The End of Slavery

(1) Manumission

The act of freeing a slave is called ‘manumission' (manumissio in Latin). This could happen in various ways. One of these was manumission by inclusion in the cen­sus.

(a) Manumissio Vindicta

Manumissio vindicta was in origin a form of a collusive litigation,^[459] modelled on the procedure that would be used where it was asserted that a person held as a slave was in fact free. It required the involvement of a third party called the adsertor libertatis (‘assertor of freedom'), who would play the part of the pursuer. The parties would appear before the magistrate as if it was a genuine litigation, and the adsertor libertatis would assert that the slave was in fact free, to which the slave's owner would either assent or offer no objection. The magistrate would then declare the slave to be free. However, even though the procedure was based on the fiction that the slave was already free, this was not the legal effect. Instead, the slave was treated as only becoming free as a result of the procedure. This result is not entirely logical, but does show an ‘ability not to extend conclusions to the point of absurdity [which] is typical of Roman law'.^[460]

There were limitations on a slave-owner's power to manumit slaves in classical law.

The lex Aelia Sentia also imposed age limits on manumission, both for the mas­ter and for the slave. If the owner of the slave was under twenty years old,^[464] or the slave was under thirty,^[465] manumission was prohibited unless good cause for it was established before a council (consilium). Gaius tells us that the consilium would be made up of five senators and five equites if in Rome, or twenty recuperatores if in the provinces.^[466] There was no fixed list of what counted as good cause. However, grounds that were considered acceptable included blood relationship between slave and owner or the slave having been the owner's tutor or minder.^[467] Alternatively, the slave might have performed exceptional services for the owner, sufficient to justify a display of gratitude to the slave, such as helping the owner in battle or uncovering a plot against him or her.^[468] A manumission of a slave under thirty was not void, but the freed slave did not become a Roman citizen in such a case.^[469] Where there was a breach of the requirement for the owner to be at least twenty, the manumission was by contrast void and ineffective.^[470]

(b) Manumission by Will

It was possible to manumit slaves by will. There were some doubts about how specific the identification of the slave had to be, but the developed position was that it was enough to give a clear description, even if the slave's actual name was not mentioned. For example, a reference to ‘my steward' or ‘my cook' in a will was enough, as long as that individual could be identified.^[471] If the slave was named as heir, although the position seems to have been doubted at an earlier time, that implied a grant of freedom.^[472] After all, the slave could only validly be heir if freed.

The restrictions imposed by the lex Aelia Sentia, outlined above, also applied to manumissions by will, although the minimum age for unrestricted manumission was changed byJustinian from twenty to seventeen.^[474] In addition, even a slave aged under thirty could be freed by will if made the heir of an insolvent master.^[475] Another restriction was imposed by the lex Fufia Caninia. Between its intro­duction under Augustus in 2 BC and its repeal by Justinian,^[476] the lex Fufiia Caninia imposed restrictions on manumissions by will. According to this statute, a slave­owner who owned more than two slaves could only manumit certain proportions of the slaves by will. Those who only owned one or two slaves were subject to no restrictions.^[477] Those who owned between three and ten slaves could manumit only half by will. Those who owned between eleven and thirty could manumit up to a third by will. Those who owned between thirty-one and 100 could manu­mit up to a quarter, while those who owned more than 100 could manumit up to a fifth, with an absolute limit of 100 (i.e. for those who owned more than 500 slaves). To avoid the anomaly that, according to these rules, the owner of ten slaves could manumit five (i.e. a half), but the owner of twelve slaves could only manumit four (i.e. a third), anyone could manumit by will at least as many slaves as anyone who owned fewer.⁶¹ Table 6.1 should make the rules clearer.

Where too many slaves were named, they would be manumitted in order until the maximum was reached. Attempts to circumvent the restrictions, for example by writing the names in a circle so that none of them could be said to be first, resulted in none of the slaves being freed.⁶²

(c) Informal Manumission

Sometimes an attempt would be made to manumit a slave informally, without following one of the formal methods.

Table 6.1 The rules on manumissions by will under the lex Fufia Caninia

⁶¹ G.1.45.

⁶² G.1.46.

⁶³ See p. 96n.

Slaves freed under the age of thirty, in contravention of the lex Aelia Sentia, fell into this category as well. The emperor Claudius provided that, where a slave­owner abandoned a slave while the latter was ill, the slave would become free with the status of Junian Latin.

