Institutes of Roman Law. Gaius
that, in the absence of causae probatio, the minor triginta annis manumissus should belong to the new class which it introduced, namely, the Latini.
§ 19. Alumnus denotes a slave child reared by the manumitter, as appears from the following passage: Alumnos magis mulieribus conveniens est manumittere, sed et in viris receptum est, satisque est permitti eum manumitti in quo nutriendo propensiorem animum fecerint, Dig. 40, 2, 14 pr. ‘Foster children are more naturally manumitted by women than by men, though not exclusively; and it suffices to allow the manumission of a child who has won his master’s affection in the course of his education.’ (For the custom derived from Greece of employing slaves as paedagogi in Roman households see Smith’s Dict. of Greek and Roman Antiq. s. v.)
VII. CONCERNING THE CONSTITUTION OF THE COUNCIL.
§ 20. The council is composed in the city of Rome of five senators and five Roman knights above the age of puberty: in the provinces of twenty recuperators, who must be Roman citizens, and who hold their session on the last day of the assize. At Rome the council holds its session on certain days appointed for the purpose. A slave above the age of thirty can be manumitted at any time, and even in the streets, when the praetor or pro-consul is on his way to the bath or theatre.
§ 21. Under the age of thirty a slave becomes by manumission a citizen of Rome, when his owner being insolvent leaves a will, in which he gives him his freedom and institutes him his heir (2, § 154), provided that no other heir accepts the succession.
§ 22. Slaves manumitted in writing, or in the presence of witnesses, or at a banquet, are called Latini Juniani: Latini because they are assimilated in status to Latin colonists (§ 131), Juniani because they owe their freedom to the lex Junia, before whose enactment they were slaves in the eye of the law.
§ 23. These freedmen, however, are not permitted by the lex Junia either to make a will or to take under the will of another, or to be appointed testamentary guardians.
§ 24. Their incapacity to take under a will must only be understood as an incapacity to take directly as heirs or legatees, not to take indirectly as beneficiaries of a trust.
§ 25. Freedmen classed with surrendered enemies are incapable of taking under a will in any form, as are other aliens, and are incompetent to make a will according to the prevalent opinion.
§ 26. It is only the lowest grade of freedom, then, that is enjoyed by freedmen assimilated to surrendered aliens, nor does any statute, senatusconsult, or constitution open to them a way of obtaining. Roman citizenship.
§ 27. Further, they are forbidden to reside in the city of Rome or within the hundredth milestone from it; and if they disobey the prohibition, their persons and goods are directed to be sold on the condition that they shall be held in servitude beyond the hundredth milestone from the city, and shall be incapable of subsequent manumission, and, if manumitted, shall be the slaves of the Roman people: and these provisions are dispositions of the lex Aelia Sentia.
§ 20. The Equites Romani, who at Rome composed a moiety of the council mentioned in the text, were either Equites or Equites equo publico (for the title eques Romanus equo publico, which appears in inscriptions, see Wilmann’s Index Inscriptionum, 2178, 2182; cf. Greenidge, Infamia, p. 88). Eques was such merely by his census: Eques equo publico was a youth nominated by the emperor to the turmae equitum; not, however, intended for actual service with the legions, but merely marked out as an expectant of future employment in higher public functions, military or civil. The title of Princeps juventutis, often conferred by the emperors on their successors designate, denoted the leader of the Equites equo publico. This distinction of classes among Equites lasted down to the time of Hadrian, and perhaps later. In the time of Augustus, and subsequently, the list of judices (album judicum) was, according to Mommsen (Staatsr. 3, p. 535), taken simply from the Equites equo publico, the Senatores being no longer a decuria. Augustus added a new decuria, the Ducenarii, those whose census amounted to 200,000 sesterces, who judged minor cases; and subsequently Caligula added a fifth (cf. Greenidge’s Roman Public Life).
Recuperators are judges not taken from the panel (album judicum); see Greenidge’s Legal Procedure of Cicero’s Time, p. 266.
