De manumissionibus
(Concerning Manumissions.)
1 Ulpianus libro sexto ad Sabinum. Placuit eum, qui calendis Ianuariis natus est, post sextam noctis pridie kalendas, quasi annum vicensimum compleverit, posse manumittere: non enim maiori viginti annis permitti manumittere, sed minorem manumittere vetari: iam autem minor non est, qui diem supremum agit anni vicensimi.
1 Ulpianus, On Sabinus, Book VI. It has been decided that anyone who is born on the Kalends of January can manumit his slave after the sixth hour of the night preceding the Kalends, as having, at that time, completed his twentieth year. For anyone more than twenty years old is permitted to manumit a slave, but a minor under that age is forbidden to do so. Hence, he is not considered under the age of twenty, who is in the last day of his twentieth year.
2 Idem libro septimo decimo ad Sabinum. Si heres deliberante legatario servum legatum manumiserit, mox legatarius repudiaverit, manumissum liberum fore placet.
2 The Same, On Sabinus, Book XVII. If an heir should manumit a slave who has been bequeathed, while the legatee is deliberating whether he will accept him or not, it is settled that the slave will be free if the legatee should finally conclude to reject the bequest.
3 Paulus libro trigensimo nono ad edictum. Servus pignori datus, etiamsi debitor locuples est, manumitti non potest.
3 Paulus, On the Edict, Book XXXIX. Where a slave is given by way of pledge, he cannot be manumitted, even if the debtor is wealthy.
4 Ulpianus libro sexto disputationum. Is qui suis nummis emitur epistula divorum fratrum ad Urbium Maximum in eam condicionem redigitur, ut libertatem adipiscatur. 1Et primo quidem nummis suis non proprie videtur emptus dici, cum suos nummos servus habere non possit: verum coniventibus oculis credendum est suis nummis eum redemptum, cum non nummis eius, qui eum redemit, comparatur. proinde sive ex peculio, quod ad venditorem pertinet, sive ex adventicio lucro, sive etiam amici beneficio vel liberalitate vel prorogante eo vel repromittente vel se delegante vel in se recipiente debitum redemptus sit, credendum est suis nummis eum redemptum: satis est enim, quod is, qui emptioni suum nomen accommodaverit, nihil de suo inpendit. 2Si ab ignoto emptus sit, postea autem pretium suum optulerit, dicendum erit non esse audiendum: ab initio enim hoc agi debet, ut imaginaria fieret emptio et per fidem contractus inter emptorem et servum agatur. 3Sive igitur non hoc ab initio esset actum, ut suis nummis redimeretur, sive hoc acto nummos servus non dedit, cessabit libertas. 4Unde quaeri poterit, si, cum hoc ab initio esset actum, emptor festinavit et pretium numeravit, an postea ei satisfacto servus constitutione uti possit: et puto posse. 5Proinde et si ei nummos prorogavit emptor, cum ei pariaverit, poterit ad libertatem pervenire. 6Sive autem exprimetur in contractu (velut in emptione) hoc ‘ut manumittatur’ sive non exprimatur, verius est libertatem competere. 7Ergo et si forte quis sic comparaverit suis nummis, ne eum manumittat, benigna est opinio dicentium hunc ad libertatem pervenire, cum et nomen emptionis imaginarius iste emptor accommodet et praeterea nihil ei absit. 8Nihil autem interest, a quo quis suis nummis ematur, a fisco vel civitate vel a privato, cuiusque sit sexus is qui emit. sed et si minor sit viginti annis qui vendidit, interveniet constitutio. nec comparantis quidem aetas spectatur: nam et si pupillus emat, aequum est eum fidem implere, cum sine damno eius hoc sit futurum. idem et si servus est. 9In illis sane servis non intervenit constitutio, qui in totum perduci ad libertatem non possunt, ut puta si exportandus vel hac lege venierit (vel testamento hanc condicionem acceperat), ne umquam manumitteretur. 10Suis autem nummis redemptus etsi totum pretium non numeravit, ex operis tamen ipsius accesserit aliquid, ut repleri pretium possit, vel si quid suo merito adquisierit, dicendum est libertatem competere. 11Quod si partem suis nummis redimeret, cum partem servi haberet, ad constitutionem non pertinebit, non magis quam qui, cum proprietatem haberet, usum fructum redemit. 12Sed qui, cum fructuarius esset, proprietatem redemit, in ea condicione est, ut ad constitutionem pertineret. 13Sed et si duo servum redemerint, alter propriis nummis, alter nummis servi, dicendum erit constitutionem cessare: nisi forte is qui propriis nummis redemit manumittere fuerit paratus. 14Sed et si partem quis redemit, pars altera ex causa lucrativa accesserit, dicendum erit constitutionem locum habere.
