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[IIII. DE DE DI TICIIS VEL LEGE AELIA SENTIA.] - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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[IIII. DE DEDITICIIS VEL LEGE AELIA SENTIA.]
§ 13. Lege itaque Aelia Sentia cauetur ut qui serui a dominis poenae nomine uincti sint, quibusue stigmata inscripta sint, deue quibus ob noxam quaestio tormentis habita sit et in ea noxa fuisse conuicti sint, quiue ut ferro aut cum bestiis depugnarent traditi sint, inue ludum custodiamue coniectifuerint, et postea uel ab eodem domino uel ab alio manumissi, eiusdem condicionis liberi fiant, cuius condicionis sunt peregrini dediticii.
[V. DE PEREGRINIS DEDITICIIS.]
§ 14. Vocantur autem peregrini dediticii hi qui quondam aduersus populum Romanum armis susceptis pugnauerunt, deinde uicti se dediderunt.
§ 15. Huius ergo turpitudinis seruos quocumque modo et cuiuscumque aetatis manumissos, etsi pleno iure dominorum fuerint, numquam aut ciues Romanos aut Latinos fieri dicemus, sed omni modo dediticiorum numero constitui intellegemus.
§ 16. Si uero in nulla tali turpitudine sit seruus, manumissum modo ciuem Romanum modo Latinum fieri dicemus.
§ 17. Nam in cuius persona tria haec concurrunt, ut maior sit annorum triginta, et ex iure Quiritum domini, et iusta ac legitima manumissione liberetur, id est uindicta aut censu aut testamento, is ciuis Romanus fit; sin uero aliquid eorum deerit, Latinus erit.
[VI. DE MANVMISSIONE VEL CAVSAE PROBATIONE.]
§ 18. Quod autem de aetate serui requiritur, lege Aelia Sentia introductum est. nam ea lex minores xxx annorum seruos non aliter uoluit manumissos ciues Romanos fieri, quam si uindicta, apud consilium iusta causa manumissionis adprobata, liberati fuerint.
§ 19. Iusta autem causa manumissionis est ueluti si quis filium filiamue aut fratrem sororemue naturalem, aut alumnum, aut paedagogum, aut seruum procuratoris habendi gratia, aut ancillam matrimonii causa, apud consilium manumittat.
[VII. DE CONSILIO ADHIBENDO.]
§ 20. Consilium autem adhibetur in urbe Roma quidem quinque senatorum et quinque equitum Romanorum puberum; in prouinciis autem uiginti recuperatorum ciuium Romanorum, idque fit ultimo die conuentus; sed Romae certis diebus apud consilium manumittuntur. maiores uero triginta annorum serui semper manumitti solent, adeo ut uel in transitu manumittantur, ueluti cum praetor aut pro consule in balneum uel in theatrum eat.
§ 21. Praeterea minor triginta annorum seruus [manumissus] potest ciuis Romanus fieri, si ab eo domino qui soluendo non erat, testamento eum liberum et heredem relictum ——— (24 uersus in C legi nequeunt) Ulp. 1, 14; Inst. 1, 6, 1; Epit. 1, 1, 2.
§ 22. — homines Latini Iuniani appellantur; Latini ideo, quia adsimulati sunt Latinis coloniariis; Iuniani ideo, quia per legem Iuniam libertatem acceperunt, cum olim serui uiderentur esse.
§ 23. Non tamen illis permittit lex Iunia uel ipsis testamentum facere, uel ex testamento alieno capere, uel tutores testamento dari.
Ulp. 20, 14.
§ 24. Quod autem diximus ex testamento eos capere non posse, ita intellegemus, ne quid directo hereditatis legatorumue nomine eos posse capere dicamus: alioquin per fideicommissum capere possunt.
§ 25. Hi uero qui dediticiorum numero sunt nullo modo ex testamento capere possunt, non magis quam quilibet peregrinus, nec ipsi testamentum facere possunt secundum id quod magis placuit.
§ 26. Pessima itaque libertas eorum est qui dediticiorum numero sunt; nec ulla lege aut senatusconsulto aut constitutione principali aditus illis ad ciuitatem Romanam datur.
§ 27. Quin etiam in urbe Roma uel intra centesimum urbis Romae miliarium morari prohibentur; et si qui contra ea fecerint, ipsi bonaque eorum publice uenire iubentur ea condicione, ut ne in urbe Roma uel intra centesimum urbis Romae miliarium seruiant neue umquam manumittantur; et si manumissi fuerint, serui populi Romani esse iubentur. et haec ita lege Aelia Sentia conprehensa sunt.
FREEDMEN ASSIMILATED TO SURRENDERED FOES AND DISPOSITIONS OF THE LEX AELIA SENTIA.
§ 13. The law Aelia Sentia enacts that slaves who have been punished by their proprietors with chains, or have been branded, or have been examined with torture on a criminal charge, and have been convicted, or have been delivered to fight with men or beasts, or have been committed to a gladiatorial school or a public prison, if subsequently manumitted by the same or by another proprietor, shall acquire by manumission the status of enemies surrendered at discretion.
