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Favor libertatis (in usage, often favore libertatis, "in favor of liberty"[a]) was a moral principle[1] of ancient Roman jurisprudence in deciding cases when an individual's legal status as free or enslaved was in doubt.[2] The inclination toward liberty was applied as ius singulare, "singular" or one-off reasoning that could mitigate the circumstances of the individual without challenging the institution of slavery or the inherent conservatism of Roman law.[3] The emperors Antoninus Pius and Marcus Aurelius[4] and the jurists Gaius and Ulpian are prominent voices in advocating or applying favor libertatis.

In extant juristic texts, favor libertatis is cited in a decision forty-three times; a few other cases appeal more broadly to a humane or kindly interpretation of the law without using the phrase.[5] The earliest recorded use of the phrase occurs in Livy's history,[6] but Gaius held that the principle of favor libertatis was present in Rome's earliest body of laws, the Twelve Tables.

Theoretical foundation and social implications[edit]

See also: Slavery in ancient Rome

In Roman legal theory, slavery originated as a consequence of warfare and international relations (ius gentium) contrary to nature (contra naturam). Ulpian asserted that all human beings are born free (liberi) under natural law.[7] Favor libertatis thus expressed the tension between natural law and civil law pertaining to status and dependency.[7] The jurist Gaius traced the principle of favor libertatis back to the Twelve Tables, which date to a time in early Rome when harsh terms of debt slavery could be imposed on Roman citizens.[8]

liberti, libertini, liberta

Application[edit]

See also: Manumission in ancient Rome

The jurist Paulus stated the principle of favor libertatis simply as:

When the intention of the manumitter is obscure, liberty is to be favored.[b][9]

In practice, favoring liberty meant that legal cases brought to determine an individual's free or enslaved status were not decided solely on the basis of fact but also on ethical norms.[10] These norms, however, might come into conflict.[11] Property rights were paramount in the Roman legal system, and the rights of a good-faith buyer might conflict with a finding that the enslaved person under contract should legally be free.[11]

Cases involving manumission disputes could be heard by the urban prefect and provincial governors to judge whether freedom had been denied wrongly.[12] Sales contracts sometimes included a clause that the buyer was to manumit a slave after a specified term of service, often five years;[13] in some cases, however, the time of service was only vaguely expressed as post annum, "after a year," or intra annum, "within a year".[14] The use of the plural post annos without a number created even more ambiguity. The jurist Pomponius reckoned that a contract specifying intra annum decimum, "within ten years", meant that the buyer could choose to manumit at any time within the ten years and not that the manumission could not occur until the tenth year.[15] According to the jurist Julianus, post annos without a specified number ought to be interpreted favore libertatis as entitling the slave to manumission after the completion of two years of service from the time of the contract.[16]

Marcus Aurelius in particular tended to favor manumission over the interests of creditors and even the imperial purse (fiscus), and issued a constitutio that if freedom had ever been promised to a slave, it was to be granted.[17] In one case, an Aelianus had arranged to buy a woman named Euemeria. Her contract specified a term of service after which she was to be manumitted, which Aelianus honored. However, having fallen into debt to the imperial treasury, he was investigated to see whether the manumission was genuine or just a way to divert assets from repayment.[18] Generally, slaves pledged as surety for a master's debt could not be manumitted until the debt was paid,[c] [20] and the fiscus was entitled to seize all the debtor's assets when the debt exceeded their valuation.[18] Citing the constitutio of Marcus Aurelius, the emperor Septimius Severus rendered a judgment (decretum) that the manumission covenant of Euemeria's contract was binding at the time specified regardless of Aelianus's circumstances.[18]

An individual who had lived as a free person in good faith but was found never to have been formally manumitted acquired the presumption of liberty after twenty years, if their status had not been contested in court within that time. The requirement of good faith excluded fugitive slaves.[21]

In testamentary manumission[edit]

