De liberali causa
(Concerning actions relating to freedom.)
1 Ulpianus libro quinquagensimo quarto ad edictum. Si quando is, qui in possessione servitutis constitutus est, litigare de condicione sua non patitur, quod forte sibi suoque generi vellet aliquam iniuriam inferre, in hoc casu aequum est quibusdam personis dari licentiam pro eo litigare: ut puta parenti, qui dicat filium in sua potestate esse: nam etiamsi nolit filius, pro eo litigabit. sed et si in potestate non sit, parenti dabitur hoc ius, quia semper parentis interest filium servitutem non subire. 1Versa etiam vice dicemus liberis parentium etiam invitorum eandem facultatem dari: neque enim modica filii ignominia est, si parentem servum habeat. 2Idcirco visum est cognatis etiam hoc dari debere,
1 Ulpianus, On the Edict, Book LIV. If a person who is free, but is held in possession as a slave, is not willing to go into court to establish his true condition, for the reason that he desires to do some wrong to himself or to his family, in this instance, it is but just that permission should be given to certain persons to appear in his behalf, as for example, to a father who alleges that his son is under his control; for if his son refuses to institute proceedings, he can do so for him. This right is granted to his father even if he is not under the control of the latter, for it is always to the interest of a parent that his son should not be reduced to servitude. 1On the other hand, we say that the same power is granted to children in behalf of their parents, even against the consent of the latter, as it is no small disgrace for a son to have his father a slave. 2For the same reason it has been decided that this power is also granted to other blood-relatives,
2 Gaius ad edictum praetoris urbani titulo de liberali causa. quoniam servitus eorum ad dolorem nostrum iniuriamque nostram porrigitur.
2 Gaius, On the Edict of the Urban Prætor, Title,: Concerning Actions Relating to Freedom. Because the slavery to which our relatives are subjected causes us grief and injury.
3 Ulpianus libro quinquagensimo quarto ad edictum. Amplius puto naturalibus quoque hoc idem praestandum, ut parens filium in servitute quaesitum et manumissum possit in libertatem vindicare. 1Militi etiam pro necessariis sibi personis de libertate litigare permittitur. 2Cum vero talis nemo alius est, qui pro eo litiget, tunc necessarium est dari facultatem etiam matri vel filiabus vel sororibus eius ceterisque mulieribus quae de cognatione sunt vel etiam uxori adire praetorem et hoc indicare, ut causa cognita et invito ei succurratur. 3Sed et si libertum meum vel libertam dicam, idem erit dicendum.
3 Ulpianus, On the Edict, Book LIV. I go still further, and hold that this power ought to be granted to natural relatives also, so that if a father has a son in servitude who is afterwards manumitted, he can demand his freedom should he again be reduced to slavery. 1A soldier is also permitted to appear in court in a case where the freedom of any of his near relatives is involved. 2When no one of this kind who can act for the party interested appears in court, then it becomes necessary to authorize his mother, his daughters or his sisters, as well as other women related to him by blood, or even his wife, to appear before the Prætor, and present the case; so that, after proper cause is shown, relief may be granted him even against his consent. 3The same rule applies if I should allege that the party in question is my freedman or freedwoman.
4 Gaius ad edictum praetoris urbani titulo de liberali causa. Sed tunc patrono conceditur pro libertate liberti litigare, si eo ignorante libertus venire se passus est.
4 Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. The right to appear in court should, however, only be granted to a patron where the liberty of his freedman is involved, and the latter has permitted himself to be sold without his patron’s knowledge.
5 Ulpianus libro quinquagensimo quarto ad edictum. Interest enim nostra libertos libertasque habere. 1Quod si plures ex memoratis personis existant, qui velint pro his litigare, praetoris partes interponendae sunt, ut eligat, quem potissimum in hoc esse existimat. quod et in pluribus patronis observari debet.
5 Ulpianus, On the Edict, Book LIV. For it is to our interest to preserve our rights over our freedmen and freedwomen. 1When several of the above-mentioned persons appear in court in behalf of a slave, the authority of the Prætor must be interposed to select the one whom he considers to be preferable. This rule should also be observed where several patrons appear for that purpose.
6 Gaius ad edictum praetoris urbani. Benignius autem hoc persequendum est, ut, si furiosus et infans est qui in servitutem trahitur, non solum necessariis personis, sed etiam extraneis hoc permittatur.
6 Gaius, On the Edict of the Urban Prætor, Book II. It will be even more equitable to adopt such a course where the person who has been reduced to slavery is insane, or an infant; for this privilege should then not only be granted to near relatives but also to strangers.
7 Ulpianus libro quinquagensimo quarto ad edictum. Liberis etiam hominibus, maxime si maiores viginti annis venum se dari passi sunt vel in servitutem quaqua ratione deduci, nihil obest, quo minus possint in libertatem proclamare, nisi forte se venum dari passi sunt, ut participaverint pretium. 1Si quis minor viginti annis ad partiendum pretium venum se dari passus est, nihil ei hoc post viginti annos nocebit. sed si ante quidem se venum dedit, post vicensimum autem annum pretium partitus est, poterit ei libertas denegari. 2Si quis sciens liberum emerit, non denegatur vendito in libertatem proclamatio adversus eum qui eum comparavit, cuiusque sit aetatis qui emptus est, idcirco quia non est venia dignus qui emit, etiamsi scientem prudentemque se liberum emerit. sed enim si postea alius eum emerit ob hoc, qui scivit, ignorans, deneganda est ei libertas. 3Si duo simul emerint partes, alter sciens, alter ignorans, videndum erit, numquid is qui scit non debeat nocere ignoranti: quod quidem magis est. sed enim illa erit quaestio, partem solam habebit is qui ignoravit an totum? et quid dicemus de alia parte? an ad eum qui scit pertineat? sed ille indignus est quid habere, quia sciens emerit. rursum qui ignoravit, non potest maiorem partem dominii habere quam emit: evenit igitur, ut ei prosit qui eum comparavit sciens, quod alius ignoravit. 4Sunt et aliae causae, ex quibus in libertatem proclamatio denegatur, veluti si quis ex eo testamento liber esse dicatur, quod testamentum aperiri praetor vetat, quia testator a familia necatus esse dicatur: cum enim in eo sit iste, ut supplicio forte sit adficiendus, non debet liberale iudicium ei concedi. sed et si data fuerit, quia dubitatur, utrum nocens sit an innocens, differtur liberale iudicium, donec constet de morte eius, qui necatus est: apparebit enim, utrum supplicio adficiendus sit an non. 5Si quis ex servitute in libertatem proclamat, petitoris partes sustinet: si vero ex libertate in servitutem petatur, is partes actoris sustinet qui servum suum dicit. igitur cum de hoc incertum est, ut possit iudicium ordinem accipere, hoc ante apud eum, qui de libertate cogniturus est, disceptatur, utrum ex libertate in servitutem aut contra agatur. et si forte apparuerit eum, qui de libertate sua litigat, in libertate sine dolo malo fuisse, is qui se dominum dicit actoris partes sustinebit et necesse habebit servum suum probare: quod si pronuntiatum fuerit eo tempore, quo lis praeparabatur, in libertate eum non fuisse aut dolo malo fuisse, ipse qui de sua libertate litigat debet se liberum probare.
