The Institutes of Justinian. Anonymous

lex Aelia Sentia.

      1 A master, however, who is insolvent may institute one of his slaves heir in his will, conferring freedom on him at the same time, so that he may become free and his sole and necessary heir, provided no one else takes as heir under the will, either because no one else was instituted at all, or because the person instituted for some reason or other does not take the inheritance. And this was a judicious provision of the lex Aelia Sentia, for it was most desirable that persons in embarrassed circumstances, who could get no other heir, should have a slave as necessary heir to satisfy their creditors' claims, or that at least (if he did not do this) the creditors might sell the estate in the slave's name, so as to save the memory of the deceased from disrepute.

      2 The law is the same if a slave be instituted heir without liberty being expressly given him, this being enacted by our constitution in all cases, and not merely where the master is insolvent; so that in accordance with the modern spirit of humanity, institution will be equivalent to a gift of liberty; for it is unlikely, in spite of the omission of the grant of freedom, that one should have wished the person whom one has chosen as one's heir to remain a slave, so that one should have no heir at all.

      3 If a person is insolvent at the time of a manumission, or becomes so by the manumission itself, this is manumission in fraud of creditors. It is, however, now settled law, that the gift of liberty is not avoided unless the intention of the manumitter was fraudulent, even though his property is in fact insufficient to meet his creditors' claims; for men often hope and believe that they are better off than they really are. Consequently, we understand a gift of liberty to be avoided only when the creditors are defrauded both by the intention of the manumitter, and in fact: that is to say, by his property being insufficient to meet their claims.

      4 The same lex Aelia Sentia makes it unlawful for a master under twenty years of age to manumit, except in the mode of fictitious vindication, preceded by proof of some legitimate motive before the council.

      5 It is a legitimate motive of manumission if the slave to be manumitted be, for instance, the father or mother of the manumitter, or his son or daughter, or his natural brother or sister, or governor or nurse or teacher, or fosterson or fosterdaughter or fosterbrother, or a slave whom he wishes to make his agent, or a female slave whom he intends to marry; provided he marry her within six months, and provided that the slave intended as an agent is not less than seventeen years of age at the time of manumission.

      6 When a motive for manumission, whether true or false, has once been proved, the council cannot withdraw its sanction.

      7 Thus the lex Aelia Sentia having prescribed a certain mode of manumission for owners under twenty, it followed that though a person fourteen years of age could make a will, and therein institute an heir and leave legacies, yet he could not confer liberty on a slave until he had completed his twentieth year. But it seemed an intolerable hardship that a man who had the power of disposing freely of all his property by will should not be allowed to give his freedom to a single slave: wherefore we allow him to deal in his last will as he pleases with his slaves as with the rest of his property, and even to give them their liberty if he will. But liberty being a boon beyond price, for which very reason the power of manumission was denied by the older law to owners under twenty years of age, we have as it were selected a middle course, and permitted persons under twenty years of age to manumit their slaves by will, but not until they have completed their seventeenth and entered on their eighteenth year. For when ancient custom allowed persons of this age to plead on behalf of others, why should not their judgement be deemed sound enough to enable them to use discretion in giving freedom to their own slaves?

TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA

       Table of Contents

      Moreover, by the lex Fufia Caninia a limit was placed on the number of slaves who could be manumitted by their master's testament: but this law we have thought fit to repeal, as an obstacle to freedom and to some extent invidious, for it was certainly inhuman to take away from a man on his deathbed the right of liberating the whole of his slaves, which he could have exercised at any moment during his lifetime, unless there were some other obstacle to the act of manumission.

TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT

       Table of Contents

      Another division of the law relating to persons classifies them as either independent or dependent. Those again who are dependent are in the power either of parents or of masters. Let us first then consider those who are dependent, for by learning who these are we shall at the same time learn who are independent. And first let us look at those who are in the power of masters.

      1 Now slaves are in the power of masters, a power recognised by the law of all nations, for all nations present the spectacle of masters invested with power of life and death over slaves; and to whatever is acquired through a slave his owner is entitled.

      2 But in the present day no one under our sway is permitted to indulge in excessive harshness towards his slaves, without some reason recognised by law; for, by a constitution of the Emperor Antoninus Pius, a man is made as liable to punishment for killing his own slave as for killing the slave of another person; and extreme severity on the part of masters is checked by another constitution whereby the same Emperor, in answer to inquiries from presidents of provinces concerning slaves who take refuge at churches or statues of the Emperor, commanded that on proof of intolerable cruelty a master should be compelled to sell his slaves on fair terms, so as to receive their value. And both of these are reasonable enactments, for the public interest requires that no one should make an evil use of his own property. The terms of the rescript of Antoninus to Aelius Marcianus are as follow:—'The powers of masters over their slaves ought to continue undiminished, nor ought any man to be deprived of his lawful rights; but it is the master's own interest that relief justly sought against cruelty, insufficient sustenance, or intolerable wrong, should not be denied. I enjoin you then to look into the complaints of the slaves of Iulius Sabinus, who have fled for protection to the statue of the Emperor, and if you find them treated with undue harshness or other ignominious wrong, order them to be sold, so that they may not again fall under the power of their master; and the latter will find that if he attempts to evade this my enactment, I shall visit his offence with severe punishment.'

TITLE IX. OF PATERNAL POWER

       Table of Contents

Our children whom we have begotten in lawful wedlock are in our power.

       Table of Contents

      1 Wedlock or matrimony is the union of male and female, involving the habitual intercourse of daily life.

      2 The power which we have over our children is peculiar to Roman citizens, and is found in no other nation.

      3 The offspring then of you and your wife is in your power, and so too is that of your son and his wife, that is to say, your grandson and granddaughter, and so on. But the offspring of your daughter is not in your power, but in that of its own father.

TITLE X. OF MARRIAGE

       Table of Contents

      Roman citizens are joined together in lawful wedlock when they are united according to law, the man having reached years of puberty, and the woman being of