And it is sufficient if the mother is free at the time of the birth, although a slave when she conceived; and on the other hand, if she be free when she conceives, and is a slave when she gives birth to her child, yet the child is held to be born free; for the misfortune of the mother ought not to prejudice her unborn infant.
The question hence arose, if a female slave with child is made free, but again becomes a slave before the child is born, whether the child is born free or a slave? Marcellus thinks it is born free, for it is sufficient for the unborn child, if the mother has been free, although only in the intermediate time; and this is true.
1. When a man has been born free he does not cease to be ingenuus, because he has been in the position of a slave, and has subsequently been enfranchised; for it has been often settled that enfranchisement does not prejudice the rights of birth.
V. Freedmen.
Freedmen are those who have been manumitted from just servitude. Manumission is the process of freeing from “the hand.” For while any one is in slavery, he is under “the hand” and power of another, but by manumission he is freed from this power. This institution took its rise from the law of nations; for by the law of nature all men were born free; and manumission was not heard of, as slavery was unknown.
But when slavery came in by the law of nations, the boon of manumission followed. And whereas all were denominated by the one natural name of “men,” the law of nations introduced a division into three kinds of men, namely, freemen, and in opposition to them, slaves; and thirdly, freedmen who had ceased to be slaves.
1. Manumission is effected in various ways; either in the face of the Church, according to the imperial constitutiones, or by vindicta, or in the presence of friends, or by letter, or by testament, or by any other expression of a man’s last will. And a slave may also gain his freedom in many other ways, introduced by the constitutiones of former emperors, and by our own.
2. Slaves may be manumitted by their masters at any time; even when the magistrate is only passing along, as when a praetor, or praeses, or proconsul is going to the baths, or the theater.
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