7 Ulpianus, On the Edict, Book LIV. Where men who are free, especially those who are over twenty years of age, have permitted themselves to be sold, or have been reduced to slavery for any other reason, no obstacle will arise to prevent them from demanding their freedom, unless they allowed themselves to be sold in order to share the purchase-money. 1When a minor of twenty years of age permits himself to be sold for the purpose of sharing the purchase-money, this will not prejudice him after he reaches the age of twenty years. If, however, he permitted himself to be sold and obtained a portion of the purchase-money after reaching his twentieth year, freedom can be refused him. 2If anyone should knowingly buy a man who is free, the right to demand his liberty will not be refused to him who was sold, as against the buyer, no matter at what age he was purchased; for the reason that he who bought him is not excusable, even if when he did so he who was the object of the sale well knew that he was free. But if another, without being aware of the fact, should afterwards purchase him from one who did know, freedom should be refused him. 3If two persons should buy a slave together, one of them knowing that he was free, and the other being ignorant of it, let us see whether he who was aware of the alleged slave’s condition will prejudice the one who was not. This, indeed, is the better opinion. For, otherwise, the question would be whether he who was ignorant of the man’s condition will only be entitled to his share in him, or to the entire alleged slave. Will what we have stated with reference to the share of the other apply to the purchaser who had knowledge? He, however, who bought the man, being aware that he was free, is unworthy to have anything. Again, the one who was ignorant of his true condition cannot have a greater portion of the ownership than he purchased. The result therefore will be that the ignorance of one will benefit the other who bought the man knowing that he was free. 4There are other reasons for which the right to demand freedom is refused; as, for example, where a slave is said to be free by the terms of a will, and the Prætor forbids the will to be opened, because the testator is said to have been killed by his slaves; for he who desires to appear in court and who may, perhaps, be liable to punishment, should not be entitled to a judgment giving him his freedom. If, however, the right should be granted because it is uncertain whether he is guilty or innocent, the decision should be deferred until it is established who is responsible for the death of the testator, as it will then appear whether he will be liable to punishment or not. 5Where anyone who is in slavery claims his freedom, he occupies the place of a plaintiff. If, however, being at liberty, he is demanded as a slave, the person who alleges that he is his slave assumes the part of the plaintiff. Hence, when the matter is in doubt, in order that the proceedings may be conducted in their proper order, the question should be argued before the magistrate who has cognizance of cases involving freedom, so that it may be determined whether the alleged slave should be reduced from freedom to servitude; or, on the other hand, whether, being in bondage, he ought to be liberated. If, however, it should appear that he who contends that he is free was in that condition without having been guilty of fraud, he who alleges that he is his owner will take the part of the plaintiff, and will be required to prove that he is his slave. But if it is decided that, at the time when the proceedings were instituted, the alleged slave was not at liberty, or had fraudulently obtained his freedom, he who asserts that he is free must prove that this is the case.
8 Idem libro quinquagensimo quinto ad edictum. Cognitio de liberali causa usufructuario datur, etiamsi dominus quoque velit, hoc est qui se dominum dicit, movere status controversiam. 1Si plures sibi dominium servi vindicant dicentes esse communem, ad eundem iudicem mittendi erunt: et ita senatus censuit. ceterum si unusquisque suum esse in solidum, non in partem dicat, cessat senatus consultum: neque enim timor est, ne varie iudicetur, cum unusquisque solidum dominium sibi vindicet. 2Sed et si alter usum fructum totum, alter proprietatem servi vindicet, item si alter dominium, alter pigneratum sibi dicat, idem iudex erit: et parvi refert, ab eodem an ab alio ei pigneri datus sit.
8 The Same, On the Edict, Book LV. The right to appear in a case involving freedom is granted to an usufructuary, even if the owner (that is to say, he who alleges that he is the owner), also desires to institute proceedings respecting the status of the slave. 1Where several persons claim the ownership of the slave, alleging that he belongs to them in common, they shall be sent before the same judge. This was decreed by the Senate. But if each one of them should say that the entire slave and not merely a share in him belongs to him alone, the Decree of the Senate will not apply. For then there will be no reason to apprehend that different decisions will be rendered, as each of the alleged owners claims that the slave is his individual property. 2Where, however, one person claims the usufruct in the slave and another the ownership, or where one claims the ownership, and the other says that the slave has been pledged to him, the same judge must decide the case; and it makes little difference whether the slave was pledged to him by the same person who claims him as the owner, or by someone else.
9 Gaius ad edictum praetoris urbani titulo de liberali causa. Si pariter adversus eum, qui de libertate litigat, consistant fructuarius et proprietarius, fieri potest, ut alteruter absit: quo casu an praesenti soli permissurus sit praetor adversus eum agere, dubitari potest, quia non debet alterius collusione aut inertia alteri ius corrumpi. sed rectius dicitur etiam alterutri eorum permittendum agere, ut alterius ius incorruptum maneat. quod si adhuc nondum finito iudicio supervenerit, ad eundem iudicem mittetur, nisi si iustam causam adferat, quare ad eum mitti non debeat, forte si eum iudicem inimicum sibi esse adfirmet. 1Idem dicemus et si duo pluresve domini esse dicantur et quidam praesto sint, quidam aberint. 2Unde in utroque casu dispiciamus, an, si is qui prior egerit victus sit, prosit ei, quod posterior vicerit, vel contra, id est ut, cum omnino alteruter vicerit, prosit etiam alteri, sicut prodest heredi liberti, quod in fraudem patroni servi manumissi sint. si cui placeat prodesse, consequens est, ut, cum idem petat, exceptioni rei iudicatae obiciatur replicatio: si cui vero placeat non prodesse, is habebit sequentem dubitationem, utrum id, in quo quis victus est, nullius erit an eius esse debeat, cum quo actum sit, an potius eius qui vicerit? scilicet ut utilis actio detur ei qui vicerit, minime autem praetor pati debeat, ut pro parte quis servus sit.
9 Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. Where two parties, that is to say, the alleged usufructuary and the alleged owner, are defendants at the same time against him who has brought an action to obtain his freedom, one of them may happen to be absent. It may be doubted whether, under such circumstances, the Prætor can permit the one who is present to appear alone against the alleged slave, because the rights of the third party should not be prejudiced by the collusion or the negligence of another. It can more properly be held that one of them may proceed in such a way that the rights of the other will remain unimpaired. If the absent party should appear before the case has been terminated, he must be sent before the same judge, unless he gives a good reason why this should not be done; for instance, if he alleges that the judge is his enemy. 1We say that the same rule will apply where of two or more persons who assert that they are the owners of the alleged slave some are present, and others are absent. 2Therefore, in both cases, we must consider if the one who first instituted proceedings should be defeated, whether this will benefit the other, who gained his case, or vice versa; that is to say, if either one of them should succeed, whether this will profit the other; as the heir of a freedman obtains an advantage from the fact that his patron had been defrauded by the manumission of slaves. If it is held that a judgment rendered in favor of one will benefit the other; the result will be that if the latter again brings suit, he can be opposed by a replication on the ground that the matter has already been decided. If, indeed, it is held that he does not derive any advantage from the decision, the doubt will arise whether what was claimed by the party who lost the case belongs to either of them, or whether he against whom the action was brought, or he who was successful, is entitled to it; and it is evident that a prætorian action ought to be granted to the party who gained the case, as the Prætor should, by no means, permit the man to be part slave and part free.