4 Ulpianus, Disputations, Book VI. An Epistle of the Divine Brothers, addressed to Urbius Maximus, sets forth that a slave purchased with his own money is in a position to demand his freedom. 1In the first place, such a slave cannot properly be considered to have been purchased with his own money, as a slave cannot have money of his own. But if we close our eyes, he must be held to have been bought with his own money, since he was not purchased with that of him who redeemed him from slavery. Hence, whether the money came from the peculium which belongs to the vendor, or from some fortunate acquisition by the slave; or was provided by the kindness or liberality of a friend; or whether someone advanced it, or promised it, or caused himself to be delegated; or whether the slave was ransomed by his undertaking to pay the debt, he must be considered to have been purchased with his own money. For it is sufficient if he who has lent his name to the purchase did not spend any of his own money. 2If a slave, purchased by someone who is unknown to him, should afterwards tender him the price for which he was sold, it must be said that he should not be heard, for this ought to be done in the beginning in order that a fictitious sale may be made, and a confidential agreement entered into between the purchaser and the slave. 3Therefore, if this was not done in the first place to enable the slave to be ransomed with his own money, or if the slave did not give the money with this intention, he will not be entitled to his freedom. 4Hence, it may be asked, when this was the intention in the beginning, and the purchaser hastened to pay the money, and he should afterwards be reimbursed, can the slave avail himself of the benefit of the Imperial Constitution? I think that he can do so. 5Therefore, if the purchaser should advance the money to the slave, and the latter repays it to him, he can acquire his freedom. 6Whether it was or was not mentioned in the contract (for instance, in the case of a sale), that the slave would be manumitted, the better opinion is that he will be entitled to his freedom. 7Hence, if anyone should purchase a slave with the money of the latter, but without agreeing to manumit him, the humane opinion of those who have treated the question in that the slave should obtain his freedom, as the purchaser was merely fictitious and lent the use of his name, and besides, he has lost nothing. 8It, however, makes no difference by whom a slave purchased with his own money is acquired, whether by the Treasury, by a municipality, or by a private individual, nor what may be the sex of the purchaser. If the vendor is under twenty years of age, the constitution will apply. Nor is the age of the purchaser taken into consideration, for, even if he is a minor, it is only just that he should keep his word, as, by doing so, he will not sustain any injury. The same rule is applicable to the purchaser who is a slave. 9The constitution does not apply to slaves who are absolutely incapable of being granted their freedom; as, for example, where a slave is to be sent out of the country, or has been sold or bequeathed by will under the condition that he.shall never be manumitted. 10When a slave is ransomed with his own money, even though he did not pay the entire price, it must be said that he is entitled to his freedom if he contributed his labor to make up what was due, or if he afterwards obtained property by his industry. 11If he should purchase a part of himself with his own money, and the other part belonged to him already, the constitution will not apply, any more than if, having the ownership of himself, he only purchased the usufruct of the same. 12But what if he owned the usufruct of himself, and he purchased the ownership? In this case, he is in such a position that the Imperial Constitution will apply. 13Where two persons purchase a slave, one of them with his own money, and the other with the money of the slave, it must be held that the constitution will not be applicable, unless he who purchased him with his own money is prepared to manumit him. 14Where, however, anyone buys half of a slave, and acquires the other half by some profitable transaction, it must be said that there is ground for the application of the constitution.
5 Marcianus libro secundo institutionum. Si quis dicat se suis nummis emptum, potest consistere cum domino suo, cuius in fidem confugit, et queri, quod ab eo non manumittatur, Romae quidem apud praefectum urbis, in provinciis vero apud praesides ex sacris constitutionibus divorum fratrum, sub ea tamen denuntiatione, ut is servus, qui hoc intenderit nec inpleverit, in opus metalli detur, nisi forte dominus reddi eum sibi maluerit, utique non maiorem ex ea causa poenam constituturus. 1Sed et si rationibus redditis liber esse iussus fuerit, arbiter inter servum et dominum, id est heredem, datur de rationibus excutiendis.
