Manumission of Pledged Slaves

There is a remarkable difference between the manumission of specially and generally pledged slaves. Slaves who were subject to a general pledge could be manumitted (released from slavery) by the debtor, this in contrast with spe­cially pledged slaves.

Special, generic (invecta et illata), and general pledges

An opinion by the early classical jurist Marcus Cocceius Nerva (consul before 24 ad) on the tenant's right to manumit slaves pledged as invecta et illata is recalled in Paul. D. 20.2.9.^[1084]

D. 20.2.9. Paulus libro singulari de officio praefecti vigilum. Est differentia obligatorum propter pensionem et eorum, quae ex conventione manifestari pignoris nomine tenentur, quod manumittere mancipia obligata pignori non possumus, inhabitantes autem manumittimus, scilicet antequam pen­sionis nomine percludamur: tunc enim pignoris nomine retenta mancipia non liberabimus: et derisus Nerva iuris consultus, qui per fenestram mon­straverat servos detentos ob pensionem liberari posse.

There is a difference between assets charged for rent and those which are held as pledge pursuant to an express agreement; we cannot free slaves charged with an (express) pledge, but we can free slaves living on rented premises, until we are locked out for non-payment of rent: after that we can­not effectively free slaves detained by way of pledge. The jurist Nerva was mocked for holding that we can free slaves detained for rent by pointing at them through the window.

The tenant could manumit slaves who were subject to a tenant's pledge, but his power to do so terminated when the landlord exercised his right of lock­out for payment default. Nerva was ridiculed (‘derisus’), according to Paul, because he apparently took the view that slaves, who were pledged for rent and were present at the rented premises, could after lock-out still be manu­mitted by pointing at them. In opinions by Pomponius, Paul, and Ulpian it is also held that the tenant can manumit slaves, unless this was done in order to defraud creditors or after an event of default occurred.¹⁵³ These jurists all con­trast tenant's pledges with special pledges, in holding that only tenant's pledges entail that the debtor is allowed to ‘dispose' of pledged slaves in the form of their manumission. Thus in D. 20.2.6 Ulpian says (with reference to Pomponius) that although in urban tenancies objects brought into the premises are impliedly charged as if this had been specially agreed, such a pledge is no bar to manumission.

When general ‘all assets' pledges came to be recognized, the manumission of generally pledged slaves was treated in the same way as slaves subject to tenant's pledges. Two Severan constitutions leave no doubt that in the second half of the second century AD a distinction should be made between the manumission of specially and generally pledged slaves.

Sev.-Ant. C. 7.8.2. Libertas a debitore fisci servo data, qui pignori non est ex conventione speciali, sed tantum privilegio fisci obligatus, non aliter infir­matur, quam si hoc fraudis consilio effectum detegatur.

Liberty bestowed by a debtor of the treasury upon a slave, who is not pledged by special agreement, but who is only charged to the treasury by way of privilege, is not invalid unless it is shown that such liberty was granted with intent to defraud.

Sev.-Ant. C. 7.8.3. Ab eo, qui bona sua pignori obligavit, quae habet quaeque habiturus esset, posse servis libertatem dari certum est. non idem iuris est in his servis, qui pignoris iure specialiter traditi vel obligati sunt.

It is certain that liberty can be given to slaves by a master who charges what he has and everything which he will have as a pledge. The law is not the same regarding those slaves who were specially delivered or charged by way of pledge.

According to these constitutions by Septimius Severus and Caracally, gener­ally pledged slaves (including slaves subject to general fiscal pledges or privil­eges) can be liberated, this in contrast with specially pledged slaves. In C. 7.8.3 (209 ad) it seems likely that the general pledge was a conventional one, while

53 Du Plessis 2007: 229-30. On D. 20.2.9, see also Wagner 1974: 165-8; Frier 1980: 119-21. in C. 7.8.2 (without date) the general pledge was a fiscal pledge arising by operation of law (‘privilegio fisci obligatus").

Legal basis for differential treatment: lex Aelia Sentia?