10 Ulpianus libro quinquagensimo quinto ad edictum. Quod autem diximus ‘in libertate fuisse’ sic est accipiendum non ut se liberum doceat is, qui liberale iudicium patitur, sed in possessione libertatis sine dolo malo fuisse. quid sit autem ‘sine dolo malo fuisse’, videamus. nam Iulianus ait omnes, qui se liberos putant, sine dolo malo in libertate fuisse, si modo se pro liberis gerant, quamvis servi sint. Varus autem scribit eum, qui se liberum sciat, dum in fuga sit, non videri sine dolo malo in libertate esse: sed simul atque desierit quasi fugitivus se celare et pro libero agere, tunc incipere sine dolo malo in libertate esse: etenim ait eum, qui scit se liberum, deinde pro fugitivo agit, hoc ipso, quod in fuga sit, pro servo agere,
10 Ulpianus, On the Edict, Book LV. What we have said with reference to the alleged slave, proving that he has been free, must be understood to mean not that he who demands his liberty must show that he was absolutely free, but that he was in possession of his freedom without any fraud on his part. But let us see what would be considered fraud on his part. Julianus says, that all those who believe that they are free are not guilty of fraud, provided they act as freemen, even though they are actually slaves. Varus, however, says that one who knows himself to be free, and takes to flight, cannot be considered to be at liberty without any fraud on his part; but at the moment when he ceases to conceal himself as a fugitive slave, and acts as if he was free, he begins to be at liberty without fraud on his part. For he holds that he who knows that he is free, and afterwards conducts himself like a fugitive slave, should be considered to act as a slave from the very fact that he has taken to flight.
11 Gaius ad edictum praetoris urbani titulo de liberali causa. licet fugae tempore pro libero se gesserit: dicemus enim eum in eadem causa esse.
11 Gaius, On the Edict of the Urban Prætor, Title: Actions with Reference to Freedom. Even though, during his flight he acted as a freeman, we hold that the same rule will apply.
12 Ulpianus libro quinquagensimo quinto ad edictum. Igitur sciendum est et liberum posse dolo malo in libertate esse et servum posse sine dolo malo in libertate esse. 1Infans subreptus bona fide in servitute fuit, cum liber esset, deinde, cum de statu ignarus esset, recessit et clam in libertate morari coepit: hic non sine dolo malo in libertate moratur. 2Potest et servus sine dolo malo in libertate morari, ut puta testamento accepit libertatem, quod nullius momenti esse ignorat, vel vindicta ei imposita est ab eo, quem dominum esse putavit, cum non esset, vel educatus est quasi liber, cum servus esset. 3Et generaliter dicendum est, quotiens quis iustis rationibus ductus vel non iustis, sine calliditate tamen putavit se liberum et in libertate moratus est, dicendum est hunc in ea causa esse, ut sine dolo malo in libertate fuerit atque ideo possessoris commodo fruatur. 4Probatio autem ad id tempus referetur, cum sine dolo malo in libertate fuerit, quo primum in ius aditum est. 5Si operae alicui debeantur, is quoque liberali iudicio experiri potest. 6Si quod damnum mihi dederit, qui ad libertatem proclamat, illo tempore, quo bona fide mihi serviebat, veluti si ego bona fide dominus noxali iudicio conventus et condemnatus litis aestimationem pro eo optuli: in id mihi condemnabitur.
12 Ulpianus, On the Edict, Book LV. Hence, it should be noted that a person who is free can be fraudulently at liberty, and that a slave can be at liberty without being guilty of fraud. 1A child who is stolen in infancy served as a slave in good faith, although he was free; and afterwards, while ignorant of his condition, left his master and secretly began to live in freedom. He does not remain at liberty without being guilty of fraud. 2A slave can also be at liberty without committing fraud, as, for instance, where he receives his freedom by a will and is not aware that the will is void; or where he obtains it before a magistrate from someone whom he believed to be his owner, when he was not; or where he has been brought up as free, when, in fact, he was a slave. 3Generally speaking, whenever anyone thinks that he is free, without being guilty of deceit, whether he is induced to do so by good or bad motives, and he remains at liberty, it must be held that he is in the same condition as if he was free without being guilty of fraud, and therefore he can enjoy all the advantages of a possessor of freedom. 4The proof of good faith, however, is referred to the time when he was at liberty without being guilty of fraud, which is when legal proceedings with reference to him were first instituted. 5Where the services of a slave are due to anyone, he can also avail himself of the action relating to freedom. 6If a person who claims his freedom has caused me any damage during the time when he was serving me as a slave in good faith (as, for example, if I really, believing myself to be his owner, was sued in a noxal action, and judgment was rendered against me, and I paid the appraised damages, instead of surrendering the alleged slave by way of reparation), judgment will be rendered against him in my favor.
13 Gaius ad edictum praetoris urbani titulo de liberali causa. Illud certum est damnum hoc solum in hac in factum actione deduci, quod dolo, non etiam quod culpa factum sit. ideoque licet absolutus hoc iudicio fuerit, adhuc tamen postea cum eo poterit lege Aquilia agi, cum ea lege etiam culpa teneatur. 1Item certum est tam res nostras quam res alienas, quae tamen periculo nostro sunt, in hanc actionem deduci, veluti commodatas et locatas: certe depositae apud nos res, quia nostro periculo non sunt, ad hanc actionem non pertinent.
13 Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. It is certain that in the action in factum under discussion, judgment should only be rendered for the amount of damages which were caused by fraud, and not for what was due to negligence. Therefore, even if the alleged slave should be released from liability in a case of this kind, still, suit can afterwards be brought against him under the Aquilian Law, as by this law he will also be liable for negligence. 1Again, it is certain that in this action not only our own property but also that of another for which we are responsible can be claimed as having been lent or hired. But it is clear that this proceeding does not apply to property merely deposited with us for safe-keeping, because it is not at our risk.
