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- The Institutes of Justinian - 2/41 -


while the term `commonalty' embraces only such citizens as are not patricians or senators. After the passing, however, of the statute called the lex Hortensia, plebiscites acquired for the first time the force of statutes. 5 A senatusconsult is a command and ordinance of the senate, for when the Roman people had been so increased that it was difficult to assemble it together for the purpose of enacting statutes, it seemed right that the senate should be consulted instead of the people. 6 Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the ‘lex regia,’ which was passed concerning his office and authority. Consequently, whatever the Emperor settles by rescript, or decides in his judicial capacity, or ordains by edicts, is clearly a statute: and these are what are called constitutions. Some of these of course are personal, and not to be followed as precedents, since this is not the Emperor's will; for a favour bestowed on individual merit, or a penalty inflicted for individual wrongdoing, or relief given without a precedent, do not go beyond the particular person: though others are general, and bind all beyond a doubt. 7 The edicts of the praetors too have no small legal authority, and these we are used to call the ‘ius honorarium,’ because those who occupy posts of honour in the state, in other words the magistrates, have given authority to this branch of law. The curule aediles also used to issue an edict relating to certain matters, which forms part of the ius honorarium. 8 The answers of those learned in the law are the opinions and views of persons authorized to determine and expound the law; for it was of old provided that certain persons should publicly inter- pret the laws, who were called jurisconsults, and whom the Emperor privileged to give formal answers. If they were unanimous the judge was forbidden by imperial constitution to depart from their opinion, so great was its authority. 9 The unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute. 10 And this division of the civil law into two kinds seems not inappropriate, for it appears to have origin- ated in the institutions of two states, namely Athens and Lacedaemon; it having been usual in the latter to commit to memory what was observed as law, while the Athenians observed only what they had made permanent in written statutes.

11 But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.

12 The whole of the law which we observe relates either to persons, or to things, or to actions. And first let us speak of persons: for it is useless to know the law without knowing the persons for whose sake it was established.

TITLE III OF THE LAW OF PERSONS

In the law of persons, then, the first division is into free men and slaves. 1 Freedom, from which men are called free, is a man's natural power of doing what he pleases, so far as he is not prevented by force or law: 2 slavery is an institution of the law of nations, against nature subjecting one man to the dominion of another. 3 The name `slave' is derived from the practice of generals to order the preservation and sale of captives, instead of killing them; hence they are also called mancipia, because they are taken from the enemy by the strong hand. 4 Slaves are either born so, their mothers being slaves themselves; or they become so, and this either by the law of nations, that is to say by capture in war, or by the civil law, as when a free man, over twenty years of age, collusively allows himself to be sold in order that he may share the purchase money. 5 The condition of all slaves is one and the same: in the conditions of free men there are many distinctions; to begin with, they are either free born, or made free.

TITLE IV OF MEN FREE BORN

A freeborn man is one free from his birth, being the offspring of parents united in wedlock, whether both be free born or both made free, or one made free and the other free born. He is also free born if his mother be free even though his father be a slave, and so also is he whose paternity is uncertain, being the offspring of promiscuous intercourse, but whose mother is free. It is enough if the mother be free at the moment of birth, though a slave at that of conception: and conversely if she be free at the time of conception, and then becomes a slave before the birth of the child, the latter is held to be free born, on the ground that an unborn child ought not to be prejudiced by the mother's misfortune. Hence arose the question of whether the child of a woman is born free, or a slave, who, while pregnant, is manumitted, and then becomes a slave again before delivery. Marcellus thinks he is born free, for it is enough if the mother of an unborn infant is free at any moment between conception and delivery: and this view is right. 1 The status of a man born free is not prejudiced by his being placed in the position of a slave and then being manumitted: for it has been decided that manu- mission cannot stand in the way of rights acquired by birth.

