1Ulpianus, On the Edict, Book LIV. If a person who is free, but is held in possession as a slave, is not willing to go into court to establish his true condition, for the reason that he desires to do some wrong to himself or to his family, in this instance, it is but just that permission should be given to certain persons to appear in his behalf, as for example, to a father who alleges that his son is under his control; for if his son refuses to institute proceedings, he can do so for him. This right is granted to his father even if he is not under the control of the latter, for it is always to the interest of a parent that his son should not be reduced to servitude. 1On the other hand, we say that the same power is granted to children in behalf of their parents, even against the consent of the latter, as it is no small disgrace for a son to have his father a slave. 2For the same reason it has been decided that this power is also granted to other blood-relatives,

2Gaius, On the Edict of the Urban Prætor, Title: Concerning Actions Relating to Freedom. Because the slavery to which our relatives are subjected causes us grief and injury.

3Ulpianus, On the Edict, Book LIV. I go still further, and hold that this power ought to be granted to natural relatives also, so that if a father has a son in servitude who is afterwards manumitted, he can demand his freedom should he again be reduced to slavery. 1A soldier is also permitted to appear in court in a case where the freedom of any of his near relatives is involved. 2When no one of this kind who can act for the party interested appears in court, then it becomes necessary to authorize his mother, his daughters or his sisters, as well as other women related to him by blood, or even his wife, to appear before the Prætor, and present the case; so that, after proper cause is shown, relief may be granted him even against his consent. 3The same rule applies if I should allege that the party in question is my freedman or freedwoman.

4Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. The right to appear in court should, however, only be granted to a patron where the liberty of his freedman is involved, and the latter has permitted himself to be sold without his patron’s knowledge.

5Ulpianus, On the Edict, Book LIV. For it is to our interest to preserve our rights over our freedmen and freedwomen. 1When several of the above-mentioned persons appear in court in behalf of a slave, the authority of the Prætor must be interposed to select the one whom he considers to be preferable. This rule should also be observed where several patrons appear for that purpose.

6Gaius, On the Edict of the Urban Prætor, Book II. It will be even more equitable to adopt such a course where the person who has been reduced to slavery is insane, or an infant; for this privilege should then not only be granted to near relatives but also to strangers.

7Ulpianus, On the Edict, Book LIV. Where men who are free, especially those who are over twenty years of age, have permitted themselves to be sold, or have been reduced to slavery for any other reason, no obstacle will arise to prevent them from demanding their freedom, unless they allowed themselves to be sold in order to share the purchase-money. 1When a minor of twenty years of age permits himself to be sold for the purpose of sharing the purchase-money, this will not prejudice him after he reaches the age of twenty years. If, however, he permitted himself to be sold and obtained a portion of the purchase-money after reaching his twentieth year, freedom can be refused him. 2If anyone should knowingly buy a man who is free, the right to demand his liberty will not be refused to him who was sold, as against the buyer, no matter at what age he was purchased; for the reason that he who bought him is not excusable, even if when he did so he who was the object of the sale well knew that he was free. But if another, without being aware of the fact, should afterwards purchase him from one who did know, freedom should be refused him. 3If two persons should buy a slave together, one of them knowing that he was free, and the other being ignorant of it, let us see whether he who was aware of the alleged slave’s condition will prejudice the one who was not. This, indeed, is the better opinion. For, otherwise, the question would be whether he who was ignorant of the man’s condition will only be entitled to his share in him, or to the entire alleged slave. Will what we have stated with reference to the share of the other apply to the purchaser who had knowledge? He, however, who bought the man, being aware that he was free, is unworthy to have anything. Again, the one who was ignorant of his true condition cannot have a greater portion of the ownership than he purchased. The result therefore will be that the ignorance of one will benefit the other who bought the man knowing that he was free. 4There are other reasons for which the right to demand freedom is refused; as, for example, where a slave is said to be free by the terms of a will, and the Prætor forbids the will to be opened, because the testator is said to have been killed by his slaves; for he who desires to appear in court and who may, perhaps, be liable to punishment, should not be entitled to a judgment giving him his freedom. If, however, the right should be granted because it is uncertain whether he is guilty or innocent, the decision should be deferred until it is established who is responsible for the death of the testator, as it will then appear whether he will be liable to punishment or not. 5Where anyone who is in slavery claims his freedom, he occupies the place of a plaintiff. If, however, being at liberty, he is demanded as a slave, the person who alleges that he is his slave assumes the part of the plaintiff. Hence, when the matter is in doubt, in order that the proceedings may be conducted in their proper order, the question should be argued before the magistrate who has cognizance of cases involving freedom, so that it may be determined whether the alleged slave should be reduced from freedom to servitude; or, on the other hand, whether, being in bondage, he ought to be liberated. If, however, it should appear that he who contends that he is free was in that condition without having been guilty of fraud, he who alleges that he is his owner will take the part of the plaintiff, and will be required to prove that he is his slave. But if it is decided that, at the time when the proceedings were instituted, the alleged slave was not at liberty, or had fraudulently obtained his freedom, he who asserts that he is free must prove that this is the case.

