to freedom—e.g. where the slave managed the affairs of a powerful and kindly master. Or, the object might simply be fraud: the freeman, pretending to be a slave, would arrange for an accomplice to sell him to an unsuspect­ing customer. After the sale, the freeman would establish his freedom and share the purchase price with the accomplice.

(f) Straying dediticii ('the capitulated') Originally, dediticii were persons from communities that had taken up arms against Rome and then surrendered. Later, under the lex Aelia Sentia AD 4, ex-slaves of degraded character were added to the category. Dediticii were free but could never attain citizenship—they were excluded from the general grant of citizenship in AD 212—and had to live at least 100 miles from Rome. But if they returned within the forbidden limits, they were liable to be re-enslaved. Justinian abolished this class.

4.3.3.3 Capture

This mode of enslavement resulted mainly from the capture in war of foreign pris­oners. It also occurred where a foreigner was arrested on Roman territory in times of peace, not having a lawful justification for his presence there. Capture in war became the main source of slaves in the late Republic, campaigns such as those of Julius Caesar in Gaul resulting in the enslavement of large numbers of foreigners. In theory, these captives belonged to the Roman people as a whole, but it became the practice for successful generals to hold the captives as booty with a view to their eventual sale. Most enemy prisoners probably became slaves in private hands.

What was the position if a Roman citizen was captured by the enemy? The cap­tive was regarded as a slave of the enemy. He therefore suffered capitis deminutio maxima—the 'greatest' change of status—involving the loss of freedom, citizen­ship, and family, and thus the cessation of all legal relationships affecting him. He lost all the legal powers that he previously might have possessed. He was no longer an owner of property, or a party to contract; and his will was void. Even his marriage was terminated automatically. The law seems to have been impossibly brutal in this instance, but may be viewed as a recognition of the reality of the situation—the chances of a captive returning were nothigh. In any case, such rules were motivated partly by the need to deter Roman soldiers from being captured. Better to die fight­ing than to fall into the hands of the enemy. However, the rules were relaxed in due course. Legislation under Sulla provided:

Julian, Digest, book 42: By the lex Cornelia the wills of those who have died while in the power of the enemy are confirmed with the same effect as if those who had made them had not fallen into the power of the enemy, and, in the same way, their inheritance belongs to who­ever is entitled. (D.28.1.12.)

This provision operated on the fiction that the captive had died at the moment of capture, i.e. while still free. As for the rules on marriage, Justinian provided that marriage did not terminate on capture if the captive was known to be alive. If the captive's fate was not known, the marriage ended, but the wife could not remarry for five years. These various rules (and relaxations) applied equally to Romans cap­tured abroad in times of peace.

But, what were the legal consequences if the captive returned to Roman territory, having escaped or been released? In theory, he remained a slave, unless he was enti­tled to postliminium ('the benefit of re-entering the borders'):

Pomponius, Quintus Mucius, book 37: The right of postliminium applies both in war and peace. In war, when those who are our enemies have captured someone on our side and have taken him into their own lines; for if during the same war he returns he has postliminium, that is, all his rights are restored to him just as if he had not been captured by the enemy. Before he is taken into the enemy lines, he remains a citizen. He is regarded as having returned from the time when he passes into the hands of our allies or begins to be within our own lines. (D.49.15.5pr.-1.)

For the ex-captive to be entitled to the benefits of postliminium, it had to be shown that the capture had occurred in honourable circumstances and that the return to Rome (or to her allies) had been made at the first reasonable opportunity. Whether the return had to be 'during the same war' (as stated previously) is unclear. Strict insistence on such a rule would have severely limited the operation of postliminium. The effect of postliminium was to restore the ex-captive to his previous legal status as far as possible. His former rights over property were restored, where feasible; and his marriage could be revived, but only if the wife consented and had not remarried in the meantime. And potestas, the legal power over descendants (see generally 5.1.2), was restored to the ex-captive if he had been a paterfamilias. Similarly, if he had been in the power of a paterfamilias, he became subject to that power again (cf. D.49.15.).

