De adsignandis libertis
(Concerning the assignment of freedmen.)
1 Ulpianus libro quarto decimo ad Sabinum. Senatus consulto quod factum est Claudianis temporibus Velleo Rufo et Osterio Scapula consulibus de adsignandis libertis in haec verba cavetur: ‘si, qui duos pluresve liberos iustis nuptiis quaesitos in potestate haberet, de liberto libertave sua significasset, cuius ex liberis suis eum libertum eamve libertam esse vellet, is eave, quandoque is, qui eum eamve manumisit inter vivos vel testamento, in civitate esse desisset, solus ei patronus solave patrona esset, perinde atque si ab eo eave libertatem consecutus consecutave est. utique, si ex liberis quis in civitate esse desisset neque ei liberi ulli essent, ceteris eius liberis qui manumisit perinde omnia iura serventur, ac si nihil de eo liberto eave liberta is parens significasset’. 1Quamvis singulari sermone senatus consultum scriptum est, tamen et pluribus liberis et plures libertos libertasve posse adsignari certum est. 2Is quoque libertus, qui apud hostes est, adsignari potest. 3Adsignare autem quis potest quibuscumque verbis vel nutu, vel testamento vel codicillis vel vivus. 4Adimere adsignationem etiam nuda voluntate poterit. 5Sed et si exheredato filio libertum quis adsignaverit, valet adsignatio, nec nocet ei nota exheredationis quantum ad ius patronatus. 6Sed si post adsignationem fuerit exheredatus, non semper exheredatio adimet adsignationem, nisi hoc animo facta sit. 7Sed si is cui adsignatus est repudiaverit, puto verius, quod et Marcellus scripsit, posse admitti fratres eius. 8Si sit ex patrono filius unus, ex altero duo et uni eorum libertus adsignatus est, videndum, quot partes fiant hereditatis liberti, utrum tres, ut duas habeat is cui adsignatus est, id est suam et fratris, an vero aequales partes fiant, quoniam per adsignationem alius excluditur. et Iulianus libro septuagensimo quinto scripsit magis esse, ut bessem hic habeat, qui fratrem excludit: quod verum est, quamdiu frater eius vivat vel admitti potuit ad legitimam hereditatem: ceterum si fuerit capite minutus, aequales partes habebunt.
1 Ulpianus, On Sabinus, Book XIV. By a decree of the Senate enacted in the time of the Emperor Claudius, during the Consulate of Velleius Rufus and Osterius Scapula, with reference to the assignment of freedmen, it was provided as follows: “Where anyone has two or more children born in lawful marriage, and has indicated to one of them that he wishes to assign to him or her a certain freedman or freedwoman, whom he designates, the said male or female child, after the death of the person who manumitted the said slave during his lifetime, or by his will, shall become the sole patron or patroness of the said freedman or freedwoman, just as if he or she had been liberated directly by said child. And if either of said children should die without issue, all the rights of the person who manumitted the slave shall pass to the other children, just as if he who manumitted him or her had made no special provision with reference to them.” 1Although the Decree of the Senate is expressed in language indicating the singular number, it is, nevertheless, certain that several freedmen can be assigned to several children as well as to one. 2A freedman who is in the hands of the enemy can also be assigned. 3Moreover, a patron can assign his freedman by any words whatsoever, or by a gesture, or by his will or codicil, or during his lifetime. 4He can also annul the assignment by the mere expression of his will. 5If, however, anyone should assign the freedman to his son, whom he had disinherited, the assignment will be valid, nor will the reproach of disinheritance prejudice the son, so far as the right of patronage is concerned. 6If the son should be disinherited after the assignment, the act of disinheritance does not always annul it, unless it was done with this intention. 7Where the child to whom the assignment was made declines to accept it, I think that the better opinion is the one stated by Marcellus, that is, that his brother shall be admitted to the right of patronage. 8Where one patron left one son, and another two, and the freedman is assigned to one of the two last, it should be considered into how many shares the estate of the freedman must be divided, whether into three, of which the one to whom the assignment is made will be entitled to two shares, that is to say, his own and that of his brother, or whether there ought to be two equal shares, as the other brother is excluded by the assignment. Julianus, in the Seventy-fifth Book, says that the better opinion is that the one who excludes his brother should have two-thirds of the estate. This opinion is correct so long as his brother is living, or can become the heir at law of the freedman; but if he should forfeit his civil rights the estate must be divided into two parts.
