Institutes of Roman Law. Gaius
or Latina marry Peregrinus, believing him to be Latinus, § 69; or if Civis, believing himself to be Latinus or Peregrinus, marry Latina, § 71; or if Civis marry Peregrinus, believing him to be Civis or Latinus; or if Civis marry Latina or Peregrina, believing her to be Civis Romana, § 67; on birth of a child and on proof of this mistake, the Latinus or Latina and their offspring acquire the citizenship.
2. By magistracy in a Latin colony Latinus becomes Civis Romanus, §§ 95, 96.
3. By re-manumission (iteratio), i.e. on slaves under thirty when manumitted acquiring Latinity by one of the private modes of manumission, a subsequent manumission by one of the public modes, vindicta, censu, or testamento, converted them from Latini into Cives, § 35, and Ulp. 3, 4.
4. Under the lex Visellia above mentioned by six years’ service in the Roman guards (si inter vigiles Romae sex annos militaverit, Ulp. 3, 5). A decree of the senate made three years’ service a sufficient title, § 32 b. Compare the provision of 13 Geo. II, c. 3, whereby every foreign seaman who in time of war serves two years on board an English ship, and all foreign protestants serving two years in a military capacity in the American colonies, are naturalized.
5. Under a constitution of Nero by building a house in Rome (aedificio, Ulp. 3, 1), § 33.
6. Under an edict of Claudius by building a ship of 10,000 modii and importing corn to Rome for six years, § 32 c, Sueton. Claud., Ulp. 3, 6. Compare the English law by which all foreign protestants employed three years in the whale fishery are naturalized, except as to capacity for public office.
7. Under a constitution of Trajan by building a mill and bakehouse for the supply of Rome (pistrino, Ulp. 3, 1), § 34.
8. By bearing three children, Ulp. 3, 1.
9. By imperial grant (beneficio principali, Ulp. 3, 2). This and the previous mode of acquiring citizenship were perhaps mentioned by Gaius at the beginning of § 35.
Civitas Romana and Jus Quiritium are synonymous, but the former term was always used when citizenship was conferred on a Peregrinus, the latter generally when it was conferred on Latinus Junianus: e. g. Quare rogo, des ei civitatem, est enim peregrinae conditionis, manumissus a peregrina. . . . Idem rogo, des ius Quiritium libertis Antoniae Maximillae . . . quod a te, petente patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod et ius Quiritium libertis necessariae mihi feminae et civitatem Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid. 10, 5. Civitas Romana, however, was sometimes used in speaking of the enfranchisement of Latinus, as we see from § 28.
§ 36. Not every owner who is so disposed is permitted to manumit.
§ 37. An owner who would defraud his creditors or his own patron by an intended manumission, attempts in vain to manumit, because the lex Aelia Sentia prevents the manumission.
§ 38. Again, by a disposition of the same statute, before attaining twenty years of age, the only process by which an owner can manumit is fictitious vindication, preceded by proof of adequate motive before the council.
§ 39. It is an adequate motive of manumission, if the father, for instance, or mother or teacher or foster-brother of the manumitter, is the slave to be manumitted. In addition to these, the motives recently specified respecting the slave under thirty years of age may be alleged when the manumitting owner is under twenty; and, reciprocally, the motives valid when the manumitting owner is under twenty are admissible when the manumitted slave is under thirty.
§ 40. As, then, the lex Aelia Sentiaimposes a certain restriction on manumission for owners under the age of twenty, it follows that, though a person who has completed his fourteenth year is competent to make a will, and therein to institute an heir and leave bequests; yet, if he has not attained the age of twenty, he cannot therein enfranchise a slave.
§ 41. And even to confer the Latin status, if he is under the age of twenty, the owner must satisfy the council of the adequacy of his motive before he manumits the slave in the presence of witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17, or the beginning of the eighteenth year (Inst. 1, 6, 7), finally permitted minors to enfranchise by will as soon as they could make a valid will, i. e. at the age of 14 (Novella, 119, 2). He mentions that the lowest class of freedmen (dediticia libertas) had long been obsolete, and formally abolished the second class (latina libertas), converting informal modes of making Latinus, such as per epistolam, inter amicos, into modes of making Civis Romanus, and declaring the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst. 1, 5.
DE LEGE FVFIA CANINIA.
§ 42. Moreover, by the lex Fufia Caninia a certain limit is fixed to the number of slaves who can receive testamentary manumission.
§ 43. An owner who has more than two slaves and not more than ten is allowed to manumit as many as half that number; he who was more than ten and not more than thirty is allowed to manumit a third of that number; he who has more than thirty and not more than a hundred is allowed to manumit a fourth; lastly, he who has more than a hundred and not more than five hundred is allowed to manumit a fifth: and, however many a man possesses, he is never allowed to manumit more than this number, for the law prescribes that no one shall manumit more than a hundred. On the other hand, if a man has only one or only two, the law is not applicable, and the owner has unrestricted power of manumission.
§ 44. Nor does the statute apply to any but testamentary manumission, so that by the form of vindicta or inscription on the censor’s register, or by attestation of friends, a proprietor of slaves may manumit his whole household, provided that there is no other let or hindrance to impede their manumission.
§ 46. If a testator manumits in excess of the permitted number, and arranges their names in a circle, as no order of manumission can be discovered, none of them can obtain their freedom, as both the lex Fufia Caninia itself and certain subsequent decrees of the senate declare null and void all dispositions contrived for the purpose of eluding the statute.
§ 47. Finally, it is to be noted that the provision in the lex Aelia Sentia making manumissions in fraud of creditors inoperative, was extended to aliens by a decree of the senate passed on the proposition of the Emperor Hadrian; whereas the remaining dispositions of that statute are inapplicable to aliens.
§ 47. The lex Fufia Caninia, passed under Augustus (Sueton. Aug. 40), to prevent the degradation of citizenship by testators abusing their testamentary right of manumission, was generally called the lex Furia Caninia before the manuscript of Gaius was re-examined by Studemund; it was abrogated by Justinian. See Inst. 1, 7. The clause of the lex Aelia Sentia referred to in the text was retained by Justinian. Inst. 1, 6 pr.
DE HIS QVI SVI VEL ALIENI IVRIS SINT.
§ 48. Another division in the law of Persons classifies men as either dependent or independent.
§ 49. Those who are dependent or subject to a superior, are either in his power, in his hand, or in his mancipation.
§ 50. Let us first explain what persons are dependent on a superior, and then we shall know what persons are independent.
§ 51. Of persons subject to a superior, let us first examine who are in his power.
§ 52. Slaves are in the power of their proprietors, a power recognized by jus gentium, since all nations present the spectacle of masters invested with power of life and death over slaves; and (by the Roman law) the owner acquires everything acquired by the slave.
§ 53. But in the present day neither Roman citizens, nor any other persons under the empire of the Roman people, are permitted to indulge in excessive or causeless harshness towards their slaves. By a constitution of the Emperor Antoninus, a man who kills a slave of whom he is owner, is as liable to punishment as a man who kills a slave of whom he is not owner: and inordinate cruelty on the part of owners is checked by another constitution whereby the same emperor, in answer to inquiries from presidents