De iure patronatus
(Concerning the right of patronage.)
1 Ulpianus libro nono de officio proconsulis. Patronorum querellas adversus libertos praesides audire et non translaticie exsequi debent, cum, si ingratus libertus sit, non impune ferre eum oporteat. sed si quidem inofficiosus patrono patronae liberisve eorum sit, tantummodo castigari eum sub comminatione aliqua severitatis non defuturae, si rursum causam querellae praebuerit, et dimitti oportet. enimvero si contumeliam fecit aut convicium eis dixit, etiam in exilium temporale dari debebit: quod si manus intulit, in metallum dandus erit: idem et si calumniam aliquam eis instruxit vel delatorem subornavit vel quam causam adversus eos temptavit.
1 Ulpianus, On the Office of Proconsul, Book IX. Governors should hear the complaints of patrons against their freedmen, and their cases should be tried without delay; for if a freedman is ungrateful, he should not go unpunished. Where, however, the freedman fails in the duty which he owes to his patron, his patroness, or their children, he should only be punished lightly, with a warning that a more severe penalty will be imposed if he again gives cause for complaint, and then be dismissed. But if he is guilty of insult or abuse of his patrons, he should be sent into temporary exile. If. he offers them personal violence, he must be sentenced to the mines. The same rule will apply where he has caused them annoyance by means of a vexatious lawsuit, or suborned an informer against them, or has attempted to make some accusation against them.
2 Ulpianus libro primo opinionum. Liberti homines negotiatione licita prohiberi a patronis non debent.
2 The Same, Opinions, Book I. Freedmen should not be forbidden by their patrons to transact lawful business.
3 Marcianus libro secundo institutionum. Si quis tutor datus, cum sibi legata esset ancilla et rogatus eam manumittere, manumiserit adgnito legato et tutela pupilli se excusaverit, divi Severus et Antoninus rescripserunt hunc esse quidem patronum, sed omni commodo patronatus carere.
3 Marcianus, Institutes, Book II. Where anyone is appointed a testamentary guardian, and a female slave is bequeathed to him, and he is asked to manumit her, and, after doing so, he receives a legacy and excuses himself from accepting the guardianship of the minor, the Divine Severus and Antoninus stated in a Rescript that while he was, in fact, a patron of the slave, he should be deprived of all the rights attaching to the condition of patronage.
4 Idem libro quinto institutionum. Iura libertorum patronorum liberis, cum pater eorum erat perduellionis damnatus, salva esse divi Severus et Antoninus benignissime rescripserunt, sicut ex alia causa punitorum liberis iura libertorum salva sunt.
4 The Same, Institutes, Book V. The Emperors Severus and Antoninus very properly stated in a Rescript that the rights over freedmen are preserved for children, where their father has been convicted of treason; just as such rights are preserved for the children of those who are punished for any other cause.
5 Idem libro tertio decimo institutionum. Divus Claudius libertum, qui probatus fuit patrono delatores summisisse, qui de statu eius facerent ei quaestionem, servum patroni esse iussit eum libertum. 1Imperatoris nostri rescripto cavetur, ut, si patronus libertum suum non aluerit, ius patroni perdat.
5 The Same, Institutes, Book XIII. The Divine Claudius ordered that a freedman who had been proved to have instigated informers to raise a question as to the civil status of his patron should again become the patron’s slave. 1It is provided by a Rescript of our Emperor that if a patron does not support his freedman, he shall forfeit his right of patronage.
