Becoming a Slave

(1) Birth as a Slave

A person could be born a slave, and this would happen where a child was born of slave parents. What if only one of the parents was a slave? For example, it must often have happened that a slave woman's child was the biological child of the master.

In principle, the same rule was applied where the father was a slave and the mother free. The child would follow the mother's status and be free.^[430] However, the situation was complicated by a resolution of the Senate in AD 52, the SC Claudianum.^[431] This applied where a free woman cohabited with a slave.^[432] Where this was done without the consent of the slave's owner then, after notice (denun­tiatio) had been given to the woman three times,^[433] both she and any children of the union were enslaved. Originally, if the slave's owner agreed to the cohabita­tion, the woman remained free, but the children of the union were enslaved. That latter rule, however, was abolished by Hadrian, with the result that in the case of a cohabitation with the owner's consent both the woman and her chil­dren remained free.^[434] Hadrian's reform did not, though, affect the position of a woman who cohabited with the slave without the consent of the slave's owner. She continued to be subject to enslavement. This continued to be the case until the SC Claudianum was repealed by Justinian,^[435] with the result that, thereafter, the child of a free woman would always be free.

(2) Imposition of Slavery on a Free Person

Other than the rules under the SC Claudianum, considered above, there were other ways in which a free person could become a slave. For example, enslave­ment could be imposed as a punishment for wrongdoing of various kinds.^[436] A particularly striking example of enslavement as a punishment is the case where a free person fraudulently arranged to be sold as a slave, with the intention of hav­ing an accomplice then assert his freedom. Such a person was to be enslaved.^[437] Otherwise, a free person could not voluntarily submit to slavery. Equally, a pater­familias could not sell his children into slavery.^[438] An exception, however, appears to have developed in post-classical law: a paterfamilias under pressure from severe poverty could sell a newborn child, subject to a right to reclaim the child later on paying the child's value or providing a substitute slave.^[439]

The most important way in which a free person could become a slave, how­ever, was capture in war. The rule was that anyone (not just soldiers) captured in wartime became the slave of the captors. This applied both to Romans captured by enemies and also to enemies captured by Romans. A captive who returned, however, might regain freedom. This was known as postliminium. The general idea was fairly straightforward, though its detailed application was often complicated and much is unclear from the texts.^[440] Essentially, if a Roman citizen was captured by enemy forces, his or her status was considered to be in suspense. If the captive died while in captivity, he or she was treated as having died at the moment of capture.^[441] If the captive returned, however, he or she was normally entitled to resume his or her previous status. If the captive had been a paterfamilias, for exam­ple, the patriapotestas he had previously had was restored. There were exceptions to this, however, most notably with marriage. There is a fairly obvious difficulty that the non-captive spouse might have remarried during the period of captivity. The rule in classical law therefore was that the marriage did not survive,^[442] and was only reconstituted on the captive's return by renewed consent.^[443] According to a pronouncement of Justinian, however, the rule was that the marriage sur­vived as long as it was clear that the captive survived. If it was not known whether the captive had survived, the non-captive spouse would have to wait for five years before being able to remarry.^[444]

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