There are several types of case to consider.

I. Concubina. Justinian provided that if a man having no wife made a slave his concubine, and she so remained till his death, he saying nothing as to her status, she became free and her children ingenui, keeping their peculia, and subject to no patronal rights in the heres. This applied only if the will contained no provisions, e.g. a legacy of them, shewing a contrary intent. After varying legislation on legitimation3he further provided that if the dominus freed an ancilla and afterwards married her with written instrumenta dotis, the children already born should be ingenui for all purposes. It is idle to look for legal principle under these rules.

II. Cases of prima facie abortive gift. We have already considered the cases in which a beneficiary could be compelled to accept, so that, gifts took effect, and we shall soon consider the effect of refusal to carry out the gift after acceptance. Apart from this a gift failed if the gift or instrument on which it depended failed to take effect. But cases of exceptional relief were rather numerous. The following list cannot claim completeness.

1. (a) Relief against failure to enter under the will.

1. (i) An institutus enters ab intestato, omissa causa testamenti. The gift is good, retaining its modalities.

2. (ii) Suus heres institutus abstains. The gift is good if not in fraudem creditorum, which on such facts it is likely to be.

3. (iii) If the heres abstains for a price, he is compellable to buy the slave and free him.

4. […]

A gift of liberty by will is not necessarily absolute and immediate: it may be subject to a condition or deferred to a future day. Pending the event the man is a statuliber: we have already considered his position and have now to discuss the other questions affecting these modalities.

Where the liberty is deferred to a certain future time, it is said to be subject to dies certus. If the words ad annum are added, e.g. ad annum liber esto, they are construed as meaning “at the end of a year.” If the words are ad annos decem, they are treated as swpervacua. A gift of freedom intra annum post mortem entitles the donee to liberty at once. The rule is attributed to Labeo, and is declared to be justified by him as an inference from the rule that where the gift is: Let him be free si heredi intra decimum annum decem dederit, the man is free if he pays at once. It is plain that this does not justify the rule. The one rule says merely that to impose a time within which the condition must be satisfied is not to impose dies in addition to the condition: it leaves the choice of time within a certain limit to the slave himself. The other does not: it does not say who is to have the choice of time, and the actual rule is a case of favor libertatis. We saw that ad annum meant at the end of the year.

The Institutes tell us that all men are either slaves or free, and both liberty and slavery are defined by Justinian in terms borrowed from Florentinus. “ Libertas,” he tells us, “ est naturalis facultas eius quod cuique facere libet nisi si quid vi aut iure prohibetur.” No one has defined liberty well: of this definition, which, literally understood, would make everyone free, the only thing to be said at present for our purpose is that it assumes a state of liberty to be “ natural.”

” Servitus,” he says, “ est constitutio iuris gentium qua quis dominio alieno contra naturam subicitur.” Upon this definition two remarks may be made.

i. Slavery is the only case in which, in the extant sources of Roman law, a conflict is declared to exist between the Ius Gentium. and the Ius Naturale. It is of course inconsistent with that universal equality of man which Roman speculations on the Law of Nature assume, and we are repeatedly told that it is a part of the Ius Gentium, since it originates in war. Captives, it is said, may be slain: to make them slaves is to save their lives; hence they are called send, ut servati, and thus both names, serous and mancipium, are derived from capture in war.

It is not necessary to attempt the hopeless task of denning liberty. Justinian adopts from Florentinus the definition: Liberty is the natural capacity {facultas) of doing what we like, except what, by force or law, we are prevented from doing. This definition no doubt expresses certain truths. Liberty is “natural”: slavery is iuris gentium. It is presumed that a freeman can do any act in the law: his incapacity must be proved. The reverse is the case with a slave. But, literally understood, it would make everybody free. As a matter of fact all persons not slaves are free, and as we have arrived at a more or less exact notion of Roman slavery we may leave the matter there.

The conception of manumission needs some examination. It is not in strictness transfer of dominium. A man has no dominium in himself or his members. Nor is it an alienation of liberty. The right received is not that of the master, and the rule that a man cannot give a better liberty than he has is intelligible without reference to such an idea. Nor is it a mere release from the owner's dominium: that is derelictio, from which manumission differs in several ways. Dereliction does not make the man free, it merely makes him a res nullius. Moreover manumission leaves many rights in the master, and there is no such thing as partial dereliction. If it had contained a dereliction, then, since derelictio is purely informal, a manumission which failed for lack of form would have been a dereliction. But this was not the case.

