Manumission. Since as we have already remarked, slavery among the Romans existed jure gentium and jure civili, and no one was a slave jure naturae, nothing hindered a slave becoming a freedman. This change of condition was effected by what is called manumission, (manumissio) inasmuch as the master released the slave from his own power-a right, which seems to have belonged to the master from the earliest times, although mention is found, that before Servius Tullius, the manumission formed the basis of no claim to citizenship. In reference to this right of manumission, as it gradually developed itself, we have to observe two kinds, the formal, (feierliche, solemn,) and the informal (unfeierliche, not solemn,) manumission. The formal manumission took place by means of a solemn act, in which the master renounced his power forever, and its consequence was unrestricted freedom, and citizenship: by the informal manumission, the slave was only practically free, and, jure Quiritium, passed still for a slave, if the formal act did not follow. Of the formal manumission, there was in the earliest times only one kind, the manumissio vindicta; afterwards three kinds, there being added to this one, the manumissio censu, and the manumissio testamento. The manumissio vindicta was a symbolic action, by means of which the master declared before a judicial tribunal, that the slave should henceforth be free. The action itself consisted in this; the master appeared with the slave before the Praetor or some other one of the higher magistrates, 13 and a third person, in later times always a lictor, by an outward sign divested the mascrowds, bent upon opposing the execution, and the affair well nigh came to a seditious insurrection. And 14. 45-Then the emperor issued a proclamation, and all the streets, leading to the place of execution, were lined with soldiers under arms. The unhappy victims suffered death. The number in this case was four hundred. 13 This act of emancipation always occurred before a magistrate; Livy (41. 9) names dictator, consul, interrex, censor, praetor; in the times of the republic, at least in the best times, in Rome, befo e the Praetor, and in the provinces, before the Proconsul or Propraetor. Afterwards, however, there was a departure from this rule, and it was sufficient that the emancipation took place before a magistrate, and in any place. Digesta, 40. 2. 7. Gains (1. 20) says that the manumission sometimes occurred in the street, when the magistrate happened to be going to the bath, or to the theatre. At such a time, it was not necessary that the lictor be present. When a magistrate himself wished to emancipate a 1845.] Nature of the Manumissio Vindicta. 575 ter of all power over the slave. The lictor laid a little staff 14 (festuca, virga, vindicta) upon the head of the slave, and solemnly pronounced these words: Nunc ego hominem liberum esse aio, I declare this man to be free. The master then took hold of the slave by the hand, or by some other part of his body, turned him round,15 uttering, at the same time, these words: hunc hominem liberum esse volo, (I choose that this man be free,) and then let him go. The magistrate finally ratified the declaration of the lictor (or assertor in libertatem,) and formally announced that the ceremony of manumission was complete, after which the master and others present congratulated the novus libertus in these words: cum tu liber es, gaudeo,16 (I rejoice that you are free.) It is probable that the grounds of emancipation were given to the court by the master, and afterwards put on record, but this does not clearly appear, in regard to early times; afterwards as limitations of the right of manumission were introduced, such a course was unquestionably necessary. slave, the ceremony always was observed in presence of an officer higher in authority than himself. Thus in Digesta, 40. 1. 14. Apud eum, cui par imperium est, manumittere non possumus. Sed praetor apud consulem manumittere potest. Apud collegam suum praetor manumittere non potest. Hence the emperor could emancipate without the Vindicta, because there was no one higher than himself, as in same passage, Imperator cum servum manumittit non vindictam imponit, sed cum voluit, fit liber is, qui manumittitur, ex lege Augusti. 14 Cicero's Topica, 2 238. Vindicta vero est virgula quaedam, quam lictor manumittendi servi capiti imponens, eundem servum in libertatem vindicabat, dicens quaedam verba sollemnia, atque ideo illa virgula vindicta vocabatur. Comp. Horace, Sat 2. 7. 76. Persius, 5. 83. But the proper name was festuca. Gaius, 4. 16. Qui vindicabat, festucam tenebat, etc. See Plautus Miles 4. 1. 15 and Persius 5. 