See also: Inheritance law in ancient Rome

Testamentary manumissions seem especially to have been decided favore libertatis,[22] even when such a decision defied legalistic logic or required an otherwise "unwarranted interpretation" of a will's wording.[23] If a slave was supposed to be freed upon the master's death, but the heirs were disputing other terms of the will, or if the estate had accumulated debt after the will was drawn up and assets needed to be sold off, the master's intention to manumit was to be favored in arriving at a resolution.[24] Antoninus Pius ruled that slaves promised liberty by the terms of a will should not be denied it owing to legalistic quibbles over the estate.[12] In a case in which the imperial treasury intervened, a testator had changed his mind about his will and erased portions, including the names of his heirs and a slave to be manumitted. Antoninus cited favor libertatis in deciding that the slave should be freed anyway.[25]

In one case, the manumission of a foster child of slave status (alumna) was at issue when the paterfamilias had died before finalizing his will, which was to have freed her and also bequeathed her some possessions. Under Roman law, an incomplete will was not valid, and the estate was to be distributed to the heirs as if he had died intestate. The imperial ruling, however, was that the sons had a moral obligation to honor their father’s wishes. The virtue of pietas (filial devotion) was evoked as the basis for ruling in favor of liberty, and because the manumission was valid, the alumna was also entitled to receive the bequest. The intention of the deceased was clear and specific in this case from the text of the unfinished will, and the ruling was meant to be applied as ius singularis on humanitarian grounds and not to establish precedent.[26]

Although the lex Fufia Caninia of 2 BCE had stated that slaves to be manumitted had to be listed explicitly by name in a will, in a few cases Ulpian argued for an implied intention to manumit. For example, one testator instituted a slave named Titus as his heir. If Titus did not become the heir, then the slave Stichus should be the heir. In a separate clause, the will stated "Let Stichus be free." In the view of the jurist Aristo, the will meant that Stichus was to be freed only if he had to step in to serve as heir to the estate. Ulpian disagreed in construing the manumission of Stichus as conditional; the manumission of Titus is implied by naming him as the heir, since slaves could not own or inherit property, but that of Stichus is stated. Legal historian Alan Watson takes the principle of favor libertatis as underlying Ulpian's view, even if not evoked explicitly.[27] Manumission with citizenship generally was implied when the terms of a will established a slave in a legal role that could be held only by a free person, such as guardianship of the deceased's underage children, when the principle of favor additionally benefitted other parties.[28]

Favoring liberty for women and children[edit]

Examples in juristic texts of appropriate favor libertatis often involve the relative status of mother and child. That the child would have the same status as the mother was a long-held principle of the ius gentium, with certain exceptions. In one application, originating from a decision of the emperor Hadrian, a child would be born free if at any time after conception the mother was free.[29]

Funeral monument (early 2nd century CE) set up by the freedwoman Petronia Hedone for herself; her son, Lucius Petronius Philemon; and her liberti and libertae and their descendants (MFA Boston)

The principle of favor libertatis meant that if a pregnant woman fell into lawful slavery, it could be argued that her child was conceived in freedom and should be ingenuus,[30] a freeborn citizen. If her manumission was arranged before conception or during pregnancy but had not taken effect by the time of birth, there was precedent for deciding the status of her child "in favor of liberty".[31] A child born to a conditionally freed woman (statulibera) could itself be considered free favore libertatis even if something prevented the mother from meeting the condition that would free her before giving birth,[31] depending on the circumstances – the principle was not universally applied to statuliberae.[32]

Manumission agreements between master and slave sometimes set a condition that first had to be fulfilled. In one case, the woman's manumission depended on her first child being male. After she gave birth to twins, a girl and a boy, it was simply presumed favore libertatis that the boy was the elder. Upon fulfilling the condition, the mother immediately became a freedwoman, and so her daughter was freeborn (ingenua).[33] But the arbitrariness of when liberty might be favored is indicated by another case, that of a woman whose manumission was conditional on first having produced three children to remain in slavery.[d] She had given birth to one child, and then from a second pregnancy triplets. The woman had become free at the moment the second of the triplets was born, and it was strictly held that only the third child who passed through the birth canal was freeborn.[34]

In another example, a free pregnant woman was convicted of a crime and sentenced to work in the mines as a penal slave.[e] She gave birth while serving her sentence, but her conviction was later overturned by the emperor. In reviewing the case of whether her child was born free or as a slave because of maternal status at time of birth, the jurist Paulus does not use the phrase favor libertatis but rather appeals to the Roman cultural value humanitas, saying that it was more humane if both mother and child were to hold free status.[36]