TITLE V OF FREEDMEN

Those are freedmen, or made free, who have been manumit- ted from legal slavery. Manumission is the giving of freedom; for while a man is in slavery he is subject to the power once known as ‘manus’; and from that power he is set free by manu- mission. All this originated in the law of nations; for by natural law all men were born free -- slavery, and by consequence manumission, being unknown. But afterwards slavery came in by the law of nations; and was followed by the boon of manumission; so that though we are all known by the common name of `man,' three classes of men came into existence with the law of nations, namely men free born, slaves, and thirdly freedmen who had ceased to be slaves. 1 Manumission may take place in various ways; either in the holy church, according to the sacred constitutions, or by default in a fictitious vindica- tion, or before friends, or by letter, or by testament or any other expression of a man's last will: and indeed there are many other modes in which freedom may be acquired, introduced by the constitutions of earlier emperors as well as by our own. 2 It is usual for slaves to be manumitted by their masters at any time, even when the magistrate is merely passing by, as for instance while the praetor or proconsul or governor of a province is going to the baths or the theatre.

3 Of freedmen there were formerly three grades; for those who were manumitted sometimes obtained a higher freedom fully recognised by the laws, and became Roman citizens; sometimes a lower form, becoming by the lex Iunia Norbana Latins; and sometimes finally a liberty still more circumscribed, being placed by the lex Aelia Sentia on the footing of enemies surrendered at discretion. This last and lowest class, however, has long ceased to exist, and the title of Latin also had become rare: and so in our goodness, which desires to raise and im- prove in every matter, we have amended this in two consti- tutions, and reintroduced the earlier usage; for in the earliest infancy of Rome there was but one simple type of liberty, namely that possessed by the manumitter, the only distinction possible being that the latter was free born, while the manu- mitted slave became a freedman. We have abolished the class of ‘dediticii,’ or enemies surrendered at discretion, by our constitution, published among those our decisions, by which, at the suggestion of the eminent Tribonian, our quaestor, we have set at rest the disputes of the older law. By another con- stitution, which shines brightly among the imperial enactments, and suggested by the same quaestor, we have altered the position of the ‘Latini Iuniani,’ and dispensed with all the rules relating to their condition; and have endowed with the citizen- ship of Rome all freedmen alike, without regard to the age of the person manuumitted, and nature of the master's ownership, or the mode of manumission, in accordance with the earlier usage; with the addition of many new modes in which freedom coupled with the Roman citizenship, the only kind of freedom now known may be bestowed on slaves.

TITLE VI OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR INCAPACITY

In some cases, however, manumission is not permitted; for an owner who would defraud his creditors by an intended manu- mission attempts in vain to manumit, the act being made of no effect by the lex Aelia Sentia. 1 A master, however, who is insolvent may institute one of his slaves heir in his will, confer- ring freedom on him at the same time, so that he may become free and his sole and necessary heir, provided no one else takes as heir under the will, either because no one else was instituted at all, or because the person instituted for some reason or other does not take the inheritance. And this was a judicious provision of the lex Aelia Sentia, for it was most desirable that persons in embarrassed circumstances, who could get no other heir, should have a slave as necessary heir to satisfy their creditors' claims, or that at least (if he did not do this) the creditors might sell the estate in the slave's name, so as to save the memory of the deceased from disrepute. 2 The law is the same if a slave be instituted heir without liberty being expressly given him, this being enacted by our constitution in all cases, and not merely where the master is insolvent; so that in accordance with the modern spirit of humanity, institution will be equivalent to a gift of liberty; for it is unlikely, in spite of the omission of the grant of freedom, that one should have wished the person whom one has chosen as one's heir to remain a slave, so that one should have no heir at all. 3 If a person is insolvent at the time of a manumission, or becomes so by the manumission itself, this is manumission in fraud of creditors. It is, however, now settled law, that the gift of liberty is not avoided unless the intention of the manumitter was fraudulent, even though his property is in fact insufficient to meet his creditors' claims; for men often hope and believe that they are better off than they really are. Con- sequently, we understand a gift of liberty to be avoided only when the creditors are defrauded both by the intention of the manumitter, and in fact: that is to say, by his property being insufficient to meet their claims.

4 The same lex Aelia Sentia makes it unlawful for a master under twenty years of age to manumit, except in the mode of fictitious vindication, preceded by proof of some legitimate motive before the council. 5 It is a legitimate motive of manu- mission if the slave to be manumitted be, for instance, the


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