1Ulpianus, On the Edict, Book XIV. Where any persons among those who have been charged with a grant of freedom under a trust are present, and others are absent for some good reason, and others still have concealed themselves, the slave to whom freedom was bequeathed under the trust will become free, just as if those who were present, and those who were absent for good reasons had been charged with the execution of the trust; and therefore the share of the right of patronage to which those who concealed themselves are entitled will accrue to the others.

2The Same, On the Edict, Book LX. If anyone, when dying intestate, should bequeath freedom to a slave by a codicil, and the estate should not be entered upon, the benefit conceded by the Constitution of the Divine Marcus will be available. In a case of this kind, it directs that the slave shall be entitled to his freedom, and that the estate shall be awarded to him if he gives sufficient security to the creditors of the same to pay the full amount which is due to each one of them.

3The Same, On the Edict, Book LXV. Creditors generally have the right to bring prætorian actions against freedmen under these circumstances.

4The Same, On the Edict, Book LX. Hence, as long as it remains doubtful whether there is a successor or not, the Constitution will not apply, but as soon as it is certain, it will become operative. 1Where he who can obtain complete restitution rejects the estate, shall we hold that the Constitution will not become operative as long as his right to complete restitution continues to exist, because it is uncertain whether anyone will appear as an heir at law? The better opinion is that the Constitution will apply. 2But what if, after judgment has been rendered for the purpose of procuring freedom, the heir should obtain complete restitution? It can by no means be said that freedom which has once been granted can be revoked. 3Let us see whether those who receive their freedom must be present or not. And, as property awarded on account of freedom can be granted to them, even without their consent, this can also be done in their absence. 4But what if some of them were present, and others were absent? Let us see whether those who are absent will be entitled to their freedom. It can be said, just as in the case where an estate is entered upon, that those who are absent will also become free. 5If freedom is granted on a certain day, must we wait until the day arrives? I think that we should do so; therefore, the property will not be awarded before that time. But what should be done if freedom was granted under a condition? If some grants of freedom were made absolutely, and others conditionally, the property can be awarded immediately. When, however, all the grants of freedom were conditional, what then must be said? Must we wait until the condition is fulfilled, or shall we immediately award the property so that freedom will only be granted when the condition has been complied with? The latter opinion is preferable. Hence, when the property has been awarded, and freedom directly granted, it is immediately acquired; when it is granted at a certain time, it will be acquired when the time arrives; when it is conditional, it will be acquired when the condition is fulfilled. Nor is it unreasonable to hold that, while the condition upon which the grants of freedom are dependent is in abeyance, even though all the grants of freedom were conditional, the Constitution will apply. For it must be said where there is a prospect of freedom, the property must be awarded, when there is the slightest occasion for it, if this can be done without any loss to the creditors. 6If the slave who receives the grant of freedom, under the condition of the payment of ten aurei either to the heir, to someone who is not mentioned, or to the person entitled to the estate, the question arises, can the slave obtain his freedom? The better opinion is that the money should be paid to the person to whom the estate is awarded, as the condition appears to have been transferred to him. It is, however, certain if he was directed to pay it to some other person than the heir, that it must be paid to the individual designated. 7Where slaves have received their freedom under the terms of a trust, they do not become freedmen immediately, as soon as the estate is awarded, but they can obtain their freedom left” them by the trust; that is to say, they should be manumitted by the person to whom the estate is adjudged. 8The Emperor intended that an estate should be awarded only where sufficient security is given to the creditors for the payment of the entire amount due to each of them. Proper security must, therefore, be furnished. What is meant by the term “proper”? It signifies that sureties or pledges should be given. If, however, the creditor has faith in the promisor, without his furnishing a surety, the security will be considered sufficient. 9In what way should security be furnished to creditors? Should it be given to them individually, or to one appointed by the entire number in the name of all? It is necessary and is part of the duty of the judge to call the creditors together, and appoint one of their number to whom security shall be furnished in the name of all. 10Let us see whether security should be given to the creditors before the estate is awarded, or whether this should be done under the condition that security shall be furnished? I think that it will be sufficient if everything provided by the Constitution of the Divine Marcus is included in the decree. 11We should understand the entire amount to mean both principal and interest. 12The Constitution shows whose freedmen they who are manumitted become, so that those who receive their freedom directly will be the freedmen of the deceased; unless he who claims that the estate should be awarded to him alone wishes this to be done in such a way that those who have been emancipated directly may become his own freedmen. 13Should those who wish to become his freedmen be manumitted by him, or in awarding the estate ought we to mention that it is awarded upon the condition that the slaves who have been granted their liberty directly shall become his freedmen? I think that this opinion should be adopted and stated in the decision, and the terms of the constitution also permit this to be done. 14When a slave, under the age of puberty, obtains his freedom, the party to whom the estate is awarded shall be entitled to his guardianship. 15If the deceased charged his heir to manumit certain slaves belonging to another, shall we say that the Constitution is applicable, or, indeed, will it not take effect? The better opinion is that there is ground for its application, because the person to whom the estate is awarded will be compelled to purchase the slaves, and have their freedom granted them by the Prætor. 16If the legatee, and not the heir, is charged to manumit the slave, will the constitution fail to apply, because, the legacies not being due, the grants of freedom cannot be due either? The better opinion is that the same advantage will be available, as the intention of the constitution, generally speaking, is to grant freedom to all who are entitled to it, if the estate has been entered upon. 17The same constitution provides that if the Treasury acquires the estate, the grants of freedom must still be made. Therefore, if the property is without an owner, on account of the Treasury having either rejected or accepted it, the constitution will still apply. If, however, the Treasury obtains it in some other way, it is evident that the constitution will cease to be applicable. Hence, if the property of a legion, which is without an owner, escheats to the Treasury, the same opinion must be adopted. 18Likewise, where a minor of twenty years of age bequeaths a grant of freedom, we say that the slave will not be entitled to it, unless the minor left it under a trust. The slave will, however, be entitled to it if the minor should manumit him during his lifetime, provided he can give a good reason for doing so. 19Where freedom is granted and creditors defrauded by a testator who was not solvent at the time of his death, will the grant be valid? If the Treasury does not obtain the estate, the grant of freedom perhaps will be valid, because all that is due to the creditors is offered to them. If, however, the estate has been entered upon, it will not be valid. It is clear that if the Treasury should obtain the estate, there will be better ground for holding that the grant of freedom will not be valid. For anyone, strictly adhering to the terms of the constitution, might say that he can only blame himself, who desired that the estate should be awarded to him under the condition that the grants of freedom should be considered valid. If anyone, however, should follow the rule applicable where an estate is accepted, a direct grant of freedom will be void if the intention of the testator was fraudulent, and the result was that the creditors were cheated; nor will grants of freedom under a trust be executed if, by doing so, the creditors of the estate will be defrauded. 20When an estate has not escheated to the Treasury, and it has been adjudged for the purpose of preserving freedom, can the Treasury afterwards acquire it? The better opinion is that it cannot do so. It is evident that, if notice had not previously been given to the officials of the Treasury, and the estate is awarded for the preservation of freedom, it should be considered whether there is ground for the application of the constitution. If the estate is in such a condition that the Treasury must accept it, the award will be of no effect; but if it is not, there will be ground for it. 21Moreover, he to whom property had been adjudged should be compared to a possessor under the Prætorian Edict; and, according to this, he will be entitled to the rights of burial enjoyed by the deceased. 22Again, let us see whether the person to whom an estate is awarded can be sued by the creditors as an heir, or only on the bond which he has furnished. The better opinion is that he can only be sued on the bond. 23Where an estate is awarded to two or more persons, they will hold the property and the freedmen in common, and will have the right to bring an action in partition against one another.

5Paulus, On the Edict, Book LVII. With reference to freedom granted by the terms of a trust, if the Prætor should, in the absence of the heir, decide that the slave was entitled to be free, he will become so, and will be the freedman of the deceased, if he was his slave, or of the heir if he belongs to the latter. Moreover, if the heir should die without a successor, the Senate, in the time of Hadrian, decreed that the freedom of the slave should be preserved.

6The Same, On the Edict, Book LX. Ten aurei were bequeathed by a testator, and the legatee was charged to purchase Stichus and manumit him. The Falcidian Law will apply, and the slave cannot be purchased for less than ten aurei. Some authorities hold that the legatee is entitled to three-fourths of the legacy, and should not be compelled to purchase the slave. They also think that even if an heir was requested to manumit his own slave, and only receives three-fourths of his legacy, he will not be compelled to manumit him. Let us see whether, in this instance, another opinion should not be adopted. There are certain authorities who hold that, in the first place, the legatee should be compelled to assume the charge and purchase the slave, if he only receives three-fourths of his legacy. If, however, he is prepared to return what he has received, let us see whether he should be heard. The heir should be forced to pay the entire ten aurei, just as if the testator had expressly stated that the legacy should be paid in full.