Justinian made substantial reforms to the law here by providing for more methods of manumission to be fully effective. These were the following:

• manumission per epistulam (‘by letter'), with the letter signed by five witnesses;^[479]

• manumission by declaration inter amicos (‘among friends'), in writing with five witnesses;^[480]

• abandonment of slave on account of illness;^[481]

• allowing a slave to march in the master's funeral procession, wearing a freedman's cap (pileatus), according to the intention of the deceased or the deceased's heir;^[482]

• in the presence of five witnesses, giving to the slave documents evidencing his or her slavery, or destroying them;^[483]

• giving a slave woman in marriage to a freeman, and providing a dowry for that marriage;^[484]

• naming the slave in an official document as the master's own child.^[485]

In the Justinianic law, all of these were effective in making a slave a free Roman citizen.

(2) Freedmen

(a) The Freedman Status

As we have already seen, a slave that was formally freed not only ceased to be a slave, but also became a Roman citizen. That does not mean, though, that the ex-slave (now called a freedman or freedwoman, though the former is often used as a gen­eral term) had the full rights of a freeborn citizen. The freedman (though not any child of the freedman)^[486] was subject to certain restrictions. For example, the freed­man could not become a senator or hold certain public offices. In practical terms, though, the most important restrictions arose from the continuing relationship with the former owner. These will be considered below.

In classical law, distinctions were made between three different classes of freedmen: citizens, Junian Latins and dediticii.^{[487] [488] Only those who were freed using one of the formal methods of manumission, and whose manumission was sub­ject to no restriction (such as those under the lex Aelia Sentia), would become a Roman citizen.}

The second class wasJunian Latins. We have seen already who fell into this class.

Freedmen of the final class were called dediticii, which was originally the name given to citizens of states which had fought against the Romans and then had surrendered unconditionally. In terms of the lex Aelia Sentia, they are those slaves who have been branded or put in chains by the master, who have been convicted of wrongdoing after being questioned under torture, who have been sent to fight in the arena, or who have been sent to gladiator school or prison, and so have imposed on them the status of dediticiiJ^ This barred them from ever becoming Roman citizens, and they were not permitted to live within 100 miles of Rome. If they breached this prohibition, they would be re-enslaved and sold subject to a condition of being kept outside this distance from Rome.^[489]

These distinctions were abolished by Justinian.^{[490] [491] In the Justinianic law, all slaves who were freed according to a recognised method became citizens.}

(b) The Continuing Relationship with the Former Owner While the freed slave was now a citizen, he or she continued to have a relation­ship with the former owner, who was now the freed slave's patronus (‘patron'). To a great extent, this was a matter of social expectations about proper behaviour towards the former owner, beyond legal obligation. There were, however, legal aspects to this ongoing relationship.

First, the freedman owed respect (obsequium) to the patron, and was restricted in what he or she could do if it could reflect badly on the patron. For example, the freedman could not sue the patron without the praetor's consent, and could not do so at all if the action would impose on the patron the kind of legal disgrace, which we saw in Chapter 5, called infamiaJ'7 In severe cases of disrespect towards the patron, the freedman could be punished with re-enslavement for ingratitude.^[492]

Second, the freedman would normally be expected to perform services for the patron, although, unlike the other obligations considered here, services could only be demanded if agreed upon at the time of manumission.^[493] Typically, the services to be rendered would relate to the freedman’s trade or profession, and the ser­vices could be required to be provided to the patron’s friends. As the jurist Julian observes, the patron of a freedman who is a dancer or doctor ‘does not have to be forever giving entertainments or being ill in order to use his freedman’s services’.⁸⁰ For the obligation to be enforceable, the services would have to be reasonable, judged according to the parties’ age, status, health, need, way of life and ‘other such considerations’.⁸¹ In particular, services could not be required that endan­gered the freedman’s life or reputation. For example, a manumitted prostitute or gladiator could not be required to perform those professions for the patron’s benefit (even if the former slave did otherwise perform those professions).⁸²

Third, the patron had a claim on the freedman’s estate if the freedman died. Under the Twelve Tables, we are told, the patron only had a claim if the freed­man died intestate and childless.⁸³ However, the praetor intervened to give the patron a right to half of the freedman’s estate even if the freedman left a will, although any children of the freedman could still exclude the patron’s claim.⁸⁴