CONCERNING SURRENDERED ENEMIES.
§ 14. Surrendered enemies are people who have taken up arms and fought against the people of Rome and having been defeated have surrendered.
§ 15. Slaves tainted with this degree of criminality, by whatever mode they are manumitted and at whatever age, and notwithstanding the plenary dominion of their proprietor, never become citizens of Rome or Latins, but can only acquire the status of enemies who have surrendered.
§ 16. If the slave has not committed offences of so deep a dye, manumission sometimes makes him a citizen of Rome, sometimes a Latin.
§ 17. A slave in whose person these three conditions are united, thirty years of age, quiritary ownership of the manumitter, liberation by a civil and statutory mode of manumission, i. e. by the form of vindicta, by entry on the censor’s register, by testamentary disposition, becomes a citizen of Rome: a slave who fails to satisfy any one of these conditions becomes only a Latin.
ON MANUMISSION AND PROOF OF ADEQUATE GROUNDS OF MANUMISSION.
§ 18. The requisition of a certain age of the slave was introduced by the lex Aelia Sentia, by the terms of which law, unless he is thirty years old, a slave cannot on manumission become a citizen of Rome, unless the mode of manumission is by the form of vindicta, preceded by proof of adequate motive before the council.
§ 19. There is an adequate motive of manumission if, for instance, a natural child or natural brother or sister or foster child of the manumitter’s, or a teacher of the manumitter’s child, or a male slave intended to be employed as an agent in business, or a female slave about to become the manumitter’s wife, is presented to the council for manumission.
CONCERNING THE CONSTITUTION OF THE COUNCIL.
§ 20. The council is composed in the city of Rome of five senators and five Roman knights above the age of puberty: in the provinces of twenty recuperators, who must be Roman citizens, and who hold their session on the last day of the assize. At Rome the council holds its session on certain days appointed for the purpose. A slave above the age of thirty can be manumitted at any time, and even in the streets, when the praetor or pro-consul is on his way to the bath or theatre.
§ 21. Under the age of thirty a slave becomes by manumission a citizen of Rome, when his owner being insolvent leaves a will, in which he gives him his freedom and institutes him his heir (2 § 154), provided that no other heir accepts the succession.
§ 22. Slaves manumitted in writing, or in the presence of witnesses, or at a banquet, are called Latini Juniani: Latini because they are assimilated in status to Latin colonists (§ 131), Juniani because they owe their freedom to the lex Junia, before whose enactment they were slaves in the eye of the law.
§ 23. These freedmen, however, are not permitted by the lex Junia either to make a will or to take under the will of another, or to be appointed testamentary guardians.
§ 24. Their incapacity to take under a will must only be understood as an incapacity to take directly as heirs or legatees, not to take indirectly as beneficiaries of a trust.
§ 25. Freedmen classed with surrendered enemies are incapable of taking under a will in any form, as are other aliens, and are incompetent to make a will according to the prevalent opinion.
§ 26. It is only the lowest grade of freedom, then, that is enjoyed by freedmen assimilated to surrendered aliens, nor does any statute, senatusconsult, or constitution open to them a way of obtaining. Roman citizenship.
§ 27. Further, they are forbidden to reside in the city of Rome or within the hundredth milestone from it; and if they disobey the prohibition, their persons and goods are directed to be sold on the condition that they shall be held in servitude beyond the hundredth milestone from the city, and shall be incapable of subsequent manumission, and, if manumitted, shall be the slaves of the Roman people: and these provisions are dispositions of the lex Aelia Sentia.
§ 14. Peregrini dediticii. Cf. Livy 1, 38; Theoph. 1, 5, 3.
§ 15. Pleno jure. Cf. § 54 and 2 § 41.
§ 17. The earliest forms of manumission depended on the fiction that the slave is a freeman. They therefore carry us back to a time when manumission was not legally recognized. Cf. Sohm, p. 174, n. 4, and p. 58, n. 4. Manumission was either a public or a private act. When manumission, besides freeing a slave from the dominion of his proprietor, converted him into a citizen of Rome, it was not a matter of merely private interest to be accomplished by the sole volition of the proprietor. Accordingly, the three modes of manumission which conferred Roman citizenship on the manumitted slave, vindicta, censu, testamento, involved in different forms the intervention of the State.