Paulus does invoke favor libertatis explicitly in the case of an ancilla (female household slave) who had been prostituted contrary to the ne prostituatur clause in her contract, ruling that the principle of liberty overrode other contractual considerations. If a woman's sales contract had ever contained such a restriction, it was in effect for the full term of her servitude. Even if a subsequent buyer was unaware of the original covenant and the current sales contract did not specify that she could not be rented out for sexual use, the new owner had to manumit her, not merely stop prostituting her, as affirmed by the emperor Vespasian.[37]

Countervailing ingratitude[edit]

Main article: Ingratitude in Roman law

Favor libertatis threatened the privileges of the property-owning classes, which some counter-legislation seems to have been aimed at appeasing.[38] One of the ways Augustus, the first Roman emperor, negotiated his relations with the senatorial elite was to affirm certain of their prerogatives regarding property. The Lex Aelia Sentia of 4 CE allowed patrons to take freedpersons to court for not carrying out their obligations as outlined in the manumission agreement, with penalties ranging in severity from a reprimand and fines to condemnation to hard labor.[39] Punishing a freedperson with a return to slavery reversed the principle of favor libertatis and was a tendency of post-Classical law.[40] In 320 CE, as the Roman state was adjusting to the growing dominance of Christianity and the laws were evolving accordingly, Constantine I overturned the longstanding rule that manumission was irrevocable and allowed patrons to withdraw the citizenship and liberty of freedpersons found guilty of ingratitude.[41]

Notes[edit]

  1. ^ With favor inflected in the ablative case.
  2. ^ latin
  3. ^ If an insolvent debtor tried to escape his creditors by manumitting his slaves so they couldn’t be seized, the creditors could sue to have the manumission annulled on grounds of fraud.[19]
  4. ^ It is likely, though unstated, that the freed mother would also live in the house under the patronage of her former master, as freedpersons continued to be part of the familia,[34] and the freedom to move did not necessarily bring about the opportunity to acquire more satisfactory housing.
  5. ^ Not all work for those condemned to the mines (damnati in metallum) was hard labor; women might perform tasks such as office work, food service, or laundry and clothing repair.[35]

References[edit]

  1. ^ Verhagen 2022, pp. 302–303 specifying "moral".
  2. ^ Stagl 2023, p. 203.
  3. ^ Stagl 2023, pp. 222–223.
  4. ^ Brunt 2013, pp. 399–403.
  5. ^ Stagl 2023, p. 208.
  6. ^ Brunt 2013, p. 399, n. 36, citing Livy, Ab urbe condita 3.44.11.
  7. ^ a b Stagl 2023, p. 206.
  8. ^ Stagl 2023, p. 206, citing Gaius, Institutiones 4.14.
  9. ^ Watson 1987, p. 26, citing Digest 50.17.17a (book 16 of Plautius).
  10. ^ Gianella 2020, pp. 91–92.
  11. ^ a b Gianella 2020, p. 92.
  12. ^ a b Manning 1972, p. 1533.
  13. ^ Wiedemann 1986, pp. 170–171.
  14. ^ Wiedemann 1986, p. 171, citing Digest 40.4.15: Julianus, from Digesta, book 32; Digest 40.4.41.2: Labeo, quoted by Pomponius, Ex Plautio, book 7.
  15. ^ Wiedemann 1986, p. 171, citing Labeo, Digest 40.4.41.2.
  16. ^ Wiedemann 1986, p. 171, citing Digest 40.4.17.2 (Julianus, Digesta, book 42).
  17. ^ Noyen 1955, pp. 376–377.
  18. ^ a b c Verhagen 2022, p. 308.
  19. ^ Berger 1953, p. 576 on manumissio in fraudem creditorum.
  20. ^ Stagl 2023, p. 210.
  21. ^ Buckland 1908, p. 649.
  22. ^ Brunt 1998, p. 144.
  23. ^ Buckland 1908, pp. 461–462, offering what he describes as "countless illustrations of this tendency" passim and 554.
  24. ^ Brunt 1998, pp. 144–148.
  25. ^ Bradley 1994, p. 162.
  26. ^ Daalder 2019, pp. 61–62, citing Digest 40.5.38.
  27. ^ Watson 1987, pp. 26–27, citing Ulpian, book 5 Sabinus, Digest40.4.2.
  28. ^ Watson 1987, p. 27.
  29. ^ Buckland 1908, p. 399.
  30. ^ Buckland 1908, pp. 398–399.
  31. ^ a b Buckland 1908, pp. 399–400.
  32. ^ Berger 1953, p. 577, manumissio sub condicione.
  33. ^ Buckland 1908, p. 487.
  34. ^ a b Watson 1987, p. 12.
  35. ^ Millar 1984, p. 139.
  36. ^ Stagl 2023, pp. 231–232, citing Digest 2823.4 (Paulus libro 17 quaestionum).
  37. ^ Buckland 1908, pp. 70–71.
  38. ^ Manning 1972, pp. 1536–1537.
  39. ^ Koops 2014, pp. 110–111.
  40. ^ Wacke 1993, pp. 9–10.
  41. ^ Koops 2014, p. 112.

