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LIBER

LIBER, LIBERTAS. The division of men into free and slaves is the “summa divisio de jure personarum” (Gaius, 1.9; Inst. 1.3, pr.): according as a man is a member of the one or the other class, it is decided whether he is capable of having any legal rights whatever, or is not a mere thing or chattel in the eye of the law. Free men were either so from birth. [INGENUI] (Gaius, 1.11; Inst. 1.4, pr.), or they became free by release from slavery, in which case they were called libertini [LIBERTUS], (Gaius, loc. cit.). Libertas is defined by Justinian after Florentinus (in Dig. 1, 5, 4, pr.) as “naturalis facultas ejus quod cuique facere libet, nisi si quid aut vi aut jure prohibetur;” that is to say, a man is restrained of his natural freedom when his hands are tied behind his back, or when the law forbids him to do this or that, though civil liberty at any rate does not require that one should be free to act against the laws (Cic. pro Cluentio, 53, 146; Pers. Sat. 5.89; Dio Chrysost. Or. 14). By the Roman jurists freedom was considered the natural condition of man, and slavery an artificial result of organised political society (Florentinus in Dig. 1, 5, 4, 2; Ulpian in Dig. 1, 1, 4, copied into, Justinian's Institutes, 1.4, 2; 1, 5, pr.), and in their eyes it was the first and indispensable condition of protection from the law either to person or property. Every free man had certain legal rights; every civis had more; and his legal status was completed by membership of a Roman familia [see CAPITIS DEMINUTIO], though in theory every civis had a “family” ( “emancipatus ... sui juris effectus propriam familiam habet,” Dig. 50, 16, 195, 2). The rights which a man possessed at Rome as being merely free were those conferred by the jus gentium as represented in the edict of the Praetor. A peregrinus who was liber had no commercium or conubium, and consequently no share in the jus civile: but he could own property, which was protected by utiles actiones or actiones in factum [ACTIO]: his possession was secured by interdicts; [p. 2.61]he could make a valid testament, if such was the practice of his own state, and he could engage in commerce through those contracts which were said to be derived from the jus gentium.

[J.B.M]

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