2 Pomponius libro quarto senatus consultorum. Sed si is, cui adsignassem, decessisset relicto filio et fratre et alterius patroni filio, semissem habiturum eum nepotem, quem esset filius meus is qui vivit habiturus, si ego eum libertum non adsignassem.
2 Pomponius, Decrees of the Senate, Book IV. If, however, the child to whom I have made the assignment should die, leaving a son, and his brother, and there should also be a son of another patron, the grandson will be entitled to half of the estate, which my son, who is living, would have if I had not assigned the said freedman.
3 Ulpianus libro quarto decimo ad Sabinum. Idem erit dicendum et si is, qui filium et nepotem habebat, nepoti libertum adsignaverit: admittetur nepos ad legitimam hereditatem, licet sit alterius patroni filius, et hoc contingit patrui vita: ceterum si ille non esset, nihil ei prodesset adsignatio ad deminuendum ius alterius patroni filii. 1Posse autem et nepoti adsignari certum est et praeferri filio nepotem adsignatoris constat. 2Unde quaeri poterit, an, si filium habeat et ex eo nepotem, possit, quasi duos habeat in potestate, ius senatus consulti inducere. in qua specie cum placeat etiam ei, qui in potestatem recasurus est, adsignari quare non admittimus, cum utrumque esse in potestate negare non possumus? 3An autem ad legitimam hereditatem admitti possit hic qui est in potestate, tractari poterit. et cum multi sint casus, quibus et libertum habere qui in potestate est possit, cur non hoc quoque admittendum sit, ut per eum pater ad legitimae hereditatis admittatur emolumentum? quod et Pomponio recte videtur. habent autem libertos etiam filii familias, ut puta si castrensem servum eorum quis manumiserit. 4Emancipatos quoque filios eius, cui adsignatus est libertus, habere commodum senatus consulti puto, non ut ad legitimam hereditatem admittantur, sed ad ea quae possunt. 5Secundum quod liberto intestato defuncto, quoniam ad legitimam hereditatem admitti non possunt, videndum, ne admittatur filius adsignatoris in familia remanens an non? et putem emancipatos per praetorem praeferendos. 6Liberos autem eius, cui adsignatus est, accipere debemus non solum filios, verum etiam nepotes et neptes et deinceps descendentes. 7Si quis duobus adsignaverit libertum et alter in civitate esse sine liberis desierit, alter non,
3 Ulpianus, On Sabinus, Book XV. The same rule will apply where a person who had a son and a grandson assigns the freedman to the grandson, for the latter will be admitted to the succession of the freedman, even if there is a son of another patron. This will occur during the lifetime of his uncle. But if his uncle should no longer be living, the assignment made to the grandson will be of no advantage to him, by diminishing the right of the son of the other patron. 1Moreover, it is certain that a freedman can be assigned to a grandson by his grandfather, and it is established that, in this instance, the grandson will take precedence over the son. 2Wherefore, it may be asked if the patron should have a son and a grandson, whether he can cause the Decree of the Senate to apply just as if he had both of them under his control. In this case, as it is settled that the assignment can be made to him who will again come under the control of his father, why should we not admit that they are both subject to the authority of the patron? 3Again, can a question arise as to whether the grandson, who is under the control of the father, can be admitted as heir at law of the freedman? And as there are many cases under which a child who is under paternal control can have a freedman, why should it not be conceded in this instance that a father can obtain the benefit of the lawful inheritance of the estate of the freedman through his son? This opinion is very properly adopted by Pomponius. Sons under paternal control also have freedmen; as, for example, where someone manumits a slave who forms part of his peculium castrense. 