14 Ulpianus libro quinquagensimo quinto ad edictum. Rectissime praetor calliditati eorum, qui, cum se liberos scirent, dolo malo passi sunt se pro servis venum dari, occurrit. 1Dedit enim in eos actionem, quae actio totiens locum habet, quotiens non est in ea causa is qui se venire passus est, ut ei ad libertatem proclamatio denegetur. 2Dolo autem non eum fecisse accipimus, qui non ultro instruxit emptorem, sed qui decepit:
14 Ulpianus, On the Edict, Book LV. The Prætor very properly opposes the deceitful conduct of those who, knowing that they are free, fraudulently permit themselves to be sold as slaves; for he grants an action against them. 1This action will lie whenever he who permitted himself to be sold as a slave is in such a position that he cannot be refused permission to demand his freedom. 2We do not consider that he has acted in bad faith who did not voluntarily inform the purchaser of the fraud, but only when he himself deceived him.
15 Paulus libro quinquagensimo primo ad edictum. (id est sive virilis sexus sive feminini sit, dummodo eius aetatis sit, ut dolum capiat):
15 Paulus, On the Edict, Book LV. That is to say, no matter whether the person who suffered himself or herself to be sold is of the male or the female sex; provided he or she is of an age at which fraud can legally be committed.
16 Ulpianus libro quinquagensimo quinto ad edictum. immo eum, qui finxit se servum et sic veniit decipiendi emptoris causa. 1Si tamen vi metuque compulsus fuit hic qui distractus est, dicemus eum dolo carere. 2Tunc habet emptor hanc actionem, cum liberum esse nesciret: nam si scit liberum et sic emit, ipse se circumvenit. 3Quare si filius familias emit, si quidem ipse scit, pater ignoravit, non adquisiit patri actionem: hoc si peculiari nomine egerit. ceterum si patre mandante, hic quaeritur, an filii scientia noceat: et puto adhuc nocere, quemadmodum procuratoris nocet. 4Plane si filius ignoravit, pater scit, adhuc dico repellendum patrem, etiamsi peculiari nomine filius emit, si modo pater praesens fuit potuitque filium emere prohibere.
16 Ulpianus, On the Edict, Book LV. The same rule applies to one who pretends to be a slave, and is sold as such, with the intention of deceiving the purchaser. 1If, however, he, who was sold was under the influence of either force or fear, we say that he was not guilty of fraud. 2The purchaser is entitled to this action when he was not aware that the alleged slave was free, for if he knew that he was free, and then bought him, he cheated himself. 3Therefore, if a son under paternal control makes a purchase of this kind, and he himself was aware of the facts, but his father was ignorant of them, he will not be entitled to an action for the benefit of his father, if he made the purchase with reference to his peculium. But, in this instance, the question arises whether, if the father directed him to make the purchase, he will be prejudiced by the knowledge of his son. I think that it will prejudice him just as it would prejudice an agent. 4If the son was not aware that the man who was sold was free, and his father knew it, I think that it is clear that the father will be barred from bringing an action, even if the son made the purchase with reference to his peculium; provided the father was present and could have prevented his son from doing so.
17 Paulus libro quinquagensimo primo ad edictum. In servo et in eo, qui mandato nostro emit, tale est, ut, si certum hominem mandavero emi sciens liberum esse, licet is cui mandatum est, ignoret, idem sit: et non competet ei actio. contra autem, si ego ignoravi, procurator scit, non est mihi deneganda.
17 Paulus, On the Edict, Book LI. The same rule will apply to the case of a slave, and where a purchase was made under our direction by an agent; and it is just as if I had ordered a certain man to be purchased, knowing him to be free, although he who was ordered to buy him may not have been aware of the fact, as an action will not lie in his favor. If, on the other hand, I was not aware that the man was free, but the agent knew it, the action will not be refused me.
18 Ulpianus libro quinquagensimo quinto ad edictum. In tantum ergo tenetur, quantum dedit vel in quantum obligatus est, scilicet in duplum. 1Sed utrum pretium tantum an etiam id quod pretio accessit duplicetur, videamus. et putem omne omnino, quod propter emptionem vel dedit.
18 Ulpianus, On the Edict, Book LV. He, therefore, will be liable for as much as he has paid, or for the amount for which he bound himself, that is to say, for double the price. 1Let us see, however, whether merely the purchase money or also whatever may have been added to it should be doubled. I think that either all that was paid on account of the sale ought, by all means, to be doubled,
19 Paulus libro quinquagensimo primo ad edictum. Vel permutavit vel compensavit eo nomine (nam et is dedisse intellegendus est)
19 Paulus, On the Edict, Book LI. Or what was exchanged or set off, in lieu of the purchase money (for it also is understood to have been given as such under these circumstances);
20 Ulpianus libro quinquagensimo quinto ad edictum. vel obligatus est, duplari debere. 1Proinde si quid cuidam ob hanc actionem licito iure dedit, dicendum est in hoc edictum cadere duplarive. 2Obligatum vel ipsi venditori accipere debemus vel alii obligatum: nam quod dedit, sive ipsi venditori sive alii ex iussu eius sive ipse sive alius dederit, aeque continebitur. 3Obligatum accipere debemus, si exceptione se tueri non potest: ceterum si potest, dicendum non esse obligatum. 4Interdum evenit, ut is qui comparavit habeat in quadruplum actionem: nam in ipsum quidem, qui sciens pro servo veniit, hinc habet in duplum actionem et praeterea in venditorem vel eum, qui duplam promisit, in duplum actio est,
20 Ulpianus, On the Edict, Book LV. And what he bound himself to pay should be doubled. 1Hence, if the purchaser has lawfully paid something to anyone in order to obtain this action, it must be said that it comes within the terms of this Edict, and will be doubled. 2Where anyone is said to have bound himself, we must understand this to have been done either to the vendor or to someone else; for whatever he, either himself, or through another, gave to the vendor himself, or to some other person by his order, is equally included. 3We should consider the purchaser to be bound where he cannot protect himself by an exception, but if he can do so, he is not held to be bound. 4It sometimes happens that he who makes the purchase will be entitled to an action for quadruple the value of the property. For a suit for double damages will lie in his favor against the alleged slave himself, who, being free, knowingly permitted himself to be sold; and, in addition to this, he will be entitled to an action for double damages against the vendor, or against him who promised him double damages.
21 Modestinus libro primo de poenis. utique eius duplum, quod propter emptionem vel dedit vel obligatus est. secundum quae id, quod alter eorum solverit, nihil ad exonerandum alterum pertinebit, quia placuit hanc actionem poenalem esse. et ideo post annum non datur nec cum successoribus, cum sit poenalis, agetur. 1Actionem, quae ex hoc edicto oritur, manumissione non extingui rectissime dicetur, quia verum est auctorem conveniri non posse, post quem ad eum, qui ad libertatem proclamavit, perveniebatur.
21 Modestinus, Concerning Penalties, Book I. Therefore, double the amount of what the purchaser either paid, or bound himself for with reference to the sale, will be due. According to this, whatever either of the parties may pay will not operate to release the other; because it has been decided that this action is a penal one. Hence, it is not granted after the lapse of a year, nor can it be brought against the successors of the person liable to it, as it is a penal action. 1Therefore, the action which arises from this Edict may, very properly, be said not to be extinguished by manumission, because it is true that the vendor cannot be sued after legal measures have been taken against him who demanded his freedom.