8The Same, On the Edict, Book LV. The right to appear in a case involving freedom is granted to an usufructuary, even if the owner (that is to say, he who alleges that he is the owner), also desires to institute proceedings respecting the status of the slave. 1Where several persons claim the ownership of the slave, alleging that he belongs to them in common, they shall be sent before the same judge. This was decreed by the Senate. But if each one of them should say that the entire slave and not merely a share in him belongs to him alone, the Decree of the Senate will not apply. For then there will be no reason to apprehend that different decisions will be rendered, as each of the alleged owners claims that the slave is his individual property. 2Where, however, one person claims the usufruct in the slave and another the ownership, or where one claims the ownership, and the other says that the slave has been pledged to him, the same judge must decide the case; and it makes little difference whether the slave was pledged to him by the same person who claims him as the owner, or by someone else.

9Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. Where two parties, that is to say, the alleged usufructuary and the alleged owner, are defendants at the same time against him who has brought an action to obtain his freedom, one of them may happen to be absent. It may be doubted whether, under such circumstances, the Prætor can permit the one who is present to appear alone against the alleged slave, because the rights of the third party should not be prejudiced by the collusion or the negligence of another. It can more properly be held that one of them may proceed in such a way that the rights of the other will remain unimpaired. If the absent party should appear before the case has been terminated, he must be sent before the same judge, unless he gives a good reason why this should not be done; for instance, if he alleges that the judge is his enemy. 1We say that the same rule will apply where of two or more persons who assert that they are the owners of the alleged slave some are present, and others are absent. 2Therefore, in both cases, we must consider if the one who first instituted proceedings should be defeated, whether this will benefit the other, who gained his case, or vice versa; that is to say, if either one of them should succeed, whether this will profit the other; as the heir of a freedman obtains an advantage from the fact that his patron had been defrauded by the manumission of slaves. If it is held that a judgment rendered in favor of one will benefit the other; the result will be that if the latter again brings suit, he can be opposed by a replication on the ground that the matter has already been decided. If, indeed, it is held that he does not derive any advantage from the decision, the doubt will arise whether what was claimed by the party who lost the case belongs to either of them, or whether he against whom the action was brought, or he who was successful, is entitled to it; and it is evident that a prætorian action ought to be granted to the party who gained the case, as the Prætor should, by no means, permit the man to be part slave and part free.

10Ulpianus, On the Edict, Book LV. What we have said with reference to the alleged slave, proving that he has been free, must be understood to mean not that he who demands his liberty must show that he was absolutely free, but that he was in possession of his freedom without any fraud on his part. But let us see what would be considered fraud on his part. Julianus says, that all those who believe that they are free are not guilty of fraud, provided they act as freemen, even though they are actually slaves. Varus, however, says that one who knows himself to be free, and takes to flight, cannot be considered to be at liberty without any fraud on his part; but at the moment when he ceases to conceal himself as a fugitive slave, and acts as if he was free, he begins to be at liberty without fraud on his part. For he holds that he who knows that he is free, and afterwards conducts himself like a fugitive slave, should be considered to act as a slave from the very fact that he has taken to flight.