4.3.3.4 Birth

The basic rule (of the ins gentium) was that a child took the status that its mother had at the time of the child's birth (see D. 1.5.5.1.-2.). Slavery through birth thus occurred if the child's mother was a slave when the child was born, the status of the father being irrelevant. A child born to a male citizen and a female slave would be a slave, owned by the mother's master. (Ownership of the children of slaves, sub­ject to a usufruct, created a unique problem, see Birks, P., ‘An Unacceptable Face of Human Property', in New Perspectives, 61-73.) If the parents were a female citizen and a male slave, the child was born a citizen. However, a number of exceptions to the basic rule emerged in the course of time. For example, the 5. C. Claudianum, AD 52 provided that, if a female citizen cohabited with another's male slave, despite the owner's objection, any issue resulting from the union belonged to the slave's owner, who could claim the mother as well. One of the purposes of this provision may have been to enable the Emperor to have control over the children of public slaves, thus preserving a hereditary imperial service. See Crook, Law and Life of Rome, 62-3. Hadrian decreed that the owner could claim either the mother and child together or neither—an attempt to avoid the separation of mother and child. Justinian repealed the senatus consultum. Another important exception was intro­duced by a rescript under Hadrian: a child born to a slave mother was free if the mother had been free at the time of conception or at any time between conception and birth.

4.3.4 The legal position of the slave

Slaves lacked rights, but their legal position constituted a complex area of the law, as is evidenced by the considerable amount of space devoted in juristic literature to legal issues affecting slaves. Slaves were human 'things' (the objects of rights) without legal personality owned by their masters as res mancipi. The jurists did not question the existence of the institution—most were slave-owners themselves. Nor were they much concerned in their writings with the reform of the law of slavery, although some would have drafted the occasional imperial decree that improved the legal position of slaves.

4.3.4.1 Maltreatment

It cannot be denied that the financial value of the slave would have influenced the master's treatment (see Gamauf, 'Slavery', 391-95). Although uneducated slaves were inexpensive and readily expendable, they were of limited use (mainly as manual labourers). Educated slaves, on the other hand, were expensive com­modities that would have been properly 'maintained' by their masters to pre­serve their investment. In early law a master could do what he liked with his slave, over whom he had the (theoretically) unrestricted power of life and death (see Inst.Gai.1.52.). However, brutal treatment of slaves could result in disap­proval from the censors, resulting in legal disgrace. Whether such factors acted as an effective deterrent against brutality is doubtful—slaves had no access to censors, who, in any case, were not continuously in office. See Watson, A., Roman Slave Law (1987), 115 ff. Some protection against maltreatment was eventually achieved through legislation. In 81 BC, the unjustified killing of another's slave was made a crime. A lex Petronia of the first century AD penalized masters who forced their slaves to fight wild beasts in the arena without the consent of a magistrate. Claudius issued an edict of considerable practical importance under which a slave who had been abandoned because of old age or sickness obtained freedom and the status of Junian Latin (see 4.4.3.1). Domitian, AD 81-96, pro­hibited the castration of male slaves and took measures to discourage the trade in eunuchs. Nevertheless, the castration of slaves remained a problem, necessitat­ing the imposition of strong sanctions, as evidenced by a rescript from Hadrian's reign:

Ulpian, Duties of Proconsul, book 7:... for no one should castrate another, freeman or slave, willing or unwilling, nor should anyone voluntarily offer himself for castration. Should anyone act in defiance of my edict, the doctor performing the operation shall suffer a capital penalty, as shall anyone who voluntarily offered himself for surgery. (D.48.8.4.2.)

Hadrian enacted several other measures aimed at protecting slaves, the most impor­tant of which forbade masters from killing their slaves without the consent of a magistrate. Antoninus Pius decreed that the unjustified killing of slaves by their masters constituted criminal homicide (cf. Inst.Gai.1.53.; Inst.1.8.2.). And he pro­vided slaves with some means of protecting themselves—a rescript, issued to a mag­istrate who had learned of the brutal behaviour of a certain master, stated:

Ulpian, Duties of Proconsul, book 8·. The power of masters over their slaves certainly ought not to be infringed and there must be no derogation from any man's legal rights. But it is in the interest of masters that those who make just complaint be not denied relief against brutality or starvation or intolerable wrongdoing. Therefore, judicially examine those who have fled the household of Julius Sabinus to take refuge at the statue and if you find it proven that they have been treated more harshly than is fair or have been subjected to infamous wrongdoing, then issue an order for their sale subject to the condition that they shall not come back under the power of their present master. (D.l.6.2.)