In manumission by Vindicta the State was represented by the praetor. The vindicta or festuca was a rod or staff, representing a lance, the symbol of dominion, with which the parties in a real action (vindicatio) touched the subject of litigation as they solemnly pronounced their claim, 4 § 16. Accordingly it was used in a suit respecting freedom (liberalis causa), for this, as status is a real right (jus in rem), was a form of real action, and was sometimes prosecuted by way of genuine litigation, sometimes was merely a solemn grant of liberty, that is, a species of alienation by surrender in the presence of the magistrate (in jure cessio). In a liberalis causa the slave to be manumitted, being the subject of the fictitious litigation, could not himself be a party, but was advocated by a vindex or adsertor libertatis, who in later times was usually represented by the praetor’s lictor. The adsertor grasping the slave with one of his hands, and touching him with the vindicta, asserted his freedom. The proprietor quitting his grasp of the slave (manu mittens) and confessing by silence or express declaration the justice of the claim, the magistrate pronounced the slave to be free. This procedure, which came to be much curtailed, belonging to the praetor’s voluntary, not his contentious, jurisdiction, did not require the praetor to be seated on his elevated platform in the comitium (pro tribunali), but might be transacted by him on the level ground (de plano); and as the mere presence of the praetor constituted a court (jus), he was usually seized upon for the purpose of manumissions as he was preparing to take a drive (gestatio), or to bathe, or to go to the theatre, § 20 (for the different accounts given of this mode of manumission see Roby, Private Law, 1, p. 26, n. 1).
In manumission by the Census the interests of the State were represented by the censor. Censu manumittebantur olim qui lustrali censu Romae jussu dominorum inter cives Romanos censum profitebantur, Ulpian, 1, 8. ‘Registry by the censor was an ancient mode of manumission by the quinquennial census at Rome when a slave at his master’s order declared his right to make his return of property (professio) on the register of Roman citizens.’ Ex jure civili potest esse contentio, quum quaeritur, is qui domini voluntate census sit, continuone an ubi lustrum conditum liber sit, Cic. De Orat. 1, 40. ‘It is a question of civil law, when a slave is registered with his owner’s sanction, whether his freedom dates from the actual inscription on the register or from the close of the censorial period.’ The census was a republican institution, which had been long obsolete when Gaius wrote. Ulpian, l. c., speaks of it as a thing of the past. Since the Christian era only three had been held, the last under Vespasian, a. d. 74.
Wills were originally executed at the Comitia calata, 2 § 101, where the dispositions of the testator, including his donations of freedom, received legislative sanction, being converted into a private law by the ratification of the sovereign assembly. When a new form of will was introduced, 2 § 102, testators retained their power of manumission, although the people here at the utmost were only symbolically represented by the witnesses of a mancipation. Bequests of liberty were either direct or indirect. A direct bequest of liberty (directo data libertas) made the manumitted slave a freedman of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect bequest, that is, a request to the heir to manumit the slave (fideicommissaria libertas), made the slave on manumission a freedman of the heir, 2 § 266.
§ 18. The lex Aelia Sentia passed in the reign of Augustus, a. d. 4, and named after the consuls Sextus Aelius Catus and Caius Sentius Saturninus, was intended to throw obstacles in the way of acquiring Roman citizenship (Sueton. Aug. 40). One of its enactments provided that a slave under the age of thirty could not be made a citizen unless manumitted by vindicta, after proof of adequate motive before a certain judicial board. We may inquire what would be the effect of manumission if the causae probatio were omitted. Inscription on the censor’s register, if in use, would probably have been null and void, as this ceremony was either a mode of making a Roman citizen or it was nothing. Testamentary manumission, as we learn from Ulpian, 1, 12, left the man legally a slave, but gave him actual liberty (possessio libertatis, in libertate esse, as opposed to libertas), a condition recognized and protected by the praetor. Manumission by vindicta left him still a slave (according to the MS. of Ulpian, ib. the slave of Caesar). Either the lex Aelia Sentia or lex Junia, it is uncertain which (cf. §§ 29, 31; Ulpian, l. c.), apparently provided that, in the absence of causae probatio, the minor triginta annis manumissus should belong to the new class which it introduced, namely, the Latini.
§ 19. Alumnus denotes a slave child reared by the manumitter, as appears from the following passage: Alumnos magis mulieribus conveniens est manumittere, sed et in viris receptum est, satisque est permitti eum manumitti in quo nutriendo propensiorem animum fecerint, Dig. 40, 2, 14 pr. ‘Foster children are more naturally manumitted by women than by men, though not exclusively; and it suffices to allow the manumission of a child who has won his master’s affection in the course of his education.’ (For the custom derived from Greece of employing slaves as paedagogi in Roman households see Smith’s Dict. of Greek and Roman Antiq. s. v.)
§ 20. The Equites Romani, who at Rome composed a moiety of the council mentioned in the text, were either Equites or Equites equo publico (for the title eques Romanus equo publico, which appears in inscriptions, see Wilmann’s Index Inscriptionum, 2178, 2182; cf. Greenidge, Infamia, p. 88). Eques was such merely by his census: Eques equo publico was a youth nominated by the emperor to the turmae equitum; not, however, intended for actual service with the legions, but merely marked out as an expectant of future employment in higher public functions, military or civil. The title of Princeps juventutis, often conferred by the emperors on their successors designate, denoted the leader of the Equites equo publico. This distinction of classes among Equites lasted down to the time of Hadrian, and perhaps later. In the time of Augustus, and subsequently, the list of judices (album judicum) was, according to Mommsen (Staatsr. 3, p. 535), taken simply from the Equites equo publico, the Senatores being no longer a decuria. Augustus added a new decuria, the Ducenarii, those whose census amounted to 200,000 sesterces, who judged minor cases; and subsequently Caligula added a fifth (cf. Greenidge’s Roman Public Life).