5 Marcianus, Institutes, Book II. If a slave should allege that he was purchased with his own money, he can appear in court against his master, whose good faith he impugns, and complain that he has not been manumitted by him; but he must do this at Rome, before the Urban Prefect, or in the provinces before the Governor, in accordance with the Sacred Constitutions of the Divine Brothers; under the penalty, however, of being condemned to the mines, if he should attempt this and not prove his case; unless his master prefers that he be restored to him, and then it should be decided that he will not be liable to a more severe penalty. 1Where, however, a slave is ordered to be free after having rendered his accounts, an arbiter between the slave and his master, that is to say, the heir, shall be appointed for the purpose of having the accounts rendered in his presence.
6 Alfenus Varus libro quarto digestorum. Servus pecuniam ob libertatem pactus erat et eam domino dederat: dominus prius quam eum manumitteret, mortuus erat testamentoque liberum esse iusserat et ei peculium suum legaverat. consulebat, quam pecuniam domino dedisset ob libertatem, an eam sibi heredes patroni reddere deberent necne. respondit, si eam pecuniam dominus, posteaquam accepisset, in suae pecuniae rationem habuisset, statim desisse eius peculii esse: sed si interea, dum eum manumitteret, acceptum servo rettulisset, videri peculii fuisse et debere heredes eam pecuniam manumisso reddere.
6 Alfenus Varus, Digest, Book IV. A slave, having agreed to give a certain sum in order to obtain his freedom, paid it to his master, but the latter died before manumitting him, and ordered him to be free by his will, and also bequeathed him his peculium. The slave asked whether the money, which he had paid to his master in consideration of obtaining his freedom, should be refunded to him by the heirs of his patron, or not? The answer was that if, after the master had received the money, he kept an account of it as his own, it immediately ceased to form part of the peculium of the slave; but if, in the meantime, before he manumitted him, he set the money aside, as having been paid by the slave, it should be considered to belong to his peculium, and the heirs must return it to the manumitted slave.
7 Idem libro septimo digestorum. Duo filii familias peculiares servos separatim uterque habebant: ex his alter servulum suum peculiarem vivo patre manumisit: pater utrique testamento peculium praelegaverat. quaerebatur, servus iste utrum amborum, an eius a quo manumissus erat libertus esset. respondit, si prius testamentum pater fecisset, quam filius eum liberum esse iussisset, unius esse libertum, ideo quod eum quoque in peculio legasse videretur: sed si postea testamentum pater fecisset, non videri eam mentem eius fuisse, ut eum, qui manumissus esset, legaret eumque servum, quoniam praelegatus non esset, mortuo patre amborum servum fuisse.
7 The Same, Digest, Book VII. Two sons under paternal control had, as part of the peculium of each, separate slaves. One of them, during the lifetime of his father, manumitted a young slave who belonged to his peculium. The father, by his will, bequeathed to each son his own peculium, as a preferred legacy. The question arose whether the above-mentioned slave became the freedman of both of the sons, or only of the one by whom he had been manumitted? The answer was that if the father made his will before the son manumitted the slave, he would only become the freedman of that one, for the reason that he would be considered to have been bequeathed with the remainder of the peculium. If, however, the father had made his will afterwards, he would not be held to have intended to bequeath the slave who had been manumitted; and as he did not bequeath the said slave as a preferred legacy, after the death of the father he would be the slave of the two brothers.
8 Marcianus libro tertio decimo institutionum. Qui poenae servi efficiuntur, indubitate manumittere non possunt, quia et ipsi servi sunt. 1Sed nec rei capitalium criminum manumittere servos suos possunt, ut et senatus censuit. 2Divus quoque Pius Calpurnio rescripsit libertates ab eo, qui iam lege Cornelia damnatus esset vel, cum futurum prospiceret ut damnaretur, servis datas non competere. 3Sed ne quidem illos ad iustam libertatem pervenire divus Hadrianus rescripsit, qui ideo manumissi sunt, ut crimini subtraherentur.