7Ad Dig. 40,5,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 9.Ulpianus, On the Edict, Book LXIII. Where a hundred aurei are bequeathed to anyone, under the condition that the legatee shall purchase and manumit a slave belonging to another, and when the property of the heir is sold, the legatee shall only demand a portion and not all of his legacy, he cannot obtain it unless he gives security to manumit the slave; provided that the value of the portion which he will obtain will be as much as the price of the slave, and the master of the latter is ready to sell him for this price; otherwise, the legatee will be barred by an exception on the ground of bad faith.

8Pomponius, On Plautius, Book VII. Where a person to whom the sum of a thousand sesterces has been bequeathed is charged to manumit a slave worth twenty, he cannot be compelled to execute the grant of freedom under the trust, if he does not accept the legacy.

9Marcellus, Digest, Book XV. When an heir has been charged not to permit a certain slave to become the property of another, the slave can, immediately after having been alienated, institute proceedings to demand his freedom. Where, however, the alienation is not voluntary, but a necessity exists for it on account of some act of the testator, it is probable that the trust should not be executed, because the deceased is not supposed to have had an alienation of this kind in view.

10The Same, Digest, Book XVI. A certain man inserted the following provision in his will, “I do not wish my slaves, So-and-So and So-and-So, to be sold.” Therefore, if he did not wish them to be sold and intended, if they were sold, that they should become free, their freedom should be granted them; for freedom is considered to have been bequeathed to a slave by the following clause, “I do not wish So-and-So to belong to anyone but you.” Hence, in accordance with this, if the heir should attempt in any way to sell the slave, the latter can immediately claim his freedom, and if the heir should purchase him to prevent him from obtaining it, it will be of no advantage to him, because the condition has been fulfilled. 1A slave who was entitled to his freedom was sold. If he is willing to be manumitted by the heir, there will be no necessity to bring the purchaser, who has concealed himself, into court along with the present heir, as the slave can avail himself of the decree of the Senate to obtain his freedom under the will. 2A slave who was entitled to his freedom under a trust permitted himself to be transferred to a bona fide purchaser by the heir, who was not solvent. Do you think that an action can be granted against this manumitted slave, just as where a freeman deceived his purchaser by pretending that he was a slave? I, however, am inclined to believe that an action will properly lie against the vendor, as the case seems to be similar to that of a slave entitled to be free under a certain condition, and who suffered this to be done the day before he was to obtain his freedom by will.

11Modestinus, Differences, Book I. A ward cannot grant freedom to a slave by virtue of a trust without the authority of his guardian.

12The Same, On Manumissions. When Firmus Titianus bequeathed three slaves, who were tragedians, and added, “I charge you not to permit them to become the slaves of anyone else,” the Emperor Antoninus stated in a Rescript that, as the property of Titianus had been confiscated, the slaves should be publicly manumitted. 1A legatee as well as an heir can be charged to manumit a slave, and if he should die before manumitting him, his heirs must do so. 2The Divine Antoninus and Pertinax stated in a Rescript, where an estate was claimed by the Treasury because there was a secret provision to deliver it to a person who is not capable of receiving it, that all grants of freedom made directly, or under the terms of a trust, should be executed.

13The Same, Rules, Book IX. If a female slave, who is pregnant, should suffer delay in being manumitted, not through the intention of the person charged with this duty, but accidentally, her child will not be free; but the person who should have manumitted the said slave will be compelled to deliver the child to its mother, in order that through her it may obtain its freedom.

14The Same, Opinions, Book X. Lucius Titius, having made a will, appointed Seia, his wife, and Titia, their common daughter, heirs to equal shares of his estate. In another place he said, “I desire my slave, Eros, who is also called Psyllus, to be free, if my wife consents.” Therefore, as Seia, the wife of Lucius Titius, refused to accept her share of the estate, which went to her daughter Titia, under the substitution, I ask whether Eros, who was also called Psyllus, will be entitled to his freedom by virtue of the above-mentioned clause. Modestinus answered that the rights of Eros were not prejudiced, because the wife of the testator declined to accept the estate. I also ask whether his wife, Seia, who did not enter upon the estate, could legally oppose Eros when he demanded his freedom? Modestinus answered that Seia’s refusal of consent would be of no force or effect.

15The Same, Pandects, Book V. A person charged with the manumission of a slave under the terms of a trust can, in no way whatever, render the condition of the said slave worse; and therefore he cannot in the meantime sell him to anyone else, in order that he to whom he was sold may emancipate him; and if he should deliver the slave, he will be compelled to purchase and manumit him; for it is sometimes to the interest of a slave to be manumitted by an old man rather than by a young one.

16Licinius Rufinus, Rules, Book V. Freedom can also be bestowed under the terms of a trust, and, in fact, to even a greater extent than where it is directly bestowed, for by means of a trust it can be granted not only to one’s own slaves, but also to those of another; provided words in common use and by which the intention of the testator is plainly expressed are employed.

17Claudius, On the Digest of Scævola, Book XXI. Freedom is legally granted by a trust as follows, “When you think proper to manumit him.”

18Scævola, Digest, Book XXIII. The following provision was inserted in a will, “Let Pamphilus be free, if he transacts my business properly.” As the testator died some years after making this will, and there was no ground for complaint of the conduct of Pamphilus, so far as his patron was concerned, the question arose whether he was entitled to his freedom under the will. The answer was that there was nothing in the case stated to prevent him from obtaining it.

19The Same, Digest, Book XXIV. A woman, having appointed her husband her heir, liberated her slaves by a trust, among whom was Stichus, the steward of her husband. The slaves having appeared before the Governor of the province for the purpose of obtaining their freedom, during the absence of their master who had a good reason for being away, and the Governor of the province having decided that the slaves were entitled to their freedom, the question arose whether proceedings could be instituted against Stichus to compel him to render an account of his administration as steward. The answer was that this could not be done. 1A man bequeathed a dowry and considerable other property to his wife, and charged her to manumit Aquilinus, her own slave, before the tribunal. The woman refused to do so, because the slave was her individual property. I ask whether he was entitled to his freedom. The answer was that if the wife had accepted not only her dowry, but also the other property left to her by the will, she could be compelled to manumit Aquilinus by virtue of the trust, and that, when he became free, he could demand anything that had been bequeathed to him.

20Pomponius, Epistles, Book VII. It is stated by Julianus that, when an heir who is charged to manumit a slave transfers the estate under the Trebellian Decree of the Senate, he can be compelled to manumit the slave; and if he should conceal himself, or be absent for some good reason, the Prætor, after proper cause is shown, must render a decision in accordance with the decrees of the Senate which relate to cases of this kind. If, however, the beneficiary to whom the estate was transferred should have the custody of said slave, he himself can manumit him; and it is proper that the same formalities should be observed with reference to him, as is usually done with reference to purchasers in general. Do you think that this is true? I, myself, actuated by the desire to acquire knowledge, have for seventy-eight years considered the following saying, which I have always in mind, as the best rule of life, “When I have one foot in the grave I shall still be glad to learn something.” Aristo and Octavenus very properly hold that the slave in question does not form part of the estate subject to the trust, because the testator, by asking the heir to manumit him, does not seem to have had in view that he should be delivered to the beneficiary of the same. If, however, he should be delivered through a mistake of the heir, the opinion of Julianus should be adopted.

21Papinianus, Questions, Book XIX. “I request that Stichus shall not become the slave of another.” It was decided by the Emperor that freedom was granted by a trust under this clause: for what is more opposed to slavery than freedom? Freedom, however, is not considered as granted after the death of the heir. The result is that if the heir, during his lifetime, should alienate the slave, he can immediately demand his freedom, and if the heir purchases him, it will be no impediment to his becoming free, as the condition has already been fulfilled. This rule should also be adopted where the alienation by the heir was not voluntary, nor can it be stated, in opposition, that the alienation was not made by the heir himself; for the case resembles that of a slave who was to be free conditionally, where, to a certain extent, the condition has been complied with.

22The Same, Questions, Book XXII. When a tract of land and the sum of ten aurei are left to a legatee, instead of the price of one of his slaves, under the condition that he shall manumit the said slave, and he accepts the devise of the land, but rejects the bequest of the money to avoid the operation of the Falcidian Law, he can be compelled to accept it, together with the diminution resulting from the Falcidian Law, and to grant freedom to the slave under the terms of the trust, when he has once accepted the devise of the land. 1A testator, who had three slaves, charged his two heirs to manumit two of the said slaves whom they might select. One of the heirs failing to appear, the other mentioned the two slaves whom he desired to manumit. It can be said that they are liberated and obtain their freedom, just as if the heir who was present alone had the right to emancipate them. If, however, one of the slaves should die, and the heir should be absent for some good reason, or he of whom the request was made did not have the power of speech, it is established that the two surviving slaves will become free by the Decree of the Prætor. 2When a trustee who is charged with the grant of freedom is absent for a good and sufficient reason, or conceals himself; or where there are several heirs, some of whom are present and others absent for good cause; and still others do not appear in order to avoid the execution of the trust; or the heir charged with the grant of freedom is not living; or a proper heir rejects the estate; the Prætor must decree that the slave is entitled to his freedom under the trust provided by the will of Lucius Titius. It has been expressly stated by a decree of the Senate that, although it may not be doubtful or obscure whose freedman the slave will become, the Prætor must decide which one of the heirs was absent for a good reason, and which one failed to appear for the purpose of preventing the execution of the trust.