To alienation of the master's property his consent was always necessary. With that consent, which might be by ratification, or by a general authorisation if wide enough in its terms, the slave could alienate anything. He could not of course make a cessio in iure, because this was in form litigation, but apart from that the form is immaterial. There is indeed little authority for mancipatio by a slave, but what little there is is in favour. Julian contemplates the transfer of proprietas in a slave, by a slave with authority, but it is possible that the text, which speaks of traditio, may have been originally so written, so that the reference would be only to Praetorian ownership. Of course the dominus could not authorise the slave to do what would have been unlawful had he done it himself. Thus a slave could not validly make a donatio to his owner's wife. Without authority, the slave was powerless: he could not transfer dominium. If he sold and delivered, possession passed but no more, and the taker, if he knew that there was no authority, could not prescribe, and was indeed a fur. Money lent, citra voluntatem, could be vindicated, as could money paid by a fugitive slave for the concealment of himself or his theft.

Similar rules applied where, having authority, he exceeded it. Where A owed B 10 ex fideicommisso and 10 on an independent obligatio naturalis, and a generally authorised slave paid 10 expressly towards the whole debt, 5 could be vindicated, as a general authority to pay is not held to apply to natural obligations.

This aspect of the Slave was necessarily prominent in the Law. He was the one human being who could be owned. There were men in many inferior positions which look almost like slavery: there were the nexus, the auctoratus, the addictus, and others. But none of these was, like the slave, a Res. Potestatis verbo plura significantur: in persona magistratuum imperium…in persona servi dominium. The slave is a chattel, frequently paired off with money as a res. Not only is he a chattel: he is treated constantly in the sources as the typical chattel. The Digest contains a vast number of texts which speak of the slave, but would be equally significant if they spoke of any other subject of property. With these we are not concerned: to discuss them would be to deal with the whole law of property, but we are to consider only those respects in which a slave as a chattel is distinguished in law from other chattels. From their importance follows the natural result that the rules relating to slaves are stated with great fulness, a fulness also in part due to the complexity of the law affecting them. This special complexity arises mainly from five causes, (i) Their issue were neither fructus nor accessories, though they shared in the qualities of both, (ii) They were capable of having fructus of kinds not conceivable in connexion with other res, i.e. gifts and earnings, (iii) The fact that they were human forced upon the Romans of the Empire some merciful modifications of the ordinary rules of sale, (iv) They had mental and moral qualities, a fact which produced several special rules, (v) There existed in regard to them a special kind of interitus rei i.e. Manumission.

BONA FIDE SERVIENS.

The expressions qui bona fide servit, and bona fide serviens are rather misleading. The bona fides really in question is that of the holder. This would be a priori almost certain (for it is scarcely conceivable that the classical lawyers should have made the animus of the slave decisive) and the texts leave no doubt. They are cited by Salkowski, who shews that bona fide possidere and bona fide servire are used interchangeably, and that there are texts which expressly make the bona fides attach to the possessor.

As to what is involved in bona fides a few words are necessary. Gaius tells us there must be a iustapossessio. This appears to mean that iusta causa is required. On the other hand it is immaterial that the slave is furtiims. So far as the bona fides itself is concerned, the texts give no indication that the words have any meaning other than that they bear in the law of usucapio. But just as a man may have bona fides and yet be unable to usucapt, because the thing is furtiva, so it is conceivable that one who cannot usucapt because his possession began in bad faith, may become a bonae fidei possessor for our purpose in the course of events. Broadly speaking a bonae fidei possessor is one who supposes himself to have the rights of owner, and whose acts will be regulated on that assumption. No man regards himself at the moment as a bonae fidei possessor.