11Gaius, On the Edict of the Urban Prætor, Title: Actions with Reference to Freedom. Even though, during his flight he acted as a freeman, we hold that the same rule will apply.

12Ulpianus, On the Edict, Book LV. Hence, it should be noted that a person who is free can be fraudulently at liberty, and that a slave can be at liberty without being guilty of fraud. 1A child who is stolen in infancy served as a slave in good faith, although he was free; and afterwards, while ignorant of his condition, left his master and secretly began to live in freedom. He does not remain at liberty without being guilty of fraud. 2A slave can also be at liberty without committing fraud, as, for instance, where he receives his freedom by a will and is not aware that the will is void; or where he obtains it before a magistrate from someone whom he believed to be his owner, when he was not; or where he has been brought up as free, when, in fact, he was a slave. 3Generally speaking, whenever anyone thinks that he is free, without being guilty of deceit, whether he is induced to do so by good or bad motives, and he remains at liberty, it must be held that he is in the same condition as if he was free without being guilty of fraud, and therefore he can enjoy all the advantages of a possessor of freedom. 4The proof of good faith, however, is referred to the time when he was at liberty without being guilty of fraud, which is when legal proceedings with reference to him were first instituted. 5Where the services of a slave are due to anyone, he can also avail himself of the action relating to freedom. 6If a person who claims his freedom has caused me any damage during the time when he was serving me as a slave in good faith (as, for example, if I really, believing myself to be his owner, was sued in a noxal action, and judgment was rendered against me, and I paid the appraised damages, instead of surrendering the alleged slave by way of reparation), judgment will be rendered against him in my favor.

13Gaius, On the Edict of the Urban Prætor, Title: Actions Relating to Freedom. It is certain that in the action in factum under discussion, judgment should only be rendered for the amount of damages which were caused by fraud, and not for what was due to negligence. Therefore, even if the alleged slave should be released from liability in a case of this kind, still, suit can afterwards be brought against him under the Aquilian Law, as by this law he will also be liable for negligence. 1Again, it is certain that in this action not only our own property but also that of another for which we are responsible can be claimed as having been lent or hired. But it is clear that this proceeding does not apply to property merely deposited with us for safe-keeping, because it is not at our risk.

14Ulpianus, On the Edict, Book LV. The Prætor very properly opposes the deceitful conduct of those who, knowing that they are free, fraudulently permit themselves to be sold as slaves; for he grants an action against them. 1This action will lie whenever he who permitted himself to be sold as a slave is in such a position that he cannot be refused permission to demand his freedom. 2We do not consider that he has acted in bad faith who did not voluntarily inform the purchaser of the fraud, but only when he himself deceived him.

15Paulus, On the Edict, Book LV. That is to say, no matter whether the person who suffered himself or herself to be sold is of the male or the female sex; provided he or she is of an age at which fraud can legally be committed.

16Ulpianus, On the Edict, Book LV. The same rule applies to one who pretends to be a slave, and is sold as such, with the intention of deceiving the purchaser. 1If, however, he, who was sold was under the influence of either force or fear, we say that he was not guilty of fraud. 2The purchaser is entitled to this action when he was not aware that the alleged slave was free, for if he knew that he was free, and then bought him, he cheated himself. 3Therefore, if a son under paternal control makes a purchase of this kind, and he himself was aware of the facts, but his father was ignorant of them, he will not be entitled to an action for the benefit of his father, if he made the purchase with reference to his peculium. But, in this instance, the question arises whether, if the father directed him to make the purchase, he will be prejudiced by the knowledge of his son. I think that it will prejudice him just as it would prejudice an agent. 4If the son was not aware that the man who was sold was free, and his father knew it, I think that it is clear that the father will be barred from bringing an action, even if the son made the purchase with reference to his peculium; provided the father was present and could have prevented his son from doing so.