Recuperators are judges not taken from the panel (album judicum); see Greenidge’s Legal Procedure of Cicero’s Time, p. 266.
§ 21. Ulpian says, 1, 14, that a slave either under thirty years of age, or one who otherwise would only have become dediticius, or a freedman of the lowest class, if he is instituted the heres necessarius of an insolvent, becomes civis Romanus; cf. 2 § 154. Mommsen would supplement the text in this section with the following words—‘relictum alius heres nullus excludit neque ullus alius ex eo testamento heres existat idque eadem lege cautum est.’ In respect of what is missing in the remainder of the lacuna cf. note to Huschke’s Gaius.
When manumission was a purely private act, it could not confer Roman citizenship; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code promulgated a. d. 506 by Alaric II, king of the Visigoths of Spain and Gaul, contained, besides extracts from the codex Theodosianus (promulgated a. d. 438), a selection from the Sententiae of Paulus and an epitome of these Institutes of Gaius. From this epitome it appears that in the paragraphs now obliterated Gaius proceeded to explain the modes of private manumission by which a slave became Latinus Junianus, and instanced writing (per epistolam), attestation of witnesses (inter amicos), invitation of the slave to sit with other guests at the table of his master (convivii adhibitione).
§ 22. The lex Junia, as this law is called by Gaius and Ulpian (3, 3), or lex Junia Norbana, the title given to it by Justinian (Inst. 1, 5, 3), may be regarded as of uncertain date; the common opinion based on the word Norbana has been that it was passed in the reign of Tiberius, a. d. 19, fifteen years after the lex Aelia Sentia in the consulate of Marcus Junius Silanus and Lucius Norbanus Balbus, but it is now thought by some well-known writers to be earlier than the lex Aelia Sentia; thus Mommsen (Staatsr. 3, 626) is inclined to put it back to the end of the free republic (cf. Schneider, Zeitschr. d. Sav. Stiftung v. R. A. 1884). It defined and modified the status conferred by such acts of private manumission as were probably mentioned in this paragraph, converting Praetoris tuitione liber into ipso jure liber, or possessio libertatis into genuine libertas; with, however, sundry grievous stints and deductions. Under this statute the freedman was nominally assimilated to Latinus coloniarius, the citizen of a Roman colony in Latium; that is, had a moiety of the private rights composing civitas Romana or jus Quiritium, possessing commercium without connubium. As incapable of connubium or civil marriage, the Latinus was incapable of patria potestas over his children and of agnatio or civil relationship. Though incapable of civil marriage he was of course capable of gentile marriage (matrimonium, uxorem liberorum quaerendorum causa ducere) and of natural relationship (cognatio), just as an alien (peregrinus), though, by want of commercium, incapable of dominion ex jure Quiritium, was capable of bonitary ownership (in bonis habere) under the jus gentium.
In virtue of commercium, the Latinus Junianus was capable of Quiritary ownership, of civil acquisition and alienation (usucapio, mancipatio, in jure cessio), contract (obligatio), and action (vindicatio, condictio), like a Roman citizen; but in respect of testamentary succession his rights were very limited. He was said to have testamentary capacity (testamenti factio), Ulpian, 20, 8; but this only meant that he could perform the part of witness, or familiae emptor, or libripens (2 § 104), i. e. could assist another person to make a valid will; not that he could take under a will either as heir or as legatee, or could dispose of his own property by will, Ulpian, 20, 14. At his death all his property belonged to his patron, as if it were the peculium of a slave, 3 § 56. In fact, as Justinian says: Licet ut liberi vitam suam peragebant, attamen ipso ultimo spiritu simul animam atque libertatem amittebant, Inst. 3, 7, 4. ‘Though free in their lifetime, the same moment that deprived them of life reduced them to the condition of slaves.’
Although in the person of libertus himself, Latinitas retained many traces of its servile origin, yet it was not so for his posterity; these disabilities only attached to the original freedman, not to his issue. The son of the dediticius or Latinus Junianus, though reduced to absolute penury by the confiscation of the parental property to the patron, began, and continued, the world with the ordinary capacities, respectively, of peregrinus and Latinus coloniarius, and was under no legal obligations to the patron of his father.