6 Paulus libro secundo ad legem Aeliam Sentiam. Adigere iureiurando, ne nubat liberta vel liberos tollat, intellegitur etiam is, qui libertum iurare patitur. sed si ignorante eo suus filius adegerit stipulatus fuerit, nihil ei nocebit: certe si iussu patroni is qui in potestate est idem fecerit, dicendum est eum hac lege teneri. 1Stipulatus est centum operas aut in singulas aureos quinos dari: non videtur contra legem stipulatus, quia in potestate liberti est operas dare. 2Quamvis nulla persona lege excipiatur, tamen intellegendum est de his legem sentire, qui liberos tollere possunt. itaque si castratum libertum iureiurando quis adegerit, dicendum est non puniri patronum hac lege. 3Si patronus libertam iureiurando adegerit, ut sibi nuberet, si quidem ducturus eam adegit, nihil contra legem fecisse videbitur: si vero non ducturus propter hoc solum adegit, ne alii nuberet, fraudem legi factam Iulianus ait et perinde patronum teneri, ac si coegisset iurare libertam non nupturam. 4Lege Iulia de maritandis ordinibus remittitur iusiurandum, quod liberto in hoc impositum est, ne uxorem duceret, libertae, ne nuberet, si modo nuptias contrahere recte velint.
6 Paulus, On the Lex Ælia Sentia, Book II. He who permits his freedman to swear that he will not marry, or have any children, is understood to be in the same position as one who compels his freedwoman to swear that she will not marry, or have any children. If, however, his son should do this, without his father’s knowledge, or if he should enter into a stipulation with the freedman, this will not prejudice him in any way; but if a son who is under the control of his father should do so by his order, it is clear that he will be liable under the above-mentioned law. 1A patron stipulated for a hundred days of labor to be performed, or five aurei to be paid for each day by his freedman. This agreement does not seem to be contrary to law, because the freedman has the power to perform the labor. 2Although no person is excepted by this law, still it should be understood only to refer to those who can have children. Hence, if anyone should compel a freedman who has been castrated to take such an oath, it must be said that he cannot be held liable under this law. 3If a patron should compel his freed woman to swear to marry him, and he does so with the intention of marrying her, he will not be considered to have done anything illegal. If, however, the patron should not marry her, and only required her to take the oath to prevent her from marrying another, Julianus says that he has committed a fraud against the law, and that he should be liable, just as if he had compelled his freedwoman to swear not to marry at all. 4An oath is permitted by the Lex Julia relating to marriages of different orders, which, in this instance, is imposed upon a freedman or a freedwoman, not to marry, provided they desire to contract a legal marriage.
7 Modestinus libro singulari de manumissionibus. Divus Vespasianus decrevit, ut, si qua hac lege venierit, ne prostitueretur et, si prostituta esset, ut esset libera, si postea ab emptore alii sine condicione veniit, ex lege venditionis liberam esse et libertam prioris venditoris. 1Mandatis imperatorum cavetur, ut etiam in provinciis praesides de querellis patronorum ius dicentes secundum delictum admissum libertis poenas irrogent. interdum illae poenae a liberto ingrato exiguntur: vel pars bonorum eius aufertur et patrono datur: vel fustibus caeditur et ita absolvitur.
7 Modestinus, On Manumissions. The Divine Vespasian decreed if a female slave had been sold under this law upon condition that she should not be prostituted, and she should be prostituted, that she would become free; and that if she afterwards came into the possession of another purchaser, without this condition, that she should be free by virtue of the sale, and become the freedwoman of the former vendor. 1It is provided by the Decrees of the Emperors that the Governors of provinces, who have jurisdiction over the complaints of patrons, should impose penalties upon their freedmen in proportion to the gravity of their offences. These penalties are sometimes required in the case of an ungrateful freedman, and he is either deprived of a part of his property which is given to his patron, or he is scourged with whips, and then discharged.
8 Idem libro sexto regularum. Servum a filio familias milite manumissum divus Hadrianus rescripsit militem libertum suum facere, non patris. 1Servus non manumissus libertatem consequitur is, qui ea lege distractus est, ut manumittatur intra tempus: quod superveniens, licet non manumittatur, faciet tamen libertum emptoris.
8 The Same, Rules, Book VI. The Divine Hadrian stated in a Rescript that where a slave was manumitted by a son under paternal control, who was a soldier, he became the freedman of the soldier and not of his father. 1A slave who is not manumitted will obtain his freedom when he is sold under the condition that he be manumitted within a certain time; and, after the time has elapsed, he will become the freedman of the purchaser, even though he may not have been manumitted.