17Paulus, On the Edict, Book LI. The same rule will apply to the case of a slave, and where a purchase was made under our direction by an agent; and it is just as if I had ordered a certain man to be purchased, knowing him to be free, although he who was ordered to buy him may not have been aware of the fact, as an action will not lie in his favor. If, on the other hand, I was not aware that the man was free, but the agent knew it, the action will not be refused me.

18Ulpianus, On the Edict, Book LV. He, therefore, will be liable for as much as he has paid, or for the amount for which he bound himself, that is to say, for double the price. 1Let us see, however, whether merely the purchase money or also whatever may have been added to it should be doubled. I think that either all that was paid on account of the sale ought, by all means, to be doubled,

19Paulus, On the Edict, Book LI. Or what was exchanged or set off, in lieu of the purchase money (for it also is understood to have been given as such under these circumstances);

20Ulpianus, On the Edict, Book LV. And what he bound himself to pay should be doubled. 1Hence, if the purchaser has lawfully paid something to anyone in order to obtain this action, it must be said that it comes within the terms of this Edict, and will be doubled. 2Where anyone is said to have bound himself, we must understand this to have been done either to the vendor or to someone else; for whatever he, either himself, or through another, gave to the vendor himself, or to some other person by his order, is equally included. 3We should consider the purchaser to be bound where he cannot protect himself by an exception, but if he can do so, he is not held to be bound. 4It sometimes happens that he who makes the purchase will be entitled to an action for quadruple the value of the property. For a suit for double damages will lie in his favor against the alleged slave himself, who, being free, knowingly permitted himself to be sold; and, in addition to this, he will be entitled to an action for double damages against the vendor, or against him who promised him double damages.

21Modestinus, Concerning Penalties, Book I. Therefore, double the amount of what the purchaser either paid, or bound himself for with reference to the sale, will be due. According to this, whatever either of the parties may pay will not operate to release the other; because it has been decided that this action is a penal one. Hence, it is not granted after the lapse of a year, nor can it be brought against the successors of the person liable to it, as it is a penal action. 1Therefore, the action which arises from this Edict may, very properly, be said not to be extinguished by manumission, because it is true that the vendor cannot be sued after legal measures have been taken against him who demanded his freedom.

22Ulpianus, On the Edict, Book LV. Not only the purchaser himself, but also his heirs, can institute proceedings by means of this action in factum. 1We understand anyone to make a purchase, even where he does so by another, as, for instance, through an agent. 2Where, however, several persons make a purchase, while all of them will be entitled to this action, still, if they have bought different shares, they can bring suit in proportion to the respective amounts of the price which they have paid; or if each one bought the entire interest in the slave, each will be entitled to an action to recover in full; nor will the knowledge or the ignorance of any one of them benefit or prejudice the others. 3If the purchaser was not aware that the man who was sold was free, and he afterwards learned this, his rights will not be prejudiced, because he was ignorant of the fact at the time. But if he knew it when the sale took place, and afterwards doubted its truth, this will be of no advantage to him. 4Knowledge does not prejudice, nor ignorance benefit the heir and other successors of the purchaser in any way. 5If, however, anyone should make the purchase by an agent, who knows that the man is free, it will prejudice him; and Labeo thinks that the knowledge of a guardian will, under these circumstances, prejudice his ward. 6This action is not granted after a year, as it is an equitable as well as a penal one.

23Pauliis, On the Edict, Book L. If I should sell and transfer to you the usufruct in a man who is free, Quintus Mucius says that he will become a slave, but the ownership will not become mine, unless I sell the usufruct in good faith, for, otherwise, there will be no owner. 1In a word, it must be noted that what has been said with reference to men sold as slaves, and whose claim to freedom is denied, also applies to such as are donated, and given by way of dowry; just as it does to those who have permitted themselves to be given in pledge. 2Where a mother and her son both demand their freedom, the cases of the two should be joined, or that of the son should be deferred until the mother’s case has been decided; as was decreed by the Divine Hadrian. For where the mother has instituted proceedings before one judge, and her son before another, Augustus stated that the condition of the mother must first be established, and after that the case of the son should be heard.