23The Same, Opinions, Book IX. Freedom granted under the terms of a trust cannot be deferred under the pretext that the slave has stolen something belonging to the estate, or has administered its affairs improperly. 1The heir of an heir, who has transferred the estate under the Trebellian Decree of the Senate, can be compelled to grant freedom to a slave, where the trust has not been executed by the former heir, if the slave who is to be manumitted selects him as his patron. 2I gave it as my opinion that a son, who is a soldier, or who has served in the army, and who has accepted a trust created by his father requiring him to liberate a slave forming a part of his peculium castrense (the charge being that this should be done by his legitimate sons); if he should become the heir of his father he can be forced to emancipate the slave, because the deceased thought that he was manumitting his own slave after having given him to his son. The latter cannot be compelled by his brother, who is the co-heir of the owner of the slave, to pay him a portion of the price of the slave, as this would be contrary to the will of the father; nor, on account of this mistake, should the other property which his father gave to his son when he was about to depart for the army be brought into contribution for the benefit of the brother, who remained under paternal control; as the said son, who is included among the other lawful heirs, can retain his peculium castrense as a preferred legacy. 3Where freedom is granted under the terms of a trust, and a son is charged with the execution of the same, after he arrives at a certain age, and he dies before reaching that age, freedom must be granted to the slave by his heir at the prescribed time; but it has been settled that this decision, which only applies to a particular case, does not extend to other kinds of trusts. 4A testator wished a slave to be manumitted by his son after the expiration of five years, if, during that time, the slave paid him a certain sum every day. The slave ran away after two years had elapsed, and did not pay the money. It was held that the condition had not been complied with. If, however, the son, who was the heir, or his guardians, had chosen to accept the services of the slave during the two years, in lieu of payment, it was held that this would be no impediment to the freedom of the slave, as it was the fault of the heir that the remainder of the condition had not been fulfilled.

24Ulpianus, Trusts, Book V. Generally speaking, we say that persons who can leave money under a trust can also bequeath a grant of freedom in the same manner. 1A grant of freedom under a trust, which is bequeathed to a slave of the Emperor, or of a municipality, or of anyone else, is valid. 2Where freedom is bequeathed by the terms of a trust to a slave of the enemy, can it be maintained that it is not without force or effect? Perhaps someone may say that a slave of the enemy is unworthy to become a Roman citizen. If, however, it is bequeathed to him in case he becomes one of our allies, what is there to prevent anyone from holding that the grant of freedom is valid? 3Where freedom is bequeathed under the terms of a trust to a man who is already free, and he is subsequently reduced to slavery, he can demand his freedom, provided he was a slave at the time of the death of the testator, or when a condition was fulfilled. 4Freedom can legally be left under a trust to a slave who is yet unborn. 5A slave cannot expect his freedom if he has been sentenced to the mines. But what if freedom was left to him under the terms of a trust, and he was released from the penalty of the mines by the indulgence of the Emperor? It was stated in a Rescript by our Emperor that he will not be restored to the ownership of his former master; but in this case, it is not stated to whom he will belong. It is certain that when he becomes the property of the Treasury that he can expect to obtain his freedom by virtue of the trust. 6Freedom under the terms of a trust can be granted to a slave conceived and born of a woman who was condemned to the mines. What is there surprising in this, as the Divine Pius stated in a Rescript that he could be sold as a slave? 7Where it is requested by the testator that Stichus should not afterwards serve as a slave, it was held that freedom should be considered to have been granted to him under a trust; for he who asks that he shall not afterwards serve as a slave is considered to ask that he be granted his freedom. 8Where, however, the testator states, “You shall not alienate or sell him,” the same rule will apply, provided that this was done by the testator with the intention that he should obtain his freedom. But if he inserted the clause with a different intention (for example, because he advised the heir to retain the slave; or because he desired to punish and torture the latter in order to prevent him from obtaining a better master, or did so with some other motive than that of liberating him), it must be said that he should not be granted his freedom. This was mentioned by Celsus in the Twenty-third Book of the Digest. It is not so much the terms of the trust as the intention of the testator, which usually confers freedom in such cases. As, however, freedom is always considered to be granted, it devolves upon the heir to prove the contrary intention of the testator. 9When anyone appoints a slave a guardian, because he thinks that he is free, it is absolutely certain that he cannot demand his freedom, nor can the right to the guardianship be maintained by him on account of the grant of freedom. This is held by Marcellus in the Fifteenth Book of the Digest, and Our Emperor, with his Father, also stated it in a Rescript. 10Where anyone grants liberty directly to a slave who has been pledged, although, by the strict construction of the law, the grant is held to be void; still, if freedom had been left to him by the terms of a trust, the slave can demand his liberation by virtue of it. For the favor conceded to freedom requires that we should interpret the bequest in this manner, and that the words of the will mean that freedom should be demanded, just as if the slave had been directed to be free under the terms of a trust. For it is well known that many things contrary to the strict construction of the law have been decided in favor of liberty. 11It is established that grants of freedom which are either direct, or dependent upon the terms of a trust, cannot be carried out under a will which has been broken by the birth of a posthumous child, where the testator has not charged his lawful heirs with their execution. 12Where anyone is requested to manumit his own slave, or the slave of another, and he receives less by the will of the testator than the value of the slave, whether he can be compelled either to purchase the slave belonging to another, or to manumit his own, is a question for consideration. Marcellus says that, as soon as he accepts the legacy, he will, by all means, be compelled to manumit his slave. And, indeed, this is our practice, as it makes a great deal of difference whether anyone is requested to manumit his own slave, or a slave belonging to someone else. If it is his own slave, he will be compelled to manumit him, even if the amount he receives is very small; but if it is the slave of another, he should not be forced to manumit him unless he can purchase the said slave for a sum equal to what he receives by the will of the testator. 13Hence Marcellus says that he also, who is appointed the heir, can be compelled to manumit his own slave, if he obtains anything from the estate after payment of its indebtedness, but if he obtains nothing, he cannot be forced to do so. 14It is clear that, if less has been bequeathed to anyone than the slave is worth, but the legacy has been increased for some reason or other, it will be perfectly just for him to be compelled to purchase the slave with the amount which he obtains from the estate; but it should not be said that he has been left less than the slave was worth, as his legacy has been increased by reason of the will. For if, through delay, the crops or the interest should be added to the amount bequeathed under the trust, it must be held that freedom ought to be granted. 15On the same principle, if the price of the slave has been reduced, it must be held that he should be forced to purchase him. 16Where, however, the legacy has been diminished, it must be considered whether he who expected to obtain a larger legacy can be compelled to manumit the slave. I think that if he is ready to refund the legacy, he cannot be forced to do so, for the reason that he accepted the legacy with a different prospect, and it has been unexpectedly diminished. Therefore, if he is ready to surrender the legacy, he shall be permitted to do so, unless what remains of it is sufficient to pay the price of the slave. 17But what if a person is charged to manumit several slaves, and the sum bequeathed is equal to the value of some of them, but not to that of all; can he be compelled to manumit some of them? I think that he can be compelled to manumit as many as the legacy will permit him to do. But who shall decide which ones shall be manumitted; must the legatee select them, or must the heir do so? Perhaps someone may very properly say that the order given in the will should be followed. If the order is not indicated therein, the slaves ought to be selected by lot, to prevent the Prætor from being suspected of favoring any through interest, or kindness; for he must render his decision by taking into account the alleged merits of each slave. 18In like manner, it must be held that, where a legatee is ordered to purchase certain slaves, and give them their freedom, and the money which was bequeathed for this purpose is not sufficient for the purchase of all of said slaves, the rule in this case will be the same as we have adopted in the preceding one. 19Where a legacy is bequeathed to anyone, and he is requested to manumit his own slave, and transfer the legacy to him, must freedom be granted under the terms of the trust? Some authorities are in doubt on this point, because if the legatee is compelled to give the slave his liberty, he will necessarily be obliged to execute the trust and transfer the legacy; and there are some authorities who hold that he should not be forced to do so. For if a legacy should be left to me, and I should be charged to immediately transfer it to Titius, and also to grant freedom under the trust to my slave, we should undoubtedly hold that I cannot be compelled to grant him his freedom, because I am not considered to have received anything to take the place of his value. It is clear that if I should be charged to pay the legacy after a certain time has elapsed, it may be held that I can be compelled to manumit the slave if, in the meantime, I have obtained any benefit from the legacy. 20Where anyone is asked to give to one person a tract of land, and to another a hundred aurei, at the time of his death, he will be compelled to pay whatever he has collected out of the profits of the land, if the amount is equal to that provided by the trust; so that, in this instance, it is not certain whether the money left under the trust, or the grant of freedom, will be due. 21Whenever freedom is legally bequeathed by the terms of a trust, the condition is such that the right can neither be extinguished by a donation, nor by usucaption; for no matter into whose hands the slave whose freedom has been left under the trust may come, his owner will be compelled to manumit him. This has been frequently set forth in the Imperial Constitutions. Therefore, he into whose hands the slave may come will be compelled to grant him his freedom by virtue of the trust, if he who was requested to do so prefers it; for it has been settled by a broader interpretation that, even if freedom were left to a slave conditionally, and he should be alienated while the condition is pending, he is, nevertheless, alienated with the understanding that he is to be free if the condition is complied with. If, however, the slave is unwilling to be manumitted by him, but prefers to obtain his freedom from the person who was charged to emancipate him, the Divine Hadrian and the Divine Pius stated in a Rescript that he must be heard. The Divine Pius also stated in a Rescript that even if he had been already manumitted and preferred to become the freedman of the person who had liberated him, he should be heard. But if the freedman can show that his rights may be, or have been prejudiced by his manumission, on account of some act of the person who manumitted him or for some other reason, relief must be granted him by one of these constitutions, in order that his condition may not become less endurable, which would be contrary to the wishes of the deceased. It is. clear that if the intention of the deceased was that the slave should be manumitted by anyone whomsoever, it must be said that the constitutions above referred to will not apply.

