BOOK II. Si quis capiatur. ab hostibus, hi, quos in potestate habuit in incerto sunt, utrum sui iuris facti an adhuc pro filiis familiarum computentur: nam defuncto illo apud hostes, ex quo captus est patres familiarum, reverso numquam non in potestate eius fuisse credentur.-1. 12, § 1, D. de capt. iv.' He that dies in captivity is juridically treated as having died in the position of freedom, as a Roman citizen at the very moment of capture (ficti legis Corneliae). Iul. Lege Cornelia testamenta eorum, qui in hostium potestate decesserint, perinde confirmantur, ac si hi qui ea fecissent in hostium potestatem non pervenissent.-D. 28, 1, 12.2 Ulp. In omnibus partibus iuris is qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est.-1. 18, D. de captiv.3 Iul. Apparet ergo eadem omnia pertinere ad heredem eius, quae ipse, qui hostium potitus est, habiturus esset, si postliminio revertis set.-1. 22, § I eod.' The person who has paid down the redemption-money for the ab hostibus redemp.' has a right to retain him until repaid for it; by which right indeed the enjoyment of the earlier legal position and the rights 1 If a man is captured by the enemy, they that he had under his potestas are in uncertainty whether they have become sui iuris or are hitherto regarded as filii-familiarum; for if he die with the enemy, they are regarded as patres-familiarum from the time of his capture; if he return, they will be regarded as having never been out of his potestas. 2 By the l. Cornelia, the wills of those that die in the power of the enemy obtain the same force as if the testators had not come under the enemy's power. 3 In all branches of the Law, he that has not returned from the enemy is regarded as dead, as it were, from the time when he was captured. It is therefore clear that all such things belong to his heir as he that has been captured by the enemy would have had if he had returned by postliminium. of 'ingenuitas' remain for a time suspended; though not the freedom. Pomp.: Redemptio facultatem redeundi praebet, non ius postliminii mutat.-1. 20, § 2, D. de capt.1 Ulp. Potestatis verbum . . . referendum est etiam ad eum, quem redemit ab hostibus: quamvis placeat hunc servum non esse, sed vinculo quodam retineri donec pretium solvat.-D. 28, I, 20, 1.2 Imp. Diocletian.: Liber captus ab hostibus et commercio redemptus tunc demum cum pretium solverit, vel hoc ei qualicumque remittatur indicio, statum pristinum recipit.-C. 8, 50 (51), 17.3 2. According to ius civile: BOOK II. (a) Sale abroad (trans Tiberim) to which by the older Law he was subject that avoided either the census or military service, and the debtor that was adjudicated to the creditor; " besides delivery over § 116. Cf. to the enemy. a Cic. pro Caec. 34, 99: Populus cum eum vendit, qui miles factus non est, . . . iudicat, non esse eum liberum, qui ut liber sit, adire periculum noluit; cum autem incensum vendit, hoc iudicat . . . eum, qui cum liber esset, censeri noluerit, ipsum sibi libertatem abiudicavisse.* 1 Redemption affords the privilege of returning; it does not alter the ius postliminii. 2 The word potestas is applicable also to such person as he redeemed from the enemy; although it is held that this man is not a slave, but is only kept in a certain relation of dependence until he liquidate the ransom-money. 3 A freeman who has been captured by the enemy, and redeemed in the course of business, first recovers his former standing when he pays back the ransom-money, or is released from this by some kind of token. • When the People sells him that has not become a soldier .. it decides that he is not a freeman who, though he be free, has refrained from incurring danger; but when it sells him that has not been enrolled, their judgment is this, that . . . as N also § 50, ius vendendi. BOOK II. Part 1. Qui ad delectum olim non respondebant, ut proditores libertatis in servitutem redigebantur; . . . sed mutato statu militiae recessum a capitis poena est.-D. 49, 16, 4, 10.' Pomp.: Eum qui legatum pulsasset, Q. Mucius dedi hostibus, quorum erant legati, solitus est respondere; quem hostes si non recepissent, quaesitum est, an civis Romanus maneret, quibusdam existimantibus manere, aliis contra, quia quem semel populus iussisset dedi, ex civitate expulsisse videretur sicut faceret, cum aqua et igni interdiceret; in qua sententia videtur P. Mucius fuisse.-D. 50, 7, 18 (17).2 Mod. An qui hostibus deditus reversus nec a vobis receptus civis Romanus sit, inter Brutum et Scaevolam varie tractatum est: et consequens est, ut civitatem non adipiscatur.-D. 49, 15, 4.3 Cic. de orat. I, 40, 181 :-memoria traditum, quem pater suus aut populus vendidisset, aut pater patratus dedidisset, ei nullum esse postliminium.1 to him who, though he were free, would not be enrolled, he has by his own act declared he has forfeited liberty. 