22 Ulpianus libro quinquagensimo quinto ad edictum. Non solus autem emptor, sed et successores eius hac in factum actione agere poterunt. 1Emere sic accipiemus, etiamsi per alium quis emerit, ut puta procuratorem. 2Sed et si plures emerint, omnes habebunt hanc actionem, sic tamen, ut, si quidem pro partibus emerint, pro parte pretii habeant actionem: enimvero si unusquisque in solidum, quisque in solidum habeat actionem. nec alterius scientia alteri nocebit, vel ignorantia proderit. 3Si eum liberum esse emptor nesciit, postea autem scire coepit, hoc ei non nocebit, quia tunc ignoravit. sed si tunc sciit, postea dubitare coepit, nihilum proderit. 4Heredi et ceteris successoribus scientia sua nihil nocet, ignorantia nihil prodest. 5Sed si per procuratorem scientem quis emerit, ei nocet, sicuti tutoris quoque nocere Labeo putat. 6Haec actio post annum non datur, cum sit honoraria: est autem et poenalis.
22 Ulpianus, On the Edict, Book LV. Not only the purchaser himself, but also his heirs, can institute proceedings by means of this action in factum. 1We understand anyone to make a purchase, even where he does so by another, as, for instance, through an agent. 2Where, however, several persons make a purchase, while all of them will be entitled to this action, still, if they have bought different shares, they can bring suit in proportion to the respective amounts of the price which they have paid; or if each one bought the entire interest in the slave, each will be entitled to an action to recover in full; nor will the knowledge or the ignorance of any one of them benefit or prejudice the others. 3If the purchaser was not aware that the man who was sold was free, and he afterwards learned this, his rights will not be prejudiced, because he was ignorant of the fact at the time. But if he knew it when the sale took place, and afterwards doubted its truth, this will be of no advantage to him. 4Knowledge does not prejudice, nor ignorance benefit the heir and other successors of the purchaser in any way. 5If, however, anyone should make the purchase by an agent, who knows that the man is free, it will prejudice him; and Labeo thinks that the knowledge of a guardian will, under these circumstances, prejudice his ward. 6This action is not granted after a year, as it is an equitable as well as a penal one.
23 Paulus libro quinquagensimo ad edictum. Si usum fructum tibi vendidero liberi hominis et cessero, servum effici eum dicebat Quintus [ed. maior Mucius] <ed. minor meus>, sed dominium ita demum fieri meum, si bona fide vendidissem, alioquin sine domino fore. 1In summa sciendum est, quae de venditis servis, quibus denegatur ad libertatem proclamatio, dicta sunt, etiam ad donatos et in dotem datos referri posse, item ad eos, qui pignori se dari passi sunt. 2Si mater et filius de libertate litigant, aut coniungenda sunt utrorumque iudicia aut differenda est causa filii, donec de matre constet, sicut divus quoque Hadrianus decrevit. nam cum apud alium iudicem mater litigabat, apud alium autem filius, Augustus dixit ante de matre constare oportere, sic dein de filio cognosci.
23 Pauliis, On the Edict, Book L. If I should sell and transfer to you the usufruct in a man who is free, Quintus Mucius says that he will become a slave, but the ownership will not become mine, unless I sell the usufruct in good faith, for, otherwise, there will be no owner. 1In a word, it must be noted that what has been said with reference to men sold as slaves, and whose claim to freedom is denied, also applies to such as are donated, and given by way of dowry; just as it does to those who have permitted themselves to be given in pledge. 2Where a mother and her son both demand their freedom, the cases of the two should be joined, or that of the son should be deferred until the mother’s case has been decided; as was decreed by the Divine Hadrian. For where the mother has instituted proceedings before one judge, and her son before another, Augustus stated that the condition of the mother must first be established, and after that the case of the son should be heard.
24 Idem libro quinquagensimo primo ad edictum. Ordinata liberali causa liberi loco habetur is, qui de statu suo litigat, ita ut adversus eum quoque, qui se dominum esse dicit, actiones ei non denegentur, quascumque intendere velit: quid enim si quae tales sint, ut tempore aut morte intereant? quare non concedatur ei litem contestando in tutum eas redigere? 1Quin etiam Servius ait in actionibus annuis ex eo tempore annum cedere, ex quo lis ordinata sit. 2Sed si cum aliis experiri velit, non est quaerendum, an lis ordinata sit, ne inveniatur ratio, quemadmodum subiecto aliquo, qui libertati controversiam moveat, interim actiones excludantur: aeque enim ex eventu iudicii liberalis aut utilis aut inanis actio eius efficietur. 3Sed si quas actiones inferat dominus, quaeritur, an compellendus sit suscipere iudicium. et plerique existimant, si in personam agat, suscipere ipsum ad litis contestationem, sed sustinendum iudicium, donec de libertate iudicetur: nec videri praeiudicium libertati fieri aut voluntate domini in libertate eum morari: nam ordinato liberali iudicio interim pro libero habetur, et sicut ipse agere, ita cum ipso quoque agi potest. ceterum ex eventu aut utile iudicium erit aut nullum, si contra libertatem pronuntiatum fuerit. 4Si is, qui in libertatem proclamat, furti aut damni iniuria ab aliquo arguatur, Mela ait interim eum cavere debere iudicio se sisti, ne melioris condicionis sit qui dubiae libertatis est, quam qui certae: sed sustinendum iudicium, ne praeiudicium libertati fiat. aeque si cum possessore hominis furti agi coeperit, deinde is, cuius nomine agebatur, in libertatem proclamaverit, sustinendum iudicium, ut, si liber iudicatus sit, in ipsum transferatur iudicium: et, si damnatio facta sit, iudicati actionem potius in eum dandam.
24 The Same, On the Edict, Book LI. After the preliminaries of a suit involving the demand for freedom have been legally complied with, he who brought it to establish his status is considered to be free, and actions will not be refused him against one who alleges that he is his owner, no matter what actions he may desire to bring. But what if these are suits, the right to which is extinguished by lapse of time, or by death? Why should he not be granted the power to institute these proceedings in security after issue has been joined? 1Moreover, Servius says that, in cases where the right to bring actions is barred after a year has elapsed, the year must be reckoned from the day on which the case relating to freedom was disposed of. 2If, however, it is considered desirable to proceed against others, it will not be necessary to wait until the first case has been decided, lest in the meantime means may be found to bar these actions by the introduction of someone who will dispute the right of the alleged slave to be free. In like manner, an action can legally be brought or not, according to the decision in the case involving the freedom of the party in question. 3If the alleged owner should bring an action, the question arises whether the defendant will be obliged to join issue. Several authorities hold that if he brings an action in personam, he must undertake the defence of the case, but judgment must be suspended until the question of his freedom has been determined; nor should it be held that his attempt to obtain his freedom is prejudiced, or that he remains at liberty with the consent of his master. For after the case brought to establish his freedom has been decided, he is considered, in the meantime, to be free; and as he himself can bring actions, so also, actions can be brought against him; but it will depend upon the result, as the judgment will either be valid if it is in his favor, or it will be void if it is adverse to his freedom. 4Where he who demands his freedom is accused of theft, or of wrongful damage by anyone, Mela says that he must, in the interim, furnish security that he will be present when the decision is rendered, to prevent the condition of one whose freedom is in doubt from becoming preferable to that of a person whose freedom is certain; but judgment must be deferred to avoid committing any wrong against liberty. Likewise, where an action of theft is brought against the possessor of a man alleged to be a slave, and he is afterwards sued in the name of him who claimed his freedom, the decision of the case must be suspended; so that if the latter is ascertained to be free, the case against him can be transferred, and if the judgment should be unfavorable, the action to enforce it can be granted against him.