24The Same, On the Edict, Book LI. After the preliminaries of a suit involving the demand for freedom have been legally complied with, he who brought it to establish his status is considered to be free, and actions will not be refused him against one who alleges that he is his owner, no matter what actions he may desire to bring. But what if these are suits, the right to which is extinguished by lapse of time, or by death? Why should he not be granted the power to institute these proceedings in security after issue has been joined? 1Moreover, Servius says that, in cases where the right to bring actions is barred after a year has elapsed, the year must be reckoned from the day on which the case relating to freedom was disposed of. 2If, however, it is considered desirable to proceed against others, it will not be necessary to wait until the first case has been decided, lest in the meantime means may be found to bar these actions by the introduction of someone who will dispute the right of the alleged slave to be free. In like manner, an action can legally be brought or not, according to the decision in the case involving the freedom of the party in question. 3If the alleged owner should bring an action, the question arises whether the defendant will be obliged to join issue. Several authorities hold that if he brings an action in personam, he must undertake the defence of the case, but judgment must be suspended until the question of his freedom has been determined; nor should it be held that his attempt to obtain his freedom is prejudiced, or that he remains at liberty with the consent of his master. For after the case brought to establish his freedom has been decided, he is considered, in the meantime, to be free; and as he himself can bring actions, so also, actions can be brought against him; but it will depend upon the result, as the judgment will either be valid if it is in his favor, or it will be void if it is adverse to his freedom. 4Where he who demands his freedom is accused of theft, or of wrongful damage by anyone, Mela says that he must, in the interim, furnish security that he will be present when the decision is rendered, to prevent the condition of one whose freedom is in doubt from becoming preferable to that of a person whose freedom is certain; but judgment must be deferred to avoid committing any wrong against liberty. Likewise, where an action of theft is brought against the possessor of a man alleged to be a slave, and he is afterwards sued in the name of him who claimed his freedom, the decision of the case must be suspended; so that if the latter is ascertained to be free, the case against him can be transferred, and if the judgment should be unfavorable, the action to enforce it can be granted against him.

25Gaius, On the Edict of the Urban Prætor: Title, Actions Relating to Freedom. If an option has been bequeathed to anyone demanding his liberty in court, whatever has been stated with reference to the bequest of an estate will also apply to that of an option. 1The right to bring a second action to obtain freedom is sometimes granted; as for instance, where a party alleges that he lost the first case because his freedom depended upon a condition which had not previously been complied with. 2Although it is commonly stated that, after a case involving freedom has been decided, the person whose condition was in controversy is considered to be free; still, if he is really a slave, it is certain that he, nevertheless, will acquire for his master whatever has been delivered to or promised him, just as if no question had arisen concerning his freedom. We shall see that there is no dispute as to his possession, since his master ceases to possess him after the case has been decided. The better opinion is that he acquires possession, although he is not possessed by him. And, as it has been settled that we acquire possession by our slaves, even if they are fugitives, why should it be wondered at that we also acquire possession by one whose right to freedom we deny?

26The Same, On the Provincial Edict, Book XX. Where anyone claims a person who is at liberty as his slave, and only brings the action for the purpose of having recourse in case of eviction, he cannot be sued in an action on injury.

