Justinian classifies the Modes of Enslavement as being either Iure Gentium or Iure Givili, the former being those conceived of as common to all States, the latter as peculiar to Rome. According to the Institutes, birth is not strictly under either of these heads: the classification is applied only to those ways in which a living person becomes a slave. In the Digest it covers birth as well. Gaius speaks of the rule as to birth as being iure gentium: the distinction is clearly classical. It should be noted that it is only as to their general principle that any of these rules can be said to be iuris gentium. In relation both to birth and to capture, the Roman law had many special rules. The distinction is of no great practical importance, but it is authoritative and convenient.

MODES OF ENSLAVEMENT, IURE GENTIUM.

These are two in number:

(1) Capture in war. This has already been discussed. It was found convenient in considering the legal position of a captivus to treat, in anticipation, all the law of the topic.

(2) Birth. This is, in historic times, by far the most important of the causes of slavery. The general principle is simple. The child born of a female slave ia a slave, whatever be the status of the father, and conversely, if the mother is free the child is free, whatever the status of the father. This, says Gaius, is the rule of the ius gentium—the general rule that where there is no conubium the child takes the status of the mother, i.e. her status at the time of the birth.

1. The Pledged Slave. The main rules can be shortly stated. A slave who is the subject of a specific pledge, express or tacit, cannot be freed however solvent the owner may be, unless the creditor assents, or security in lieu of the slave is given. The rule does not apply to a general hypothec, tacit or express, unless the slave has actually been seized under it, but of course the manumission must not infringe the rule of the lex Aelia Sentia as to manumission in fraud of creditors. One text seems to imply that an express general hypothec is a bar, but this is clearly negatived by the other texts, and as the text is corrupt it probably means no more than that even though the manumitter is insolvent, a manumission of a slave received for the purpose cannot be impeached on the ground of fraud, though, in general, manumission by an insolvent who had given such a pledge would be at least suspicious. It is immaterial whether the manumission be inter vivos or by will, though as the latter operates only on aditio the gift will be good if the pledge is at an end at that date. If the pledge still exists the gift, as a direct gift, is void. But, at least in later law, there is a more favourable construction: such a gift implies a fideicommissary gift, so that when the pledge ceases to exist the slave can claim to be freed. It may be added that Severus provided by rescript that a pledged slave could be made necessarius heres.

SERVUS PIGNERATICIVS.

The law concerning a pledged slave derives some peculiarities from the fact that, while on the one hand the rights acquired by the pledge creditor are slight (being essentially no more than the right to hold the slave without deriving profit from him), on the other hand the institution is only a praetorian modification of the old fiduciary mancipation, under which the creditor became owner. Many of the texts in the Digest which now speak of pignus were originally written of fiducia, and the compilers have not always succeeded in making the changes so as to produce a neat result.

A pledged slave is still in bonis debitoris, and thus a legacy of my slaves includes those I have pledged, but not those pledged to me. The debtor retains the actio servi corrupti. The pledged slave is treated for the purpose of the Sc. Silanianum in all respects as if he had not been pledged. But there are many respects in which the creditor's interest comes effectively into play.

If the pledge creditor kills the slave, the debtor has the actio Aquilia against him, or, if he prefers, he may bring the action on the contract. If on the other hand the debtor kills the slave, the creditor has not the actio Aquilia, even utilis, but is given an actio in factum. If the slave is killed by a third party, the pledger has the actio Aquilia, and the creditor is allowed an actio utilis, because in view of possible insolvency of the debtor he has an interesse.

As Sale is, in practical life, the most frequent and important contract, it is not surprising that it figures largely in the texts in connexion with slaves, and is the subject, in that relation, of many special rules.

Slave-dealing was a recognised industry, carried on, apparently, by men of poor reputation. It seems to have been on account of their tendency to fraud, which they may have shared with dealers in cattle and horses, that the Edict of the Aediles was introduced, with which we shall shortly deal. As being men, slaves were not included in the term merces and thus slave-dealers were not mercatores, but venaiiciarii, their stock being called venalicii. Where slaves were so numerous, the traffic in them must have been a most important industry. There is indeed plenty of evidence of this, and of the fact that it was often carried on on a very large scale. Wallon gives a lively account of the usages of this trade, of the tricks of the dealers, of sale de catasta, and of other similar matters, too remotely connected with the law of the subject for mention here.

Such a business would require large capital, and thus it was frequently carried on by firms of partners. A text of Paul, speaking of the practice of these firms, says that plemmque ita societatem, coeunt ut quicquid agunt in commune videantur agere. The sense of this is not altogether clear. Though expressed as an understanding among themselves, it seems from Paul's further language to have been treated as affecting outsiders.

We have now to consider those cases of enslavement iure civili which Justinian introduced or retained. Several are recorded, but few are important in the general law. The less important will be treated first.