§ 21. Ulpian says, 1, 14, that a slave either under thirty years of age, or one who otherwise would only have become dediticius, or a freedman of the lowest class, if he is instituted the heres necessarius of an insolvent, becomes civis Romanus; cf. 2 § 154. Mommsen would supplement the text in this section with the following words—‘relictum alius heres nullus excludit neque ullus alius ex eo testamento heres existat idque eadem lege cautum est.’ In respect of what is missing in the remainder of the lacuna cf. note to Huschke’s Gaius.
When manumission was a purely private act, it could not confer Roman citizenship; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code promulgated a. d. 506 by Alaric II, king of the Visigoths of Spain and Gaul, contained, besides extracts from the codex Theodosianus (promulgated a. d. 438), a selection from the Sententiae of Paulus and an epitome of these Institutes of Gaius. From this epitome it appears that in the paragraphs now obliterated Gaius proceeded to explain the modes of private manumission by which a slave became Latinus Junianus, and instanced writing (per epistolam), attestation of witnesses (inter amicos), invitation of the slave to sit with other guests at the table of his master (convivii adhibitione).
§ 22. The lex Junia, as this law is called by Gaius and Ulpian (3, 3), or lex Junia Norbana, the title given to it by Justinian (Inst. 1, 5, 3), may be regarded as of uncertain date; the common opinion based on the word Norbana has been that it was passed in the reign of Tiberius, a. d. 19, fifteen years after the lex Aelia Sentia in the consulate of Marcus Junius Silanus and Lucius Norbanus Balbus, but it is now thought by some well-known writers to be earlier than the lex Aelia Sentia; thus Mommsen (Staatsr. 3, 626) is inclined to put it back to the end of the free republic (cf. Schneider, Zeitschr. d. Sav. Stiftung v. R. A. 1884). It defined and modified the status conferred by such acts of private manumission as were probably mentioned in this paragraph, converting Praetoris tuitione liber into ipso jure liber, or possessio libertatis into genuine libertas; with, however, sundry grievous stints and deductions. Under this statute the freedman was nominally assimilated to Latinus coloniarius, the citizen of a Roman colony in Latium; that is, had a moiety of the private rights composing civitas Romana or jus Quiritium, possessing commercium without connubium. As incapable of connubium or civil marriage, the Latinus was incapable of patria potestas over his children and of agnatio or civil relationship. Though incapable of civil marriage he was of course capable of gentile marriage (matrimonium, uxorem liberorum quaerendorum causa ducere) and of natural relationship (cognatio), just as an alien (peregrinus), though, by want of commercium, incapable of dominion ex jure Quiritium, was capable of bonitary ownership (in bonis habere) under the jus gentium.
In virtue of commercium, the Latinus Junianus was capable of Quiritary ownership, of civil acquisition and alienation (usucapio, mancipatio, in jure cessio), contract (obligatio), and action (vindicatio, condictio), like a Roman citizen; but in respect of testamentary succession his rights were very limited. He was said to have testamentary capacity (testamenti factio), Ulpian, 20, 8; but this only meant that he could perform the part of witness, or familiae emptor, or libripens (2 § 104), i. e. could assist another person to make a valid will; not that he could take under a will either as heir or as legatee, or could dispose of his own property by will, Ulpian, 20, 14. At his death all his property belonged to his patron, as if it were the peculium of a slave, 3 § 56. In fact, as Justinian says: Licet ut liberi vitam suam peragebant, attamen ipso ultimo spiritu simul animam atque libertatem amittebant, Inst. 3, 7, 4. ‘Though free in their lifetime, the same moment that deprived them of life reduced them to the condition of slaves.’
Although in the person of libertus himself, Latinitas retained many traces of its servile origin, yet it was not so for his posterity; these disabilities only attached to the original freedman, not to his issue. The son of the dediticius or Latinus Junianus, though reduced to absolute penury by the confiscation of the parental property to the patron, began, and continued, the world