In a time where slaves would normally be charged by way of fiducia cum creditore, the debtor would no longer have the power to manumit them because ownership of the slaves was now with the creditor.^[1085] This was not different, however, where slaves were charged with pignus. This is remarkable because, in classical law, ownership of pledged slaves remained with the debtor and one of the attributes of the ownership of slaves is the power to liberate them. The debtor's lack of power to manumit may have been a surviving trait of the ownership-like nature of pignus in the law of the Republic, or the result of the analogous treatment of pignus and fiducia by the jurists?^[1086] The manu­mission could also have been treated analogously to later dispositions of pledged property, which could also not adversely affect pre-existing special rights of pledge.15^[1087] According to Dernburg, the debtor's ownership-based power to liberate pledged slaves, which existed as a matter of ius civile, was restricted by legislation.

D. 40.9.29 pr. Gaius libro primo de manumissionibus. Generaliter pignori datus servus sine dubio pleno iure debitoris est et iustam libertatem ab eo consequi potest, si lex Aelia Sentia non impediat libertatem, id est si solv­endo sit nec ob id creditores videantur fraudari.

It is beyond doubt that a generally pledged slave is, in law, fully the property of the debtor and can obtain lawful freedom from him, if the lex Aelia Sentia should not bar freedom, that is, if the debtor be solvent and no evident det­riment to the creditors should result.

When general pledges came to be recognized, special, generic (invecta et illata) and general pledges were subject to the same legal regime (the lex Aelia Sentia), although for special pledges this had different consequences than for generic and general pledges. Manumissions of specially pledged slaves (where they took place without the creditor's consent) were irrefutably presumed to be in fraudem creditoris.^15S In the case of generic and general pledges, however, an irrebuttable presumption that manumissions would be in fraudem credit­oris would be much further removed from reality. Here the manumission of a pledged slave would not necessarily affect the creditor's preferential rights of recourse, because there would usually still be many other assets that would be subject to the pledge.

There are texts, however, from which it appears that also manumissions of specially pledged slaves that clearly did not take place in fraudem creditorum were nevertheless invalid. Thus Paul. D. 40.1.3 unequivocally states that a slave given in pledge cannot be manumitted, even if the debtor is solvent. In Sev.-Ant. C. 7.8.2 the limitation to manumissions taking place to the fraudu­lent detriment of creditors is only applied to general pledges.

Power to manumit = power to dispose?

The classical texts on the liberation of slaves pledged by way of tenant's pledges bring Du Plessis to the conclusion that they were ‘nothing more than a float­ing charge'. They would ‘float' over the assets from time to time situated at the leased premises and would only ‘crystallize' in the event of non-payment of the secured debt.i⁶⁰ In his dissertation, Wubbe had already taken the position that the pledge of invecta et illata was a general pledge, not of all the debtor's assets but of a ‘complex of assets'?“ It was a general pledge of all those assets

158 Wagner 1974: 175 n 66; Van Hoof 2015: 57.

159 Schulz 1928: 263-84, followed by Kaser 1982: 32.

160 Du Plessis 2007: 229. Wubbe 1960: 228. that were in bonis of the debtor (tenant), in so far as they were brought into the rented premises.^[1088] The texts on the manumission of slaves pledged as invecta et illata are regarded by Wubbe as the application of a wider principle governing dispositions by the debtor of his generally pledged assets. A debtor who has pledged his patrimony can liberate his slaves, just as he can sell other objects part of this patrimony, provided that he does not act in fraudem cred- itorum.^[1089] In a similar manner, Kaser explains the differential treatment of manumission of specially pledged slaves and slaves pledged as invecta et illata as a consequence of a ‘restrictive interpretation of the pledge agreement, which in this case kept open the debtor's power of liberation'^⁴

But can we draw inferences from texts on the liberation of slaves pledged as invecta et illata for the legal treatment of the sale of goods subject to a tenant's pledge? In D.