Long before the time of Gaius, Latinitas or Latium had only a juristic, not an ethnographic signification. Cf. § 79. Soon after the Social War (b. c. 91) all Italy received the civitas Romana. Originally Gallia Cispadana (Southern Lombardy) had civitas Romana, while Gallia Transpadana (Northern Lombardy) had only Latinitas, but Gallia Transpadana afterwards obtained civitas. Latinitas was a definite juristic conception, and Latin status was conferred as a boon on many provincial towns and districts that had no connexion with Latium or its races. Vitellius is carped at by Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri, Hist. 3, 55). Hadrian made many similar grants (Latium multis civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See § 131 Comm.
[QVIBVS MODIS LATINI AD CIVITATEM ROMANAM PERVENIANT.]
§ 28. Latini uero multis modis ad ciuitatem Romanam perueniunt.
§ 29. Statim enim ex lege Aelia Sentia minores triginta annorum manumissi et Latini facti si uxores duxerint uel ciues Romanas uel Latinas coloniarias uel eiusdem condicionis, cuius et ipsi essent, idque testati fuerint adhibitis non minus quam septem testibus ciuibus Romanis puberibus, et filium procreauerint, cum is filius anniculus esse coeperit, datur eis potestas per eam legem adire praetorem uel in prouinciis praesidem prouinciae, et adprobare se ex lege Aelia Sentia uxorem duxisse et ex ea filium anniculum habere; et si is apud quem causa probata est id ita esse pronuntiauerit, tunc et ipse Latinus et uxor eius, si et ipsa 〈eiusdem condicionis sit, et filius, si et ipse〉 eiusdem condicionis sit, ciues Romani esse iubentur.
Ulp. 3, 3.
§ 30. Ideo autem in huius persona adiecimus ‘si et ipse eiusdem condicionis sit,’ quia si uxor Latini ciuis Romana est, qui ex ea nascitur, ex nouo senatusconsulto, quod auctore diuo Hadriano factum est, ciuis Romanus nascitur.
Cf. § 80; Ulp. l. c.
§ 31. Hoc tamen ius adipiscendae ciuitatis Romanae etiamsi soli minores triginta annorum manumissi et Latini facti ex lege Aelia Sentia habuerunt, tamen postea senatusconsulto, quod Pegaso et Pusione consulibus factum est, etiam maioribus triginta annorum manumissis Latinis factis concessum est.
§ 32. Ceterum etiamsi ante decesserit Latinus, quam anniculi filii causam probauerit, potest mater eius causam probare, et sic et ipsa fiet ciuis Romana, si Latina fuerit —|—NA permissum — | —NAquibusdam — |NA ipse filius ciuis Romanus sit, quia ex ciue Romana matre natus est, tamen debet causam probare ut suus heres patri fiat.
§ 32 a. 〈quae〉 uero diximus de filio annicul〈o, eadem et de filia annicula〉 dicta intellegemus.
§ 32 b. |—|—|NA id est fiunt ciues Romani, si Romae inter uigiles sex annis militauerint. postea dicitur factum esse senatusconsultum, quo data est illis ciuitas Romana, si triennium militiae expleuerint.
Ulp. 3, 5.
§ 32 c. Item edicto Claudii Latini ius Quiritium consecuntur, si nauem marinam aedificauerint, quae non minus quam decem milia modiorum frumenti capiat, eaque nauis uel quae in eius locum substituta sit sex annis frumentum Roman portauerit.
Ulp. 3, 6.
§ 33. Praeterea a Nerone constitutum est ut si Latinus qui patrimonium sestertium cc milium plurisue habebit in urbe Roma domum aedificauerit, in quam non minus quam partem dimidiam patrimonii sui inpenderit, ius Quiritium consequatur.
Tac. Ann. 15, 43; Ulp. 3, 1.
§ 34. Denique Traianus constituit ut si Latinus in urbe triennio pistrinum exercuerit, in quo in dies singulos non minus quam centenos modios frumenti pinseret, ad ius Quiritium perueniat.
Ulp. l. c.
§ 35. —|—|—| sequi —|NA maiores triginta annorum manumissi et Latini facti —|—NA ius Quiritium consequi — tri|ginta annorum manumittant —|—|NA manumissus uindicta aut censu aut testamento — ciuis Romanus|—NAlibertus fit qui eum iterauerit. ergo si seruus in | bonis tuis, ex iure Quiritium meus erit, Latinus quidem a te solo fieri potest, iterari autem a me, non etiam a te potest, et eo modo meus libertus fit. sed et ceteris modis ius Quiritium consecutus meus libertus fit. bonorum autem quae—, cum is morietur, reliquerit tibi possessio datur, quocumque modo ius Quiritium fuerit consecutus. quodsi cuius et in bonis et ex iure Quiritium sit manumissus, ab eodem scilicet et Latinus fieri potest et ius Quiritium consequi.
Ulp. 3, 1-4.
MODES BY WHICH LATIN FREEDMEN BECOME ROMAN CITIZENS.
§ 28. Latins have many avenues to the Roman citizenship.