9 Idem libro nono regularum. Filii hereditate paterna se abstinentes ius, quod in libertis habent paternis, non amittunt: idem et in emancipato. 1Ut in bonis liberti locum quidam non haberent, lege excipiuntur: rei capitalis damnatus, si restitutus non est: si index cuius flagitii sit fueritve vel maior annis viginti quinque cum esset, capitis accusaverit libertum paternum.
9 The Same, Rules, Book IX. Sons who refuse to accept the estates of their fathers do not lose their rights over the freedmen of the latter. The same rule applies to an emancipated son. 1Some masters, who do not retain their rights as patrons over the property of their freedmen, are excepted by the law, as in the case of one who has been condemned to death, and has not been restored to his civil rights; or one who has been the informer of a crime committed by his freedman; or where a son, over twenty-five years of age, has accused a freedman belonging to his father of a capital crime.
10 Terentius Clemens libro nono ad legem Iuliam et Papiam. Eum patronum, qui capitis libertum accusasset, excludi a bonorum possessione contra tabulas placuit. Labeo existimabat capitis accusationem eam esse, cuius poena mors aut exilium esset. qui nomen detulit, accusasse intellegendus est, nisi abolitionem petit: idque etiam Proculo placuisse Servilius refert.
10 Terentius Clemens, On the Lex Julia et Papia, Book IX. It has been decided that a patron who has accused his freedman of a capital crime is excluded from prætorian possession of his estate contrary to the provisions of the will. Labeo thinks that the accusation of a capital crime should include both those which involve the penalty of death, and those punished by exile. An accuser is understood to be one who gave the name of the alleged guilty person, unless he asks that he receive immunity. Servilius says that this was also the opinion of Proculus.
11 Ulpianus libro decimo ad legem Iuliam et Papiam. Is autem nec ad legitimam hereditatem, quae ex lege duodecim tabularum defertur, admittitur.
11 Ulpianus, On the Lex Julia et Papia, Book X. Moreover, he will not be admitted to the succession of his intestate freedman which is granted him by the Law of the Twelve Tables.
12 Modestinus libro primo responsorum. Gaius Seius decedens testamento ordinato inter filios suos Iulium libertum suum, quasi et ipsum filium, ex parte heredem nominavit: quaero, an huiusmodi scriptura possit liberto statum condicionis mutare. Modestinus respondit statum mutare non posse.
12 Modestinus, Opinions, Book I. Gaius Seius, having died after making his will, appointed his freedman Julius, together with his sons, heir to part of his estate, just as if he had been his own child. I ask whether an appointment of this kind can change the civil condition of the freedman. Modestinus gave it as his opinion that it would not change his condition.
13 Idem libro primo pandectarum. Filius familias servum peculiarem manumittere non potest. iussu tamen patris manumittere potest: qui manumissus libertus fit patris.
13 The Same, Pandects, Book I. A son under paternal control cannot manumit a slave who is part of his peculium, unless he does so by order of his father; and the slave, after having been manumitted, becomes the freedman of the father.
14 Ulpianus libro quinto ad legem Iuliam et Papiam. Si iuravero me patronum esse, dicendum est non esse me quantum ad successionem patronum, quia iusiurandum patronum non facit: aliter atque si patronum esse pronuntiatum sit: tunc enim sententia stabitur.
14 Ulpianus, On the Lex Julia et Papia, Book V. If I should swear in court that I am the patron of a certain slave, it must be held that I am not entitled to his estate in that capacity, because an oath does not constitute a patron. The case would, however, be different, if it had been judicially decided that I was his patron, for then the judgment will stand.
15 Paulus libro octavo ad legem Iuliam et Papiam. Qui contra legem Aeliam Sentiam ad iurandum libertum adegit, nihil iuris habet nec ipse nec liberi eius.
15 Paulus, On the Lex Julia et Papia, Book VIII. Anyone who compels his freedman to be sworn contrary to the Lex Ælia Sentia will neither himself nor his children have any rights over the freedman.