175. The lictor gave the slave with it a slight touch upon the head, which is the meaning of imponere vindictam. In other places it is represented as a blow given the slave. Claudianus de quarto consulatu Honorii 615-grato remeat securior ictu, Tristes conditio pulsata fronte recedit. still more striking mention in Sidonius Apollinaris, Carmina 2.—Quorum (i. e. freedmen) gaudentes exceptant verbera malae (cheeks), where we might understand a veritable blow upon the cheek-especially when we compare a passage from Phaedrus, 2. 5. multo majoris alapae mecum veneunt. The same word alapa (a blow on the cheek or a box on the ear) occurs in Isidorus, Origines 9. 4. Apud veteres quando manumittebant, alapa percussos circumagebant. A 15 This act of turning the slave round seems to have been an essential part of the ceremony. Appianus relates of Labeo,-τῆς δεξιᾶς λαβόμενος, καὶ περιστρέψας αὐτὸν, ὡς ἔθος εστι Ρωμαίοις ἐλευθεροῦν, etc.-having taken him by the hand, and turned him about, according to the custom of the Romans, when freeing a slave, etc. So also Persius 5. 75. Una Quiritem vertigo facit-one turn makes a Roman citizen. And also ib. 78. 16 This occurs frequently in the comic writers. Plautus, Menaechini 5. 7.42. and 5. 9. 87. Terence, Adelphi, 5. 9. 15. This manumissio vindicta may justly be considered as the oldest form of emancipating, although the Vindicius mentioned in Livy, B. 2. 5, who made known the conspiracy of the Tarquins, is called the first one vindicta manumissus ;17 he was probably so designated, because that affair presented the first occasion of recording in history this ceremony of manumission. The great importance of this formality is put beyond the possi'bility of doubt by Gaius, in his Doctrine upon the general subject of Vindicatio, (that is, Assertion of ownership, Appropriation). See in particular, Gaius, 4. 16. He is there treating of the vindicatio proper, where two parties in court contend for the possession of anything, and he instances in illustration the case of a man as the thing claimed. Hence the technical legal expression, applied to every species of property, vis civilis et festucaria, that is, the civil force, outwardly indicated by the festuca, resorted to, in asserting and maintaining an exclusive right of ownership. (This subject is fully discussed in Gellius, 20. 10.) Thus the manumissio vindicta was a particular case of this legal vindicatio, though necessarily somewhat modified in form. The vindicatio in this particular case was a vindicatio in libertatem, where the lictor or whoever else was the third party appeared as the assertor libertatis, that is, appeared as a quasi opponent of a master, and asserted a claim to the liberty of a slave. The two contending parties, then, were the lictor and the master, and the matter at issue the freedom of a slave. The modification of the ceremony consisted in this: the claim of the lictor having been put in, the master waived his right as the other party, being willing that the slave should be free, and instead of using the ordinary form, hunc hominem meum esse aio, I declare that this man is my property, uttered the expression, hunc hominem liberum esse aio, I declare this man to be free, and thereby gave his consent to his freedom. According to Gaius,18 the festuca must be traced to the usages of war, as it represented the spear, hasta, the common emblem of rightful ownership. The name vindicta was unquestionably of later origin. The second kind of formal manumission was called manumissio censu, as the master had the name of the slave at once entered into the lists of 17 Livy, 2. 5. Ille primum dicitur vindicta liberatus, etc. and Plutarch, Poplicola, 7. If the name Vindicius itself be not a fiction, it might have been derived from the vindicta, the person there referred to having been perhaps the first one, who was publicly freed. 18 Gaius, 4. 16. Festuca autem utebantur quasi hastae loco signo quodam justi dominii; [omnium] enim maxime sua esse credebant, quae ex hostibus cepissent, 1845.] Manumission by Will. 577 the censors as a citizen.19 This act of registry presupposed that the slave had already a sufficient peculium, or that the master gave him with his freedom a private fortune. The simple entering of the name upon the lists of the assessors, without any farther legal procedure, was all that was necessary to render the emancipation good in the eye of the law; the question, however, has been started, whether the person became a free citizen immediately, or at the next following lustrum. The precise age of this form of emancipation cannot be pointed out. It is perhaps very old. It seems to have been preserved until the time of Adrian, though under altered relations, and after that period to have fallen into disuse.20 The third form was the manumissio testamento, manumission by will. This was