§ 29. For instance, the lex Aelia Sentia enacts that when a slave below the age of thirty becomes by manumission a Latin, if he take to himself as wife a citizen of Rome, or a Latin colonist, or a freedwoman of his own condition, and thereof procure attestation by not less than seven witnesses, citizens of Rome above the age of puberty, and begets a son, on the latter attaining the age of a year, he is entitled to apply to the praetor, or, if he reside in a province, to the president of the province, and to prove that he has married a wife in accordance with the lex Aelia Sentia, and has had by her a son who has completed the first year of his age: and thereupon if the magistrate to whom the proof is submitted pronounce the truth of the declaration, that Latin and his wife, if she is of the same condition, and their son, if he is of the same condition, are declared by the statute to be Roman citizens.
§ 30. The reason why I added, when I mentioned the son, if of the same condition, was this, that if the wife of the Latin is a citizen of Rome, the son, in virtue of the recent senatusconsult made on the motion of the late Emperor Hadrian, is a citizen of Rome from the date of his birth.
§ 31. This capacity of acquiring Roman citizenship, though by the lex Aelia Sentia exclusively granted to those under thirty years of age who had become Latins by this statute, by a subsequent senatusconsult, made in the consulship of Pegasus and Pusio, was extended to all freedmen who acquire the status of Latins, even though thirty years old when manumitted.
§ 32. If the Latin die before proof of his son’s attaining the age of a year the mother may prove his condition, and thereupon both she and her son, if she be a Latin, become citizens of Rome. And if the mother fails to prove it, the tutors of the son may do so or the son himself when he has attained the age of puberty. If the son himself is a Roman citizen owing to the fact of his having been born of a Roman citizen mother, he must nevertheless prove his condition in order to make himself his father’s self successor.
§ 32 a. What has been said about a son of a year old, must be understood to be equally applicable to a daughter of that age.
§ 32 b. By the Visellian statute those either under or over thirty years of age, who when manumitted become Latins, acquire the jus quiritium, i. e. become Roman citizens, if they have served for six years in the guards at Rome. A subsequent senatusconsultum is said to have been passed, by which Roman citizenship was conferred on Latins, who completed three years’ active military service.
§ 32 c. Similarly by an edict of Claudius Latins acquire the right of citizenship, if they build a ship which holds 10,000 modii of corn, and this ship or one substituted for it imports corn to Rome for six years.
§ 33. Nero further enacted that if a Latin having property worth 200,000 sesterces or more, build a house at Rome on which he expends not less than half his property, he shall acquire the right of citizenship.
§ 34. Lastly, Trajan enacted that if a Latin carry on the business of miller in Rome for three years, and grinds each day not less than a hundred measures of wheat, he shall attain Roman citizenship.
§ 35. Slaves who become Latins either because they are under thirty at the time of their manumission, or having attained that age because they are informally manumitted, may acquire Roman citizenship by re-manumission in one of the three legal forms, and they are thereby made freedmen of their re-manumitter. If a slave is the bonitary property of one person and the quiritary property of another he can be made a Latin by his bonitary owner, but his re-manumission must be the act of his quiritary owner, and even if he acquires citizenship in other ways he becomes the freedman of his quiritary owner. The praetor, however, invariably gives the bonitary owner possession of the inheritance of such freedman. A slave in whom his owner has both bonitary and quiritary property, if twice manumitted by his owner, may acquire by the first manumission the Latin status, and by the second Roman citizenship.
§ 29. This enactment is stated by Ulpian to belong to the lex Junia (Ulp. 3, 3), cf. § 18, comm.
Pronuntiaverit. The decision (sententia) of the judex in a judicium ordinarium was either condemnatio or absolutio of the defendant. In actions in which the case was left to the arbitrium of a judex this was apparently preceded by pronuntiatio, a declaration of the rights of the parties. This appears from the following, among other passages: Sed et si fundum vindicem meum esse, tuque confessus sis, perinde teneberis atque si dominii mei fundum esse pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter me et te controversia esset, juravero hereditatem meam esse, id consequi debeo quod haberem si secundum me de hereditate pronuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for the plaintiff, if the defendant obeyed the arbitrium or provisional order of the judex by making restitution, there was no subsequent condemnatio. Cf. 4 § 49. In the form of real action, called a praejudicium, that is, a preliminary issue of fact, the pronuntiatio formed the whole result of the trial, and was not followed by sententia. Similarly, when a Latinus laid his claim of Roman citizenship before the praetor under this enactment of the lex Aelia Sentia, the result of the extraordinaria cognitio of the praetor was merely a pronuntiatio without any subsequent decretum.
§ 31. Pegasus and Pusius were consuls in the reign of Vespasian. Inst. 2, 23, 5.