25 Gaius ad edictum praetoris urbani titulo de liberali causa. Si cui de libertate sua litiganti optio legata sit, quaecumque hereditate ei relicta dicuntur, eadem et de optione tractari possunt. 1Interdum ex integro datur ad libertatem proclamatio, veluti eius, qui adfirmat ideo se primo iudicio victum, quod statuta libertas nondum ei optigerat, quam nunc dicit sibi optigisse. 2Licet vulgo dicatur post ordinatum liberale iudicium hominem, cuius de statu controversia est, liberi loco esse, tamen, si servus sit, certum est nihilo minus eum, quod ei tradatur vel stipuletur, perinde domino adquirere atque si non de libertate eius quaerebatur. tantum de possessione videbimus, cum ipsum post litem ordinatam desinat dominus possidere: sed magis est, ut adquirat, licet ab eo non possideatur. et cum placuit per fugitivum quoque nos possessionem adquirere posse, quid mirum etiam per hunc, de quo quaeramus adquiri?
25 Gaius, On the Edict of the Urban Prætor: Title, Actions Relating to Freedom. If an option has been bequeathed to anyone demanding his liberty in court, whatever has been stated with reference to the bequest of an estate will also apply to that of an option. 1The right to bring a second action to obtain freedom is sometimes granted; as for instance, where a party alleges that he lost the first case because his freedom depended upon a condition which had not previously been complied with. 2Although it is commonly stated that, after a case involving freedom has been decided, the person whose condition was in controversy is considered to be free; still, if he is really a slave, it is certain that he, nevertheless, will acquire for his master whatever has been delivered to or promised him, just as if no question had arisen concerning his freedom. We shall see that there is no dispute as to his possession, since his master ceases to possess him after the case has been decided. The better opinion is that he acquires possession, although he is not possessed by him. And, as it has been settled that we acquire possession by our slaves, even if they are fugitives, why should it be wondered at that we also acquire possession by one whose right to freedom we deny?
26 Idem libro vicensimo ad edictum provinciale. Qui ex libertate in servitutem petit, si iudicii de evictione servandi causa contra libertatem agit, iniuriarum actione non convenitur.
26 The Same, On the Provincial Edict, Book XX. Where anyone claims a person who is at liberty as his slave, and only brings the action for the purpose of having recourse in case of eviction, he cannot be sued in an action on injury.
27 Ulpianus libro secundo de officio consulis. Divi fratres Proculo et Munatio rescripserunt: ‘Cum Romulus, de cuius statu quaeritur, pupillaris aetatis sit, an exigente Varia Hedone matre et consentiente Vario Hermete tutore ad tempus pubertatis causa differenda sit, vestrae gravitatis est ex fide personarum quod utile est pupillo, constituere’. 1Si ea persona desit cognitioni, quae alicui status controversiam faciebat, in eadem causa est qui de libertate sua litigat, qua fuit, priusquam de libertate controversiam patiatur: sane hoc lucratur, quod is qui eam status controversiam faciebat amittit suam causam. nec ea res ingenuum facit eum qui non fuit: nec enim penuria adversarii ingenuitatem solet tribuere. recte atque ordine iudices puto facturos, si hanc formam fuerint consecuti, ut, ubi deest is qui in servitutem petit, electionem adversario deferant, utrum malit cognitionem circumduci an audita causa sententiam proferri. et si cognoverint, pronuntiare debebunt servum illius non videri: neque haec res captionem ullam habet, cum non ingenuus pronuntietur, sed servus non videri. quod si ex servitute in ingenuitatem se allegat, melius fecerint, si cognitionem circumduxerint, ne sine adversario pronuntient ingenuum videri, nisi magna causa suadeat et evidentes probationes suggerant secundum libertatem pronuntiandum: ut etiam rescripto Hadriani continetur. 2Quod si is, qui pro sua libertate litigat, desit, contradictor vero praesens sit, melius erit inaugeri causam eius sententiamque proferri: si enim liquebit, contra libertatem dabit: evenire autem potest, ut etiam absens vincat: nam potest sententia etiam secundum libertatem ferri.
27 Ulpianus, On the Duties of Consul, Book II. The Divine Brothers, in a Rescript addressed to Proculus and Munatius, stated as follows: “As Romulus, whose condition is disputed, is near the age of puberty, and at the request of his mother, Varia Hado, and with the consent of Varius Hermes, his guardian, judgment in the case was postponed until the child should reach the age of puberty, it is left to your discretion to determine what will be advantageous to the minor, the position of the parties interested being taken into account.” 1If the person who raised the question concerning the condition of another fails to appear at the trial, he who demands his freedom is in the same condition as he was before the controversy arose with reference to it. He, however, is benefited to this extent, namely, that he who disputed his status will lose his case. This fact, however, does not render him freeborn who previously was not so, for the failure of an adversary to appear does not confer the right of freedom. I think that judges will act lawfully and regularly if they pursue the regular order; so that where the party claiming the man as his slave fails to appear, his adversaries shall be given the choice either of having the case continued, or of having it heard and determined. If the judges should hear the case, they must decide that the party in question does not appear to be the slave of So-and-So. This decision does not take undue advantage of anyone, as the person whose estate is in controversy is not found to be freeborn, but is merely held not to be a slave. Where, however, one who is in slavery claims his freedom, the better course for the judges to pursue will be to continue the case, in order to avoid deciding that the said person appears to be born free, when no adversary appears, unless there should be good reason to cause them to hold that it is clear that judgment should be rendered in favor of liberty; as is also stated in a Rescript of Hadrian. 2If, however, he who demands his freedom fails to appear, and his opponent is present, it will be better to proceed with the case and have judgment rendered. If the adversary offers sufficient evidence, the judge shall decide against freedom. It may, however, happen that the absent party will be successful, for the decision may be rendered in favor of freedom.
28 Pomponius libro duodecimo ad Quintum Mucium. Non videtur domini voluntate servus in libertate esse, quem dominus ignorasset suum esse: et est hoc verum: is enim demum voluntate domini in libertate est, qui possessionem libertatis ex voluntate domini consequitur.
28 Pomponius, On Quintus Mucius, Book XII. A slave is not considered to be at liberty with the consent of his master when the latter does not know that he belongs to him. This is perfectly true; for the slave is only at liberty under such circumstances when he acquires possession of freedom with his master’s consent.