27Ulpianus, On the Duties of Consul, Book II. The Divine Brothers, in a Rescript addressed to Proculus and Munatius, stated as follows: “As Romulus, whose condition is disputed, is near the age of puberty, and at the request of his mother, Varia Hado, and with the consent of Varius Hermes, his guardian, judgment in the case was postponed until the child should reach the age of puberty, it is left to your discretion to determine what will be advantageous to the minor, the position of the parties interested being taken into account.” 1If the person who raised the question concerning the condition of another fails to appear at the trial, he who demands his freedom is in the same condition as he was before the controversy arose with reference to it. He, however, is benefited to this extent, namely, that he who disputed his status will lose his case. This fact, however, does not render him freeborn who previously was not so, for the failure of an adversary to appear does not confer the right of freedom. I think that judges will act lawfully and regularly if they pursue the regular order; so that where the party claiming the man as his slave fails to appear, his adversaries shall be given the choice either of having the case continued, or of having it heard and determined. If the judges should hear the case, they must decide that the party in question does not appear to be the slave of So-and-So. This decision does not take undue advantage of anyone, as the person whose estate is in controversy is not found to be freeborn, but is merely held not to be a slave. Where, however, one who is in slavery claims his freedom, the better course for the judges to pursue will be to continue the case, in order to avoid deciding that the said person appears to be born free, when no adversary appears, unless there should be good reason to cause them to hold that it is clear that judgment should be rendered in favor of liberty; as is also stated in a Rescript of Hadrian. 2If, however, he who demands his freedom fails to appear, and his opponent is present, it will be better to proceed with the case and have judgment rendered. If the adversary offers sufficient evidence, the judge shall decide against freedom. It may, however, happen that the absent party will be successful, for the decision may be rendered in favor of freedom.

28Pomponius, On Quintus Mucius, Book XII. A slave is not considered to be at liberty with the consent of his master when the latter does not know that he belongs to him. This is perfectly true; for the slave is only at liberty under such circumstances when he acquires possession of freedom with his master’s consent.

29Arrius Menander, On Military Affairs, Book V. Where anyone institutes proceedings to obtain his freedom, and enlists in the army before a decision is rendered, he should be held to occupy the same position as other slaves, and he will not be relieved because, in some respects, he is considered as free. And, although he may have appeared to be free, he can be dishonorably discharged, that is, dismissed from the army, and driven from the camp as one who demanded freedom while in slavery, or who was at liberty through fraud. But anyone who has been falsely and maliciously claimed as a slave shall be retained in the service. 1Where anyone who has been judicially declared freeborn enlists in the army, and the decision is reversed within five years, he shall be returned to his new master.

30Julianus, On Minicius, Book V. Where two persons separately claim a man as their slave, and each of them alleges that he owns half of him, and, by one judgment, he is declared to “be free, and by another, he is pronounced to be a slave, the most convenient course will be for the judges to be compelled to agree. If this cannot be done, Sabinus states that it has been held that the man should be taken as a slave by the party who gained the case. Cassius (as well as myself), adopts this opinion, and, indeed, it is ridiculous for the man to be considered half slave, and also to be protected in the enjoyment of half his freedom. It is, however, convenient to decide that he was free, on account of the favor conceded to liberty, and to compel him to pay to the party who gained the case half of his value, as appraised by a reliable citizen.

31Ulpianus, Opinions, Book I. A son who appears as the heir of his father is forbidden from demanding as a slave one who had been manumitted by his father.

32Paulus, Rules, Book VI. A decree of the Senate was enacted concerning the property of those who, as slaves or as freedmen, have acquired the status of freeborn persons. With reference to those who were formerly in a state of slavery, it permits them only to take with them what they conveyed into the houses of their alleged masters, and to those who, after their manumission, desired to recover their original rights. This also was conceded, namely, that whatever they had acquired after their manumission (but not anything obtained through the agency of the person who set them free), they could take with them; and that they must leave all other property with him from whose household they departed.

33The Same, Actions Relating to Freedom. Anyone who knowingly purchases a man who is free, even if the latter permits himself to be sold, cannot, nevertheless, oppose him, if he demands his freedom. Where, however, he sells the man to another person who was ignorant of the facts, the supposed slave will not be permitted to demand his liberty.

34Ulpianus, Pandects. The Emperor Antoninus decided that no one should be permitted to demand his freedom, unless he previously had rendered an account of the administration which he had conducted while in slavery.

35Papinianus, Opinions, Book IX. It has been settled that the slaves destined for the care of a temple which Titia intended to build, and who had not been manumitted, belonged to her heir.

36The Same, Opinions, Book XII. A master who has gained his case, and wishes to take away his slave, cannot be compelled to accept the appraised value instead of the slave.

37Callistratus, Questions, Book II. A private agreement cannot make anyone either the slave or the freedman of another.