8 Marcianus, Institutes, Book XIII. Those who are reduced to slavery by way of penalty undoubtedly cannot manumit anyone, because they themselves are slaves. 1Nor can those who are accused of a capital crime manumit their slaves, as this has been decreed by the Senate. 2The Divine Pius stated in a Rescript addressed to Calpurnius, that freedom given to slaves by a person who has been convicted under the Cornelian Law, or who was aware that he would be convicted, will be of no force or effect. 3The Divine Hadrian stated in a Rescript that where slaves have been manumitted in order that their master might be released from liability for crime, they were not legally entitled to their freedom.
9 Paulus libro singulari regularum. Servus hac lege venditus, ne manumittatur, vel testamento prohibitus manumitti, vel a praefecto vel a praeside prohibitus ob aliquod delictum manumitti ad libertatem perduci non potest.
9 Paulus, Rules. When a slave is sold under the condition that he shall not be manumitted, or is forbidden by will to be manumitted, or is forbidden to be manumitted by a prefect of the Governor on account of some offence which he has committed, he cannot obtain his freedom.
10 Idem imperialium sententiarum in cognitionibus prolatarum ex libris sex libro secundo. Aelianus debitor fiscalis Euemeriam ancillam ante annos multos emerat hac lege, ut manumitteret, eamque manumiserat: procurator cum bona debitoris non sufficientia quaereret, etiam Euemeriae status quaestionem faciebat. placuit non esse iuri fiscali locum, quo omnia bona debitorum iure pignoris tenerentur, quia ea lege empta est, et, si non manumitteretur, ex constitutione divi Marci ad libertatem perveniret.
10 Book II of the Six Books of the Imperial Decrees having Reference to Judicial Investigations. Ilianus, a debtor of the Treasury, having many years before purchased a female slave named Evemeria under the condition that he should manumit her, did so. As the Agent of the Treasury did not find the property of the debtor sufficient to satisfy his creditors, he raised a question with reference to the status of Evemeria. It was decided that there was no ground for the exercise of the right of the Treasury, under which all the property of debtors is liable by the law of pledge, because the slave had been purchased under the condition of being manumitted, and if this had not been done, she would have been entitled to her freedom under the Constitution of the Divine Marcus.
11 Idem libro sexagensimo quarto ad edictum. Servum, qui sub condicione legatus est, interim heres manumittendo liberum non facit.
11 The Same, On the Edict, Book LXIV. An heir, by manumitting a slave who has been bequeathed under a condition, and does this while the condition is pending, does not render the slave free.
12 Idem libro quinquagensimo ad edictum. Lege Fabia prohibetur servus, qui plagium admisit, pro quo dominus poenam intulit, intra decem annos manumitti. in hoc tamen non testamenti facti tempus, sed mortis intuebimur.
12 The Same, On the Edict, Book L. A slave who has been guilty of kidnapping, and for whom his master has paid the penalty, is forbidden by the Favian Law to be manumitted within ten years; and in this case we do not consider the time when the will was made, but the date of the death of the testator.
13 Pomponius libro primo ex Plautio. Servus furiosi ab adgnato curatore manumitti non potest, quia in administratione patrimonii manumissio non est. si autem ex fideicommissi causa deberet libertatem furiosus, dubitationis tollendae causa ab adgnato tradendum servum, ut ab eo cui traditus esset manumittatur, Octavenus ait.
13 Pomponius, On Plautius, Book I. The slave of an insane person cannot be manumitted by a relative of the latter who has been appointed his curator, because the manumission of a slave is not included in the administration of the property. If, however, the insane person should owe the slave his freedom on account of a trust, Octavenus says that, in order to remove all doubt, the slave should be delivered by the curator to the person to whom he is to be transferred in order to be manumitted by him.
14 Paulus libro sexto decimo ad Plautium. Apud eum, cui par imperium est, manumittere non possumus: sed praetor apud consulem manumittere potest. 1Imperator cum servum manumittit, non vindictam imponit, sed cum voluit, fit liber is qui manumittitur ex lege Augusti.
14 Paulus, On Plautius, Book XVI. We cannot manumit a slave in the presence of one whose authority is equal to ours. A Prætor, however, can manumit a slave in the presence of a Consul. 1When the Emperor manumits a slave he does not touch him with a wand, but the slave who is manumitted becomes free by the mere expression of the Imperial will, in accordance with the law of Augustus.