§ 32 b-§ 35. For references to the Visellian law cf. Cod. 9, 21 and 31. It was probably passed a.d. 24, when Serv. Cornelius Cethegus and L. Visellius Varro were consuls (but see Mommsen, Staatsr. 3, 424). Besides the method provided by the lex Aelia Sentia, and by the Senatusconsultum mentioned in § 31, Latinus or Latina might attain the Roman citizenship under the following conditions:—
1. By erroris causae probatio, i.e. if Latinus marry Peregrina, believing her to be Latina or Civis, § 70; or Latina marry Peregrinus, believing him to be Latinus, § 69; or if Civis, believing himself to be Latinus or Peregrinus, marry Latina, § 71; or if Civis marry Peregrinus, believing him to be Civis or Latinus; or if Civis marry Latina or Peregrina, believing her to be Civis Romana, § 67; on birth of a child and on proof of this mistake, the Latinus or Latina and their offspring acquire the citizenship.
2. By magistracy in a Latin colony Latinus becomes Civis Romanus, §§ 95, 96.
3. By re-manumission (iteratio), i.e. on slaves under thirty when manumitted acquiring Latinity by one of the private modes of manumission, a subsequent manumission by one of the public modes, vindicta, censu, or testamento, converted them from Latini into Cives, § 35, and Ulp. 3, 4.
4. Under the lex Visellia above mentioned by six years’ service in the Roman guards (si inter vigiles Romae sex annos militaverit, Ulp. 3, 5). A decree of the senate made three years’ service a sufficient title, § 32 b. Compare the provision of 13 Geo. II, c. 3, whereby every foreign seaman who in time of war serves two years on board an English ship, and all foreign protestants serving two years in a military capacity in the American colonies, are naturalized.
5. Under a constitution of Nero by building a house in Rome (aedificio, Ulp. 3, 1), § 33.
6. Under an edict of Claudius by building a ship of 10,000 modii and importing corn to Rome for six years, § 32 c, Sueton. Claud., Ulp. 3, 6. Compare the English law by which all foreign protestants employed three years in the whale fishery are naturalized, except as to capacity for public office.
7. Under a constitution of Trajan by building a mill and bakehouse for the supply of Rome (pistrino, Ulp. 3, 1), § 34.
8. By bearing three children, Ulp. 3, 1.
9. By imperial grant (beneficio principali, Ulp. 3, 2). This and the previous mode of acquiring citizenship were perhaps mentioned by Gaius at the beginning of § 35.
Civitas Romana and Jus Quiritium are synonymous, but the former term was always used when citizenship was conferred on a Peregrinus, the latter generally when it was conferred on Latinus Junianus: e. g. Quare rogo, des ei civitatem, est enim peregrinae conditionis, manumissus a peregrina. . . . Idem rogo, des ius Quiritium libertis Antoniae Maximillae . . . quod a te, petente patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod et ius Quiritium libertis necessariae mihi feminae et civitatem Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid. 10, 5. Civitas Romana, however, was sometimes used in speaking of the enfranchisement of Latinus, as we see from § 28.
§ 36. | Non tamen cuicumque uolenti manumittere licet.
Inst. 1, 6 pr.
§ 37.Nam is qui | in fraudem creditorum uel in fraudem patroni manumittit, nihil agit, quia lex Aelia Sentia inpedit libertatem.
Inst. l. c., Ulp. 1, 15.
§ 38. Item eadem lege minori xx annorum domino non aliter manumittere permittitur, quam [si] uindicta apud consilium iusta causa manumissionis adprobata [fuerit].
Inst. 1, 6, 4.
§ 39. Iustae autem causae manumissionis sunt ueluti si quis patrem aut matrem aut paedagogum aut conlactaneum manumittat. sed et illae causae, quas superius in seruo minore xxx annorum exposuimus, ad hunc quoque casum de quo loquimur adferri possunt. item ex diuerso hae causae, quas in minore xx annorum domino rettulimus, porrigi possunt et ad seruum minorem xxx annorum.
Inst. 1, 6, 4, 5.
§ 40. Cum ergo certus modus manumittendi minoribus xx annorum dominis per legem Aeliam Sentiam constitutus sit, euenit ut qui xiiii annos aetatis expleuerit, licet testamentum facere possit et in eo heredem sibi instituere legataque relinquere possit, tamen, si adhuc minor sit annorum xx, libertatem seruo dare non possit.
Inst. 1, 6, 7.
§ 41. Et quamuis Latinum facere uelit minor xx annorum dominus, tamen nihilo minus debet apud consilium causam probare et ita postea inter amicos manumittere.
§ 36. Not every owner who is so disposed is permitted to manumit.
§ 37. An owner who would defraud his creditors or his own patron by an intended manumission, attempts in vain to manumit, because the lex Aelia Sentia prevents the manumission.
§ 38. Again, by a disposition of the same statute, before attaining twenty years of age, the only process by which an owner can manumit is fictitious vindication, preceded by proof of adequate motive before the council.