38Paulus, Opinions, Book XV. Paulus gave it as his opinion that if (as is stated) after a sale has been made unconditionally, the purchaser voluntarily sent a letter by which he declared that, after a certain time, he would manumit the slave whom he had bought, this letter had no reference whatever to the Constitution of the Divine Marcus. 1He also gave it as his opinion that the Constitution of the Divine Marcus applied to the cases of slaves who were sold under the condition of being manumitted after a certain time; and that a female slave, for whom her master had received money for the purpose of manumitting her, was entitled to the same favor of freedom, as he would also have authority over her as his freedwoman. 2The question arose whether a purchaser could legally grant freedom to his slave, if his price had not yet been paid. Paulus answered that if the vendor had delivered the slave to the purchaser, and had been furnished with security for his price, he would belong to the purchaser, even if the money had not been paid. 3Gaius Seius sold Stichus, his slave, under the condition that Titius would manumit Stichus at the end of three years, if he served him continually during that time. Stichus fled before the three years had elapsed, and returned in a short time after the death of Titius. I ask whether Stichus would be prevented from obtaining his freedom under the terms of the sale, by having taken to flight before the three years had expired? Paulus gave it as his opinion that, according to the facts stated, Stichus should be manumitted, and was entitled to his freedom after the term which had been prescribed.

39The Same, Opinions, Book V. He who is not required to produce proofs of his free birth should be heard, if he himself voluntarily desires to offer them. 1Magistrates who have cognizance of causes involving freedom of birth can impose penalties, to the extent of exile, against anyone who rashly and maliciously institutes proceedings. 2Guardians or curators cannot raise any question as to the condition of the wards whose guardianship and whose property they have administered. 3A husband is not prohibited from raising a question as to the condition of his wife or his freedwoman.

40Hermogenianus, Epitomes of Law, Book V. Where a minor of twenty years of age permits himself to be sold under an agreement to share his price, he cannot, after his manumission, demand that he be declared freeborn.

41Paulus, Articles Referring to Actions for Freedom. If there is any doubt as to the condition of a person who demands his freedom, he should first be heard, if he wishes to prove that he himself is in possession of freedom. 1The judge who has jurisdiction of cases where freedom is involved should also take cognizance of property which has been stolen, or serious damage committed by the claimant. For it can happen that, being confident that he will obtain his freedom, he may have ventured to steal, or spoil, or waste property belonging to those whom he was serving as a slave.

42Labeo, Last Works, Book IV. If a slave whom you have purchased demands his freedom, and an unjust decision is rendered in his favor by the judge, and the master of the said slave makes you his heir, after the case has been decided against you, or the slave becomes yours in any other way, you can again claim him as yours; and the rule relating to res judicata cannot be pleaded against you. Javolenus says this opinion is correct.

43Pomponius, Decrees of the Senate, Book III. The Emperor Hadrian published a Rescript with reference to those who had stolen the property of the persons whom they were serving as slaves, and afterwards demanded their freedom, the words of which Rescript are as follows: “As it is not just that a slave, in expectation of his freedom, should take property belonging to the estate of his master, where freedom is to be granted him under the terms of a trust, so it is not necessary to seek for any reason to delay the grant of his freedom.” Hence, in the first place, an arbiter should be appointed, in whose presence it should be determined what can be preserved for the heir, before he can be compelled to manumit the slave.

44Venuleius, Actions, Book VII. Although it was formerly doubtful whether only a slave or a freedman could be obliged by his patron to swear to observe the conditions which were imposed upon him in consideration of his liberty, it is, however, better to hold that he cannot be bound to a greater extent than a freeman. Hence it is customary to exact this oath from slaves, in order that they may be restrained by religion, and be required to again be sworn after they become their own masters; provided they take the oath, or make the promise at the very time when they are manumitted. 1Moreover, it is lawful to insert the name of the wife with reference to any donation, present, or daily labor to be given or performed by the manumitted slave. 2A prætorian action on account of labor to be performed should be granted against one who, before reaching the age of puberty, took the oath, that is to say if he was legally capable of doing so; as a boy under the age of puberty can render services if he is either a nomenclator or an actor.