16 Ulpianus libro decimo ad legem Iuliam et Papiam. Si libertus minorem se centenario in fraudem legis fecerit, ipso iure non valebit id quod factum est, et ideo quasi in centenarii liberti bonis locum habebit patronus: quidquid igitur quaqua ratione alienavit, ea alienatio nullius momenti est. plane si qua alienaverit in fraudem patroni, adhuc tamen post alienationem maior centenario remaneat, alienatio quidem vires habebit, verumtamen per Favianam et Calvisianam actionem revocabuntur ea quae per fraudem sunt alienata: et ita Iulianus saepissime scribit eoque iure utimur. diversitatis autem ea ratio est. quotiens in fraudem legis fit alienatio, non valet quod actum est: in fraudem autem fit, cum quis se minorem centenario facit ad hoc, ut legis praeceptum evertat. at cum alienatione facta nihilo minus centenarius est, non videtur in fraudem legis factum, sed tantum in fraudem patroni: idcirco Faviano vel Calvisiano iudicio revocabitur id quod alienatum est. 1Si quis plures res simul alienando minorem se centenario fecerit, quarum una revocata vel omnium partibus maior centenario efficitur: utrum revocamus omnes an pro rata ex singulis, ut centenarium eum faciamus? magisque est, ut omnium rerum alienato facta nullius momenti sit. 2Si quis plane non semel alienaverit, sed quasdam res ante, quasdam postea, alienatio earum rerum quae postea alienatae sunt ipso iure non revocabitur, sed priorum: in posterioribus Favianae locus erit.
16 Ulpianus, On the Lex Julia et Papia, Book X. When a freedman commits a fraud against the law, in order that he may die worth less than a hundred thousand sesterces, his act is void by operation of law; and therefore his patron will succeed him as a freedman possessed an estate of that amount. Hence, everything which he has alienated, for any reason whatsoever, will be of no force or effect. It is evident that if he should alienate any property for the purpose of defrauding his patron, and, after doing so, he should remain worth more than a hundred thousand sesterces, the alienation will be valid, but any property which was fraudulently disposed of can be recovered by the Favian or the Calvisian action. Julianus has frequently stated this, and it is our practice. The reason for this difference is that whenever an alienation of anything is made for the purpose of defrauding the law the act is void. Moreover, he is guilty of fraud who diminishes the value of his estate to less than a hundred thousand sesterces for the purpose of evading the provisions of the law. But if, after the alienation has taken place, he still remains the owner of property worth a hundred thousand sesterces, he is not considered to have committed a fraud against the law, but only against his patron; and therefore the property which he has disposed of can be recovered by either the Favian or the Calvisian Action. 1Where anyone, for the purpose of diminishing the value of his property to an amount under a hundred thousand sesterces, alienates several articles at once, so that by revoking the sale of one, or of portions of all of them, he will be worth more than a hundred thousand sesterces, will it be necessary for us to revoke the sale of all the articles, or that of each one pro rata, in order to render his fortune equal to a hundred thousand sesterces? The better opinion is that the alienation of all the articles is of no force or effect. 2If anyone should not sell all of his property at once, but a part of it at one time, and a part of it at another, the subsequent alienation will not be revoked by operation of law, but the former one will be; and there will be ground for the institution of the Favian Action with reference to the property last disposed of.
17 Idem libro undecimo ad legem Iuliam et Papiam. Divi fratres in haec verba rescripserunt: ‘Comperimus a peritioribus dubitatum aliquando, an nepos contra tabulas aviti liberti bonorum possessionem petere possit, si eum libertum pater patris, cum annorum viginti quinque esset, capitis accusasset, et Proculum, sane non levem iuris auctorem, in hac opinione fuisse, ut nepoti in huiusmodi causa non putaret dandam bonorum possessionem. cuius sententiam nos quoque secuti sumus, cum rescriberemus ad libellum Caesidiae Longinae: sed et Volusius Maecianus amicus noster ut et iuris civilis praeter veterem et bene fundatam peritiam anxie diligens religione rescripti nostri ductus sit ut coram nobis adfirmavit non arbitratum se aliter respondere debere. sed cum et ipso Maeciano et aliis amicis nostris iuris peritis adhibitis plenius tractaremus, magis visum est nepotem neque verbis neque sententia legis aut edicti praetoris ex persona vel nota patris sui excludi a bonis aviti liberti: plurium etiam iuris auctorum, sed et Salvi Iuliani amici nostri clarissimi viri hanc sententiam fuisse’. 1Item quaesitum est, si patroni filius capitis accusaverit libertum, an hoc noceat liberis ipsius. et Proculus quidem in hac fuit opinione notam adspersam patroni filio liberis eius nocere, Iulianus autem negavit: sed hic idem quod Iulianus erit dicendum.