25Paulus, Trusts, Book III. If the heir who sold the slave should die without leaving an heir, and the purchaser should be living, and the slave should desire to become the freedman of the deceased, and not that of the purchaser, Valens decided that he ought not to be heard, for fear that the purchaser might lose both the price which he had paid and his rights over the freedman as well.

26Ulpianus, Trusts, Book V. Where anyone who was requested to manumit the slave of another transfers the slave to a third party on account of his death or the confiscation of his property, I think that it should be held that there is ground for the application of the constitutions, in order that the condition of the freedom bequeathed by the trust may not be rendered worse. For when anyone is charged to manumit a slave at the time of his death, and he dies before giving the slave his freedom, it has been decided that it is the same as if the slave had been bequeathed his freedom by him; for he could have granted him his freedom directly by his will. The result of this is, that whenever anyone who obtains his freedom by virtue of a trust is manumitted by someone, other than the person charged with manumitting him, he will be entitled to the benefit of the constitutions, and will be regarded just as if he had been manumitted by him who was asked to do so; for the reason that favor is always shown to grants of freedom under a trust, and when they are bequeathed they should not be interfered with, as he to whom they are granted is in the meantime held to be in the enjoyment of his liberty. 1Therefore, it is apparent that relief should be granted where freedom is left under a trust, and that any delay which results should be considered as proceeding from the matter itself, and in reckoning the day from which freedom can be demanded, children should be given to their mother to be manumitted, where she is a liberated slave, and the children are born free from the day when freedom was demanded. For, generally, freedom which is left under a trust is demanded too late, or is not demanded at all, on account of the neglect or timidity of those who are entitled to it; or because of their ignorance of their rights; or on account of the authority and rank of those who are charged with the execution of the trust; which things should not stand in the way of the acquisition of freedom. Hence we maintain, and it should so be decided, that children are born free from the very time when any delay is made in liberating their mother from servitude; and, moreover, the child of a female slave should be considered as manumitted from the very time when the mother had the right to demand her freedom, even though she may not have done so. It is clear that relief should be granted to minors of twenty-five years of age in a case of this kind, and that any delay should be held to have proceeded from the matter itself; for, as it has been decreed and set forth in the Constitution of the Divine Severus that wherever delay takes place in the payment of money left to minors under a trust, it should be considered as having proceeded from the matter itself, there is still greater reason that this rule should be adopted where grants of freedom are involved. 2A certain Cæcilius, who had given a female slave in pledge, provided by his will that, after the claim of his creditor had been satisfied, the slave should be manumitted by virtue of a trust. The heirs not having paid the creditor, the children afterwards born to the said slave were sold by him. Our Emperor and his Father stated in a Rescript that, in accordance with what had been decided by the Divine Pius, the children should not be defrauded of the freedom to which they are entitled, and that the price having been refunded to the purchaser, they should become free; just as if their mother had been manumitted at the time when they were born. 3Our Emperor and his Father also stated in a Rescript that if a will or a codicil had not been opened within five years after the death of the testator, and the female slave had had a child in the meantime, it should be delivered to its mother, in order that it might be granted its freedom; and that it should not remain in slavery on account of accidental delay. 4It is, therefore, apparent from this Rescript, as well as from the one which we have mentioned as promulgated by the Divine Pius, that these Emperors were unwilling that any accidental delay in granting freedom should prejudice the rights of a child born of a slave to whom freedom was granted under the terms of a trust. 5This, however, will not be the case where freedom is to be granted under a trust to a female slave by the substitute of a son under the age of puberty, if she had the child during the lifetime of the minor; or if she was to receive her freedom after the lapse of a certain time, or conditionally, and she brought forth the child before the time had arrived, or before the condition had been complied with; for the said child will not be entitled to freedom because the condition in this case is different, as the delay was not accidental, but was caused by the will of the testator. 6If a slave should be bequeathed to anyone in such a way that the legacy is held to be void, and freedom is bequeathed to the same slave under the terms of a trust, the question arises whether the grant of freedom must also be held to be void. And if the slave demands his freedom under the terms of the trust of the person under whose control he remains, where the legacy left to him who was charged to manumit him has been declared to be void, or if the slave himself was bequeathed as was stated above, whether the bequest of his freedom should not be considered to be without force or effect. I think it should be said that the grant of freedom under the trust remains unimpaired, even though nothing may come into the hands of him who was asked to manumit the slave. Hence, he who obtains the legacy must liberate the slave, for the reason that freedom granted under the terms of a trust permits no obstacle to be interposed. 7In the case of bequests of freedom, relief is granted by a decree of the Senate enacted in the time of the Divine Trajan, during the Consulate of Rubrius Gallus and Cælius Hispo, as follows: “If those charged with a grant of freedom, having been summoned by the Prætor, refuse to appear, and, after investigation, the Prætor finds that the slaves are entitled to be free, they will be in the same position under the law as if they had been directly manumitted.” 8This Decree of the Senate has reference to those who are entitled to freedom by virtue of a trust. Hence, if they are not entitled to it, and it has been fraudulently obtained by a decision of the Prætor, freedom will not be granted under this Decree of the Senate. This Our Emperor and his Father stated in a Rescript. 9Those must be summoned before the Prætor who are obliged to grant freedom under a trust, but the Rubrian Decree of the Senate will not apply unless they are summoned. Hence, they should be summoned by notices, by edicts, or by letters. 10This Decree of the Senate applies to all those who conceal themselves, and who are required to grant freedom under the terms of a trust. Hence, no matter who is charged, whether it is the heir or anyone else, there will be ground for the application of the Decree of the Senate; for all of those who are obliged to grant freedom by virtue of a trust are in such a position that the Decree of the Senate will be applicable to them. 11Wherefore, if the heir should conceal himself, and the legatee or the trustee who was asked to grant freedom to a slave is present, the Decree of the Senate will not take effect, and the grant of freedom will be prevented; for, in this instance, we suppose that the legatee has not yet obtained ownership of the slave.

27Paulus, Trusts, Book III. Therefore, in this case recourse must be had to the Emperor, in order that the interests of freedom may be consulted.

28Ulpianus, Trusts, Book V. Will there be ground for the application of the Rubrian Decree of the Senate, if a slave, to whom freedom was bequeathed by a trust, should be sold by the person charged with his liberation, and the purchaser should conceal himself, but the trustee should appear? Marcellus says that the Decree will apply, because the party who was charged to manumit the slave is not present. 1The following words, “Refuse to appear,” do not absolutely require that he whose duty it is to grant freedom should conceal himself, for if he does not do so, but merely fails to appear, the Decree of the Senate will be applicable. 2The same rule should also be observed where several heirs are charged with the granting of freedom under the trust, and a decision rendered that no good cause exists for their absence. 3The slave will become the freedman of those who are absent for a good reason, as well as of those who, being present, do not cause delay in the execution of the trust, just as if they alone had granted him his freedom. 4Where anyone, having been charged to manumit a slave that does not belong to the estate, conceals himself, a Decree of the Senate to provide for such an emergency was enacted during the Consulate of Æmilius Junius and Julius Severus as follows: “It is decided that where any one of those who are charged to grant freedom to a slave under a trust, for any reason whatsoever, and the slave did not belong to the person who made the request at the time of his death, and the trustee refuses to appear, the Prætor shall take cognizance of the case, and if it is established that the slave has a right to be manumitted, and the person charged with his manumission is present, he must decide accordingly. And, after he has rendered his decision, the condition of the slave will be the same in law as it would have been if he had been manumitted by the person who was charged to do so under the trust.” 5It must be held that persons are not present for a good reason, when no improper cause exists for their absence; as it is sufficient if they have not absented themselves for the purpose of defrauding the slave of his freedom, in order that they may appear to be absent for a good reason. It is, however, not necessary that anyone should be absent on public business. Hence, if he has his domicile in one place, and he applies for freedom under the trust in another, it must be said that it is not essential for him who is alleged to be the one from whom the grant of freedom is due to be summoned, because if while he is absent, it should be established that freedom ought to be granted, a decree can be rendered that he is absent for a good reason, and he will not lose his rights over his freedman; for no one can entertain any doubt that he is absent for a just cause who is at his own residence.