Servus Communis

Regarded purely as a chattel, there is little to be said of the servus communis. The general principles of common ownership apply, and a few remarks will therefore suffice. He is the property of the owners in undivided shares, and possession of him by one of his owners, omnium nomine, is possession by all. A legacy of “my slaves” includes those in whom I own a share. They are reckoned, pro Falcidia, in the estate of each owner. The rights of ownership are necessarily somewhat cut down in view of the rights of other owners. Thus one of common owners cannot put the slave to torture, save in a matter of common interest. On the same principle, the actio servi corrupti is available to one master against another. The text appears corrupt, and there are signs of doubt, which may be due to the fact that the slave is the wrongdoer's own in a sense—a fact which is allowed to bar any action on servi cormptio, for receptio, i.e. of a fugitivus, against a co-owner. But even here Ulpian inclines to allow the action if the reception was celandi animo, though he quotes Julian as refusing it in any case. It is not easy to see why the relation makes any difference, since the act is presumably a furtum, for which Paul and Ulpian are clear that actio furti will lie against a co-owner. In all these cases an indemnity can be claimed by commwni dividundo, or, if they are socii, by pro sodow.

In general an owner can free, but no pact or agreement can make a freeman a slave, or endow a slave or libertinus with ingenuitas, or make an ingenuus a libertinus. Acting as a slave will not make a free person a slave. An acknowledgment by a man that he is a slave, whether it be voluntary or compelled, does not make him one, even if it be formally made apud acta praesidis. Paul's language may confine this rule to the case in which the admission was compelled by fear. But in the later law this restriction has disappeared if it ever existed, and it is most probable that Paul is merely giving an illustration of the circumstances under which such a false admission is likely to be made. In what purport to be two enactments of Diocletian, we are told generally, that acknowledgment of slavery apud acta or by professio is no bar. Similarly, whatever may have been the law under the old system of the Census, a failure to make proper professio as a ciins does not cause enslavement. The fact that a free person has been sold as a slave by his parents, or an apparent owner, or by the Fisc or by rebels is no bar to his claim of freedom. A similar statement is made in an enactment of A.D. 293 as to one who, being under 20, allows himself to be given as part of a dos. The same rule is laid down in an enactment of the following year without limit of age where the person sold was not aware of his freedom.

Of these three statutes the first mentioned, perhaps the last in date, was essentially different in object from the others. It enlarged existing rights: they were restrictive. For this reason, and because some of the provisions of the lex Aelia Sentia seem to presuppose the lex Iunia, it is well to deal with this law first.

Lex Iunia.

This statute defined the position of those who had been in libertate tuitione praetoris by the earlier law. It made them latins, giving them broadly the position of colonary latins, subject to certain disabilities of a very serious kind. Because of these restrictions they were called Latini Iuniani to mark them off from the others. The cases with which it dealt were, apparently, the slave freed by his bonitary owner, the slave informally freed, and the slave freed under 30, though as to this case we shall see that there is doubt as to what is due to this lex and what to the lex Aelia Sentia. Most of the points of difficulty under this lex will be more conveniently discussed later: here it is enough to mention a few points.

Notwithstanding the language of Gaius it is clear that a bonitary owner could give freedom by will. It is hardly so clear whether he could do it vindicta. And it seems that manumission censu must have given civitas or nothing. Apparently the entry of the man's name must have been a nullity, of no more force than any other mistake of the Censor's. And it does not seem that it amounted in itself to a manumission inter amicos or per epistolam.

The period covered by this heading extends over nearly 600 years, if we regard Justinian's reign as the end of things. It ought in strictness to be treated as at least three distinct periods, but as nearly the whole of our information is derived from Justinian's compilations, it is not easy so to divide it. But it is plain that he made many changes, and it is possible thus to treat the matter as having a history in two periods, of which the first ends with the accession of Justinian. It must, however, be remembered that changes are going on rapidly throughout this period, and thus it is important to keep perspective in view. Moreover, of a great mass of detail, it is not easy to tell how much of it is classical and how much is of a later age. This will be treated, for the most part, in the discussion of the, first period, so that the law under Justinian will be dealt with more shortly.

It was no longer true in the Empire that all manumission made the slave a civis, but, for the present, we shall discuss the normal case, leaving the special statutory rules and restrictions for a later chapter.

The formal modes of manumission are (1) Gensu, (2) In sacrosanotis Ecclesiis, (3) Vindicta, (4) Testamento.

