MANUMI´SSIO
MANUMI´SSIO was a legal act by which slaves and
persons
in mancipii causa were released from
the
manus or power of their masters, thereby
acquiring freedom (
Dig. 1,
1,
4, pr.; Inst. 1, 5, pr.). Accordingly the
word
manumissio is equivalent to
e or
de manu missio
(cf. Voigt,
XII. Tafeln, 2.77, n. 2). There were three modes
of effecting a legal manumission according to Jus Civile (
justa et legitima manumissio),--namely,
vindicta, census, and
testamentum,--which are enumerated both by Gaius (1.17) and
Ulpian (
Frag. 1) as necessary in order to free a slave and
make him
civis (cf.
Cic.
Top. 2, 10; and Plaut.
Gas.
2.8, 68). Of these the
manumissio vindicta was
probably the oldest and, at one time, the only mode of manumission. It is
mentioned by Livy (
2.5) as in use at an early
period, and indeed he states that some persons refer the origin of the
vindicta to the event there related, and
derive its name from
vindicius: the latter part at
least of this supposition is of no value.
Manumissio. by the
vindicta was originally an
action between a third person, who vindicated the freedom of the slave to be
manumitted before the praetor, and the master of the slave, who was in the
position of defendant. The form of the
vindicta
supposes, not that the person manumitted was a slave, but that he was a
person whose freedom (
libertas) was the matter
in issue. Thus it had for its professed object the maintenance of a
previously acquired status, and not the conversion of a slave into a
freeman. The proceeding before the magistratus was in form an assertion of
the slave's freedom (
manu asserere liberali
causa, Plaut.
Poen. 4.2, 83), to which the owner
made no defence, but allowed the slave to be declared by the magistratus a
freeman.
The proceeding then was a species of
in jure
cessio, and was in fact a collusive action, which was based on the
fiction of the slave's freedom. When the magistratus had pronounced in
favour of freedom
ex jure quiritium, there could be
no further dispute about the
libertas or about
the
civitas which was attached to
libertas. The slave had been manumitted with the
consent of the master by the act of the magistratus. The ceremony of the
manumissio by the
vindicta was as follows:--The
master brought his slave before the praetor, since it was his province to
exercise jurisdiction in civil causes. The praetor's lictor, who came to be
used as
adsertor libertatis, in order to save
the trouble of bringing a person to take this part, holding a rod (
vindicta or
festuca)
with one hand, and with the other laying hold of the slave, said,
“Hunc ego hominem ex jure quiritium liberum esse aio,” at
the same time touching him with the rod; the master then using the same
formalities, and turning the slave round and releasing his hold of him, as
seems to have been the custom ( “momento turbinis exit Marcus
Dama,” Pers.
Sat. 5.78), admitted his
freedom, either expressly or by his silence, which was followed by the
pronuntiatio of the magistratus,
“Quandoque Numerius Negidius non contra vindicat, hunc ego hominem
ex jure quiritium liberum esse dico.”
Addicere is the technical term to express this
act of a magistratus by which he pronounced in favour of a right, in this
case a right to freedom; it is so used by Cicero in respect of manumission
(
ad Att. 7.2; cf. Gaius, 2.24). This form of manumission
derived its name from the
vindicta or rod,
otherwise called
festuca, which was used in the
proceeding (Plaut.
Mil. 4.1, 15; Hor.
Sat. 2.7, 76; Pers. 5.125; Gaius, 4.16). In course of time the
formalities of
manumissio per vindictam were
very much curtailed. The master ceased to act as if he were party to an
action (
Dig. 40,
2,
23), and the presence of the lictor became
unnecessary. All that seems to have been required in the time of Justinian
was that the master should take his slave before the
[p. 2.123]magistratus, wherever the latter was to be found,--it might be
in the public road (
in transitu), as when the
praetor or proconsul was going to the bath or to the theatre,--and that he
should declare to the magistratus his desire to have the slave manumitted
(Gaius, 1.20;
Dig. 40,
2,
8).
The manumission by the
census is thus briefly
described by Ulpian (1, 8): “Slaves were formerly manumitted by
census, when at the lustral census (
lustrali
censu) at Rome they gave in their census at the bidding of
their masters.” The slave must of course have had a sufficient
peculium, or the master must have given him
property, so that he might become a taxpayer.
Manumissio
per censum, like
manumissio per
vindictam, was not in form a manumission, but supposed the slave
to be already free. It was the act of the censor in enrolling the slave on
the list of citizens, which gave validity to the manumission, just as
manumissio per vindictam was effected by
the
addictio of the praetor. Cicero tells us
that there was a question of law whether a slave should be considered free
immediately on being entered on the censor's roll, or not until the lustrum
was celebrated (
Cic. de Or.