17 The Same, On the Lex Julia et Papia, Book XI. The Divine Brothers stated the following in a Rescript: “We have ascertained from those who are the most learned in the law that it was sometimes doubtful whether a grandson could demand prætorian possession of the estate of his grandfather contrary to the provisions of the will, if his father, who was over twenty-five years of age, had accused him of a capital crime. It is true that Proculus, a jurist of great authority, was of the opinion that, in a case of this kind, prætorian possession should not be given to the grandson; and we adopted this opinion when we issued a Rescript in answer to the application of Cæsidia Longina. But, our friend Volusius Mæcianus, Prætor of the Civil Law, and one who pays the greatest attention to old and well-founded precedents, being influenced by his respect for Our Rescript (as he stated to Us) did not think that he could decide otherwise. But as We have discussed this point very fully with Mæcianus himself, and with others of our friends learned in the law, the better opinion seems to be that a grandson will not be excluded from the estate of his freedman’s grandfather, either by the words or the spirit of the law, or by the Edict of the Prætor, or on his own account, or by the stigma attaching to his father. We are also aware that this opinion has been adopted by many eminent jurists, as well as by that most illustrious man Salvius Julianus, our friend.” 1The question also arose, if a son accused the freedman of his father of a capital offence, whether this would prejudice the rights of his children. Proculus held that the stigma attaching to the son of the patron would prejudice his children. Julianus, however, denies that this is the case; and it must be held that the opinion of Julianus should be adopted.
18 Scaevola libro quarto responsorum. Quaero, an libertus prohiberi potest a patrono in eadem colonia, in qua ipse negotiatur, idem genus negotii exercere. Scaevola respondit non posse prohiberi.
18 Scævola, Opinions, Book IV. I ask whether a freedman can be prevented by his patron from carrying on the same kind of business which his patron is transacting in the same colony. Scævola answered that he could not be prevented from doing so.
19 Paulus libro primo sententiarum. Ingratus libertus est, qui patrono obsequium non praestat vel res eius filiorumve tutelam administrare detractat.
19 Paulus, Sentences, Book I. A freedman is ungrateful when he does not show proper respect for his patron, or refuses to manage his property, or undertake the guardianship of his children.
20 Idem libro tertio sententiarum. Sicut testamento facto decedente liberto potestas datur patrono vel libertatis causa imposita petere vel partis bonorum possessionem, ita et cum intestato decesserit, earum rerum electio ei manet.
20 The Same, Sentences, Book III. Where a freedman dies after making his will, power is given to his patron to demand either payment of whatever was due for granting him his freedom, or prætorian possession of a part of his estate; and even if the freedman should die intestate, the patron will still have the choice of these two things.
21 Hermogenianus libro tertio iuris epitomarum. Sive patronus sive libertus deportetur et post restituatur, amissum patronatus et petendae contra tabulas bonorum possessionis ius recipitur: quod ius servatur et si in metallum patronus vel libertus damnatus restituatur. 1Excluditur contra tabulas bonorum possessione patronus et si ex uncia heres instituatur et id, quod deest ad supplendam debitam portionem, per servum iudicio liberti sine condicione et dilatione ei, hereditate vel legato sive fideicommisso, quaeri potest. 2Ex duobus patronis unus, ex debita parte heres institutus sine condicione et dilatione, contra tabulas bonorum possessionem petere non poterit, licet, si minor ei portio esset relicta et contra tabulas bonorum possessionem petisset, alia etiam portio ei adcrescere potuisset. 3Naturales liberi liberti exheredati facti, alio ex parte herede instituto, si per servum ex alia parte parenti successerint, obiciuntur patrono. 4Liberti filius heres institutus si bona repudiaverit, patronus non excluditur.