15 Marcellus libro vicensimo tertio digestorum. Mortis causa servum manumitti posse non est dubitandum. quod non ita tibi intellegendum est, ut ita liber esse iubeatur, ut, si convaluerit dominus, non fiat liber, sed quemadmodum si vindicta eum liberaret absolute, scilicet quia moriturum se putet, mors eius exspectabitur, similiter et in hac specie in extremum tempus manumissoris vitae confertur libertas, durante scilicet propter mortis causae tacitam condicionem) voluntate manumissoris: quemadmodum cum rem ita tradiderit, ut moriente eo fieret accipientis, quae ita demum alienatur, si donator in eadem permanserit voluntate.
15 Marcellus, Digest, Book XXIII. There is no doubt that a slave can be manumitted mortis causa. You must not, however, understand if a slave is ordered to be free in this manner that he will not become so if his master should recover his health; for just as if he had been absolutely manumitted before the Prætor, when anyone thinks that he is about to die, and his death is expected, so, in this instance, freedom is granted during the last moments of the person who bestows the manumission, as his will is considered to continue to exist on account of the tacit condition of the death of the person manumitting the slave. The case is the same as if someone should deliver property under the condition that, if he dies, it shall belong to the person who receives it; since the property will not be alienated if the donor retains the same intention during his lifetime.
16 Modestinus libro primo regularum. Si consentiente patre filius minor annis viginti servum eius manumiserit, patris faciet libertum et vacat causae probatio ob patris consensum.
16 Modestinus, Rules, Book I. If a son under twenty years of age manumits his slave with the consent of his father, he makes him the freedman of the latter; and proof of the manumission is unnecessary, on account of the consent of the father.
17 Idem libro sexto regularum. Servi, quos filius familias in castris quaesiit, non in patris familia computabuntur: nec enim pater tales filii servos manumittere poterit.
17 The Same, Rules, Book VI. Slaves whom a son under paternal control acquires while in the army are not included in the property of the father, and the latter cannot manumit slaves of this kind.
18 Gaius libro duodecimo ad legem Iuliam et Papiam. Eum qui venierit venditor et promissor quem promiserit manumittere possunt.
18 Gaius, On the Lex Julia et Papia, Book XII. The vendor can manumit a slave whom he has agreed to sell, and the promisor one whom he has contracted to deliver.
19 Papinianus libro trigensimo quaestionum. Si quis ab alio nummos acceperit, ut servum suum manumittat, etiam ab invito libertas extorqueri potest, licet plerumque pecunia eius numerata sit, maxime si frater vel pater naturalis pecuniam dedit: videbitur enim similis ei qui suis nummis redemptus est.
19 Papinianus, Questions, Book XIII. Where anyone has received a sum of money from another in consideration of manumitting his slave, the freedom of the latter can be extorted from him without his consent, although it is frequently the case that his own money is paid, and, above all, if his brother or his natural father furnished it; for the case is similar to one where a slave is redeemed with his own money.
20 Idem libro decimo responsorum. Causam minor viginti annis, qui servum donatum manumittendi gratia accepit, ex abundanti probat post divi Marci litteras ad Aufidium Victorinum: etenim, si non manumiserit, ad libertatem servus perveniet. 1Non idem in fideicommissaria libertate iuris est, cuius causam minor debet probare: nam libertas nisi ita manumisso non competit. 2Puellam ea lege vendidit, ut post annum ab emptore manumitteretur: quod si non manumisisset, convenit, uti manum iniceret aut decem aureos emptor daret. non servata fide nihilo minus liberam ex sententia constitutionis fieri respondit, quoniam manus iniectio plerumque auxilii ferendi causa intervenit: itaque nec pecunia petetur, cum emolumentum legis voluntatem venditoris secutum sit. 3Tempore alienationis convenit, ut homo libertatis causa traditus post quintum annum impletum manumitteretur et ut certam mercedem interea menstruam praeberet. condicionem libertati mercedes non facere, sed obsequio temporariae servitutis modum praestitutum esse respondi: neque enim in omnibus libertatis causa traditum comparari statulibero.