For the first time, a slave could initiate a process that might lead to an improvement in his treatment. He could provoke an inquiry by clinging to a statue of the Emperor or seeking sanctuary in a temple. Under Constantine it was made an offence to kill a slave, even with cause, if the manner employed was deemed excessively cruel (cf. C.Th.9.12.2.). But, the conversion to Christianity did not lead to any substan­tial short-term improvement in the conditions of slaves, let alone the abolition of slavery. In AD 428, however, it was decreed that any slave forced into prostitution by her master was automatically freed. The long line of legislative enactments cul­minated in Justinian's decree that the maximum power of a master over his slave was reasonable chastisement. The amelioration of the slave's position as regards maltreatment had progressed a long way.

4.3.4.2 Property—the peculium

(D.15.1, D.49.17., D.33.8., C.7.23.)

A slave could not own property: he was property. Anything that he acquired, from whatever source—earnings, gifts, legacies—belonged to the master:

Gaius, Institutes, book 2: Anything which our slaves receive by delivery and anything which they acquire, whether on a stipulation or any other ground, is acquired by us; for a person in power of another can hold nothing for himself. (D.41.1.10.1.)

However, masters often allowed their slaves a peculium—property for the slave's use and enjoyment:

Pomponius, Sabimis, book 7: It follows that it is what the slave holds with the master's consent which constitutes the peculium, not what the slave holds without his master's knowledge; oth­erwise, a thing which the slave had filched from his master would form part of the peculium, and that is not the law. (D.15.1.4.2.)

The peculium could take many forms besides a sum of money. 'It was very often a commercial establishment, an industrial shop or factory, or some separate piece of property... derived from the word peats, which means cattle, the peculium in the earlier agricultural stage of Roman history must have consisted of a flock of sheep or other domestic animals. It could even consist of other slaves, who had peculia of their own...Johnston, Roman Law in Context, 31-2. It is important to appreciate that a peculium was not a static fund, but could grow and diminish according to the slave's business acumen. The size of the peculium was only determined upon condemnation if a creditor sued the paterfamilias on the basis of a debt incurred by the slave using his peculium.

It was granted by a master to his slave (or by a father to his son in power) for the latter's utilization, development, and enlargement through labour, transac­tion, and manipulation. This is often termed 'free administration' of the peculium (Kirschenbaum, A., Sons, Slaves and Freedmen in Roman Commerce (1987), 33-4; see also Cha, Y.-G., 'The Function of Peculium in Roman Slavery during the First Two Centuries A.D.', in Forms of Control, 433-6, as well as Gamauf, 'Slavery', 388-91.)

Allowing a slave to hold property provided an incentive for the slave to work hard, and it would do a master's reputation no harm for it to be known that he owned slaves who held a sizeable peculium. A talented slave could easily amass a small for­tune, especially if he was employed by his master in commerce and allowed to use the peculium for business purposes. Strictly, the slave had no rights in the peculium: the master was its absolute owner. However, so ingrained was the custom of allow­ing slaves a peculium that they were generally regarded as virtual owners. Indeed, a slave was often allowed to buy his freedom with his peculium. And when slaves were freed in their master's will, it was common for them to receive the peculium by way of a legacy. For a survey of the complexities relating to the peculium, see the texts collected in Frier and McGinn, Casebook, 265-90. For a good recent account, see Aubert, J. J., 'Dumtaxat de peculio: What's in a Peculium, or Establishing the Extent of the Principal's Liability', in New Frontiers, 192-206.

4.3.4.3 Contracts

Slaves generally could not make contracts for themselves, but they could for their masters. However, in the latter case, the master was not bound by the contract (although he could enforce it). These rules proved inconvenient when Roman commerce started to expand. The usefulness of a slave in business dealings was clearly limited if agreements made by him could not be enforced against the master. The praetors made a crucial intervention in the late Republic by allowing actions against the master in certain circumstances. These actions, collectively known as the actiones adiecticiae qualitatis (see 9.3.3.4), were available against the owner (as well as the paterfamilias or employer of a son in power) whose slaves (or sons in power) had incurred debts while acting as business agents.

Although agreements made by slaves for themselves were not legally enforce­able by them, they were recognized as creating a 'natural obligation', which in exceptional circumstances could have legal consequences on the slave's manumis­sion (see 9.1.2.1).