4I also think that the emancipated sons of a person to whom a freedman has been assigned are entitled to the benefit of the Decree of the Senate; not that they may be admitted as the heirs at law of the freedman, but that they may acquire what property they can. 5According to this, where a freedman dies after having been appointed heir, since emancipated sons cannot be admitted to the succession as heirs at law, let us see whether the son of the assignor, who remains under his control, can be admitted or not. I think that the emancipated children should be preferred by the Prætor under such circumstances. 6By the children of the person to whom the assignment is made we must understand not only his sons, but also his grandsons, and his granddaughters, and his other descendants. 7Where anyone assigns a freedman to two children, and one of them dies without issue, and the other does not:
4 Pomponius libro quarto senatus consultorum. vel vivus noluerit ad se hereditatem liberti pertinere,
4 Pomponius, Decrees of the Senate, Book IV. Or the one who survives declines to accept the estate of the freedman:
5 Ulpianus libro quarto decimo ad Sabinum. utrum portio eius, qui in civitate esse desiit vel repudiavit, in familiam redeat? an vero ei potius adcrescat, in cuius persona durat adsignatio? et Iulianus libro septuagensimo quinto scripsit adsignationem in huius solius persona locum habere et solum admittendum, quod est verum. 1Quod si non sine liberis decesserit, an cum vivo admittantur? et putat adhuc solum admittendum, defuncto autem eo liberos alterius succedere, non in familiam libertum redire. 2Sed si ex duobus istis alter filios, alter nepotes reliquerit, an simul ad legitimam hereditatem admittantur? et puto ordinem inter eos faciendum.
5 Ulpianus, On Sabinus, Book XIV. Shall the share of him who has lost his civil rights, or rejected the estate, revert to the family, or will it rather accrue to him in whose person the assignment continues to exist? Julianus, in the Seventy-fifth Book, says that the assignment will only become operative with respect to the person of the latter, and that he alone should be admitted to the succession; which is correct. 1But what if one of the children should die, leaving issue, can the latter be admitted to the succession, if the other child is living? Julianus thinks that he alone should be admitted, but after his death the children of the other will succeed to the estate; and that the right over the freedman will not revert to the family. 2But if one of these two children leaves sons, and the other grandsons; shall they be admitted together to the succession of the freedman as heirs at law? I think that the regular order of descent should be preserved between them.
6 Marcianus libro septimo institutionum. Si servus liber esse iussus fuerit et filio legatus, deinde vivus testator eum manumiserit, ad filium libertus quasi adsignatus pertinet. hoc ita est, sive expressum est vel certe intellexit non quasi servum eum legasse, sed quasi libertum adsignasse.
6 Marcianus, Institutes, Book VII. If a slave should be ordered to be free, and afterwards is bequeathed to the son of the testator, and the latter afterwards manumits him, the freedman will belong to the son, just as if he had been assigned to him. This will be the case whether it is either expressly stated, or clearly understood that the slave was not bequeathed as a slave, but assigned as a freedman.
7 Scaevola libro secundo regularum. Adsignare et pure et sub condicione, et per epistulam vel testationem vel chirographum possumus, quia adsignatio liberti neque quasi legatum neque quasi fideicommissum percipitur: denique nec fideicommisso onerari potest.
7 Scævola, Rules, Book II. We can make an assignment absolutely and conditionally, by a letter, in the presence of witnesses, or by means of a written instrument, because the assignment of a freedman is not acquired either as a legacy or under the terms of a trust, nor can it be charged with the execution of a trust.
8 Modestinus libro septimo differentiarum. Liberi patroni quamquam et ipsi in plerisque causis manumissoris iure censentur, tamen paternum libertum liberis suis adsignare non potuerunt, etiamsi eis a parente fuerit adsignatus: idque et Iulianus et Marcellus probant.