29Paulus, Trusts, Book III. Where a slave is alienated after he has been placed in such a position that he ought to be liberated under the terms of a trust, the person to whom he belongs in the meantime will be compelled to manumit him. In this case, however, no distinction is made as to whether there is a good cause for his absence or not, for, in any event, he will be entitled to his freedom.

30Ulpianus, Trusts, Book V. When a decree is rendered by the Prætor that he who is absent has good reason for it, and he is already dead, Our Emperor stated in a Rescript that the decree must be transferred to his heir, and that the law would apply to him just as if the Prætor had decided that he himself was absent for a good reason. 1Where an infant was among the slaves entitled to manumission, the Senate decided that the age of one of them would prevent the others who were entitled to be free under the terms of the trust from obtaining their liberty. 2This rule will also apply where only one heir is appointed, and he is unable to speak for himself. 3When, however, the minor has a guardian, and he is unwilling to authorize the grant of freedom, the Divine Brothers stated in a Rescript that the slave should become free under the terms of the trust, just as if he had been manumitted by the minor himself, by the authority of his guardian; and that it should not be productive of any disadvantage to the minor, nor would it, in any way, prejudice the grant of freedom, if he did not have the slave as his freedman. 4Therefore, when any case occurs in which a child is not able to speak for himself, and yet is charged with a grant of freedom under a trust, we must take into consideration the spirit of the Decree of the Senate, which even extends to the infant heir of the person charged with the execution of the trust. 5Recourse should also be had to the Prætor under these circumstances, especially as it is provided by a Rescript of the Divine Pius that where some of those charged with the execution of the trust are present, and others have concealed themselves, and others again are absent for some good reason, and there is also an infant, the slave will not become the freedman of all of them, but only of the infant and of those who are absent for a good reason, or of those who are present. 6Where several heirs are appointed, and among them there is one who cannot speak for himself, but who has not been charged to manumit the slave, the grant of freedom will not lose its effect because the infant cannot sell his share of the slave to his co-heirs. The Vitrasian Decree of the Senate is applicable in this instance. The Divine Pius, however, stated in a Rescript addressed to Cassius Dexter, that the matter could be disposed of as follows, namely, by appraising the shares of the slaves to whom freedom was granted under the terms of the trust, at their true value, and then directing the slaves to be manumitted by the persons charged with that duty. Those who manumitted them will, however, be liable to their brothers and coheirs, just as if judgment had been rendered against them on this account in court. 7The Divine Pius stated in a Rescript, with reference to an insane person, that freedom granted under a trust was not prevented on account of the condition of the appointed heir, where it was alleged that he was not of sound mind; and, therefore, if it should be established that freedom had been legally provided for by the trust, a decree must be rendered in which this is stated. 8Relief should be granted to a deaf and dumb person just as in the case of an infant. 9Where anyone dies without leaving an heir or other successor who can execute the trust conferring freedom, the Senate decreed that relief should be granted upon application being made to the Prætor. 10If, however, a proper heir should reject the estate, relief should be granted by the Decree of the Senate to the person entitled to freedom under the trust; even though he cannot be said to die without an heir, who leaves a proper heir, even if he rejects the estate. 11The same rule will also apply where a minor of twenty-five years of age enters upon the estate of the person charged with granting him freedom, and obtains complete restitution because of his rejection of the estate. 12It may also be asked whose freedman the slave becomes; for, in accordance with the constitution, he obtains his freedom just as if he had acquired it by virtue of the will. He will, therefore, become the freedman of the deceased, and not of him who was charged with the execution of the trust. 13A Rescript of the Divine Marcus and Verus is extant which says that where one of those charged with the execution of the trust dies without leaving a successor, and the other is absent for some good reason, the slave shall be entitled to his freedom, just as if it had been granted to him regularly by the person who died without a successor, or by him who was absent for a good reason. 14A very nice point may arise; that is, where an heir dies without a successor, whether the slave can obtain his freedom before it is certain that an heir or a possessor of the estate under the Prætorian Edict will not appear, or while it is still doubtful (for instance, while the appointed heir is deliberating), whether he will accept the estate. The better opinion is that it is necessary to wait until it is certain that no successor will appear. 15Our Emperor, Antoninus, stated in a Rescript that a slave who is entitled to freedom by virtue of a trust cannot receive anything under the will of the heir without his freedom being mentioned. 16The Divine Marcus also stated in a Rescript that grants of freedom under a trust could not be annulled or unfavorably affected by the age, the condition, the default, or the tardy action of those who were required to see that they were executed. 17Although a bequest of freedom made by a codicil which is void is not due, still, if the heir considered the codicil to be valid, and paid out anything under it, and desired that the slaves should remain free for the sake of carrying out the provisions of the trust, it has been declared by a Rescript of Our Emperor and his Divine Father that they will justly be entitled to their freedom.

31Paulus, Trusts, Book III. Freedom can be granted under a trust to a slave belonging to another, provided he has testamentary capacity with reference to his master. 1Where a person about to die intestate charged his son to manumit a certain slave, and a posthumous child was afterwards born to him, the Divine Fathers stated in a Rescript that, because the slave could not be divided, he should be manumitted by both the heir at law and the posthumous child. 2A person who is charged with a grant of freedom under a trust can manumit a slave, even at the time when he is forbidden to alienate him. 3If a patron acquires prætorian possession contrary to the provisions of the will, because his freedman has passed him over, he cannot be compelled to sell his own slave whom he was requested by his freedmen to manumit. 4Where the person to whom a slave belongs is unwilling to sell him in order that he may be manumitted, the Prætor has no cause to interfere. The same rule applies when he wishes to sell him for more than a just price. If, however, the master is ready to sell his slave for a certain sum which, at the first glance, does not appear to be unjust, and he who was asked to manumit him contends that the price is unreasonable, the Prætor should interpose his authority, so that a just price having been paid with the consent of the master freedom may be granted to the slave by the purchaser. If, however, the master is willing to sell the slave, and the latter desires to be manumitted, the heir should be compelled to purchase and manumit him; unless the master wished to manumit the slave in order that an action might be granted him against the heir to recover the price. The same should be done if the heir conceals himself. The Emperor Antoninus, also, stated this in a Rescript.

32Marcianus, Trusts, Book XV. If the master is ready to alienate the slave, but is not willing to do so before he is satisfied with the price, he ought not to be compelled to liberate him, lest, if he did it, he might obtain little or nothing, if he who is asked to manumit him should prove to be insolvent. 1If the slave does not consent, neither the master nor anyone else should be permitted to proceed with the matter, because a trust of this kind is not one by which anything is acquired by the master; otherwise, the benefit of the trust would appear to accrue only to himself. This might happen if the testator wished the slave to be purchased for more than he was worth, and be manumitted, for then the master could proceed with the execution of the trust; because it would be to his interest to obtain, in addition to the true value of the slave, any excess which the testator ordered to be given him; and it is to the interest of the slave to secure his freedom. 2This will occur where the heir or the legatee is directed to purchase certain property for a special sum of money, and deliver it to another; for then both the owner of the property and the person to whom it is to be delivered can proceed to compel the execution of the trust, as both of them are interested in doing so; the owner, in order that he may obtain any excess over and above the price which the testator has ordered to be given him, and the person to whom the property was left, in order that he may acquire it.

33Paulus, Trusts, Book III. Where the son of the deceased is asked to manumit a slave belonging to his father, it must be said that he can have him as his freedman under the Prætorian Edict, and impose services upon him; for he can do this as the son of the patron, even if the slave should obtain his freedom directly. 1There will be ground for the application of the Rubrian Decree of the Senate even when freedom is granted under a condition, provided compliance with the condition is not imposed upon the slave himself. Nor does it make any difference whether the condition consists of giving or doing something, or is dependent upon the occurrence of any other event, for the heir will lose his freedom as the son of the deceased if he places any obstacle in the way of the fulfillment of the condition, even though he can acquire his right over the freedman in another way. Sometimes he suffers a penalty, for if he demands that the slave shall remain in servitude, or accuses him of a capital crime, he will lose prætorian possession contrary to the provisions of the will. 2Where a slave is bequeathed to anyone who is charged to manumit him, but refuses to accept him, he can be compelled to do so, or to assign his rights of action to whomever the slave may select, in order that the grant of freedom may not be annulled.

