Persona, Homo, Res: Building a Boundary in Early Modern European Legal Thought^*

I. Servi and Personae

According to the Justinianic sources, the same human being, a servus, could be understood as res or as persona: the servus was undoubtedly considered res but, at the same time, the law of persons expressly referred both to free people and to slaves (D.1.5.3; I.1.3 pr.). Although persona and res were distinct concepts, Roman slaves, »personae und res zugleich«,¹ would have had »un embryon de personnalité qui s’est constamment développé au cours des siècles«.²

This »embryo of personality«, linked to the human condition of the slave³ and to the notion of homo⁴, has been emphasised by Roman law scholars.⁵ But the subject of this article is not to follow the development of proper Roman law in itself; rather it is how early modern legal jurists used the Roman – and particularly the Justinianic – sources, and, more broadly, how they defined who counted as a persona.

As mentioned above, the Justinianic sources offered legal thinkers two possible avenues to pursue: to highlight and examine the condition (conditio) of the servi as res or, on the contrary, to underline and examine their condition as a person. Both were explored between the 16th and 18th centuries. Thus, in his commentary on the Justinian’s Institutes, published in 1642, Arnold Vinnen emphasised how the notion of servus was open to different possible interpretations: »Sed nimirum duplex est servi consideratio, qua res, quae in commercio est, ut et reliquae res nostrae; et qua persona.«⁶

Nevertheless, the idea that the figure of the servus should be primarily, even exclusively, opposed to that of the persona, and therefore generally excluded from the subdivision of statuses, came to be asserted with ever increasing force. Instead of elaborating a concept of persona that included the figure of the Roman slave, a boundary was set between the concepts of servus and persona between the 16th and 18th centuries. This article aims to understand the reasons for this choice and to indicate the underlying phenomena and their consequences on the formation of the legal concept of persona.

The end point of this development may be seen in a passage by Heinecke, for whom »certissimum ergo iuris axioma est: quicunque nullo statu gaudet, iure Romano non persona, sed res habetur. […] Servus itaque est homo: est etiam persona, quatenus cum statu naturali consideratur […] sed ratione status civilis est ἁπρόσωπος.«⁷ But its origins are far from straightforward.

In his Commentariorum iuris ciuilis libri X (1553), François Connan traced the category of the servus to the condition of instrumentum, capable only of |natural obligations – certainly res, but opposed not so much to the concept of persona as to that of homo.⁸ A little later, in François Hotman’s Commentarius in quatuor libros Institutionum, we read (at least in the 1588 edition) that »[homo] naturale nomen est. Persona, civile. Servi Personam non habent: sed eam a domino mutuantur l. 31 D. de hered. instit. [D.28.5.31]. Interdum tamen Personae nomen generaliter usurpatur.«⁹

Also in the second half of the 16th century, Doneau’s Commentarii de iure civili listed vita, incolumitas corporis, libertas, existimatio as what is »a natura cuique tributa«.¹⁰ The subject is referred to by the pronoun alone (»cuique«). Shortly afterwards, he addressed the topic of statuses and the notion of persona, in pages whose importance has been repeatedly underlined by various historians.¹¹

Doneau related the concept of persona to the subdivision of statuses offered by the Justinianic sources, and understood status as the foundation of the condition of persona.¹² For him, it followed that, as far as ius civile was concerned, the personality of the servus was linked to that of the dominus: thus, referring to a famous passage in the Digest, he reminded the reader that »quod attinet ad ius civile, servi pro nullis habentur l. quod attinet D. de regul iuris [D.50.17.32¹³]«.¹⁴

Doneau thus did not explicitly contrast the figure of servus with the notion of persona in this instance. Nonetheless, he represented the servus, at‍‍‍ least as far as ius civile was concerned, predominantly as a thing.¹⁵ As already reported by Coing,¹⁶ the Iurisprudentia Romana a Iustiniano composita by Hermann Vultejus, published a year later, also contained an important definition of the concept of person: »persona autem est homo habens caput civile. Quod positum est in tribus, in libertate, in civitate, in familia […].«¹⁷ The concept of persona was thus firmly seen as a matter of ius civile alone, and for this very reason tended to exclude the servus.¹⁸ It was thus consistent that Vultejus explicitly opposed the notion of servus to that of persona in his Commentarius in Institutiones iuris civilis a Iustiniano compositas, published in 1613: »servus igitur homo est, sed non est persona.«¹⁹

Both Doneau and Vultejus referred to forms of serfdom relevant to contemporary practice and |customary rights: Doneau mentioned the adscriptitii,²⁰ Vultejus in his Commentarius the homines proprii. Indeed, Vultejus specified that slavery had disappeared from the Christian world, though forms of servile bondage remained, especially in Germany.²¹ What was missing in both works was a clear reference to contemporary slavery and the categories of unfree conditions it comprised. These were by then well-known to legal thought, and would gain particular centrality in the discussions of the jurists of the United Provinces (see section III. below). In the meantime, however, they dominated the thought of the jurists linked to the Second Scholasticism.

II. Dominium, serfdom and slavery

During the 16th and 17th centuries, Iberian jurists’ discussions of slavery mainly focused on questions arising in two contexts: the indigenous inhabitants of the ›New World‹, on the one hand, and the traffic of enslaved human beings, mainly from Africa, on the other.