29 Arrius Menander libro primo de re militari. Qui de libertate sua litigans necdum sententia data militiae se dedit, in pari causa ceteris servis habendus est nec exonerat eum, quod pro libero habeatur in quibusdam. et licet liber apparuerit, exauctoratus, id est militia remotus castris reicietur, utique qui ex servitute in libertatem petitus sit vel qui non sine dolo malo in libertate moratus est: qui vero per calumniam petitus in servitutem est, in militia retinebitur. 1Qui ingenuus pronuntiatus est, si se militiae dedit, intra quinquennium retractata sententia novo domino reddendus est.
29 Arrius Menander, On Military Affairs, Book V. Where anyone institutes proceedings to obtain his freedom, and enlists in the army before a decision is rendered, he should be held to occupy the same position as other slaves, and he will not be relieved because, in some respects, he is considered as free. And, although he may have appeared to be free, he can be dishonorably discharged, that is, dismissed from the army, and driven from the camp as one who demanded freedom while in slavery, or who was at liberty through fraud. But anyone who has been falsely and maliciously claimed as a slave shall be retained in the service. 1Where anyone who has been judicially declared freeborn enlists in the army, and the decision is reversed within five years, he shall be returned to his new master.
30 Iulianus libro quinto ex Minicio. Duobus petentibus hominem in servitutem pro parte dimidia separatim, si uno iudicio liber, altero servus iudicatus est, commodissimum est eo usque cogi iudices, donec consentiant: si id non continget, Sabinum refertur existimasse duci servum debere ab eo qui vicisset: cuius sententiae Cassius quoque est et ego sum. et sane ridiculum est arbitrari eum pro parte dimidia duci, pro parte libertatem eius tueri. commodius autem est favore libertatis liberum quidem eum esse, compelli autem pretii sui partem viri boni arbitratu victori suo praestare.
30 Julianus, On Minicius, Book V. Where two persons separately claim a man as their slave, and each of them alleges that he owns half of him, and, by one judgment, he is declared to “be free, and by another, he is pronounced to be a slave, the most convenient course will be for the judges to be compelled to agree. If this cannot be done, Sabinus states that it has been held that the man should be taken as a slave by the party who gained the case. Cassius (as well as myself), adopts this opinion, and, indeed, it is ridiculous for the man to be considered half slave, and also to be protected in the enjoyment of half his freedom. It is, however, convenient to decide that he was free, on account of the favor conceded to liberty, and to compel him to pay to the party who gained the case half of his value, as appraised by a reliable citizen.
31 Ulpianus libro primo responsorum. Filium ob hoc, quod patri heres extitit, prohiberi a patre suum servum manumissum in servitutem petere.
31 Ulpianus, Opinions, Book I. A son who appears as the heir of his father is forbidden from demanding as a slave one who had been manumitted by his father.
32 Paulus libro sexto regularum. De bonis eorum, qui ex servitute aut libertate in ingenuitatem vindicati sunt, senatus consultum factum est, quo cavetur de his quidem, qui ex servitute defensi essent, ut id dumtaxat ferrent, quod in domo cuiusque intulissent: in eorum autem bonis, qui post manumissionem repetere originem suam voluissent, hoc amplius, ut, quod post manumissionem quoque adquisissent non ex re manumissoris, secum ferant, cetera bona relinquerent illi, ex cuius familia exissent.
32 Paulus, Rules, Book VI. A decree of the Senate was enacted concerning the property of those who, as slaves or as freedmen, have acquired the status of freeborn persons. With reference to those who were formerly in a state of slavery, it permits them only to take with them what they conveyed into the houses of their alleged masters, and to those who, after their manumission, desired to recover their original rights. This also was conceded, namely, that whatever they had acquired after their manumission (but not anything obtained through the agency of the person who set them free), they could take with them; and that they must leave all other property with him from whose household they departed.
33 Idem libro singulari de liberali causa. Qui sciens liberum emit, quamvis et ille se pateretur venire, tamen non potest contradicere ei qui ad libertatem proclamat: sed si alii eum ignoranti vendiderit, denegabitur et proclamatio.
33 The Same, Actions Relating to Freedom. Anyone who knowingly purchases a man who is free, even if the latter permits himself to be sold, cannot, nevertheless, oppose him, if he demands his freedom. Where, however, he sells the man to another person who was ignorant of the facts, the supposed slave will not be permitted to demand his liberty.
34 Ulpianus libro singulari pandectarum. Imperator Antoninus constituit non alias ad libertatem proclamationem cuiquam permittendam, nisi prius administrationum rationes reddiderit, quas cum in servitute esset gessisset.
34 Ulpianus, Pandects. The Emperor Antoninus decided that no one should be permitted to demand his freedom, unless he previously had rendered an account of the administration which he had conducted while in slavery.
35 Papinianus libro nono responsorum. Servos ad templi custodiam, quod aedificari Titia voluit, destinatos neque manumissos heredis esse constitit.
35 Papinianus, Opinions, Book IX. It has been settled that the slaves destined for the care of a temple which Titia intended to build, and who had not been manumitted, belonged to her heir.
36 Idem libro duodecimo responsorum. Dominus qui optinuit, si velit servum suum abducere, litis aestimationem pro eo accipere non cogetur.
36 The Same, Opinions, Book XII. A master who has gained his case, and wishes to take away his slave, cannot be compelled to accept the appraised value instead of the slave.
37 Callistratus libro secundo quaestionum. Conventio privata neque servum quemquam neque libertum alicuius facere potest.
37 Callistratus, Questions, Book II. A private agreement cannot make anyone either the slave or the freedman of another.
38 Paulus libro quinto decimo responsorum. Paulus respondit, si, ut proponitur, post perfectam sine ulla condicione emptionem postea emptor ex voluntate sua litteras emisit, quibus profiteretur se post certum tempus manumissurum eum quem emerat, non videri eas litteras ad constitutionem divi Marci pertinere. 1Idem respondit constitutionem quidem divi Marci ad libertatem eorum mancipiorum pertinere, quae hac lege venierint, ut post tempus manumitterentur: sed eundem favorem libertatis consequendae causa etiam eam mereri, pro qua dominus pretium accepit, ut ancillam suam manumitteret, cum idem etiam libertam habiturus sit. 2Quaesitum est, an emptor servo recte libertatem dederit nondum pretio soluto. Paulus respondit servum, quem venditor emptori tradidit, si ei pro pretio satisfactum est, et nondum pretio soluto in bonis emptoris esse coepisse. 3Gaius Seius Stichum servum Lucio Titio vendidit ita, ut Titius Stichum post triennium manumitteret, si continuo triennio servisset: sed nondum exacto tempore trienni Stichus fugit et post aliquantum temporis defuncto Titio revertit: quaero, an obstet Sticho ad consequendam ex venditione libertatem, quod ante triennium discesserit. Paulus respondit secundum ea quae proponuntur expleto tempore, post quod Stichus manumitti debuit, libertatem ei competisse.