common in early times, as it is mentioned in the laws of the twelve tables. It took place either directly, by an express clause in the will, or indirectly by a fideicommissum, legacy in trust, in accordance with which the heir was to effect the emancipation. This latter method was also extended, by means of purchase, to the case of slaves, belonging to the heir or to the legatee, or to any other person. In the former of these just mentioned modes, where the slave was freed directly, he became the freedman of the testator, and was consequently without a patron, though sustaining a similar relation to the heir of his former master. Such a slave was called libertus orcinus,21 (orcus, death, because freed by the last will of his master). The slave freed by legacy in trust became libertus manumissoris, the freedman of the legatee, who actually effected the emancipation. To the condition of these last, previously to 19 Göttling, (Staatsverfassung,) thinks that this manumission by the Census was at first only an accidental appendage to the manumissio vindicta, and that in all cases this latter had already taken place. But this seems to me very improbable. The person freed by the Vindicta was unconditionally free, and there can be no doubt that he himself as already a citizen, had his name entered with the censors, without the intervention of his patron. What proof can be obtained from the passages cited, in Plutarch, Poplicola 7. and Livy, 2. 5. 41. 9. seems to me unintelligible. 20 Huschke, Verf. d. Serv. p. 544. thinks, that this was the last form of the justa manumissio, after the introduction of the twelve tables. 21 For the explanation of the word orcinus, see the Digesta, 26. 4. 3. The same word is ironically applied by Suetonius (Augustus, 35) to the senators who crept into the Senate by various illegitimate means, after the death of Caesar. These, too, were called by Plutarch, (Anton. 15) Xapwvitaι (from Xúpwv, Charon). the attainment of freedom, is referred the expression found in inscriptions, libertus futurus.22 Sometimes slaves were emancipated by will, with a condition annexed, sub conditione, for instance the payment of a certain sum to the heir, a point which is mentioned in the Twelve Tables.23 Such slaves were called, up to the period of the fulfilment of the condition, statu liberi, but during the interval still remained slaves.24 But if the heir himself in any way hindered the due fulfilment, the slave was free without it. 25 For a slave to have an interest in the inheritance, it was a requisite condition, that his freedom had been declared in the will. In such case, he was called necessarius haeres, that is, a necessary heir, one who must become at once free and an heir, nolens volens.26 The Limitation of the right of Emancipation. By the law of nations every slave was capable of freedom.27 But in particular cases it could happen, either by special laws, or by some express appointment of the master, that the emancipation might either be entirely hindered, or at least limited.28 The growing abuses29 of the right of emancipation finally introduced important limitations, which affected both the slave's capability of freedom, and the master's capability of unconditional manumission. In regard to the qualification of the slave, it was provided 22 Orellius Inscriptiones Latinae, 2980. 5006. Yet this is scarcely correct, or at least is to be understood as applying especially to those sub conditione manumissi. There were various conditions, besides the one mentioned above. Thus for instance (Digesta, 40. 4. 44), lighting a lamp every other month, and observing other solemnities, at the tomb of the deceased master, serving the heir of the deceased (as in ib. 52) during the period of youth, or (ib. 5. 41) for ten years, or (ib. § 10) for sixteen years. Similar things are also mentioned in connection with persons liberated by legacy, § 13, 14. Such instances of emancipation also occur in Greek wills. [We give here the substance of the author's note, without the numerous Latin quotations.] 24 Ulpian 2. 1. Digesta, 40. 7. 1. 9. 25 Festus, p. 314. Ulpian, 2. 5. Digesta, 40. 7. 3. 19. § 3. Compare Rein, misches Privatrecht, p. 284. 28 Gaius, 2, 153. Instit. 2. 19. 1. Ulpian, Fragm. 22. 11. 27 Ulpian, 1 1. 4. Theophilus, 1. 5. Rö 29 Digesta, 40. 1. 9. Here, too, belongs the ordinance of Adrian (ib. 1. 8) that no slave should attain to actual freedom, who had been freed in order that he might escape the consequences of crime. Up to Adrian's time, it frequently occurred, that a slave was emancipated for the purpose of shielding him from the quaestio, judicial investigation, as for instance in the case of Milo. 29 Dionysius, 4. 24. gives a dark picture of these terrible abuses. Compare Dio Cass. 39. 24. |