Regarding the inhabitants of the New World, it seems that these jurists did not propose a particular and unified category.²² In Francisco da Vitoria’s Relectio de Indis (1539), for example, the catalogue of concepts used to classify inhabitants of the New World is rather varied. In the first part (»Quo iure venerint Barbari in ditionem Hispanorum«), Vitoria discussed »infideles« and »haeretici«, and then compared »barbari« to other categories of subject whose condition as minores he underlined: »insensati«, »amentes«, »creaturae irrationales«, »pueri«²³ and, on at least one occasion, »rustici«.²⁴ The concept of natural slavery²⁵ was at the heart of the issue: »et sic, dato quod isti barbari sint ita inepti et hebetes, ut dicitur, non ideo negandum est habere verum dominium, nec sunt in numero servorum [civilium] habendi.«²⁶ Nevertheless, also in Vitoria’s view, the indigenous people could, at least in part, be governed like servi.²⁷

On this point, recourse was made to the category of ius singulare: the notion of persona miserabilis constituted the reference point for interpreting the legal condition of the Indios.²⁸ Furthermore, reflection on the theme of natural slavery and the relation between slavery and ius gentium has been indentified as a leitmotif in the thinking of Domingo de Soto, Luis de Molina, Fernando Rebelo, Francisco Suárez.²⁹ Cuena Boy has argued that, generally speaking, these jurists tended to »una teoría cuyo único tema son las vías de acceso al estado servil y no el contenido de este estado«.³⁰

However, in some works the comparison of the legal condition of the Indios with the better-known forms of serfdom recurred. The indigenous population’s condition was conceived on the basis of its relationship with slavery under Roman law, on the‍‍‍ one hand,³¹ and with servile conditions, on the‍‍‍ other. This is the case in the works of Juan de‍‍‍ Solórzano Pereira,³² who discussed the condition of Indios more than a century after Vitoria’s Relectio. |

Solórzano firmly stated that the indigenous were free: »Indos, et reliquos infideles, qui Fidei praedicandae, et conservandae causa Christianis Principibus subiiciuntur, naturali libertate privandos non esse: itaque summo semper studio a Catholicis nostris Regibus cautum.«³³ He defined this libertas chiefly by using Justinianic sources, such as the titles »de statu hominum« of the Digest and »de iure personarum« of the Institutes.³⁴ But this libertas was limited by personal services, and it was on the basis of these that Solórzano addressed the different classifications to which the condition of the Indios could be traced. Especially in the part of De Indiarum iure dealing with »de personis, et servitiis Indorum«, i.e. the first book of the second volume, he engaged with the traditional categories of serfdom – starting with coloni and adscriptitii – to define the indigenous population’s condition.

One of the several passages in which Solórzano made reference to the forms of serfdom shows how the starting point of his discussion were the Justinianic sources, especially the traditional reference for the theme,³⁵ the title »De agricolis censitis vel colonis« in the Codex,³⁶ followed by references to passages from the Liber Extra as well as the Siete Partidas as annotated by Gregorio López.³⁷ Yet Solórzano also made ample reference to a variety of doctrinal sources, including Johann Friedrich Husanus’ Tractatus de hominibus propriis of 1590,³⁸ which he cited at least ten times in the first book of the second volume of De Indiarum iure. A little further on, the example of the »homines manus mortuae« of France³⁹ also recurred. Discussing the German homines proprii, Solórzano cited a well-known passage by Zasius, in which the latter wrote that »hos homines in omnibus, & per omnia neque servos, neque adscriptitios, neque colonos, neque capite censos, neque libertos; neque statu liberos esse, sed novam quandam speciem facere, de omnium illorum natura et conditione aliquid participantem.«⁴⁰

Indeed, for Solórzano the different types of serfdom – such as adscriptitii, homines proprii, homines manus mortuae – did not provide an adequate profile to define the legal condition, or possible conditions, of the Indios. Nonetheless, they furnished a basis for comparison and, ultimately, some elements to contextualise the different figures. To these elements others must undoubtedly be added in order to complete the picture, such as the concept of »persona miserabilis«⁴¹ mentioned above. The reference to Roman law sources was a constant, however, as it is well shown by Solórzano’s discussion of the category of Yanaconas.⁴²

Above all, Solórzano constantly referred also to the condition of slaves stricto sensu – mainly to »Aethiopes«⁴³ – regarding which he suggested caution and even reminded his readers of the example of Spartacus’ revolt.⁴⁴ This was the second context in which Spanish and Portuguese jurists discussed the matter of slavery: the trade of Aethiopes from Africa.

Iberian legal thinkers tended to frame the slave trade according to Roman law’s scheme and ex iure gentium.⁴⁵ They particularly focused on the problem of the titulum servitutis, as scholars have highlighted for Domingo de Soto.⁴⁶ However, in some authors, there was clearly a tendency to attribute the status of legal subjects also to slaves, by reason of their human condition, qua homines.

This was the case, for example, in the writings of Luis de Molina, who also paid particular attention |to various practical circumstances of the slave trade.⁴⁷ For Molina – who, however, seems to curtail the possibility of an unquestionably iustum titulum servitutis – the slave acquired an intermediate position between being an object and a subject of rights:⁴⁸ speaking of the limitations of the »ius dominorum in servos«, Molina chose to point out that »dominium in servos non tam amplum ius tribuit dominis, quam dominium in pecora […]. Tribuit quidem illis ius ad omnes eorum operas, quas recta ratio postulat […].«⁴⁹ Most importantly, he also listed several possibilities for the slaves to acquire goods for themselves, such as in case of a »pactum inter ipsos et dominum […]. Atque ea ratione multi servi propria pecunia seipsos redimunt«, or by donation: »quemadmodum enim inter dominum et servum, non qua servus est, sed qua homo, cui accidit ut sit servus, esse potest contractus.«⁵⁰

The Portuguese jurist Fernando Rebelo also attributed limited autonomous subjecthood to slaves in a number of passages:⁵¹ like Molina, he chose to point out that »dominium hominis in hominem non est sicut in pecudem«.⁵² When discussing the legitimacy of selling Aethiopes in Portugal, he raised the issue of the limitations of the »potestas dominorum«: »cum illud inter Doctores absque controversia certum sit, potestatem dominorum super servos ita limitatam esse, ut solum ad debita, ac consueta sive rationabilia servitia extendatur.«⁵³

Regarding the power of masters »quoad personam servi« and »quoad res servi«, Rebelo both circumscribed and asserted the possibility that slaves acquired goods for themselves: the »lex Caesarea«, according to which »quidquid servus acquirit etiam donatione, vel testamento, domino acquirit«, was »abrogata per consuetudinem«: »legitima tamen consuetudo praedictas leges abrogare potuit, et de facto abrogasse videtur in favorem servorum, tamquam miserabilium personarum«; »introductum est, ut servi post consueta servitia, caetera sibi acquirant, unde se possint redimere.«⁵⁴

Generally speaking, it seems that Iberian jurists were careful to avoid an explicit condemnation of the buying and selling of slaves, which they tended to deem unavoidable. At the same time, however, they sought to limit the slave trade’s devastating outcomes: thus, although an enslaved person was clearly the object of dominium, these jurists consistently resisted explicitly reducing the servus solely to a thing. Instead, these legal thinkers allowed a limited catalogue of rights for the slave qua homo to emerge, and therefore had no reason to develop a theory of legal statuses in which the servus was not persona.