1.4. 0, 183; see
CENSUS); and this was a matter of some importance, for his
acquisitions were only his own from the time when he became a freeman.
Manumissio per censum seems to have been a
common mode of manumitting persons
in mancipio,
who had been surrendered on account of their offences (
noxae dediti), and this form of manumission may have been
first used for the purpose of manumitting such persons (Gaius, 1.140; cf.
Voigt,
XII. Tafeln, 2.143, n. 15;
MANCIPII CAUSA). The
republican institution of the census became obsolete under the Empire, and
with it this mode of manumission; the last lustrum was under Vespasian, A.D.
74, up to which time since the beginning of the Christian era only two had
taken place.
The law of the Twelve Tables confirmed freedom which was given by will. The
earliest wills were made in the Comitia, and so testamentary manumission may
at first have implied a legislative act, but the
testamentum per aes et libram, which was recognised by the
Twelve Tables, and which gradually superseded the
testamentum calatis comitiis, was not executed before any
public authority, though the witnesses required for its validity may have
been regarded as representatives of the populus. [
TESTAMENTUM]
There came to be three kinds of testamentary manumission:--1. Where a master
by his will made a slave free and appointed him
heres. 2. Where a master gave his slave a direct legacy of his
freedom. 3. Where a person requested his heir or legatee to manumit a slave.
1. A testator might declare in his will that his slave should be free and
heres, in which case on the death of the
testator the slave became both free and
heres,
whether he wished to undertake the liabilities of the succession or not
(
necessarius heres, Gaius, 2.153; Ulp.
Frag. 22, 11); it was common to manumit a slave and
appoint him
heres in a substitutional clause,
in order to make intestacy impossible.
According to the law of Justinian, the appointment of a slave as
heres by his master was sufficient to show an
intention to manumit, without any express declaration of freedom, since a
slave could not become
heres.
2. Where freedom was given to a slave as a
legatum, the slave acquired his freedom by the act of the
testator, and this from the moment that the will took effect, if the bequest
was absolute. A testamentary manumission might, however, be made subject to
a suspensive condition, in this respect differing from manumission
per vindictam or
per
censum. A slave who was made conditionally free by testament was
called
statu liber (Festus, 314, 67; Ulp.
Fragm. 2, 1;
Dig. 40,
7,
1); until the condition was
fulfilled, he was the slave of the
heres. If a
statu liber was sold by the
heres, or if the ownership of him passed to some one
else by usucapion, he had still the benefit of the condition; a condition to
this effect being contained in the law of the Twelve Tables. Although the
statu liber was legally a slave, the
peculium which he possessed at the death of
the testator aid all subsequent acquisitions derived from it could not be
taken from him by the
heres, and might be used
by him in order to fulfil the condition of his freedom, if this consisted,
as was not unfrequently the case, in the payment of a sum of money to the
heres. A slave who was made free
directo was called
orcinus
libertus, because he had been made free by a person who was dead.
(Cf. the application by Suetonius,
Suet. Aug.
35, of the term
orcini to certain senators of
a low class.)
3. Where a slave was manumitted by an heir or legatee at the request of the
testator, the will of the deceased only operated indirectly; the slave did
not become
libertus orcinus on manumission, but was
the
libertus of the heir or legatee who
manumitted him. If the person who was requested to manumit refused, he might
be compelled to manumit on application to the praetor. A man might request
his
heres or legatee not only to manumit his
own slaves, but also slaves belonging to the
heres or legatee or to any other person. In case of
libertas being thus given to the slave of any other
person, the gift of
libertas was extinguished,
if the owner would not sell the slave at a fair price.
The legal act of manumission was often followed by a religious ceremony in
the temple of Feronia, where the freedman appeared clad in the toga or dress
of a Roman citizen, and with a pileus, or particular kind of cap, on his
shaven head. This last circumstance explains the expression “servos ad
pileum vocare” (
Liv. 24.32), which
means to promise slaves their liberty in order to induce them to join in
some civil disturbance (cf. Plaut.
Amph. 3.4,16;
Poen. 5.2, 2;
Serv. ad Aen.
8.564). The pileus was still worn in the time of Justinian, since
he declares that slaves who attend the funeral of their master with the cap
of freedom on their heads (
pileati) become
Roman citizens (Cod. 7, 6, 1.5).
Manumission according to the forms recognised by the civil law not only made
a slave free, but also
civis. Besides the due
observance of the legal forms, however, it was required that the manumissor
should have quiritarian ownership of the slave, and that he should be of
legal capacity, to perform the act of manumission.
[p. 2.124]If a slave belonged to a person, but only under a praetorian title, he
became Latinus and not
civis on manumission.