34Pomponius, Trusts, Book III. When the person to whom a slave is left to be liberated under a trust is unwilling, the slave should not be delivered to him in order to be manumitted; but he can become the freedman of another than the one who was requested to emancipate him. 1Campanus says that if a minor of twenty years of age should ask his heir to manumit a slave who belongs to him, his freedom must be granted; because, in this instance, the Lex Ælia Sentia does not apply. 2A slave was bequeathed to Calpurnius Flaccus, who was charged to manumit him, and if he refused, the same slave was bequeathed to Titius, who was also charged to manumit him; and if he should fail to do so, the slave was ordered to be free. Sabinus says that the legacy is void, and that the slave will become free immediately by the terms of the will.

35Marcianus, Trusts, Book XV. The opinion of Gaius Cassius is not adopted, for he held that the obligation of manumitting his own slave should not be imposed upon the heir or the legatee, if the services of the slave were so necessary that he could not dispense with them; as, for instance, where he was his steward, or the teacher of children, or where he had committed an unpardonable crime. For the testator is considered to have had these slaves in his power, and the owners have the right to reject the will, but if this is not done, the wishes of the deceased should be carried out.

36The Same, Trusts, Book XVI. Neither infants, insane persons, captives taken by the enemy, nor those whom religion or any honorable cause, or some calamity, or important business, or the danger of forfeiting life or reputation, or anything of this kind detains, come within the scope of the Rubrian Decree of the Senate; nor, indeed, minors who have no guardians, and even if they have any, are they or their guardians subject to its provisions, where any of the above-mentioned matters are involved. For, even if the latter designedly refrain from exerting their authority, I do not think that their wards should be deprived of the rights over their freedmen, because it is unjust that a ward should suffer wrong by the act of his guardian who, perhaps, may not be solvent, and only those are included in the Decree of the Senate who are obliged to grant freedom in accordance with the provisions of the trust. What course must then be pursued? Relief is granted to such persons by the Dasumian Decree of the Senate, under which provision is made with reference to those who are absent for some good reason, in order that no impediment may be placed in the way of freedom, and that the rights over a freedman may not be taken from those who are not guilty of fraud. 1If an absent party is defended by an attorney, he is always held to be absent for some good reason, and he will not be deprived of his rights over his freedman. 2No objection can be urged against the jurisdiction of a magistrate who has cognizance of a grant of freedom under a trust, by alleging a personal privilege, or one attaching to a municipality or a corporation, or any office held by anyone, or the civil condition of any of the parties interested.

37Ulpianus, Trusts, Book VI. When an absolute grant of freedom is made under the terms of a trust to a slave who is said to have administered the affairs of his master, the Divine Marcus stated in a Rescript that it should not be delayed; but that an arbiter must immediately be appointed for the purpose of compelling the slave to render an account. The words of the Rescript are as follows: “It seems to be the more equitable course to grant freedom to Trophinus at once under the trust, because it is established that it was bestowed without the condition of his rendering an account. Nor would it be humane for the enjoyment of his liberty to be delayed on account of any pecuniary question which may arise. However, as soon as he obtains his freedom, an arbiter should be appointed by the Prætor before whom he who transacted the business must appear and render an account.” Therefore, he is only obliged to render an account, but nothing is said as to his paying over any balance which may remain in his hands. I do not think that he can be forced to do so, for he cannot be sued after having obtained his freedom on account of any business which he transacted while in servitude. It is clear that he can be forced by the Prætor to surrender any property mentioned in his accounts, and all the articles or money of which he has possession, as well as to give information with reference to special matters.

38Paulus, Decrees, Book III. A testator, whose will was not perfect, bequeathed freedom and a trust to a female slave whom he had reared. As all these bequests took effect under an intestate succession, it was asked whether the slave was manumitted by virtue of the trust. An interlocutory decree was rendered to the effect that even if the father had demanded that nothing be done ab intestato, his children, through respect for his memory, ought to have manumitted the slave to whom their father was attached. It was therefore decided that she was legally manumitted, and for this reason entitled to the benefit of the trust.

39The Same, Opinions, Book XIII. Paulus gave it as his opinion that, even though the slave of another whom a testator desired to be manumitted by one of his heirs, under the impression that he belonged to himself, was concerned, he who was asked to manumit him should be compelled to purchase the slave, and liberate him; as he did not think a case involving freedom, and one relating to the disposition of money under a trust, were similar. 1Paulus gave an opinion as follows, “Believe me, Zoilus, that my son Martial is grateful to you, and not to you alone, but also to your children” (meaning that the intention of the deceased, with reference to a benefit to be conferred upon the children of Zoilus, was included in this clause, they being slaves), “no greater service can be rendered them than to give them their freedom.” Therefore the Governor should execute the will of the deceased.

40The Same, Opinions, Book XV. Lucius Titius gave his female slave, Concordia, to his natural daughter, Septicia. Afterwards, by his will, he bequeathed the abovementioned slave along with others to his daughter, for the purpose of manumitting her. I ask whether his daughter, Septicia, can be compelled to manumit the slave. Paulus answered that, if the donation of the slave was made during the lifetime of the natural father, and the daughter did not accept other legacies left by the will of her father, she could not be compelled by the terms of the trust to manumit the said female slave, who was her own property. 1Lucius Titius bequeathed his slave Stichus to Mævius, and asked that he should never be manumitted either by him or by his heir. Paulus gave it as his opinion that the testator had the power afterwards to liberate this slave, because he did not impose any condition upon himself but upon his legatee.