1. Censu. This is practically obsolete.

2. In saceosanctis Ecclesiis. This is a method which it seems somewhat out of place to consider so early, for, as we know it, it dates only from the time of Constantine.

Legacies and fideicommissa in general underwent a process of assimilation at the hands of Justinian, but there never was much real assimilation of direct and fideicommissary gifts of liberty. The former were a good deal relaxed in form, and this is so far an assimilation. But the fact that direct gifts could be made only to the testator's slaves and made them liberti orcini, while the others could be made to servi alieni and made them liberti of the fiduciarius, formed an unbridgeable gap between them. It must also be noted that a gift by fideicommissum is not in strictness manumission by will at all: it has to be completed by an act of manumission by the fiduciarius, and this will often be inter vivos. But as the direction is contained in a will or codicil, and, apart from condition, operates on entry, it is convenient to treat it here. Indeed more than convenience is involved: as we shall see later, a gift by fideicommissum is subject to the rules of the lex Fufia Caninia and to others specially applicable to testamentary provisions. On the other hand there is room in such gifts for causa, to complete a gift in some way defective, and this applies essentially to gifts inter vivos.

A fideicommissum of liberty is in effect a direction contained in a will or codicil, addressed to some person and requiring him to free a slave. It may even be in an unconfirmed codicil, and so bind the heres ab intestato. It may be given by word of mouth before witnesses, where the giver is in articulo mortis, and will then bind any heres.

The foregoing statement of the slave's various activities, apart from peculium, would be very misleading unless it were borne in mind that a slave, in any way engaged in commerce, had, as a matter almost of course, a peculium: it was the existence of this which made it more or less safe to deal with him. In essence the peculium was a fund which masters allowed slaves to hold and, within limits, to deal with as owners. It was distinct from the master's ordinary property—the patrimonium, and though in law the property of the master, it is constantly spoken of as, de facto, the property of the slave. It is an aggregate of res peculiares, which belong to the master, and of which the slave is administrator. It is described as pusillum patrimonium, and velut patrimonium proprium. We are concerned with it as it was in classical and later law, but it may be well to premise a few remarks as to its earlier history.

(1) At first it seems to have been unimportant and to have consisted merely of small savings on allowances, and unexpended balances on authorised transactions. But by the beginning of the Empire, it might be of great value, and of any form. It might include other slaves, (one in the peculium of another slave being called a vicarius,) and the peculia of vicarii (even vicarii vicaricrum), land, inheritances, obligations and so forth. The vicarius might indeed be more valuable than the principal slave. It might thus reach a very large amount.

In an essay in the Zeitschrift der Savigny Stiftung for 1905 with the chief thesis of which we are not here concerned, Professor Eisele makes some interesting remarks on the form of mancipatio. As Gaius shews, it contained in ordinary cases, two members; first an assertion of ownership in the acquirer, and secondly, what looks like the chief operative part, esto mihi empta hoc aere aeneaque libra. With the odd fact that at the time when the assertion of ownership is made it is not true we need not here deal. Our difficulty is to see how far the form was modified if the acquisition was by a slave. It is clear that he could say hanc rem domini mei ex iure Quiritium ease aio. But he did not always say this, as there might be doubt as to the person to whom he acquired, e.g. in the case of usufruct. Eisele thinks that he said meum ease aio. This is improbable on the face of it, and cannot really be made to agree with the remark of Gaius that the reason why he could not claim in a cessio in iure was that he could have nothing of his own. Eisele supposes that Gaius is really referring to incapacity to appear in court, but that is not what Gaius says, and it is scarcely credible that he could have expressed himself as he does, if slaves had been constantly using that exact formula in mancipatio. Eisele adverts to the well-known rule laid down, e.g. by Julian, that a slave could stipulate sibi dari. But Julian is also clear that a slave cannot stipulate for a right for himself.

SERVUS PUBLICUS POPULI ROMANI, FISCI, GAESARIS.

The evidence as to the position of these slaves is so imperfect, that nothing more than an outline is possible. But their interest is mainly political and public: so far as private law is concerned there is little to be said, and thus a short account of them will suffice.

