Front Page Titles (by Subject) DE HIS QVI SVI VEL ALIENI IVRIS SINT. - Institutes of Roman Law
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DE HIS QVI SVI VEL ALIENI IVRIS SINT. - 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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DE HIS QVI SVI VEL ALIENI IVRIS SINT.
§ 48. Sequitur de iure personarum alia diuisio. nam quaedam personae sui iuris sunt, quaedam alieno iuri subiectae sunt.
Inst. 1, 8 pr.
§ 49. Rursus earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt.
Inst. l. c.
§ 50. Videamus nunc de his quae alieno iuri subiectae sint; 〈nam〉 si cognouerimus quae istae personae sint, simul intellegemus quae sui iuris sint.
Inst. l. c.
§ 51. Ac prius dispiciamus de iis qui in aliena potestate sunt.
Inst. l. c.
§ 52. In potestate itaque sunt serui dominorum. quae quidem potestas iuris gentium est: nam apud omnes peraeque gentes animaduertere possumus dominis in seruos uitae necisque potestatem esse; et quodcumque per seruum adquiritur, id domino adquiritur.
Inst. 1, 8, 1.
§ 53. Sed hoc tempore neque ciuibus Romanis, nec ullis aliis hominibus qui sub imperio populi Romani sunt, licet supra modum et sine causa in seruos suos saeuire; nam ex constitutione imperatoris Antonini qui sine causa seruum suum occiderit, non minus teneri iubetur, quam qui alienum seruum occiderit. sed et maior quoque asperitas dominorum per eiusdem principis constitutionem coercetur; nam consultus a quibusdam praesidibus prouinciarum de his seruis, qui ad fana deorum uel ad statuas principum confugiunt, praecepit ut si intolerabilis uideatur dominorum saeuitia cogantur seruos suos uendere. et utrumque recte fit; male enim nostro iure uti non debemus; qua ratione et prodigis interdicitur bonorum suorum administratio.
Inst. 1, 8, 2.
§ 54. Ceterum cum apud ciues Romanos duplex sit dominium (nam uel in bonis uel ex iure Quiritium uel ex utroque iure cuiusque seruus esse intellegitur), ita demum seruum in potestate domini esse dicemus, si in bonis eius sit, etiamsi simul ex iure Quiritium eiusdem non sit; nam qui nudum ius Quiritium in seruo habet, is potestatem habere non intellegitur.
DE HIS QVI SVI VEL ALIENI IVRIS SINT.
§ 48. Another division in the law of Persons classifies men as either dependent or independent.
§ 49. Those who are dependent or subject to a superior, are either in his power, in his hand, or in his mancipation.
§ 50. Let us first explain what persons are dependent on a superior, and then we shall know what persons are independent.
§ 51. Of persons subject to a superior, let us first examine who are in his power.
§ 52. Slaves are in the power of their proprietors, a power recognized by jus gentium, since all nations present the spectacle of masters invested with power of life and death over slaves; and (by the Roman law) the owner acquires everything acquired by the slave.
§ 53. But in the present day neither Roman citizens, nor any other persons under the empire of the Roman people, are permitted to indulge in excessive or causeless harshness towards their slaves. By a constitution of the Emperor Antoninus, a man who kills a slave of whom he is owner, is as liable to punishment as a man who kills a slave of whom he is not owner: and inordinate cruelty on the part of owners is checked by another constitution whereby the same emperor, in answer to inquiries from presidents of provinces concerning slaves who take refuge at temples of the gods, or statues of the emperor, commanded that on proof of intolerable cruelty a proprietor should be compelled to sell his slaves: and both ordinances are just, for we ought not to make a bad use of our lawful rights, a principle recognized in the interdiction of prodigals from the administration of their fortune.
§ 54. But as citizens of Rome may have a double kind of dominion, either bonitary or quiritary, or a union of both bonitary and quiritary dominion, a slave is in the power of an owner who has bonitary dominion over him, even unaccompanied with quiritary dominion; if an owner has only bare quiritary dominion he is not deemed to have the slave in his power.
§§ 52, 53. The condition of the slave was at its worst in the golden period of Roman history. As soon as Rome found her power irresistible she proceeded to conquer the world, and each stage of conquest was the reduction of a vast portion of mankind to slavery. 30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator, the captor of Tarentum; 150,000 Epirots by Paulus Aemilius, the subjugator of Epirus. Julius Caesar retrieved his shattered fortunes by enormous operations in the slave market during his campaign in Gaul. Thus, unfortunately for the slave, the slave market was continually glutted and slave life was cheap. The condition of the slave gradually but slowly improved under the emperors. The killing of the slave of another was not an offence under the lex Cornelia de sicariis itself, but by the interpretation of later times it was brought under this law. A lex Petronia of uncertain date, but which must have been passed before the destruction of Pompeii, a. d. 79, being mentioned in an inscription found there, required a slave-owner to obtain the permission of a magistrate before exposing a slave to be torn to pieces by wild beasts, and only allowed such permission to be granted for some offence committed by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master killing his own slaves who fell sick, and enacted that the exposure of a slave to perish in his sickness should operate as a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is said to have deprived proprietors of the power of putting slaves to death without a judicial sentence, Spartian, Had. 18 (but see on this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a master who killed his own slave to be responsible in the same way as if he had killed the slave of another, cf. § 53, 3 § 213, i. e. guilty of murder, and subject to the penalty of the lex Cornelia de sicariis. We read in Justinian’s Digest: Qui hominem occiderit punitur non habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2. The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be remembered, however, that none of these laws deprive the master of the right of punishing his slaves himself for domestic offences. Hadrian prohibited the castration of a slave, consenting or not consenting, under penalty of death, Dig. 48, 8, 4, 2. Antoninus Pius also protected slaves against cruelty and personal violation, Dig. 1, 6, 2, obliging the master, as we see by the text, to manumit them on account of his maltreatment. The Digest, 1, 6, 1, quoting § 53, after sine causa, interpolates, legibus cognita, thus placing slaves under the protection of the law, and almost recognizing in slaves some of the primordial rights of humanity, except that, as already observed, obligation does not necessarily imply a correlative right. Roman law to the end, unlike other legislations which have recognized forms of slavery, refused to admit any rights in the slave. Florentinus, however, not long after the time of Gaius, admitted that slavery, though an institution of jus gentium, was a violation of the law of nature. Servitus est constitutio juris gentium qua quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian says the same: Quod attinet ad jus civile, servi pro nullis habentur, non tamen et jure naturali; quia quod ad jus naturale attinet, omnes homines aequales sunt, Dig. 50, 17, 32. ‘Before the Civil law a slave is nothing, but not before the Natural law; for in the eye of Natural law all men are equal.’ The belief in a Natural law, more venerable than any Civil law, was very prevalent in the ancient world, and one of the principal contributions of Philosophy to civilization.
The absolute privation of all rights was sometimes expressed by saying that a slave has no persona, caput, or status: e. g. Servos quasi nec personam habentes, Nov. Theod. 17. Servus manumissus capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum servus manumittitur, quia servile caput nullum jus habet, ideo nec minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The word ‘persona,’ however, is sometimes applied to slaves; e. g. in personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput in the last but one of the above-quoted passages.
But though a Roman slave was incapable of being invested with rights for himself, yet he often filled positions of considerable importance both in public and private life and was allowed by his owner to hold a considerable peculium. It was because slaves were ordinarily employed as procuratores in commercial transactions, that Roman law failed to develop the principle of contractual agency, as it is understood in modern systems of jurisprudence.