41Scævola, Opinions, Book IV. “I wish Thais, my female slave, to become my freedwoman, after she has served my heir as a slave for ten years.” The question arises, as the testator desired the slave to be his freedwoman, and the heir could not make her such, and freedom was not absolutely and directly granted her, whether she would remain in slavery even after the ten years had elapsed. The answer was that there was nothing in the case stated to show why Thais should not be entitled to freedom. 1Lucius Titius provided in his will as follows, “My dear son, Mævius, if Stichus, Damas, and Pamphilus have deserved it at your hands, I request you not to permit them to serve as slaves to another after my debts have been paid.” If it was the fault of the heir that the debts of the estate were not paid, I ask whether the slaves can obtain their freedom under the terms of the trust. The answer was that the heir ought not to be blamed if he delayed payment of the debts on account of the convenience resulting to himself in managing his property; but if it should clearly be proved that he designedly did not pay the debts, in order to prejudice the grants of freedom, the latter will become operative. 2A testator charged the testamentary guardian of his children to manumit his slaves, but the person appointed was excused. I ask whether the other guardians appointed in the place of the one who was excused should be required to liberate the slaves. The answer was that, according to the facts stated, the appointed heir appeared to have been charged with the grants of freedom. 3“I give to Seius three pounds of gold and my notary Stichus, whom I charge him to manumit.” Seius was appointed guardian by the same will, but excused himself from accepting the guardianship. The question arises whether the grant of freedom under the trust should, nevertheless, be executed. The answer was that there was nothing in the case stated which would prevent this from being done. 4A testator, having appointed his sister his heir, made the following provision with reference to his slaves, “I wish, and I charge you, my dear sister, to entertain the highest consideration for my stewards, Stichus and Damas, whom I have not manumitted, as they have not rendered their accounts. If you are also satisfied with those slaves, you know the feelings which I entertain towards them.” Where the stewards were ready to render their accounts, and the heir did not grant them their freedom, I ask whether she should be heard if she alleged that she was not satisfied with them. The answer was that the displeasure of the heir should not be considered, but only what would satisfy a reliable citizen to enable them to obtain their freedom. 5Lucia Titia charged her heirs to purchase Pamphila, the female slave of Seia, and her children, and manumit them. An estimate of the amount which ought to be given for them was made by a judge, and, in the meantime, before the money was paid, Pamphila brought forth a child. I ask whether the child of Pamphila would belong to the heirs of Seia, or to the heir of Titia? The answer was that the child would be the property of the person to whom the mother belonged at the time of its birth; but if the heir was in default in executing the trust, he should be compelled also to grant freedom to the child. 6Lucius Titius made the following provision in his will: “I recommend So-and-So and So-and-So, slaves who are physicians, to you, and it depends upon you whether you have them as your good freedmen and medical attendants. I myself would grant them freedom, but I fear to do so, because the physicians of my sister, who were slaves, having been manumitted by her, and having served their time, abandoned her.” I ask whether the above-mentioned slaves are entitled to their freedom under the trust. The answer was that, in accordance with the facts stated, the necessity of liberating them is not imposed upon the heirs, but that this depends upon their judgment. 7Titius granted freedom to his slave “in case he rendered his accounts.” I ask whether the accounts rendered by him should include, as part of the sum remaining in his hands, any losses which may have accidentally been incurred. I gave it as my opinion that in any business which was transacted with the consent of the master, those losses which were the result of accident could not be charged to the slave, and must not be included, in the balance remaining in his hands. 8I also ask, where a slave is directed to surrender all of his peculium, whether the peculium should be calculated in such a way that only that will be included in it which would belong to the master for any reason whatsoever. The answer was that, in the case in question, what the master was entitled to should not be deducted from the peculium. 9I also ask, if the slave has placed in his peculium any of the balance remaining in his hands, whether this should be deducted from the peculium which he is required to surrender. The answer was that if what is mentioned has been placed in his peculium, it must be paid over as a part of the balance, for the condition is sufficiently complied with where the remainder of the peculium is delivered. 10A testator made a grant of freedom by his will as follows: “I desire my slave, Cupitus, to be free, after rendering his accounts, when my son Marcianus reaches the age of sixteen years.” After the death of the testator, the guardians of his son required Cupitus to pay a debt due to the estate, and the latter paid to the said guardians the amount which he had collected. The son afterwards died under the age of puberty, his mother became his heir, and caused judgment to be rendered against the guardians on account of their administration of the guardianship. Cupitus demanded his freedom at the time when Marcianus would have been sixteen years of age, if he had lived; and offered to render his accounts for a year after the death of the testator, as the other accounts had been approved. The question arose whether Cupitus could also be compelled to render the accounts for which the guardians were responsible. The answer was that the slave in question seems to have complied with the condition of rendering his accounts, if he had rendered one of all the business which he had conducted, and which could properly be required. With regard to the other proviso, the more indulgent interpretation should be adopted, that is, the child having died, the slave had waited long enough, as he did not demand his freedom until the time when the minor would have attained his sixteenth year if he had lived. 11“Stichus and Damas, my slaves, you will become my freedmen, if you render your accounts.” The question arose whether, in order to obtain their freedom, they must not only render their accounts, but also give up any property which had been designedly and fraudulently appropriated by them. The answer was that, in the condition of rendering their accounts, everything which related to the administration and fidelity of the slave was included. 12Certain slaves did not comply with the condition of rendering their accounts within a specified time, and afterwards announced that they were ready to do so. The question arose whether they could obtain their freedom. The answer was that if they were to blame for not complying with the condition within the prescribed time, they would not become free, even if they were subsequently willing to render their accounts. 13“I request my heirs, and I charge them to manumit Stichus, after he renders his accounts, when my son reaches the age of sixteen years.” I ask whether the testator intended that the slave should act as steward until the time when the son reached the age of puberty. The answer was that it was clear that the testator intended that Stichus should also render an account of this part of his administration. 14“I direct that my slave, Stichus, give and pay to my daughter and my wife, my heirs, so many aurei, without any controversy, and I charge them to manumit him.” As the wife rejected the estate, the question arose whether the slave was obliged to pay both of them, or only the daughter. The answer was that the entire sum should be paid to the daughter, as she was the sole heir to the estate. 15A testator having appointed his son heir to his entire estate, granted him his freedom in the following words: “Let December, my accountant, Severus, my steward, and Victorina, the wife of Severus, become free in eight years, and I wish them to remain in the service of my son for that time. Moreover, I charge you, my dear son Severus, to treat December and Severus, to whom I have not immediately granted freedom, with due consideration, in order that suitable services may be rendered by them to you, and I hope that you will have them as good freedmen.” As the son of Titius was nine years of age at the time that the latter made his will, and Titius died two years and six months afterwards, I ask whether the eight years during which the grant of freedom was deferred should be reckoned from the date of the will, or from the time of the death of the testator. The answer was, that the testator appeared to have counted the eight years, during which the grant of freedom was in abeyance, from the day when the will was made, unless it can be proved that his intention was otherwise. 16“Let Spendophorus be free when my daughter marries in my family, if he renders a satisfactory account of his administration to her.” The daughter, having died before reaching the age of puberty, and during the lifetime of her father, Seius became the heir by substitution. If Spendophorus did not transact the business of the minor, and ceased to administer the affairs of her father, I ask whether he would become free by the terms of the will, at the time when, if Titia had lived, she would be twelve years old. The answer was that according to the facts stated, if the slave had not transacted any business of which he would be compelled to render an account to the heir, he would become free. 17“I wish Stichus to be manumitted after he has rendered his accounts.” Stichus, who was a banker, executed certain promissory notes with the approval of his master, and produced accounts signed by the latter, but he did not afterwards contract any other liabilities. The question arose whether the condition could be held to have been complied with, if there were some insolvent debtors whose claims others had attempted to collect. The answer was, that the fact that some of the debtors were not solvent had nothing to do with the obligation of rendering the account.

42Marcianus, Trusts, Book VII. Our Emperor, Antoninus Pius, in order that the last wills of his soldiers might in every respect be considered valid, where an appointed heir and his substitute died suddenly before entering upon the estate, ordered that those to whom freedom and the estate had been left under a trust, by soldiers, should become free and be heirs, just as if they had received both of these bequests directly. Moreover, where slaves, by means of a trust, had acquired their freedom and an estate from a civilian, and the appointed heir and his substitute had also died suddenly, he held that this was sufficient for the confirmation of their freedom.

43Paulus, On Sabinus, Book IV. Freedom granted under the terms of a trust is not due to a slave whom his master afterwards placed in chains.

44Pomponius, On Sabinus, Book VII. A slave can legally bring suit against his master where the freedom has been bequeathed to him by a trust.

45Ulpianus, Disputations, Book III. When a debtor is asked by his creditor to manumit a female slave who has been pledged to him, it can be maintained that freedom has been legally bequeathed by the debtor under the terms of the trust. For what difference does it make whether a certain amount is left by him, or freedom is granted under a trust? Whether the value of the slave is more or less, he can be forced to grant her freedom; provided he has once acknowledged the validity of his creditor’s will. We must understand that he has done so when, for instance, if he is sued by the heir, he avails himself of an exception; or proves the wishes of the creditor in some other way. For if the debtor should be sued by the heir of the creditor he can plead an exception on the ground of bad faith, because of the interest of the debtor in obtaining his slave. 1In granting freedom under the terms of a trust, even though the legatee may only have obtained a small bequest, it will, nevertheless, be necessary for him to manumit his slave. For, if a pecuniary trust should be divided, great injury will be done to the cause of freedom as well as to the beneficiary; therefore, it is better for him who accepts the legacy to be burdened than that the bequest of freedom should be annulled. 2Whenever freedom is bequeathed to a male or female slave under the terms of a trust, the slave is in such a position that he or she will remain in servitude until they are manumitted. If the person charged with this duty causes no delay in liberating the slave, no change will take place in his or her condition, and therefore it is established that the slave can, in the meantime, be bequeathed, subject to his manumission afterwards.

46The Same, Disputations, Book VI. Freedom can be granted under a trust as follows, “I charge my heir to manumit Stichus, if he should choose to do so,” even though nothing else in the will dependent upon the consent of the heir should be valid. 1It is clear that if freedom is bequeathed as follows, “If Stichus should be willing,” it can be granted him. 2Ad Dig. 40,5,46,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 633, Note 17.Where the following clause is inserted in a will, “I desire Stichus to be free if he is willing,” it seems to me that the grant of freedom can be held to be valid, because the words rather imply a condition, just as if a bequest should be made to me, “If Titius should ascend to the Capitol.” 3Where it was stated in a will, “If the heir should consent,” the trust will not be valid, but this will only be the case where the testator left everything to the discretion of his heir, “If he chooses.” Where, however, he left it to his judgment as a good citizen, we have no doubt that freedom should be granted; for it has been decided that a slave was entitled to be free where the testator made the following provision, “If you think proper, I ask you to manumit him,” for this must be understood to mean if you, as a good citizen, approve it. For where freedom is bequeathed as follows, “If you approve my will,” I think it should be granted, just as in the following case, “If he deserves it of you as a good citizen,” or “If he should not offend you as a good citizen,” or “If you approve of it,” or “If you do not disapprove it,” or “If you think that he is worthy.” For where a testator left a bequest of freedom under a trust, in the Greek words meaning, “I desire you to grant freedom to So-and-So, if you think best,” it was stated by the Divine Severus in a Rescript that the execution of the trust could be demanded. 4But, although a testator cannot leave it to the judgment of his heir whether or not he will grant freedom to a slave, he can let him decide when it shall be granted. 5A certain man, who bequeathed three slaves, charged his heir to manumit any two of them that he might select. A trust of this kind will be valid, and the heir can manumit whichever of the three slaves he chooses. And therefore if a legatee should claim those whom the heir wishes to manumit, he will be barred by an exception on the ground of bad faith.