Favor libertatis

One cannot exclude that the manumission of slaves was not, or not exclu­sively, based on legal or commercial considerations but was (wholly or partly) motivated by moral ones. Legal opinions and constitutions on the manumis­sion of generally pledged slaves may be the expression of a favor libertatis. In D. 40.1.10 Paul produces an interesting case report of an imperial judg­ment (decretum) by Septimius Severus on the question whether a manumit­ted slave was still subject to a fiscal general charge (ius fiscalis).^[1090] Aelianus, a debtor of the imperial treasury, had bought Euemeria, subject to the covenant that he was to manumit her. Many years later Aelianus did manumit Euemeria. The procurator of the fiscus, after finding that Aelianuss assets did not cover his debts to the treasury and looking for other assets subject to the fiscal charge, commenced legal proceedings on the status of Euemeria (status quaestio).^[1091] The procurator may have relied on the rule confirmed in Septimius Severus's and Caracalla's constitution that manumissions carried out with intent to defraud were invalid.^^[1092] The manumission of Euemeria may have taken place at a time when Aelianus's insolvency was imminent.¹''^{[1093] [1094] [1095]} In his decretum, Septimius Severus ruled that ‘there was no room for the fiscal privilege, whereby all the assets of debtors were treated as pledged to the treasury, since she had been bought subject to the covenant aforesaid, and if she had not been manumitted, she would still have attained freedom under the constitution of the deified Marcus'Th⁰ Therefore, the manumission had been valid and Euemeria was a freed woman rather than a slave subject to a fiscal pledge. This decision does not appear to be motivated by economic con­siderations but rather by the favor libertatis underlying the constitution by emperor Marcus Aurelius (and Commodus),⁰ to which Septimius Severus's judgment refers. Under this constitution, the covenant to manumit func­tioned like a proprietary encumbrance: even in the absence of an actual manumission by the current owner (Aelianus) Euemeria would have become a free woman on the agreed date and would therefore not be charged in favour of the treasury. The constitution of Marcus Aurelius and Commodus pre­vailed over the lex Aelia Sentia.^[1096] This would not only be the case in respect

of slaves who were charged in favour of the treasury but also in respect of slaves charged by way of conventional general pledge.^[1097]

Economic considerations

But let us assume that the differential treatment of specially and generally pledged slaves was also driven by economic considerations: what could they have been? First of all, in the case of manumission of a generally pledged slave there would simply be other assets against which the creditor would have had a preferential right of recourse, while in the case of a fraudulent manumission the creditor would be protected by the lex Aelia Sentia.^{[1098] [1099] [1100] [1101] [1102] Secondly, manu­missions which took place at a relatively young age were frequent and would mostly take place against a negotiated and agreed price.^5 Slaves would ‘pur­chase' their freedom against their market value.^6 From a purely legal per­spective this would still have decreased the assets which were part of the debtor's patrimony and which were subject to the general pledge (unless the price for manumission was paid by a third party). The manumitted slave would no longer be owned by the master/debtor and the price for freedom would be paid from the slave's peculium, which was legally already owned by his master. Such a formal legal perspective, however, would prevent a good view on eco­nomic reality. The anticipated manumission would have been a strong incen­tive for increased productivity and profitability of slaves' activities and would have reduced supervision costsTh7 Slaves ran their own businesses, often with subslaves, and would purchase stock, produce goods, and lend money to third parties. There is abundant evidence in the Digest of a transactional practice in manumission agreements which made liberation conditional upon the slave rendering a diligent account.^8 This duty to account would generally enhance the possibility that assets which would otherwise remain undisclosed would become available to the master. Moreover, the master would have a stake in future earnings by his former slaves in the form of a legally protected share in his freedmens' inheritance:[1103] [1104] [1105] [1106] ‘The loss of a slave is sweetened by the acquisition of a freedman?80 All this would be beneficial to the ‘net worth' of the master and, accordingly, to the value of the assets available to the creditor to whom he had granted a general pledge. In conclusion, from an economic perspective the manumission of generally pledged slaves made sense, in a similar way as other dispositions by debtors of generally pledged assets.}

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