III. Servi, Personae, Leges Civiles

During the 17th century, jurists in the United Provinces also addressed the issue of slavery, though the subject seems to have been much less central to their thinking than in the Hispanic world.⁵⁵ However, they seem to have been much more attentive towards conceiving slavery within the framework of a general status theory.

In his commentary on Justinian’s Institutes (1642), Arnold Vinnen – moreover academically linked to Doneau indirectly⁵⁶ – emphasised that the notion of »servus« as derived from the Roman law sources was open to different interpretations: »Sed nimirum duplex est servi consideratio, qua res, quae in commercio est, ut et reliquae res |nostrae; et qua persona […].«⁵⁷ Vinnen made the connection between the concepts of servus, persona and status very clear: based on the heading of the title »de iure personarum«, he showed how the term persona could refer to homines in general, and hence also to slaves.⁵⁸ From this, he also derived his definition of the concept of status: »item ius personae hic esse, quod statum et conditionem personae sequitur: nam status ipse est personae conditio, aut qualitas, quae efficit, ut hoc vel illo iure utatur; ut esse liberum, esse servum, esse ingenuum, esse libertinum; esse alieni, esse sui iuris. Itaque status rationem causae, ius effecti habet.«⁵⁹

Vinnen made no direct reference to the issue of slavery in the colonies in this passage.⁶⁰ Instead, he referred to different types of serfdom: once again the »coloni« and the »adscriptitii«. To Vinnen, both types were ambiguous, placed somewhere between free and servile. He compared them to hermaphrodites,⁶¹ distinguishing between the »coloni«, in whom he considered the free condition to »prevail«, and the »adscriptitii«, whom he denoted as »quasi servi«.⁶² But these were not abstract categories: indeed, a little further on we read that

»in hisce et plerisque aliis Christiani orbis provinciis quamvis nulli amplius servi sint reperiuntur tamen adhuc homines conditionis adscriptitiae, sive rusticani glebae addicti et quasi proprii illius loci, cui adscripti sunt; ut in Hannonia, […] in Burgundia et multis partibus Galliae. Hi enim sunt quos vocant, Gens de main morte, Homines manus mortuae […]. Germania quoque ejusdem conditionis homines habet, quos appellant proprios […].«⁶³

The picture presented in Ulrik Huber’s Praelectiones iuris civilis (1678–1689) differed only little from Vinnen’s position. Huber argued that the term persona could be understood either in a broad sense, equivalent to the notion of homo and thus including servi, or in a narrower sense, excluding them.⁶⁴ Here he, too, returned to the various forms of contemporary serfdom, which on the whole he deemed more likely to belong to the category of servi than to that of the free.⁶⁵

Johannes Voet argued differently in his Commentarius ad Pandectas (1698–1704). Here, the theme of serfdom was likewise central, and Voet also discussed a fairly extensive catalogue of types | of personal conditions in current law (or ius hodiernum⁶⁶) that he thought were characterised by »macula servitutis«.⁶⁷ However, his treatment of these conditions was preceded by a direct reference to the issue of slavery in the colonies:

»Si tamen Christiani cum barbaris bello commissi fuerint, ut ipsi capti barbarorum servituti addicuntur, ita talionis iure captos a se barbaros eodem servitutis jugo pressos tenent; sic ut aliquando ab Ordinibus Foederati Belgii cautum inveniamus, in talibus etiam vigere debent latas de servis leges civiles; addita tantum exhortatione, ne domini eos durius habeant, neve diebus dominicis, aliisque temporibus, ad publica pietatis exercitia destinatis, eos labore gravent. Instructie van de Staten Generaal, voor de geconquesteerde plaetsen in Brazijl, 23 Augusti 1636, art. 85, 86.«⁶⁸

The Instructie Voet referred to in this passage was intended to regulate the organisation of the Brazilian territories conquered in 1624. The passage also represents an initial emergence of the theme of colonial slavery in the legal thought of the United Provinces. The theme was discussed together with serfdom and in terms firmly anchored in the principle of the common free condition of the Provinces’ inhabitants.⁶⁹ Applicable were »latas de servis leges civiles«: civil laws in a broad sense, hence the entire Justinianic discipline of slavery, without specifications or restrictions, except for a fairly generic reference to the requirements of religious worship.

A few years before the Instructie of 1636, the Ordre van regieringe in West-Indien addressed by the States General to the Dutch West India Company on 13 October 1629,⁷⁰ had already referred to Roman laws in matters of contracts (the »gemeene beschreven Rechten«),⁷¹ but without direct reference to slavery. That link was made in the 1636 regulations, in particular in the two articles cited by Johannes Voet: Art. 85 stated that »negroes and slaves must be treated well by their lords and masters, and, during the periods usually devoted to worship, sent to the public exercises of religion, and on days of rest they must not be burdened with work«;⁷² Art. 86 ordered that »all laws and constitutions established by the common laws [de ghemeyne Rechten] concerning slaves and unfree individuals, and such ordinances as may be established and published on the subject by the council of nineteen« (i.e. the West India Company’s management) be applied to them.⁷³

Indeed, the 1636 regulations were referred to more than once in subsequent discussions, such as in Eduard van Zurck’s 1711 Codex Batavus, a work arranged alphabetically by subject. The entry on |»Slaven« is very brief: van Zurck quoted Articles 85 and 86 of the Instructie almost verbatim, with only a few additional remarks on the latter.⁷⁴

