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The fourth degree of possession is that given to the nearest cognates: the fifth is that called tum quam ex familia: the sixth, that given to the patron and patroness, their children and parents: the seventh, that given to the husband or wife of the deceased: the eighth, that given to cognates of the manumitter. 4 Such was the system established by the praetorian jurisdiction.
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.
This last and lowest class, however, has long ceased to exist, and the title of Latin also had become rare: and so in our goodness, which desires to raise and improve in every matter, we have amended this in two constitutions, and reintroduced the earlier usage; for in the earliest infancy of Rome there was but one simple type of liberty, namely that possessed by the manumitter, the only distinction possible being that the latter was free born, while the manumitted slave became a freedman.
Its effect was to prefer to the extraneous manumitter the ten persons specified above; but our constitution, which we have made concerning the emancipation of children, has in all cases made the parent implicitly the manumitter, as previously under a fiduciary contract, and has attached this privilege to every such manumission, so as to render superfluous the aforesaid kind of possession of goods.
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.
According to Caesar's ordinance which probably, indeed, only carried out the arrangements which were, at least as to principle, adopted in consequence of the Social war in future, when a census took place in the Roman community, there were to be simultaneously registered by the highest authority in each Italian community the name of every municipal burgess and that of his father or manumitter, his district, his age, and his property; and these lists were to be furnished to the Roman censor early enough to enable him to complete in proper time the general list of Roman burgesses and of Roman property.
Freedom, in whose behalf even the ancient legislators clearly established many rules at variance with the general principles of law, will be actually acquired by the slave; the manumitter will have the pleasure of seeing the benefit of his kindness undisturbed; while the other joint owner, by receiving a money equivalent proportionate to his interest, and on the scale which we have fixed, will be indemnified against all loss.
Failing these, he gives it, secondly, to successors having a statutory title: thirdly, to the ten persons whom he preferred to the manumitter of a free person, if a stranger in relation to the latter, namely the latter's father and mother, grandparents paternal and maternal, children, grandchildren by daughters as well as by sons, and brothers and sisters whether of the whole or of the half blood only.
But as this rule was very bad as a precedent for both the slave was cheated of his liberty, and the kinder masters suffered all the loss while the harsher ones reaped all the gain we have deemed it necessary to suppress a usage which seemed so odious, and have by our constitution provided a merciful remedy, by discovering a means by which the manumitter, the other joint owner, and the liberated slave, may all alike be benefited.
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