§ 39. It is an adequate motive of manumission, if the father, for instance, or mother or teacher or foster-brother of the manumitter, is the slave to be manumitted. In addition to these, the motives recently specified respecting the slave under thirty years of age may be alleged when the manumitting owner is under twenty; and, reciprocally, the motives valid when the manumitting owner is under twenty are admissible when the manumitted slave is under thirty.
§ 40. As, then, the lex Aelia Sentiaimposes a certain restriction on manumission for owners under the age of twenty, it follows that, though a person who has completed his fourteenth year is competent to make a will, and therein to institute an heir and leave bequests; yet, if he has not attained the age of twenty, he cannot therein enfranchise a slave.
§ 41. And even to confer the Latin status, if he is under the age of twenty, the owner must satisfy the council of the adequacy of his motive before he manumits the slave in the presence of witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17, or the beginning of the eighteenth year (Inst. 1, 6, 7), finally permitted minors to enfranchise by will as soon as they could make a valid will, i. e. at the age of 14 (Novella, 119, 2). He mentions that the lowest class of freedmen (dediticia libertas) had long been obsolete, and formally abolished the second class (latina libertas), converting informal modes of making Latinus, such as per epistolam, inter amicos, into modes of making Civis Romanus, and declaring the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst. 1, 5.
DE LEGE FVFIA CANINIA.
§ 42. Praeterea lege Fufia Caninia certus modus constitutus est in seruis testamento manumittendis.
Inst. 1, 7, 1.
§ 43. Nam ei qui plures quam duos neque plures quam decem seruos habebit usque ad partem dimidiam eius numeri manumittere permittitur; ei uero, qui plures quam x neque plures quam xxx seruos habebit usque ad tertiam partem eius numeri manumittere permittitur. at ei qui plures quam xxx neque plures quam centum habebit usque ad partem quartam potestas manumittendi datur. nouissime ei qui plures quam c nec plures quam d habebit, non plures manumittere permittitur quam quintam partem; neque plures 〈—〉 tur: sed praescribit lex, ne cui plures manumittere liceat quam c. quodsi quis unum seruum omnino aut duos habet, ad hanc legem non pertinet et ideo liberam habet potestatem manumittendi.
§ 44. Ac ne ad eos quidem omnino haec lex pertinet qui sine testamento manumittunt. itaque licet iis, qui uindicta aut censu aut inter amicos manumittunt, totam familiam liberare, scilicet si alia causa non inpediat libertatem.
§ 46. Nam et si testamento scriptis in orbem seruis libertas data sit, quia nullus ordo manumissionis inuenitur, nulli liberi erunt, quia lex Fufia Caninia quae in fraudem eius facta sint rescindit. sunt etiam specialia senatusconsulta quibus rescissa sunt ea quae in fraudem eius legis excogitata sunt.
§ 47. In summa sciendum est, 〈cum〉 lege Aelia Sentia cautum sit, ut creditorum fraudandorum causa manumissi liberi non fiant, hoc etiam ad peregrinos pertinere (senatus ita censuit ex auctoritate Hadriani), cetera uero iura eius legis ad peregrinos non pertinere.
DE LEGE FVFIA CANINIA.
§ 42. Moreover, by the lex Fufia Caninia a certain limit is fixed to the number of slaves who can receive testamentary manumission.
§ 43. An owner who has more than two slaves and not more than ten is allowed to manumit as many as half that number; he who was more than ten and not more than thirty is allowed to manumit a third of that number; he who has more than thirty and not more than a hundred is allowed to manumit a fourth; lastly, he who has more than a hundred and not more than five hundred is allowed to manumit a fifth: and, however many a man possesses, he is never allowed to manumit more than this number, for the law prescribes that no one shall manumit more than a hundred. On the other hand, if a man has only one or only two, the law is not applicable, and the owner has unrestricted power of manumission.
§ 44. Nor does the statute apply to any but testamentary manumission, so that by the form of vindicta or inscription on the censor’s register, or by attestation of friends, a proprietor of slaves may manumit his whole household, provided that there is no other let or hindrance to impede their manumission.
§ 46. If a testator manumits in excess of the permitted number, and arranges their names in a circle, as no order of manumission can be discovered, none of them can obtain their freedom, as both the lex Fufia Caninia itself and certain subsequent decrees of the senate declare null and void all dispositions contrived for the purpose of eluding the statute.
§ 47. Finally, it is to be noted that the provision in the lex Aelia Sentia making manumissions in fraud of creditors inoperative, was extended to aliens by a decree of the senate passed on the proposition of the Emperor Hadrian; whereas the remaining dispositions of that statute are inapplicable to aliens.
§ 47. The lex Fufia Caninia, passed under Augustus (Sueton. Aug. 40), to prevent the degradation of citizenship by testators abusing their testamentary right of manumission, was generally called the lex Furia Caninia before the manuscript of Gaius was re-examined by Studemund; it was abrogated by Justinian. See Inst. 1, 7. The clause of the lex Aelia Sentia referred to in the text was retained by Justinian. Inst. 1, 6 pr.