It is impossible to make a clear statement on our topic, without some remarks on the history of the relations of the popular treasury (Aerarium), with the Imperial treasury (Fiscus) and with the Privata Res Caesaris.

In the earlier part of the Imperial period the Aerarium is quite distinct from the Fiscus, and so long as this distinction is real, the expression send publici populi Romani applies in strictness only to those belonging to the people, and not to servi fiscales. The Fiscus is not only distinct from the Aerarium: it is regarded as the private property of the Emperor. In strict law it does not differ from the res familiares and other privatae res Caesaris. It is however distinctly administered, and it is the duty of the Emperor to devote it to public purposes. It passes as a matter of course to his successor on the throne. There is another form of property of the Emperor, which is distinguished under the name patrimonium. This too is more or less public in character: the revenues of Egypt come under this head. While it is not strictly fiscal it is administered on similar lines. There is no trace of any attempt to devise it away from the throne. Much of it, perhaps all, is public in everything except form.

It is clear that manumission vindicta was a legis actio. It is also most probable that a filiusfamilias was incapable of legis actio. It appears to follow that he could not free vindicta, even iussu patris. Yet this power is repeatedly credited to him, and is nowhere expressly denied. On the texts as they stand there is therefore something like an absolute contradiction.

There seem to be two ways of dealing with the matter, assuming the truth of the proposition that a filiusfamilias cannot lege agere. One of these is that of Mitteis, to refer all the texts which do not specify the form to the informal methods and to treat the others as in some way interpolated. The other course is to accept the texts and to treat their rule as one more case in which the character of the process was disregarded. The following pages state as briefly as possible the grounds on which the present writer has held, and holds, this the better view.

The relaxations stated on p. 452 are no doubt for the most part merely evidences that the process was not really regarded as judicial. Some can hardly be so disposed of, but they are much less important than the texts directly touching the question, of which the chief are set out and discussed in the following pages.

ACTIO DE PE CULIO.

We have seen that the actio de in rem verso was one with the actio de peculio; i.e. that a creditor suing on a slave's contract could claim to be paid out of what had been devoted to the purposes of the master, and, if that did not suffice, out of the peculium of the slave in question. The actio de peculio can, however, be treated as an independent action of which we can now state, by way of preliminary, the general principles. We know that the dominus is liable so far as the peculium will go, upon the slave's negotia, that the action is based on the Edict, and that, in point of form, an important characteristic is that the formula contains, probably in the condemnatio, a limitation or taxatio, in the words dumtaxat de peculio, or the like.

The liability is in a sense not of the master but of the peculium. Though, in view of legacies of it, the term peculium must have already had a legal meaning, there can be no doubt that the introduction of this action gave precision to the conception, since the liability is based on the existence and independence of the peculium. The practical meaning of this proposition is that it is essential to the claim that there be a peculium: if there be none there is no action. It does not depend on voluntas domini, and thus it is not barred by the master's prohibition to trade, or by the fact that he is a pupillus.

Many of Justinian's changes, not directly concerned with the law of manumission, had, indirectly, great effect upon it. It may be as well to enumerate the chief of these changes before stating the law systematically. He abolished the distinction between quiritary and bonitary ownership. He repealed the sc. Claudianum, with its connected legislation. He abolished the classes of latini and deditidi (thereby doing away with the rule that the slave must be 30, and with the restrictions as to criminal slaves who were freed), and he repealed the lex Fufia Caninia.

The rules in his time may be stated thus.

A. FORM. Census is gone. Vindicta remains, having long since ceased to be, if it ever was in any reasonable sense, a judicial process. Manumission in ecclesiis still continues. Manumission by will of course still remains. The general effect of legislation of the later Empire having been to abolish the praetorian will, the question whether freedom can be given by it is obsolete. The place in the will is now immaterial. Implied gifts are more freely recognised. Whatever may have been the earlier law it is now clear that appointment of servus proprius, as tutor, implies a direct gift of liberty. The rule is subject to some obvious restrictions. Thus, as it turns on an implication of intent, the rule does not apply where the facts negative this intent, e.g. where the testator thought the slave free. And where the slave is appointed cum liber erit, the appointment is a mere nullity.