4.3.4.4 Legal proceedings and noxal surrender

Although slaves lacked legal personality, and thus had no standing before the courts, there were occasions when the processes of law involved the participation of slaves. They certainly could not be parties to a civil action, but they were personally liable for any crimes that they committed. Moreover, they could be compelled to act as witnesses (but not against their own masters) in criminal and civil proceedings, and were examinable under torture, when necessary (see 2.3.2.4). If a slave was the vic­tim of a delict (civil wrong), it was his master who would sue. If a slave committed a delict, the master was liable—the slave could not be sued. The master had a choice whether to pay for the damage or to surrender the slave to the victim (although in early law it seems that the master's primary duty was to surrender the slave). Under Justinian, but probably not before, a slave who had been surrendered and who had worked off the damage was presumably entitled to freedom (see Inst.4.8.5.). The option of surrendering a slave, known as noxal surrender (because it was the noxa— 'the mischief'—that was surrendered), dated back to the early Republic.

How did noxal liability operate if there was a change of master after the commission of the delict? The general rule was that liability followed the wrongdoer—whoever was the master at the time when the victim took proceedings was liable:

Ulpian, Edict, book 3: A noxal action is not granted against me unless the slave is in my hands, and if he is in my hands, even though he was not at the time when he committed the delict, I am liable... (D.9.4.7pr.)

This is the reason why the seller of a slave had to reveal to the purchaser that the slave was still subject to noxal liability. However, a master could evade liability by manumitting his slave before joinder of issue in the proceedings brought by the plaintiff. In such cases, the general rule was that an ex-slave was personally liable for delicts committed before his manumission, unless the victim had already obtained compensation from the master.

4.3.4.5 Personal relationships

Slaves could not be parties to a lawful marriage (except for public slaves). However, sexual union between slaves of the opposite sex was legally recognized for some purposes. For example, suppose that a child was born to a union between two slaves, and all the parties were later manumitted. It was accepted that the child could not enter into a marriage with a parent because of the blood tie, even though the relationship resulted from the servile state. Moreover, evidence suggests that— in large households particularly—slaves often did cohabit in stable relationships as though husband and wife. See Gardner, Women in Roman Law, 213 ff.

4.3.5 Release from slavery

(Inst.Gai.1.23.-5., Inst.1.6., D.40.1.)

As already seen, a slave could gain freedom in a variety of circumstances, e.g., if his master abandoned him. Moreover, just as slavery could be imposed as a form of punishment, so the status could be removed from persons as a reward for services to the State. The release from slavery in such circumstances was normally accompa­nied by the conferment of citizenship. Various services were rewarded, particularly the denouncing of criminals or those who evaded military service or the payment of tax.

However, by far the most important form of release from slavery was manumis­sion, the process whereby a master freed his slave (see Inst. 1.5pr.,and Daube, 13., 'Two Early Patterns of Manumission', in Daube Collected Studies 1, 165-91). Formal manumission resulted in the slave becoming free and a citizen. The grant of citi­zenship to manumitted slaves—a liberal rule within an illiberal institution—was certainly one of the most civilized features of Roman law compared with other slaveholding societies, and was seen by Rome's enemies as one of the reasons for her strength. There were several recognized modes of formal manumission: vin- dicta ('by the rod'), by census, by will, and by declaration in church (see Gardner and Wiedemann, Roman Household, 145-51). (On documentary proof of manumis­sion, see Gardner and Wiedemann, Roman Household, 163-4.) For a good account of the law applicable to manumission, see Mouritsen, H. 'Manumission', in OHRLS, 402-15.

4.3.5.1 Manumissio vindicta

(D.40.2.)

The master, his slave, and a third party, the adsertor libertatis ('the assertor of freedom'), appeared before a high-ranking magistrate, normally the praetor. The adsertor often was a lictor, the magistrate's assistant. The adsertor claimed the slave to be free, touching him with a ceremonial rod. The master ceded the slave by remaining silent and touching him in turn with the rod. The ceremony was similar to that used to recover a property through sacramentum (see 3.2.2.1). The magis­trate's consent was necessary; if it was given, the slave was unconditionally freed forthwith. Within the formal process a certain amount of informality was possible, as suggested by a passage from Ulpian:

Ulpian, Edict, book 5: When I was at a villa with a praetor, I raised no objection to a manumis­sion before him, although no lictor was present. (D.40.2.8.)

Manumissio vindicta was still to be found in Justinian's reign, although by then much of the ceremonial procedure had become obsolete.

4.3.5.2 Manumission by census

(D.40.3.)

If a slave was enrolled on the census with the master’s approval, he was for­mally manumitted. The consent of the censors was necessary; they could refuse if they regarded the proposed manumission as undesirable in some way. Much would depend on who the master was. The manumission probably occurred when the slave's name was enrolled, although it is possible that the date on which the cen­sus became operative was the critical moment. This form of manumission became obsolete when the practice of taking a census died out in the early Empire.