1 They that formerly did not present themselves for enrolment were consigned to slavery as traitors to freedom; but, with a change in the status of soldiers, a departure has been made from death-punishment. 2 Q. Mucius was wont to give as his opinion that a man who had struck an ambassador should be given up to the enemy whose embassy it was. The question has arisen, if the enemy should not have accepted him, whether he remained a Roman citizen; and some have considered that he did; others the contrary, because the Roman People, by having once ordered the delivery up of a man, would seem to have exiled him from the State just as much as by putting him under the ban of water and fire. This appears to have been the opinion of P. Mucius. 3 Whether he that has been delivered up to the enemy, and on his return has not been accepted by us, is a Roman citizen, has been differently dealt with by Brutus and Scaevola; and the conclusion is that he does not acquire civitas. 4 It has been handed down that a man sold by his own father or the People, or given up by the p. p., has no postliminium. (B) Condemnation to capital punishment (to death, or to work in the mines), which made the person affected by it a 'servus poenae.' Gai. Hi vero, qui ad ferrum aut ad bestias aut in metallum damnantur, libertatem perdunt bonaque eorum publicantur.-D. 28, 1, 8, 4.' Iust. i. 12, 3 Servi autem poenae efficiuntur, qui in metallum damnantur et qui bestiis subiiciuntur.2 (7) Fraudulent sale of himself by a man over twenty years of age. Callistr. Conventio privata neque servum quemquam, neque libertum alicuius facere potest. —D. 40, 12, 37.3 Inst. i. 3, 4: Servi . . cum homo liber maior xx . fiunt . . . iure civili : ticipandum sese venumdari passus est.* Ulp. Maiores xx annis ita demum ad libertatem proclamare non possunt, si pretium ad ipsum, qui veniit, pervenerit.-D. 40, 13, 1 pr.3 Modest. Homo liber qui se vendidit, manumissus non ad suum statum revertitur, quo se abdicavit, sed efficitur libertinae condicionis.-D. I, 5, 21.6 (8) According to the SC. Claudianum, 'contuber 1 But they that are condemned to combat with gladiators, or to fight with beasts, or to work in the mines, lose their liberty, and their property is confiscated. 2 Now they become slaves to punishment who are condemned to work in the mines, and such as are exposed to wild beasts. 3 A private agreement can make no one either a slave or anybody's freedman. 4 They become slaves . . . by the i. c.: when a freeman who is more than twenty years of age has suffered himself to be sold in order to share the purchase-money. Those who are more than twenty years old can then only make no claim to freedom, when the purchase-money has passed to him who was sold. A free person that has sold himself, when manumitted, does not return to his earlier status which he renounced, but he acquires the condition of a freedman. BOOK II. BOOK II. a Cf. § 38 ad init. nium' of a free woman with a foreign slave against the will of the master. Paul. ii. 21o, § 1: Si mulier ingenua civisque Romana vel Latina alieno se servo coniunxerit, si quidem invito et denuntiante domino in eodem contubernio perseveraverit, efficitur ancilla.' Inst. iii. 12, I :-libera mulier servili amore bacchata ipsam libertatem per senatusconsultum amittebat et cum libertate substantiam: quod indignum nostris temporibus esse existimantes et a nostra civitate deleri et non inseri nostris Digestis concessimus.2 () Revocatio in servitutem,' which could befall a freedman from ingratitude towards his patron." Imp. Constant. Si manumissus ingratus circa patronum suum exstiterit, a patrono rursus sub imperio dicioneque mittatur, si in iudicio . . patroni querela exserta ingratum eum ostendat; filiis etiam qui postea nati fuerint servituris.-C. 6, 7, 2.3 TERMINATION OF SERVITUS. $37. IN GENERAL. The slave regularly acquires freedom and personality For villenage by ENFRANCHISEMENT (manumissio) on the part of the in copyhold and the manu mission of villeins, see Blackstone, 1 If a free-born woman and Roman citizen, or a Latin, have united herself to an alien slave, and in spite of the master, and notwithstanding his expressed wishes, have persisted in such Williams' 'Real connection, she is rendered a slave. ii. 92-96 (Steph. i. 215-218); Property,' pp. 403, 8qq. ; Law and Cus 2 A free woman that indulged in attachment to a slave lost Maine, Early her very freedom by a senatus-consultum, and with freedom her property: this we have considered unworthy of our time, and have directed that it should be abolished in our realm and excluded from our Digest. tom,' ch. ix. ; 3 Should a freedman have shown himself ungrateful to his manumittor, . . . he shall be consigned again to the control and authority of the Patron, if the complaint of the Patron made public in court represent him to have been ungrateful; the children, besides, born subsequently fall into servitude. |