8 Modestinus, Differences, Book VII. Although the children of a patron are, in many instances, considered to enjoy the same rights as the person who manumitted the slave, still, they cannot assign a freedman of their father to their own children, even if he has been assigned to them by their parents. This opinion is adopted by both Julianus and Marcellus.
9 Idem libro nono pandectarum. Utrum ei tantum qui in potestate sit an etiam emancipato filio adsignare libertum patronus possit, si modo non pauciores quam duos praeterea in potestate habeat, dubitari solet: et magis est posse.
9 The Same, Pandects, Book IX. Some doubt exists on the point as to whether a patron can only assign a freedman to his son, who is under his control, or to his emancipated son, provided he has at least two others under his control. The better opinion is that he can do so.
10 Terentius Clemens libro duodecimo ad legem Iuliam et Papiam. Sub condicione vel in diem liberto adsignato interim pendente die vel condicione omnia perinde observabuntur, ac si adsignatus non esset: itaque mortuo eo interim ad omnes liberos hereditas et bonorum possessio pertinebit. 1Si uni pure, alii sub condicione libertus adsignatus sit, eum, cui pure adsignatus sit, pendente condicione solum patroni ius habere dicendum est.
10 Terentius Clemens, On the Lex Julia et Papia, Book XII. Where a freedman is assigned under a condition, or after a certain period, everything will remain unchanged while the condition is pending, or the day has not arrived, just as if the freedman had not been assigned. Therefore, if, in the meantime, he should die, his estate, both under the Civil Law and the Prætorian Edict, will belong to all the children. 1Where a freedman has been assigned to one child absolutely, and to another conditionally, the one to whom he was assigned absolutely must be said to alone have the right of a patron over him, while the condition is pending.
11 Papinianus libro quarto decimo responsorum. Alimentorum causa libertos filiis adtributos filiis adsignatos non videri respondi, cum ea ratione libertis consuli patronus voluerit, quo facilius voluntatis emolumentum consequantur, salvo iure communi.
11 Papinianus, Opinions, Book XIV. I gave it as my opinion that where freedmen have been allotted to children for the purpose of providing them with support, they are not to be considered as assigned to them, as the patron intended to benefit his freedmen in order that they can, the more readily, enjoy the advantages of his will, without violating the requirements of the Common Law.
12 Pomponius libro duodecimo epistularum. Si ex duobus patronis alter eorum filio suo libertum adsignaverit, non obstat, quo minus alter patronus ius solidum suum haberet.
12 Pomponius, Epistles, Book II. Where one of two patrons assigns the freedman to his son, there is no reason why the other should not retain his rights over him unimpaired.
13 Idem libro quarto senatus consultorum. Testamento potest quis et servum manumittere et eundem ut libertum adsignare. 1De liberis, qui sunt in potestate, senatus locutus est: ergo de postumis nihil hoc senatus consulto provisum est: magis tamen puto etiam postumos contineri. 2Quod inquit senatus ‘si ex liberis quis in civitate esse desisset’, eum significat, qui in perpetuum in civitate esse desierit, non etiam si quis ab hostibus captus reverti possit. 3Ex die quoque certa adsignari potest, sed usque in diem certum vix potest: nam ipse senatus huic negotio finem praeposuit.
13 The Same, Decrees of the Senate, Book IV. Anyone can, by his will, manumit a slave, and assign him to one of his children as his freedman. 1The Senate refers to children who are under the control of their father. Must it therefore be understood that no provision is made for posthumous children by this decree? I think that the better opinion is that posthumous children are also included. 2Where the Decree of the Senate says, “If anyone should lose his civil rights,” it refers to a person who has lost them forever, and not to one who has been captured by the enemy, and may return. 3An assignment can also be made to begin at a certain date, but it can hardly be made for a certain term, as the Senate itself fixed the limit of the transaction.