Another work in which the 1636 Instructie left a trace was Jacobus Voorda’s Differentiae juris Romani et Belgici secundum ordinem digestorum. Discussing the fifth title of the first book of the Digest (»de‍‍‍ statu hominum«), Voorda wrote: »1. omnes homines in Belgio liberi sunt. 2. Sed in America Indiaque servos adhuc Belgae habent, in quos dominica Romanorum potestas ipsis competit. 3.‍‍‍ Quin et in quibusdam Gelriae tractibus superest adhuc anomala quaedam servitus colonorum quorundam, qui adscriptitiis haud prorsus sunt dissimiles.«⁷⁵ Although he thus did not mention the Instructie explicitly, his notes (dating from the mid-18th century, and edited and translated in 2005 as Dictata ad ius hodiernum) make it clear that he was actually relying on them.⁷⁶

Also in Voorda’s Differentiae, then, the issues of slavery and serfdom were discussed together, within a more general treatment of status theory. Generally, legal thinkers in the United Provinces engaged with the topic of slavery in the colonies with reference to the 1636 regulations only sporadically. But in Vinnen as in Huber, in Johannes Voet as in Voorda, slavery and serfdom were treated as closely connected, within the general scheme of persons, to the point that, as has been noted, »also in legal theory a continuum can sometimes be perceived between unfree and free labourers, between slaves and non-slaves«.⁷⁷

IV. Tertium genus

In the works of the German jurists who, between the 16th and 17th centuries, elaborated a theory of the status and law of persons, the theme of the homines proprii was much discussed: indeed, they took over the place previously occupied by slaves (servi) in the Justinianic texts (D.1.5; I.1.3) and thus contributed to establishing the boundaries of the concept of persona.

As we saw already in section I, homines proprii had a prominent place in Vultejus’ thinking, who clearly contrasted the notion of servus to that of persona (»servus igitur homo est, sed non est |persona«⁷⁸). According to him, however, »Leibeygne Leute« were not »servi«, though they retained some »vestigia«⁷⁹ of ancient slavery.

At least from Zasius onwards – for whom »servi anonymi in nostra Germania homines proprii dicti, nec adscriptitii, nec coloni, nec capitecensi, nec statuliberi, nec liberti sunt, de omnium tamen natura aliquid participant«⁸⁰ – German jurists tended to see »Leibeygne Leute« as not corresponding to any of the categories of persons offered in the Justinianic sources. Furthermore, although the term »homines proprii« was generally used to indicate them, no recurring set of rules could be formulated that applied to all of them.⁸¹ However, of greatest interest to us here is the role played by these different categories in defining the legal concept of persona.

Particularly significant in this context are the works of some of the representatives of the Usus modernus, who were attentive to the themes of ius hodiernum and ius Germanicum. It is precisely in these works that the categories of current law had to deal with the schemes set out in the Digest and the Institutes.

Thus, Georg Adam Struve stated in his Iurisprudentia Romano-Germanica forensis (1670) under the title »de iure personarum seu statu hominum« (though the entire first book is entitled »de iure personarum«) that »personam […] significat hominem in societate civili viventem«.⁸² His reasoning on slavery starts from it having fallen into disuse among Christians. However, according to Struve, in some places there are »homines proprii, eigene Leute, qui affinitatem cum servis habent«.⁸³ To these, whom he nevertheless considered free, Struve dedicated a separate chapter (»de secunda personarum divisione, et de potestate dominica«).⁸⁴

In Johann Schilter’s Institutiones iuris, the issue of slavery dominated the discourse of the title »de iure personarum«, and included the forms of serfdom.⁸⁵ Schilter had already discussed these in his Exercitationes ad Pandectas, referring to the category of the freedmen and to a form of »germanica libertinitas« characterised by »libertas restricta«.⁸⁶ In his Collegium Pandectarum theoretico-practicum, published posthumously in 1690, Wolfgang Adam Lauterbach also integrated the condition of homines proprii into the general framework of legal status: here we read that, although slavery was obsolete among Christians, its treatment under the title »de statu hominum« was still useful, not least because »veteris illius servitutis adhuc vestigia quaedam supersunt in hominibus propriis […] Germ. Leibeigene«. Their status, Lauterbach continued, was called »agricolatio«, »quae est conditio personae, quae, cum aggravatione status sui, ad varia obligatur onera«.⁸⁷

In the Specimen usus moderni Pandectarum by‍‍‍ Samuel Stryk (1690–1712), the theme of slavery‍‍‍ was directly associated with that of serfdom:

»Summam illam personarum divisionem, quod homines aut liberi sint, aut servi L.3ff.h.t. [D.1.5.3] hodie in Imperio Romano non amplius usu servari, in confesso est. Quamvis enim in Germania non omnes homines liberi sint, nulli tamen amplius supersunt servi, sed tertium quasi genus datur, scil. propriorum hominum, quos Leibeigen vulgo vocant, et opponuntur denen freyen Leuten.«⁸⁸|

The statement that slavery was no longer practiced naturally only applied to Christendom: in conflicts with »infideles«, just as Christians could be enslaved, so they in turn could reduce others to slavery: »hinc nostri captivos infideles aequissimo retorsionis iure pro servis habent, et ita in infidelibus captis omnia servitutum jura sibi locum vindicant. Ex quo est, quod Tartari, Turcae et Aethiopes pariter cum servi Romanorum donari, vendi et legari possint, uti experientia idem comprobat.«⁸⁹

Thus, with regard to the »infideles«, Stryk argued that the Roman rules on slavery regained their value as applicable law. By contrast, »homines proprii« differed from slaves,⁹⁰ enjoyed »ius connubiorum«, »ius contractuum« and »ius testamentorum«, and had »personam standi in iudicio«.⁹¹ However, Stryk did not consider them entirely free: they formed a »tertium genus« that, within the framework of the law of persons, was distinct from, but related to, Roman slaves.