Sources[edit]

  • Bradley, Keith (1994). Slavery and Society at Rome (2002 ed.). Cambridge University Press.
  • Brunt, P. A. (1998). "Marcus Aurelius and Slavery". Bulletin of the Institute of Classical Studies. 71.
  • Brunt, P. A. (2013). Studies in Stoicism. Oxford University Press.
  • Berger, Adolf (1953). Encyclopedic Dictionary of Roman Law (1991 ed.). American Philological Society.
  • Buckland, William Warwick (1908). The Roman Law of Slavery: The Condition of the Slave in Private Law from Augustus to Justinian. Cambridge University Press.
  • Daalder, Elsemieke (2019). "The Decreta and Imperiales Sententiae of Julius Paulus: Law and Justice in the Judicial Decisions of Septimius Severus". In Hekster, Olivier; Verboven, Koenraad (eds.). The Impact of Justice on the Roman Empire: Proceedings of the Thirteenth Workshop of the International Network Impact of Empire (Gent, June 21–24, 2017). Impact of Empire. Vol. 34. Brill. pp. 49–67.
  • Giannella, Nicole (2020). "Free in Fact? Legal Status in the Suits for Freedom". In Ando, Clifford; Sullivan, William P. (eds.). The Discovery of the Fact. University of Michigan Press.
  • Koops, Egbert (2014). "Masters and Freedmen: Junian Latins and the Struggle for Citizenship". Integration in Rome and in the Roman World: Proceedings of the Tenth Workshop of the International Network Impact of Empire (Lille, June 23-25, 2011). Brill.
  • Manning, C. E. (1972). "Stoicism and Slavery in the Roman Empire". Aufstieg und Niedergang der römischen Welt. II.36.3.
  • Millar, Fergus (1984). "Condemnation to Hard Labour in the Roman Empire, from the Julio-Claudians to Constantine". Papers of the British School at Rome. 52.
  • Noyen, P. (1955). "Marcus Aurelius, the Greatest Practician of Stoicism". L'Antiquité Classique. 24 (2).
  • Stagl, Jakob Fortunat (2023). "Favor libertatis: Slaveholders as Freedom Fighters". In Schermaier, Martin (ed.). The Position of Roman Slaves: Social Realities and Legal Differences. Dependency and Slavery Studies. Vol. 6. De Gruyter. pp. 203–236.
  • Verhagen, Hendrik L. E. (2022). Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press.
  • Wacke, Andreas (1993). "Freedom of Contract and Restraint of Trade Clauses in Roman and Modern Law". Law and History Review. 11 (1).
  • Watson, Alan (1987). Roman Slave Law. Johns Hopkins University Press.
  • Wiedemann, Thomas E. J. (1985). "The Regularity of Manumission at Rome". Classical Journal. 35 (1): 162–175. JSTOR 638813.

Category:Slavery in ancient Rome Category:Roman law Category:Women in ancient Rome


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