47Julianus, Digest, Book XLII. If a father should appoint his two sons his heirs, and his will is annulled by the birth of a posthumous child, although the estate will belong to them equally, still, the grants of freedom under the trust ought not to be executed, as they are not compelled to pay any other legacies, or execute any other trusts. 1Where an heir who is charged to manumit a slave belonging to a third party, or one who is owned in common, or one in whom the usufruct belongs to another, conceals himself, relief will not improperly be granted under the Decree of the Senate. 2If freedom is bequeathed to Stichus by a trust under the condition that he shall render his account, and he is ready to pay over the balance in his hands, during the absence of the heir, it is the duty of the Prætor to select some reliable person under whose supervision the account may be rendered, so that the slave can deposit the money which is due according to the calculation; and then the Prætor shall decree that the slave is entitled to his freedom under the terms of the trust. It is proper for this to be done when the heir is absent for some good reason; for if he conceals himself, it will be sufficient to satisfy the Prætor that it is not the fault of the slave that the condition is not complied with, and hence he must decree that he is entitled to his freedom. 3Where freedom is bequeathed conditionally to a slave who forms part of the legacy, he should not be delivered to the beneficiary of the trust, unless the latter gives security that he will surrender him if the condition should be complied with. 4A certain woman, at the time of her death, made the following statement in the presence of several respectable men, and of her mother, who was entitled to the estate as her heir at law, “I wish my female slaves, Mævia and Seia, to be free,” and then died intestate. I ask, if her mother does not claim the estate as heir at law under the Decree of the Senate, and it should pass to the next of kin, whether the slaves will be entitled to freedom under the terms of the trust. I answered that they would be, for when the woman being at the point of death said, “I wish my female slaves, So-and-So and So-and-So, to be free,” she is considered to have asked this to be done by all those who would be her heirs at law, or the possessors of her estate under the Prætorian Edict.

48The Same, Digest, Book LXII. Where the following was inserted in a will: “I bequeath Stichus to Titius,” or “Let my heir give him to Titius, in order that he may manumit him,” I held that if the legatee should claim Stichus, he can be opposed by an exception on the ground of bad faith; unless he gives security to grant him his freedom in accordance with the will of the deceased.

49Africanus, Questions, Book IX. Where a person to whom a slave is bequeathed and who is charged to manumit him conceals himself, the slave is held to become the freedman of the deceased. The same rule will apply where not the legatee but the heir is charged with the execution of the trust. Where not all of them, but only some, are charged with its execution, it must also be said that the slave will become the freedman of the deceased. Moreover, an equitable action should be granted against those who have concealed themselves, and in favor of their co-heirs, by whom the value of their shares must be paid, or they can properly bring suit in partition against them.

50Marcianus, Institutes, Book VII. Where a slave has been bequeathed and manumitted under a trust, Cervidius Scævola, having been consulted, held that the last disposition was valid, whether it had reference to freedom or to a legacy; for the reason that it is established that when freedom is bequeathed it may afterwards be taken away, and it is clear that this can be done at the request of the slave. If, however, it is doubtful with what intention the testator bequeathed the same slave, after having left him his freedom, the bequest of freedom should have the preference. This opinion also seems to me to be the more correct one.

51The Same, Institutes, Book IX. Not only he who was requested to manumit a slave can give him his freedom, but his successors, whether they are such by purchase or by any other title, can do so. If, however, he should have no successor, the slave will escheat to the Treasury in order to obtain his freedom. 1Moreover, he who is requested to manumit a slave, can do so at a time when he is forbidden to alienate him. 2Where anyone is requested to manumit the slave of another, and a certain sum of money has been bequeathed to him to purchase and manumit the slave, and his master is unwilling to sell him, the legatee shall retain the legacy in accordance with the will of the deceased. 3Where freedom is bequeathed by a trust to a slave, the latter is, to some extent, in the position of a freedman, and occupies the place of a slave to be free under a condition, and all the more, because he must not be transferred to another in such a way that his freedom will be prevented, or he will be exposed to more severe rights of patronage. 4It is provided by the Dasumian Decree of the Senate that if the person who is charged with the grant of freedom should be absent for some good reason, and such a decision is rendered by the Prætor, the slave will be entitled to his freedom; just as if he had been regularly manumitted according to the terms of the trust. 5A person is understood to be absent who does not appear in court. 6And for the reason that provision had only been made for the absence of heirs, it was added in the same Decree of the Senate that when anyone is charged with the grant of freedom, and has been pronounced to be absent for any good cause whatsoever, the result will be the same as if the slave had been regularly manumitted in accordance with the terms of the trust. 7It is, however, provided by the Articuleian Decree of the Senate that the Governors of provinces shall have jurisdiction in cases of this kind, although the heir may not reside in the province. 8Where anyone is asked to manumit a slave who does not form part of the estate, but is his own property, the slave will obtain his freedom under the Juncian Decree of the Senate, after the decision has been rendered. 9The Divine Pius stated in a Rescript that where anyone is absent for some good reason, or conceals himself, or, if present, is unwilling to manumit the slave, he shall be considered as being absent. 10It is stated by the same Decree of the Senate that a purchaser shall also manumit the slave. 11A co-heir, who is present, can manumit the slave just as if he had acquired from his co-heir the share of the latter in the slave. It is said that the same Emperor stated in a Rescript that this rule will apply to a co-heir who is a minor under the age of puberty and was not asked to manumit the slave. 12When anyone is requested to manumit a slave, in order to marry her, he should not be compelled to contract marriage with her, but it will be sufficient if he grants her her freedom.

52Ulpianus, Opinions, Book I. Where slaves, to whom freedom has been bequeathed under the terms of a trust, are afterwards sold by a creditor, they cannot be granted relief against the heir, except for good cause.

53Marcianus, Rules, Book IV. Where anyone is asked to manumit a female slave, and delays doing so, and, in the meantime, she has a child; it has been established by an Imperial Constitution that under such circumstances the child will be born free, and will even be considered freeborn. There are, however, certain constitutions by which it is provided that the child is freeborn from the very time that the grant of freedom takes effect, and this rule should undoubtedly be observed; for freedom is not a private but a public matter, so that he who is under obligation to grant it should tender it voluntarily. 1Where, however, the female slave had a child before she was entitled to her freedom under the trust, and this had been purposely brought about by the heir, in order that she might not yet be entitled to her freedom, as where he delayed entering upon the estate in order that any children born to the said female slave would belong to him, it is settled that they should be manumitted, but they must be delivered to their mother to be set free by her and become rather her freedmen than those of the heir, for where the latter is unworthy to have slaves, he is not worthy of having freedmen.

54Marcianus, Trusts, Book XVI. If the mother, after having received her child, or he who has succeeded to her place, refuses to grant it its freedom, he or she should be compelled to do so. Again, if the mother is unwilling that the child should be delivered to her, or if she should die before this is done, it may not incorrectly be said that freedom should be granted to the child by the heir.

55Marcianus, Rules, Book IV. The same rule will apply where the heir did not designedly delay entering upon the estate, but deliberated as to whether or not he would accept it; and if he learned that he had been appointed heir after the slave had brought forth her child, it is decided that relief should be granted in this case; for, under such circumstances, the heir himself ought to manumit the child, and not deliver it to its mother to be emancipated. 1If, however, freedom has been directly bequeathed to the slave, and any of the above events should take place, in what way can relief be granted to the child? For, in these instances, freedom left under a trust is demanded, and the Prætor comes to the relief of the children, but where freedom is left directly, no such a demand is made. I think, however, that, in a case of this kind, the child is entitled to relief, and that the Prætor, having been applied to, may grant the mother an action in rem, just as where freedom is left by a trust. Hence, Marcellus, in the Sixteenth Book of the Digest, states that where children who have been manumitted by will before the estate is entered upon are acquired by usucaption, relief must be granted them, in order that their freedom may be preserved by the Prætor; and although they may have been to blame for suffering themselves to be acquired by usucaption, still, no responsibility can attach to children on this account.

56Marcellus, Opinions. Lucius Titius provided by his will as follows, “I desire that any codicils which I may hereafter execute shall be valid. If a child should be born to me by my wife, Paula, within ten months after my death, let it be the heir to half of my estate. Let Gaius Seius be the heir to half of my estate. I request my heirs, and I charge them to manumit my slaves Stichus, Pamphilus, Eros, and Diphilus, when my children arrive at the age of puberty.” Then he inserted the following provision in the last part of his will: “If no children should be born to me, or if they should die before reaching the age of puberty, then let Mucius and Mævius be heirs to equal shares of my estate. I desire that the legacies bequeathed by my former will, under which I appointed my sons and Seius my heirs, to be paid by the heirs who may succeed them.” He afterwards executed a codicil as follows: “Lucius Titius to his heirs in the first degree and to their substitutes; Greeting. I ask you to pay those legacies which I have bequeathed by my will, as well as those which I shall bequeath by my codicil.” As no children were born to Lucius Titius, I ask whether the freedom granted by the trust should be immediately given to the slaves Stichus, Pamphilus, Eros and Diphilus. Marcellus answered that there was a condition attached to the bestowal of freedom upon the slaves in question, which was that the children of the testator should become his heirs; but the condition did not appear to be repeated, and therefore that freedom should be immediately granted to the slaves by the heirs in the first degree and the substitutes. For, as was stated above, the testator requested that everything which he mentioned in his will shall be carried out. Moreover, he provided for the freedom of the said slaves, but he did so under a condition, and if the condition had been of any other kind it would have been necessary to await its fulfillment. It is not, however, probable that he had this condition in his mind when he charged the substitutes, since if it should be fulfilled, the substitutes could not be admitted to the succession.