The link between the forms of serfdom and the legal concept of persona perhaps emerged most clearly in Christian Thomasius’ Notae ad Institutiones Iustinianeas, published in 1712.⁹² Thomasius began his title »de iure personarum« with a definition of the term persona, the origins of which have been traced back to Samuel Pufendorf.⁹³ For Thomasius, »est autem persona in sensu juriridico homo consideratus cum statu suo; & status est conditio hominis secundum quam jure singulari utitur intuitu juris publici vel privati; estque triplex, vel libertatis, vel civitatis, vel familiae.«⁹⁴

In the very wording of the title »de iure personarum«, the homines proprii, explicitly contrasted to the freemen, replaced the slaves in the original text of the Institutes: according to Thomasius, the distinction between liberi and servi was in use in Germany, and the homines proprii were undoubtedly »servi«, but they were very different from the slaves of the Romans.⁹⁵ Like Stryk, Thomasius considered homines proprii to have »iura connubiorum, contractuum, testamentorum«,⁹⁶ but he did not see them as free.

In these passages, Thomasius’ main objective seems to have been to trace the servile conditions existing in the German territories, and with them the main distinction of persons, back to their origins outside of Roman law.⁹⁷ To fully understand his reasoning, one must also look at his Dissertatio de hominibus propriis of 1701⁹⁸ and the Dissertatio de usu practico distinctionis hominum in liberos et servos of 1711,⁹⁹ to which the Notae ad Institutiones actually referred.¹⁰⁰

But how was the concept of servus defined in the Dissertatio of 1701?¹⁰¹ In a passage comparing the notion of servus with that of famulus, Thomasius wrote: »[M]ercenarii ut personae considerantur seu ut cives, servi in civitatibus non ad personas pertinent, sed ad res [emphasis added]. Unde famuli sub |imperio sunt, servi sub dominio. Neque haec differentia Romanis peculiaris est, sed moribus aliarum gentium etiam conformis.«¹⁰²

The nexus between the category of homines proprii and the legal concept of persona, located on the border between Roman law and ius Germanicum, was stated very clearly by Johann Gottlieb Heinecke. In his discussion of the title »de iure personarum« in his Elementa iuris civilis secundum ordinem Institutionum,¹⁰³ published in 1725, he wrote: »§ 75 Homo et persona in iure maxime differunt. Homo est, cuicumque mens ratione praedita in corpore humano contigit.¹⁰⁴ Persona est homo, cum statu quodam consideratus.«¹⁰⁵

Heinecke immediately followed this with the definition of status:

»§ 76. Status est qualitas, cuius ratione homines diverso iure utuntur: isque est vel naturalis, vel civilis, qui iterum in statum libertatis, civitatis, et familiae dispescitur. L. ult. D. de cap. minut. [D.4.5.11] Certissimum ergo iuris axioma est: quicunque nullo statu gaudet, iure Romano non persona, sed res habetur.«

The servus could therefore be considered persona, but only according to ius naturale: »§ 77. Servus itaque est homo: est etiam persona, quatenus cum statu naturali consideratur: L. 22 pr. D. de reg. iur. [D.50.17.22¹⁰⁶] sed ratione status civilis est ἁπρόσωπος.«¹⁰⁷

Heinecke concluded his discussion of the title »de iure personarum« by speaking of homines proprii:

»§ 85 Ceterum Germanicae originis gentes semper haec principia ignorarunt [sic] […] servos quidem habebant, et hodienum passim habent homines proprios: sed eos non res esse, iudicant, verum personas, gaudentes iura connubii, contractuum, et testamenti factionis. Attamen glebae vel fundo adscripti, cum fundo venduntur, dominisque operas et censum debent, nec non quibusdam locis certam pecuniam pro libertate matrimonii, et praecipuum ex hereditate, veluti optimum caput, optimas exuvias cet. vid. Harprecht Tract. de iure mortuarii [sic],¹⁰⁸ et Potgiesseri Tract. de statu et cond. serv. in Germania.¹⁰⁹ Et hactenus serviunt: reliqua sibi adquirunt.«¹¹⁰

For Heinecke, the condition of homines proprii was therefore literally the reverse of that of Roman slaves: while he located them close to the boundary between person and thing and considered them also as the object of rights (»cum fundo venduntur«), he nevertheless unequivocally stated that homines proprii were personae, not res.

Heinecke returned to the point in his Elementa iuris Germanici tum veteris tum hodierni.¹¹¹ Here, he opened the treatment of the law of persons with the usual theme »de prima hominum divisione, et speciatim de servilis conditionis hominibus«, but this time according to the ius Germanicum, which radically differed from the Roman understanding: »personae ergo Germanis sunt omnes, quibus mens, ratione praedita, in corpore humano contigit, id est eaedem, ac homines.«¹¹² To define the concept of persona, Heinecke thus used roughly the same terms he had employed for the concept of homo in Roman law (»Homo est, cuicumque mens ratione praedita in corpore humano contigit […]«¹¹³), which served to underline how the notions of persona and homo coincided in the ius Germanicum.|

As in his Elementa iuris Civilis secundum ordinem Institutionum, Heinecke also followed the discussion of the servile condition in the Elementa iuris Germanici with that of the homines proprii, with which the title »de prima hominum divisione« concluded.¹¹⁴ For Heinecke, the fact that homines proprii were personae did not preclude them from being the object of rights in certain respects: they could, for example, be freely alienated (»a dominis libere alienantur«).¹¹⁵ Although the homines proprii were thus very different from Roman slaves, their condition was still servile.¹¹⁶

In these passages by Heinecke, the link between the different forms of serfdom and the elaboration of the legal concept of persona appears fully developed: a category of individuals was identified and defined whose members, although servile, escaped the condition of res. Although remaining on the border between being the subject or object of rights, Heinecke’s homines proprii had a residual form of personality. The contrast with the slave under Roman law, who escaped the condition of res only in natural law, guaranteed this residual personality.

But just who in truth were these slaves? As we have seen, Roman regulations on slavery could be seen as law currently applicable to »Tartari, Turcae et Aethiopes« or generically »infideles«: all poorly defined, or at the very least peripheral, categories. In the eyes of the jurists linked to the usus modernus movement, the space they inhabited was almost exclusively theoretical.¹¹⁷ However, it was actually very real.