38 Paulus, Opinions, Book XV. Paulus gave it as his opinion that if (as is stated) after a sale has been made unconditionally, the purchaser voluntarily sent a letter by which he declared that, after a certain time, he would manumit the slave whom he had bought, this letter had no reference whatever to the Constitution of the Divine Marcus. 1He also gave it as his opinion that the Constitution of the Divine Marcus applied to the cases of slaves who were sold under the condition of being manumitted after a certain time; and that a female slave, for whom her master had received money for the purpose of manumitting her, was entitled to the same favor of freedom, as he would also have authority over her as his freedwoman. 2The question arose whether a purchaser could legally grant freedom to his slave, if his price had not yet been paid. Paulus answered that if the vendor had delivered the slave to the purchaser, and had been furnished with security for his price, he would belong to the purchaser, even if the money had not been paid. 3Gaius Seius sold Stichus, his slave, under the condition that Titius would manumit Stichus at the end of three years, if he served him continually during that time. Stichus fled before the three years had elapsed, and returned in a short time after the death of Titius. I ask whether Stichus would be prevented from obtaining his freedom under the terms of the sale, by having taken to flight before the three years had expired? Paulus gave it as his opinion that, according to the facts stated, Stichus should be manumitted, and was entitled to his freedom after the term which had been prescribed.
39 Idem libro quinto sententiarum. Cui necessitas probandi de ingenuitate sua non incumbit, ultro si ipse probare desideret, audiendus est. 1Qui de ingenuitate cognoscunt, de calumnia eius, qui temere controversiam movit, ad modum exilii possunt ferre sententiam. 2Tutores vel curatores pupillorum, quorum tutelam et res administraverunt, postea status quaestionem facere non possunt. 3Maritus uxori eidemque libertae status quaestionem inferre non prohibetur.
39 The Same, Opinions, Book V. He who is not required to produce proofs of his free birth should be heard, if he himself voluntarily desires to offer them. 1Magistrates who have cognizance of causes involving freedom of birth can impose penalties, to the extent of exile, against anyone who rashly and maliciously institutes proceedings. 2Guardians or curators cannot raise any question as to the condition of the wards whose guardianship and whose property they have administered. 3A husband is not prohibited from raising a question as to the condition of his wife or his freedwoman.
40 Hermogenianus libro quinto iuris epitomarum. Cum pacto partitionis pretii maior viginti annis venalem se praebuit, nec post manumissionem ad libertatem proclamare potest.
40 Hermogenianus, Epitomes of Law, Book V. Where a minor of twenty years of age permits himself to be sold under an agreement to share his price, he cannot, after his manumission, demand that he be declared freeborn.
41 Paulus libro singulari de articulis liberalis causae. Si in obscuro sit, in quo fuerit statu is, qui pro libertate sua litigat, prior audiendus est probare volens se ipsum in libertatis esse possessionem. 1Iudex autem, qui de libertate cognoscit, etiam de rebus amotis damnove facto cognoscere debet: fieri enim potest, ut fiducia libertatis et subripere quaedam et corrumpere atque consumere ex bonis, quibus serviebat, ausus sit.
41 Paulus, Articles Referring to Actions for Freedom. If there is any doubt as to the condition of a person who demands his freedom, he should first be heard, if he wishes to prove that he himself is in possession of freedom. 1The judge who has jurisdiction of cases where freedom is involved should also take cognizance of property which has been stolen, or serious damage committed by the claimant. For it can happen that, being confident that he will obtain his freedom, he may have ventured to steal, or spoil, or waste property belonging to those whom he was serving as a slave.
42 Labeo libro quarto posteriorum. Si servus quem emeras ad libertatem proclamavit et ab iudice perperam pro eo iudicatum est et dominus eius servi post rem contra te iudicatam te heredem fecit aut alio quo nomine is tuus esse coepisset, petere eum tuum esse poteris nec tibi obstabit rei iudicatae praescriptio. Iavolenus: haec vera sunt.
42 Labeo, Last Works, Book IV. If a slave whom you have purchased demands his freedom, and an unjust decision is rendered in his favor by the judge, and the master of the said slave makes you his heir, after the case has been decided against you, or the slave becomes yours in any other way, you can again claim him as yours; and the rule relating to res judicata cannot be pleaded against you. Javolenus says this opinion is correct.
43 Pomponius libro tertio senatus consultorum. De his, qui bona eorum quibus serviebant intercepissent, deinde ad libertatem proclamabant, Hadrianus imperator rescripsit, cuius rescripti verba haec sunt: ‘Sicut non est aequum fiducia libertatis, quae ex fideicommissi causa praestanda est, intercipere hereditariam pecuniam, ita nec libertati praestandae moram quaeri oportet. quam primum ergo arbitrum dare debeat, apud quem constaret, quid servari potest heredi, antequam ad servum manumittendum compelleretur’.
43 Pomponius, Decrees of the Senate, Book III. The Emperor Hadrian published a Rescript with reference to those who had stolen the property of the persons whom they were serving as slaves, and afterwards demanded their freedom, the words of which Rescript are as follows: “As it is not just that a slave, in expectation of his freedom, should take property belonging to the estate of his master, where freedom is to be granted him under the terms of a trust, so it is not necessary to seek for any reason to delay the grant of his freedom.” Hence, in the first place, an arbiter should be appointed, in whose presence it should be determined what can be preserved for the heir, before he can be compelled to manumit the slave.
44 Venuleius libro septimo actionum. Licet dubitatum antea fuit, utrum servus dumtaxat an libertus iurando patrono obligaretur in his quae libertatis causa imponuntur, tamen verius est non aliter quam liberum obligari. ideo autem solet iusiurandum a servis exigere, ut hi religione adstricti, posteaquam suae potestatis esse coepissent, iurandi necessitatem haberent, dummodo in continenti, cum manumissus est, aut iuret aut promittat. 1Licet autem circa donum munus operas etiam uxorum personas inserere. 2In eum, qui impubes iuraverit, scilicet qui et iurare potuerit, danda est utilis actio operarum nomine, cum pubes tamen factus erit. potest tamen et impubes operas dare, veluti si nomenculator sit vel histrio.
44 Venuleius, Actions, Book VII. Although it was formerly doubtful whether only a slave or a freedman could be obliged by his patron to swear to observe the conditions which were imposed upon him in consideration of his liberty, it is, however, better to hold that he cannot be bound to a greater extent than a freeman. Hence it is customary to exact this oath from slaves, in order that they may be restrained by religion, and be required to again be sworn after they become their own masters; provided they take the oath, or make the promise at the very time when they are manumitted. 1Moreover, it is lawful to insert the name of the wife with reference to any donation, present, or daily labor to be given or performed by the manumitted slave. 2A prætorian action on account of labor to be performed should be granted against one who, before reaching the age of puberty, took the oath, that is to say if he was legally capable of doing so; as a boy under the age of puberty can render services if he is either a nomenclator or an actor.