4.3.5.3 Manumission by will

(D.40.4.)

This was the most common form of manumission. Freedom could be granted in a will, either as a direct legacy to the slave, or by way of a trust imposed on the heir, or a legatee to manumit him. The words granting freedom had to be express and phrased in the imperative, e.g. 'Let my slave Balbus be free.' In later law, this rule was partly relaxed, implied manumission being allowed by Justinian, e.g. 'Let my slave Balbus be my heir.' Previously, such a phrase may have been insufficient to manumit Balbus as it did not contain an express grant of freedom, although some jurists thought the contrary. The slave had to be clearly identified, but this rule was generally interpreted in a liberal manner. Small mistakes in naming the slave, such as misspelling his name, could be ignored. Indeed, a name did not have to be stated as long as the slave could be clearly identified:

Gaius, Common Matters or Golden Words, book 1: Slaves ordered to be free are thought to be expressly designated, if they have been unambiguously identified by their craft, office, or in some other way, for example, 'my steward', 'my butler', 'my cook', 'the son of my slave Pamphilius'. (D.40.4.24.)

Testators could impose conditions when freeing slaves—a regular occurrence, if the considerable amount of juristic discussion of conditional manumission is a reli­able guide. Slaves who were freed conditionally (statuliberi) were in a limbo-like position. They remained slaves until the condition was satisfied, but their position was preferable to that of ordinary slaves. For example, they could not normally be subjected to torture when giving evidence in legal proceedings. The testator's heir became the owner of statuliberi on the testator’s death, including any children born to a female slave before the satisfaction of the condition. However, the heir's right of ownership was temporary, and he (or anyone else) could not lawfully obstruct the satisfaction of the condition:

Ulpian, Sabinus, book 27:... if Arethusa was given freedom subject to the condition of her bearing three children and the heir was responsible for her not giving birth, for example, by the administration of a contraceptive, she would be free at once; for what is the point of waiting? So, too, if the heir had procured an abortion; for she might have born triplets. (D.40.7.3.16.)

Conditions that were illegal or immoral were ignored, as were impossible condi­tions, i.e. those impossible in the nature of things (e.g. 'if Balbus flies to the sun'). Such conditions were simply struck out—the slave was freed unconditionally.

When did testamentary manumission take effect? The general rule was that the slave was freed from the moment when the heir entered upon the inheritance, i.e. when he did anything that was characteristic of an heir. The general rule did not apply to statuliberi, who normally were freed when the relevant conditions applica­ble to their release were satisfied. Where freedom was granted through the imposi­tion of a trust, the slave was not freed until the trust was carried out. An heir, who accepted an inheritance, had to carry out any trusts imposed upon him, at least from Augustus onwards.

4.3 5.4 Manumission in church

This form of manumission was introduced by Constantine. It consisted of a formal declaration of a slave's freedom by the master before a bishop and the assembled congregation, often made during important church festivals. It seems that the mas­ter's written confirmation was necessary.

4.3.5.5 Informal manumission

This occurred when a master did not follow the recognized modes of formal manumission, but, nevertheless, showed a clear intention that the slave should be regarded as free. The relevant intent could be demonstrated per epistulam (by letter) or inter amicos (between friends). In the former case, the master freed the slave by writing appropriate words in a letter to him, freedom arising from the time when the slave was appraised of the fact. The freeing of slaves inter amicos originally required a declaration of freedom by the master in the presence of his family or friends, e.g. at a dinner party. In later law, it is possible that any witnessed act which showed the master intentionally treating his slave as an equal was sufficient.

What was the position of a slave manumitted informally? Before the reforms of Augustus (see 4.3.5.6), the manumission was regarded as legally void: the slave remained a slave. But he was recognized as having de facto freedom, protected by the praetor should the master attempt to exercise his full rights. It seems that the master could not maltreat the slave or force him to work; but any acquisitions by the slave belonged to the master.