V. Choses mobilières

Antoine Loysel’s Institutes coustumières (1607) established the principle that »toutes personnes sont franches en ce Royaume, et si tost qu’un esclave a attaint les marches d’iceluy, se faisant baptiser, il est affranchy«.¹¹⁸ However, also in the works of French jurists who, between the 16th and 17th centuries, provided an outline of categories of persons according to current local law, the various forms of serfdom dominated the discussion.¹¹⁹

Thus, in the Pandectes ou Digestes du Droict françois, Charondas Le Caron, after insisting that slavery had fallen into disuse, mentioned the »hommes de serve condition«.¹²⁰ In Guy Coquille’s Institution au Droict des Francois (1607), we read that

»les servitudes qui sont en France, ne sont pas semblables à celles qui estoient en usage aupres des anciens Romains, qui faisoient trafic des personnes serves, comme d’animaux brutes. […] Mais bien sont semblables aux servitudes ascriptices, & colonaires, qui rendoient les personnes attachées & liées aux domaines des champs pour les faire valoir, & y estoient tellement attachées, que le proprietaire du domaine & des serfs y destinez, ne pouvoit vendre les serfs, sans vendre le domaine par une seule vente.«¹²¹

Similarly, the title »de l’état des personnes« of Gabriel Argou’s Institution au droit français (1692) opens with »des Serfs de main-morte«.¹²²

However, a few years before, the context had been radically changed with the Édit sur les esclaves des îles de l’Amérique of March 1685, the so-called Code Noir, which explicitly designated slaves movable property (Arts. 44 and 46; Arts. 40 and 42 in the 1724 edict for Louisiana).

The bibliography on the Code Noir is extensive.¹²³ Among other things, it has been debated whether and to what extent the original text actually owed a debt to the sources of Roman law,¹²⁴ and it has been widely emphasised that |reducing the slave to a thing in the Code Noir in no way entailed a negation of his humanity.¹²⁵ Moreover, in a similar way to the 1636 Instructie of the United Provinces’ States General, the 1685 edict dealt with the religious and spiritual education of slaves early on, in its second article.¹²⁶

Of interest to us is the question of what effect, direct or indirect, the norms of the Code Noir had on the juridical notion of the person, first and foremost in the works of French jurists of the late 17th and 18th centuries.

In his Lois civiles dans leur ordre naturel (1689), Domat closely linked the subdivision of persons, both under the law of nature as well as under civil law, to the concept of status.¹²⁷ However, in his discussion of the status of persons under civil law in his work’s livre preliminaire, Domat did not address the subject of overseas slaves: of the three major dichotomies of Roman law – free and slaves, »citoyen« and »étranger«, »pere de famille« and »fils de famille« – he recognised only the last two as being in use in contemporary France; to these he adds the subdivisions of French law: »gentilhommes«, »bourgeois« and »personnes de condition serve«.¹²⁸ While Domat also discussed the subject of slavery in the proper sense, to him, this category seems to have been of above all theoretical importance.¹²⁹

In Robert-Joseph Pothier’s Treatise on Persons and Things, by contrast, the subject of slavery is defined and explored in full, though there is no direct reference to the Code Noir. Pothier’s passage on the subject is famous: after describing the legal conditions of ecclesiastics, nobles and the third estate (and before addressing the distinction between »regnicoles« and »aubaines«), Pothier discussed des serfs, by which term he denoted both those of servile condition as well as slaves. Nevertheless, he argued that the serfs present in some provinces of the French kingdom, called »gens de main-morte et mortaillables«, were in every respect different from the serfs of the Romans:

»Ces esclaves, chez les Romains, n’étaient pas citoyens; ils n’avaient aucun état civil, pro nullis habebantur; ils étaient regardés comme des choses, plutôt que comme des personnes, ut res, non ut personae erant in dominio heri; c’est-à-dire qu’ils appartenaient à leurs maîtres, de la même manière qu’un cheval, ou tout autre meuble: et par conséquent ils ne pouvaient rien avoir en propre, et tout ce qu’ils acquéraient était dès l’instant acquis à leur maître, à qui ils appartenaient eux-mêmes. Nous avons dans nos Colonies de ces sortes d’esclaves, qui sont les Nègres, dont il se fait un commerce considérable. Mais, dans le Royaume de France, on n’en souffre aucuns.«¹³⁰

In this passage, Pothier combined several features that we have already encountered elsewhere. Firstly, he treated the themes of serfdom and slavery together. Secondly, his key reference for slavery was Roman law, which served a number of functions: it was useful for defining the serfs of current local law in opposition to Roman slaves (although the term serfs was employed for both), but also for defining the slaves (esclaves) that the French owned in the colonies; lastly, he directly contrasted the condition of the slave as a thing (»chose«, »res«) to the condition of person (»personne«).|

Pothier’s passage clearly expresses the link that united the themes of serfdom, slavery and the legal concept of the person in 18th-century French legal thinking.¹³¹ However, the role of the concept of person changed in Enlightenment thought.

In the entry »Esclave (jurisp.)« in the Encyclopédie, Antoine-Gaspard Boucher d’Argis wrote that Roman slaves »n’étoient point mis au rang des personnes, on ne les regardoit que comme des biens«, and mentioned the edict of 1685, according to which »les esclaves sont meubles«.¹³² But the loss of centrality of the juridical concept of person is shown by the fact that only two entries in the Encyclopédie were dedicated to the term »personne«: one, by Nicholas Beauzée, dealt with the grammatical meaning of the term; the other, anonymous, discussed its theological meaning.¹³³ In addition, with the abolition of serfdom in the French royal domains in August 1779, one of the terms of reference of the concept of person, and thus one of its functions, had disappeared: shortly after, there no longer was a group whose members’ status could be contrasted to that of the overseas slaves on the grounds that, unlike the latter, they were deemed »persona«. Eventually, in the revolutionary constitutions and in the Code civil itself, the term »personne« came to occupy a marginal position, while other categories of legal subjects gained in importance, as we shall see in section VI.

In 18th-century Germanophone legal thought, however, the concept of person seems to have retained its importance. Christian Wolff is credited with the famous definition that »homo persona moralis est, quatenus spectatur tamquam subjectum certarum obligationum etque iurium certorum«.¹³⁴ In many other works, however, the link between the notion of person and the dual reference to serfs and Roman slaves was retained.