(a) Defaulting claimants of liberty. As we shall see later, Justinian abolished the need of adsertores (free persons acting on behalf of the claimant of liberty), in causae liberates, and allowed the claimants to conduct their own cases. He required them to give personal security, but if this were impossible, they were to give a sworn undertaking—cautio iuratoria. If after these preliminaries they failed to appear, and, being duly cited, remained absent for a year, they were adjudged slaves of the other party, whatever the real merits of the case may have been.

(b) False pretence and collusion of dominus. If an owner by his fraud and collusion passed his slave off as a freeman and obtained a judgment to that effect, Domitian provided that the person so adjudicated free should be decreed a slave of anyone who denounced him. But as he can hardly be said to have been free before, this case will be more appropriately discussed later, in connexion with the general law as to the effect of such adjudication.

(c) Slaves sold for export and freed. The Vatican Fragments contain a text, in part corrupt, to the effect that if a slave is sold with a condition that he is to be kept away from a certain place, with a power of seizure on return, and he does return, still a slave, the vendor may seize him and keep him as his slave.

In political life, it need hardly be said, the slave had no share. He could hold no office: he could sit in no public assembly. He might not serve in the legions: it was indeed a capital offence for him to enrol himself. Such service was the duty and privilege of citizens, and though, in times of pressure, both during the Republic and late in the Empire, slaves were occasionally enrolled, the exceptional nature of the step was always indicated, and the slaves so enrolled were rewarded with liberty, if indeed they were not usually freed with a view to their enrolment. In like manner they were excluded from the decurionate in any town, and it was criminal in a slave to aspire in any way to the position. But though they never occupied the highest positions in the public service, they were largely employed in clerical and manual work in different departments, and even in work of a higher kind.

Both at civil and praetorian law, slaves pro nullis habentur. This is not so at natural law, quia quod ad ius naturale attinet omnes homines aequales sunt. We have already noted some results of this conception, and have now to consider some others.

The decay of the ancient Roman religion under the emperors makes it unnecessary to say more than a few words as to the position of the slave in relation thereto. The exclusion of slaves from many cults is not due to any denial of their claim to divine protection, but to the circumstance that the divinities, the worship of whom was most prominent, had special groups under their protection to which slaves did not belong.

The rules affecting this matter are of gradual development: they are, in the main, a result of three principles, not wholly consistent with each other, and are themselves modified by the increasing recognition of the individuality of the slave. The three principles are:

1. 1. Noxa caput sequitur, a rule applied to delicts.

2. 2. In matter of contract, the slave naturaliter obligat et obligatur.

3. 3. The slave on manumission becomes a new man (and on reenslavement, another man again). The change is analogous to capitis deminutio, but it does not amount to this, as a slave has no caput. Servile caput nullum ius habet, ideo nee minui potest: servus manumissus capite non minuitur, quia nullum caput habet

So far as concerns delicts to the slave, there is not much to be said. The only one which can well be conceived is iniuria, and we are told, emphatically, that he can have no remedy for that after manumission. A theft of the man, or damnum to him, is a delict against his dominus, with whom the right of action remains, notwithstanding manumission of the slave. If the slave stolen or injured were instituted and freed by his dominus, he would presumably acquire these rights of action as he did others. This is implied by two texts which deal with an exceptional case. We are told by Ulpian, Marcian and Marcellus that if a slave who has been injured is instituted by his dominus, with liberty, and then dies, his heres will have no actio Aquilia. Marcian gives as the reason the fact that the case is now in a position in which the right of action could not possibly have arisen.

To analyse the conception of manumission so as to express it in terms of other institutions is perhaps impossible. It has an obvious affinity with conveyance, and Vangerow, treating it as essentially an act of transfer, deduces from this character its main rules, so far as they are concerned with latinity. But though this affinity is clear, it is no more than an analogy, and it is not alone. What was given to the man was not dominium over himself: no man has that. The lex Aquilia gave no action to a man for personal damage, precisely for this reason. It is true that Vangerow holds this text of no force in this connexion; he says that what Ulpian means is that the lex applies only to ownership of things in the ordinary sense, and this does not cover his ownership of himself. But what Ulpian says is that the man has no actio Aquilia, because he is not dominus of his members. That is, his right is not dominium. That it is analogous to ownership is true, but this does not justify Vangerow's inferences. Personal independence is not ownership of one's person. We know that manumission by will is not a legacy. What is conferred is liberty with citizenship. If the analogy with transfer of ownership were identity, or had been the most prominent factor in the minds of the lawyers, we might have expected a development of mancipation with safeguards; we should have looked for discussion of the question whether one freed informally or under 30 (thinking he was older), would acquire libertas ex iure Quiritium by one year's usucapion.

SERVUS HEREDITARIUS.

The slave who forms part of an inheritance on which an extraneus heres has not yet entered, owes his prominence in the texts to the importance of the hereditas iacens whose mouthpiece or agent he is. The hereditas iacens cannot exist where there is no interval between the death and the succession, for instance in the case of institution of a suus heres. Even the development of ius abstinendi does not affect this, and the rules as to the acts of slaves, where there is a suus heres whose taking is still doubtful, are nowhere fully dealt with.