20 The Same, Opinions, Book X. It is superfluous for a minor of twenty years of age to prove the manumission of a slave, if he receives him for the purpose of manumitting him, after the promulgation of the Rescript of the Divine Marcus addressed to Aufidius Victorinus; for if he had not manumitted him, the slave would, nevertheless, obtain his freedom. 1The same rule of law does not apply where the grant of freedom is charged by a trust; for, in this case, the donor must prove the fact, as the manumitted slave will not otherwise obtain his freedom. 2A certain man sold a female slave under the condition that she should be manumitted by the purchaser after the expiration of a year; and, if this was not done, it was agreed that the vendor should lay his hand upon her, or that the purchaser should pay ten aurei. The contract not having been observed, it was decided that the slave, nevertheless, became free in accordance with the terms of the aforesaid constitution; as, very frequently, laying on of the hand takes place for the purpose of giving assistance. Therefore the money cannot be recovered, as the benefit of the law was secured in accordance with the wishes of the vendor. 3At the time of the alienation of a slave, it was agreed that, having been transferred with the intention of granting him his freedom, he should be manumitted after the expiration of five years; and also that in the meantime he must pay a certain sum every month. I gave it as my opinion that the said monthly payments did not form part of the condition under which he was liberated from bondage, but in order to show that his servitude was only temporary; for a slave who has been transferred in order to be free cannot, in every respect, be compared to one who is to be manumitted under a certain condition.
21 Idem libro tertio decimo responsorum. Servum dotalem vir qui solvendo est constante matrimonio manumittere potest: si autem solvendo non est, licet alios creditores non habeat, libertas servi impedietur, ut constante matrimonio deberi dos intellegatur.
21 The Same, Opinions, Book XIII. A husband who is solvent can manumit a dotal slave during the continuance of the marriage. If, however, he is not solvent, even though he may have no other liabilities, the slave will be prevented from obtaining his liberty, as the dowry is understood to be due as long as the marriage continues to exist.
22 Idem libro secundo definitionum. Nepos ex filio voluntate avi ut filius voluntate patris potest manumittere, sed manumissus patris vel avi libertus est.
22 The Same, Definitions, Book II. A grandson can manumit a slave with the consent of a grandfather, as a son can do with the consent of his father; but the manumitted slave will become the freedman of the father, or the grandfather.
23 Paulus libro quinto decimo responsorum. Gaius Seius Pamphilam hac lege emit, ut intra annum manumitteretur: deinde intra annum Seius servus pronuntiatus est: quaero, an ex lege venditionis finito anno Pamphila libertatem consecuta sit. Paulus respondit, cum ea condicione ancillam emptam domino adquisitam, cum qua condicione venisse proponeretur.
23 The Same, Opinions, Book XV. Gaius Seius purchased Pamphila under the condition that she would be manumitted within a year; and, before that time had elapsed, Seius himself was judicially decided to be a slave. I ask whether Pamphila was entitled to her freedom after a year had elapsed, in accordance with the condition of the sale. Paulus answered that the slave who had been purchased was acquired by the master of Seius, under the same condition subject to which she had been sold.
24 Hermogenianus libro primo iuris epitomarum. Lege Iunia Petronia, si dissonantes pares iudicum existant sententiae, pro libertate pronuntiari iussum. 1Sed et si testes non dispari numero tam pro libertate quam contra libertatem dixerint, pro libertate pronuntiandum esse saepe constitutum est.
24 Hermogenianus, Epitomes of Law, Book I. It is provided by the Lex Junia Petronia that where the decisions of Courts are conflicting, judgment must be rendered in favor of freedom. 1It has frequently been established by Imperial Decrees that, where witnesses for and against freedom appear in equal numbers, judgment must be rendered in favor of freedom.
25 Gaius libro primo de manumissionibus. Iuris ratio efficit, ut infantibus quoque competat libertas.
25 Gaius, On Manumissions, Book I. The law provides that even infants are entitled to freedom.
26 Iavolenus libro quarto ex posterioribus Labeonis. Servum furiosum omni genere manumissum ad libertatem perduci putat posse Labeo.
26 Javolenus, On the Last Works of Labeo, Book IV. Labeo holds that a slave who is insane can be manumitted and obtain his freedom by every proceeding known to the law.