For example, in the popular Ius controversum civile (1713), Samuel von Cocceij began his treatment of the title »de statu hominum« by addressing the issue of the comparison between homines proprii and slaves (»an homines proprii recte comparentur servis?«), and stated that while the comparison was wrong »quoad personam«, »quoad actiones« it was correct.¹³⁵ Nearly thirty years later, in his Novum Systema iustitiae naturalis et Romanae (1740), Coccejus again closely linked the notions of person and status,¹³⁶ returning to the statement that »servile caput […] nullam personam habere dicitur«.¹³⁷

In Johann Stephan Pütter’s Elementa iuris germanici privati hodierni (1748), there are two different subdivisions of persons, one into ordines (»personae‍‍‍ illustres, nobiles, cives, rustici«),¹³⁸ the other linked to the different forms of relationships between private individuals (»de societate coniugali«, »paterna«, »tutelari«, »herili«). In the latter, the category of homines proprii is discussed at length.¹³⁹ In Kreittmayr’s notes on the Codex Maximilianeus Bavaricus Civilis of 1756, too, the contrast between Roman slaves and »unsere Leibeigene« plays a significant role.¹⁴⁰

The link with earlier reflections on the concept of person emerges particularly clearly in certain passages by Daniel Nettelbladt. Although there are‍‍‍ no direct references to the themes of slavery and serfdom, echoes of Thomasius’¹⁴¹ and Heinecke’s¹⁴² definitions of persona are evident. In fact, in the second edition of the Systema elementare universae iurisprudentiae positivae communis imperii Romano Germanici, we read that »persona stricte accepta, est homo consideratus cum certo statu«;¹⁴³ in the Systema elementare universae Iurisprudentiae naturalis, Nettelbladt wrote: »persona in sensu generali idem est ac homo. In sensu speciali |vero sub personae nomine venit, homo consideratus cum certo statu.«¹⁴⁴ Similar definitions can be read elsewhere in his works.¹⁴⁵

A very close link to the previous reflections on status and person appears in Julius Friedrich Höpfner’s Theoretisch-praktischer Commentar über die Heineccischen Institutionen (1783). Here, dealing with the title »de iure personarum«, Höpfner followed Heinecke’s reasoning:

»[W]er keinen bürgerlichen Zustand hat, ist keine Person, sondern wird in die Classe der Sachen gerechnet. Dergleichen sind nach Römischem Rechte die Sclaven (servi). Sie haben keinen einzigen bürgerlichen Zustand, gar keine Rechte im Römischen Staate; daher werden Sie auch nicht als Personen, sondern als Sachen (res) angesehen.«¹⁴⁶

The categories of the adscriptitii and the coloni also return.¹⁴⁷ There follows a paragraph devoted to modern-day slavery (»von der heutigen Sklaverey«): »wir haben heutzutage« both slaves in the sense of Roman law (»im Sinne des Römischen Rechts«) and »Leibeigene«, as well as free servants and maids (»freye Knechte und Mägde«). »Wahre Sklaven« were Turkish prisoners and »Negersklaven«, who sometimes arrived »aus Holland oder andern Reichen«; in both cases, Roman law applied.¹⁴⁸ The paragraph then goes on to consider the subject of serfdom: »wir haben aber auch in Deutschland Leibeigene«, i.e. individuals who are not free, to whom the lord has a right of ownership¹⁴⁹ (but, of course, Roman law must not be applied to them¹⁵⁰). The paragraph ends with a brief mention of the subject of domestic servants, who are free in all respects except for their duties of service.¹⁵¹

In a similar vein, Christian Friedrich von Glück, in the part of the Ausführliche Erläuterung der Pandekten dealing with the title »de statu hominum«, certainly included Roman slaves among things.¹⁵² Moreover, he also immediately followed his discussion of slavery under Roman law¹⁵³ with that of the Leibeigenen,¹⁵⁴ who, in his view, were quite different from Roman slaves, but not with|out some similarities to them.¹⁵⁵ This is followed by paragraphs on domestic servitude¹⁵⁶ and on the condition of peasants.¹⁵⁷

In sum, four characteristics seem to reappear in these texts: 1) the importance of the notion of person; 2) its theoretical definition as opposed to the concept of the slave as res (»Sache«); 3) slaves and serfs being discussed together; 4) the definition of the latter as persons in contrast to the former, who are denoted things.

VI. Codes and persons

In the lexicon of the French revolutionary constitutions, the term ›person‹ appeared intermittently: the 1789 Declaration of Rights, whose title already refers to the two subjects »man« and »citizen«, used the term »personne« only once, in art. 9, preceded by the possessive pronoun linking it to l’homme.¹⁵⁸ The same term recurred eight times in the Constitution of 1791 (including twice with reference to the »personne du Roi« and twice as »personne du detenu«); and three times in the Declaration of Rights that preceded the Constitution of 1793 (arts. 8, 13, 18, again with a possessive reference, as in art. 18¹⁵⁹), though it was entirely absent from the Constitutional Act itself.

The term was again mentioned twice in the Declaration of Rights that preceded the Constitution of 1795 (arts. 10 and 15), and no less than twelve times in the text of that Constitution (nine of these occurred in the title »De la justice correctionelle et criminelle«, arts. 224, 226–230, 237, 253); in the Constitution of 1799, it appeared twelve times.

However, the concept of person in the sense of legal subjecthood seems to have played a marginal role: the constitutional texts of the Revolution were based more on subjects such as the »man«, the »citizen«, sometimes the »Frenchman«, and often collectively »the people«.

The situation apparently differed little when we‍‍‍ look at private law. In the first Projet de Code Civil presented by Jean-Jacques-Régis de Cambacérès in 1793, the general provisions opening the first book (»de l’ètat des Personnes«) referred to »les citoyens«, »les individus«,¹⁶⁰ »les mineurs« and »les étrangers«;¹⁶¹ in the second draft, the general provisions of the first book (»Des Personnes«) referred to the French, to citizens and to foreigners,¹⁶² who remained the main subjects even in the roughly corresponding title of the third Projet.¹⁶³ There was no single, uniform concept of person, nor did it require specific definition: rather, it consisted of a series of categories of legal subjects that formed the actual reference points of the norms.