21 Hermogenianus, Epitomes of Law, Book III. If the patron or the freedman has been banished, and afterwards restored to his civil condition, the right of patronage, as well as that to demand prætorian possession contrary to the provisions of the will, which have been lost, will be restored; and this right is preserved, even if the patron or the freedman should be restored to his former status after having been sentenced to the mines. 1A patron is excluded from prætorian possession contrary to the provisions of the will when he is appointed heir to only a twelfth of the estate; and what is necessary to make up the amount to which he is entitled can be obtained through his slave by a bequest of the freedman payable unconditionally, and without delay, either by leaving him the estate, or a legacy, or a sum of money payable under a trust. 2Where only one of two patrons is appointed heir to what is due to him unconditionally, and without delay, he cannot demand prætorian possession in opposition to the provisions of the will; even if a smaller amount than he was entitled to has been left to him, and he should demand prætorian possession of the estate contrary to the provisions of the will, the share of the other patron will accrue to him. 3If the natural children of a freedman, who had been disinherited by him, should through their slaves succeed to a share of the estate of their father, a stranger having been appointed heir to the remainder, this will affect the right of the patron. 4Where the son of a freedman is appointed his heir, and rejects the estate, the patron will not be excluded.
22 Gaius libro singulari de casibus. Satis constat, etiamsi in potestate sit parentis filius patronae, nihilo minus legitimo iure ad eum pertinere hereditatem.
22 Gaius, On Special Cases. It is well established that even if the son of a patroness is under parental control, the estate will still belong to him by law.
23 Tryphoninus libro quinto decimo disputationum. Si filius patris necem inultam reliquerit, quam servus detexit et meruit libertatem, dixi non habendum pro patroni filio, quia indignus est. 1Cum ex falsis codicillis, qui veri aliquo tempore crediti sunt, heres ignorans quasi ex fideicommisso libertatem servis praestitisset, rescriptum est a divo Hadriano liberos quidem eos esse, sed aestimationem sui praestare debere: et hos libertos manumissoris esse recte probatur, quia salvum est etiam in his libertis ius patroni.
23 Tryphoninus, Disputations, Book XV. When a son left the death of a father unavenged, and a slave having detected the murderer, had deserved his freedom on this account, I held that the son should not be considered as the patron of the slave, for the reason that he was unworthy. 1Where a false codicil had been made, which at first was considered to be genuine, and the heir, ignorant of the fact, granted freedom to certain slaves by virtue of a trust created by said codicil, it was stated in a Rescript of the Divine Hadrian that the slaves would be free, but that they must pay the heir their full value. And it was justly held that the said slaves should become the manumitted freedmen of the heir, for the reason that his right over them as patron still remained in force.
24 Paulus imperialium sententiarum in cognitionibus prolatarum sive decretorum ex libris sex libro primo. Camelia Pia ab Hermogene appellaverat, quod diceret iudicem de dividenda hereditate inter se et coheredem non tantum res, sed etiam libertos divisisse: nullo enim iure id eum fecisse. placuit nullam esse libertorum divisionem: alimentorum autem divisionem a iudice inter coheredes factam eodem modo ratam esse.
24 Paulus, In the First of the Six Books of the Imperial Decrees Rendered in Council; or the Imperial Decisions. Camelia Pia appealed from the decision of Hermogenes, which set forth that the judge who had jurisdiction over an estate to be divided between herself and her co-heir had divided not only the property, but the freedmen as well. It was decided that this had not been done in accordance with any law, and that the division of the freedmen was void; but that the appointment of the provisions made by the judge among the co-heirs should be confirmed without any alteration.