Most of the doubts and difficulties in connexion with serous hereditarius are the outcome of differences of opinion as to the nature of the hereditas iacens. We cannot deal with this in detail, but a few points may be noted. The hereditas is, not exactly a persona ficta, for the Romans never use this conception, but a sort of representation or symbol of the dominus. It is pointed out in several texts that it is not strictly a dominus, but domini loco habetur; sustinet personam domini. In three texts it is actually described as dominus. But of these one says, dominus ergo hereditas habebitur, after having said, cum dominus nullus sit huius servi; in the second the words, hoc est dominae, are, evidently, an insertion; the third, which contains the words hereditatem dominam esse, is as it stands unintelligible: it is clear that they are all interpolated. The hereditas does not however represent the dominus for all purposes: in multis partibus iurispro domino habetur; inplerisque personam domini sustinets.

These intimately connected topics have been the subject of much controversy in recent years. No generally accepted solution of all the problems has been produced. In the following paragraphs space allows of no more than a general account of the matter.

The most accepted view as to formulation is that of Keller. He holds that in the actio de peculio the intentio was in ius, with a fiction of liberty where the contract was by a slave, and assuming of course that the claim is one which ordinarily gave an intentio in ius. This view is adopted with new argument by Lenel. For ordinary formulae in ius the suggested form is the simplest way in which to raise the issue, all that is needed being a change of name in the condemnatio, and the fiction of liberty in the case of a slave. It is clear on the texts that there was a fiction of liberty, and this would not be needed in a formula in factum. And a text dealing with the novation of the obligation strongly suggests that the intentio was in ius. But the chief argument is the ipso iure consumptio which appears in some of the texts.

The intentio thus framed, stating the transaction between the parties, brings into issue the whole obligation, but we know that the defendant could not be condemned beyond the extent of the peculium and any versio. It is not quite clear how this restriction was expressed in the formula.

These cases may be most conveniently discussed under three heads. (i) Cases of reward to slaves. In relation to this matter it should be observed that these are cases in which the State intervenes to give liberty to the slaves of private persons, usually, as a matter of course, compensating the former owners. We have already considered some such cases, and assumed that the effect of the transaction with the owner was to vest the ownership in the State so that the act may be regarded as a manumission. It is not, however, clear that this is in all cases a correct analysis of the transaction. It is possible for the State by an overriding decree to give liberty to a slave who does not belong to it. We have seen such a case in connexion with servi poenae. The cases shortly to be considered in which liberty is given in excess of any possible interpretation of the testator's intent, are not essentially different. The cases in which freedom is given as a punishment to the master can be explained only in the same way. These are of course legislative acts, but it is not clear that such things would have been beyond the administrative powers of the republican Senate and the magistrate even though the slave was not the property of the State. It is true that the Senate cannot make grants of civitas, but this is an equal difficulty if the transaction be regarded as a manumission.

The following chapters are an attempt to state, in systematic form, the most characteristic part of the most characteristic intellectual product of Rome. There is scarcely a problem which can present itself, in any branch of the law, the solution of which may not be affected by the fact that one of the parties to the transaction is a slave, and, outside the region of procedure, there are few branches of the law in which the slave does not prominently appear. Yet, important as the subject is, for the light it might be expected to throw on legal conceptions, there does not exist, so far as I know, any book which aims at stating the principles of the Roman Law of slavery as a whole. Wallon's wellknown book covers so much ground that it cannot treat this subject with fulness, and indeed it is clear that his interest is not mainly in the law of the matter. The same is true of Blair's somewhat antiquated but still readable little book.

But though there exists no general account, there is a large amount of valuable literature, mostly foreign. Much of this I have been unable to see, but without the help of continental writers, chiefly German, I could not possibly have written this book. Indeed there are branches of the subject in which my chapters are little more than compilation. I have endeavoured to acknowledge my indebtedness in footnotes, but in some cases more than this is required.

We have now to consider the rights and liabilities which may be created when a delict is committed by a slave. The general rule is that upon such a delict a noxal action lies against the dominus, under which he must either pay the damages ordinarily due for such a wrong, or hand over the slave to the injured person. We are not directly concerned with the historical origin of this liability: it is enough to say that it has been shewn that the system originated in private vengeance: the money payment, originally an agreed composition, develops into a payment due as of right, with the alternative of surrender: the pecuniary aspect of the liability becomes more and more prominent, till the surrender of the slave loses all trace of its original vindictive purpose, and is regarded as mere emolument, and the money composition comes to be regarded by some of the jurists as the primary liability. But the system as we know it was elaborated by the classical jurists, who give no sign of knowledge of the historical origin of the institution, and whose determinations do not depend thereon.

The XII Tables distinguish between Furtum and Noxa. Furtum here means furtum nee manifestum, (the more serious case was capitally punishable,) and Noxa no doubt refers to the other wrongs—mainly forms of physical damage—for which the Tables gave a money penalty. The provisions of the Tables as to most of these other matters were early superseded, but the verbal distinction between furtum and noxa was long retained in the transactions of everyday life.