4.3.5.6 The manumission reforms of Augustus

The reign of Augustus witnessed major reforms in the law of manumission, a series of enactments that transformed the law from its previous unsatisfactory state (see Mouritsen, 'Manumission', 406-10). He was concerned to restrict large-scale, reck­less manumissions, fearing both the potential consequences for public order and, perhaps, the possibility of the citizen body being swamped by large numbers of for­eigners (but that had already occurred). Also, he wished to protect the interests of the creditors and heirs of slave-owners—manumission of slaves had been an effec­tive method of reducing assets. At the same time, Augustus wished to encourage an expansion of the citizen body, particularly so as to provide recruits for the army, see Atkinson, K. M. T., 'The Purpose of the Manumission Laws of Augustus' (1966) 1IJ, 356-74. To some extent, these were contradictory aims; but he certainly achieved an increase in the citizen population—it rose by almost a quarter in his reign.

The main reforms were as follows:

(a) Lex Fufia Caninia 2 BC (Inst.Gai.1.42.-6., Inst.1.7., C.7.3.) This enactment restricted the number of slaves that could be manumitted by will. The maximum that could be freed was one hundred, the permitted quota varying in proportion to the number of slaves owned by the deceased. One of the reasons for this reform may have been to prevent the number of mourners at funerals being swollen by large numbers of grateful freedmen—a potential threat to order in disturbed times. The restrictions were not universally popular; it appears that testators tried various stratagems to evade them. It proved necessary to curb the evasions. If too many slaves were named in the will, the first named (within the permitted number) were freed; and if the testator put the names in a circle, so that no clear order was ascer­tainable, none of the slaves were freed. The lex Fufia did not apply to manumission other than by will.

(b) Lex Junia (Norbana) This enactment is of uncertain date. It is possible that it was enacted in AD 19, but the most plausible view, given that the lex Aelia Sentia (see (c)) appears to refer to Junian Latins, is that the lex Junia must have preceded AD 4. In any case, the reform brought about by the lex Junia is the kind of meas­ure that Augustus is likely to have engineered. The statute tackled the problem of the uncertain status of informally manumitted slaves by creating a new status for them, that of Junian Latin, whereby the slave acquired freedom, but not citizen­ship (see 4.4.3.1). (See Sirks, A. J. B., 'Informal Manumission and the Lex lunia' (1981) 28 RIDA 3, 247-76, where the author argues that Junian Latinity was merely a grade of dependence within the system of slavery and patronage; see also by the same author, 'The Lex luma and the Effects of Informal Manumission and Iteration' (1983) 30 RIDA 3, 211-92.)

(c) Lex Aelia Sentia AD 4 (Inst.Gai.1.36.-41., 47.) This enactment contained sev­eral important provisions:

(i) It established a council (both in Rome and in the provinces) to investigate manumissions.

(ii) Any manumission was deemed void if the master was under twenty years of age unless he obtained permission from the council on showing good cause. What constituted good cause? Paul provides some examples:

Paul, Lex Aelia Sentia, book 1: Past events can provide several grounds for manumission; thus, the slave may have aided the master in battle, protected him against brigands, healed him in sickness, uncovered a plot. And it is a long business, should we wish to make a list, since many services can occur for which it is honorable to grant freedom by a formal decision... (D.40.2.15.1.)

(iii) A slave, aged under thirty years, could not be manumitted except for good cause, and with the permission of the council. A manumission in breach of this rule resulted in the slave becoming a Junian Latin.

(iv) Certain slaves with criminal records were prohibited from becoming citizens on manumission. They were given the status of dediticii (see 4.3.3.2).

(v) Manumissions made to defraud creditors were deemed void. A manumission made by an insolvent master fell within the rule, irrespective of the master's intention:

Gaius, Common Matters or Golden Things, book 1: It is deemed that a man manumits to the detriment of creditors if he is insolvent at the time of the manumission or would become insolvent after the grants of freedom; for men often hope that their assets are greater than they actually are. (D.40.9.10.)

4.3.5.7 Justinian's reforms

Justinian considerably simplified the law of manumission. The status of Junian Latins and dediticii was abolished. Citizenship was acquired on informal as well as formal manumission. As regards informal manumission, the old methods (per epistulam and inter amicos) continued to be used but needed to be evidenced by a document attested by five witnesses. In testamentary manumission, the restrictions on numbers were abolished—the lex Fufia was repealed. Mamtmissio vindicta still required an appearance before a magistrate, but with less formality. Manumission in church continued as before. The rule that slaves normally had to be aged at least thirty years was abolished. Masters still had to be at least twenty years old, as a general rule, but seventeen sufficed for a manumission by will (later reduced to fourteen). (See generally Gardner and Wiedemann, Roman Household, 159-62.)

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