[
LATINITAS] If several
persons were joint owners of a slave, and one of them manumitted him in such
form as would have effected complete manumission, if the slave had been the
sole property of the manumissor, such manumissor lost his share in him,
which accrued to the other joint owner or joint owners. Justinian enacted
that, if only one joint owner was willing to manumit a slave, the others
might be compelled to manumit on receiving the price fixed by law for their
shares. If one person had the usufructus and another the ownership (
proprietas) of a slave, and the slave was manumitted
by the
proprietarius, he did not become free
till the
usufructus had expired: in the meantime
there was no legal owner (
dominus).
The modes of manumission above described were of a formal and public
character, but in course of time other ways of giving freedom to a slave of
an informal and private kind came to be recognised. Thus a form of
manumission
inter amicos is referred to by
Gaius and Ulpian (Gaius, 1.41, 44; Ulp.
Fragm. 1, 10, 18),
which was a declaration of a slave's freedom made by his master in the
presence of friends, or it might be done by inviting the slave to table, or
by writing a letter to an absent slave. These were not manumissions
recognised by the Jus Civile, and so originally had no legal effect; but
after a time the praetor protected the liberty of slaves who had been made
free in this manner, so that they were free in fact (
in
libertate esse), though they had not the legal status of
freemen (
liberos esse). The Lex Junia Norbana
gave then the status called Latinitas [LEX JUNIA
NORBANA; LATINITAS]; finally under Justinian these manumissions
were given the same effect as those belonging to Jus Civile, but it was
required that they should be attested by five witnesses (Cod. 7, 6, 1.1). A
new form of manumission--
manumission in
ecclesiis--was established by the Church, and first recognised by
a constitution of Constantine, A.D. 316 (Cod. 1, 13): this manumission was
carried out before the bishop in the presence of the congregation.
A
manumissio sacrorum causa is sometimes
mentioned as a kind of manumission, whereas The words
sacrorum causa point to the cause and not to the mode of
manumission. (Festus, s. vv.
Manumitti, Puri;
Savigny,
Zeitschrift, vol. iii. p. 402.) A manumission by
adoption is spoken of (
Gel. 5.19; Inst. I, 11,
12); the form of adoption required the intervention of a magistratus.
Laws were passed under the early emperors for the purpose of preventing the
degradation of
civitas by an incautious
exercise of the right of manumission. The Lex Aelia Sentia laid various
restrictions on manumission [
LEX AELIA SENTIA], particularly as to the age of the person
manumitting, which was raised from fourteen to twenty, and as to the age of
the slave, which was required to be thirty, as a general rule, in order to
qualify him to become
civis. Moreover it
prevented slaves who had suffered an infamous punishment from becoming
cives, and declared manumissions in fraud
of creditors void. The lex was almost entirely repealed by Justinian, who
abolished the division of freedmen into
cives,
Latini, and
dediticii, making all
freedmen
cives. The Lex Fufia Caninia fixed
limits to the number of slaves who could be manumitted by will; the funerals
of the wealthy being often attended by a large number of freedmen, who had
been manumitted by the deceased to the injury of their inheritance. The
number allowed to be manumitted in this way was a half, one-third,
one-fourth, and one-fifth of the whole number that the testator possessed,
according to a scale fixed by the lex. As its provisions only applied to
cases where a man had more than two slaves, the owner of one slave or two
slaves was not affected by this lex. The exact date of the law is doubtful,
but there is some evidence to show that it was passed A.D. 8; several
senatus-consulta were passed to prevent evasions of it (Sueton.
Aug. 40; Gaius, 1.42-46). This lex was repealed by Justinian
(Cod. 5, 3). A tax was levied on manumission by a Lex Manlia, B.C. 357; it
consisted of the twentieth part of the value of the slave, hence called
vicesima (
Liv.
7.16,
27.10;
Cic. Att. 2.1. 6).
Manumission was as a rule optional on the part of a master, but in some cases
it was obligatory, as in the case of a master treating his slave with
extreme cruelty, according to a constitution of Antoninus Pius (Gaius,
1.53). The act of manumission, which made the slave a new man, established
the relation of
patronus and
libertus between the manumissor and manumitted, which was a
quasi-parental relation [LIBERTUS; PATRONUS]. When
manumitted by a citizen, the
libertus took the
praenomen and the gentile name of the manumissor, and became in a sense a
member of the gens of his patron.
Freedmen who became
cives enjoyed public as well
as private rights, but subject to various drawbacks. They had not the
jus honorum, and they could only vote in
one of the four
tribus
urbanae, not in the
tribus
rusticae, though various attempts were made to give them a
better suffrage. [LIBERTUS; CIVITAS.] (
Dig. 40,
1,
4; Holtzman,
de Emanc. Jur. Rom. et Hod.; Becker,
Alt. 2.1, 65; Unterholzner in
Zeitschr. f. Gesch.
Rechtswiss. 2.1391; Keller,
Inst. 211,
&c.)
[
G.L] [
E.A.W]