The Code civil thus refrained from furnishing a complete definition of the concept of person, leading Jean-Guillaume Locrè to comment that »dans le Code [le mot personne] est le synonyme d’état civil«.¹⁶⁴ The title dedicated to persons seemed to rest on other, more specifically defined legal subjects: the Frenchmen, individuals, citizens and foreigners who had already featured in Cambacérès’ Projets.|

In the Prussian Allgemeines Landrecht of 1794, by contrast, the title dedicated to persons began with a definition of the concept.¹⁶⁵ The notion of person also remained central in another product of the natural law tradition, the Austrian Allgemeine bürgerliche Gesetzbuch (ABGB). Its celebrated § 16 stated that »Jeder Mensch hat angeborne, schon durch die Vernunft einleuchtende Rechte, und ist daher als eine Person zu betrachten. Sclaverey oder Leibeigenschaft, und die Ausübung einer darauf sich beziehenden Macht, wird in diesen Ländern nicht gestattet.«

Here, once again, slavery and Leibeigenschaft were considered together, and explicitly opposed to the condition of person. In his Commentar to the ABGB, Franz von Zeiller did, of course, distinguish between slavery and Leibeigenschaft, but in his view the latter could come close to the former (»nähert sich, nach Verschiedenheit der zufälligen Modificationen, mehr oder weniger der Sclaverey«). Above all, both are opposed to the condition of person.¹⁶⁶ Von Zeiller did not quote Heinecke in this context, though he had commented on some of the latter’s passages on the subject of homines proprii.¹⁶⁷ He did, however, take Heinecke’s principle that ex iure Germanicus, persona and homo coincided,¹⁶⁸ to its most logical conclusion, though he at the same time turned Heinecke’s assertion that homines proprii were distinguished from Roman slaves as personae and not res, on its head: for von Zeiller, even the condition of homines proprii, i.e. Leibeigenschaft, conflicts with the definition of person.

Arguably, § 16 ABGB and von Zeiller’s reflections are the most accomplished products of natural law thought on the concept of person. Historians have strongly emphasised the influence of Kant both on von Zeiller’s thinking and on subsequent developments.¹⁶⁹ With regard to the concept of the person, however, legal thought had already entered a new phase by the early 19th century.

Of course, some traces of earlier traditions can be found also in the 19th-century literature. For example, in the 1820 edition of the Lehrbuch des heutigen römischen Rechts, Gustav Hugo quoted Heinecke’s and Thomasius’ definition of persona almost verbatim and called it the »customary explanation«, though he did not approve of it: »die sonst gewöhnliche Erklärung von einer Per|son: homo in statu consideratus ist nicht bloß um Deswillen schlecht.«¹⁷⁰

Nevertheless, the centrality of the notion of »legal capacity« entailed, among other things, redefining the role of the concept of person. In the System des Pandekten-Rechts (1803), Thibaut answered the question of who can be considered a legally capable subject by using the concept of person.¹⁷¹ Nevertheless, the fundamental concept on which the reasoning was based was that of legal capacity (»Rechtsfähigkeit«).¹⁷²

Indeed, it was in the context of the notion of »natürliche Rechtsfähigkeit« that Savigny stated that »jeder einzelne Mensch, und nur der einzelne Mensch, ist rechtsfähig«.¹⁷³ And it is perhaps useful to note that shortly afterwards, in reconstructing the notion of slavery in Roman law, Savigny himself pointed out that the Romans used the term persona not to refer to men having legal capacity, but »für jeden einzelnen Menschen ohne Unterschied, namentlich auch für die Sklaven«.¹⁷⁴

Precisely on the basis of his assumption that every individual was rechtsfähig, Savigny structured the chapter devoted to persons »als Träger der Rechtsverhältnisse« in his System des heutigen Römischen Rechts along the limits and restrictions of legal capacity. The assertion that each individual had the capacity to hold rights clearly demonstrates that the centrality of the concept of persona and the doctrine of status associated with it had been abandoned. But the individual appeared far from constituting a unitary subject: the very link with the notion of legal capacity seems to expose each individual to new forms of fragmentation, to the‍‍‍ point that, as one of the recent works devoted to the concept of person and legal capacity in the 19th century put it, one might speak of a »graduated« form of legal capacity (»einer abgestuften Rechtsfähigkeit«).¹⁷⁵

VII. Conclusions

As noted, the Justinianic sources did not set a clear boundary between the concepts of persona and res. The same servus could be considered and classified as res or as persona. The clear boundary between the two was drawn by the legal science of the modern period, between the 16th and 18th centuries, as the joint effect of the two phenomena of serfdom and slavery. It thus had two matrices: one estates-based (ständisch), the other colonial.

Already Iberian legal thought, when dealing with the populations of the newly colonised world, tended to resort to the categories of serfdom and to the notion of slavery according to Roman law to |interpret and classify both the condition of the Indios and that of the other non-free subjects. Using slavery and serfdom as opposite ends of a spectrum, they sought to define a subject’s legal condition by measuring its respective distance from these poles.

When numerous jurists endeavoured to order the different personal conditions known from the ius hodiernum into a complete theory of statuses, Roman slaves and European serfs of the early modern period were treated in the same title (»de iure personarum«, »de statu hominum«, »de prima hominum divisione«). It is here that the condition of the Roman slave is progressively reduced to that of res, clearly seen as the opposite of the condition of persona: the slave is certainly homo, but only from the standpoint of natural law; the category fulfils the role of serving as the opposite against which the legal subject – who, from the standpoint of civil law, is persona and not res – can be defined.

In this way, a category with essentially theoretical outlines was constituted, or at least its existence highlighted: that of the Roman slaves who, although homines, were at the same time reducible to the condition of res, and thus the mere object of legal relationships in civil law.

However, this concept of the slave was by no means exclusively theoretical: as we have seen in the reflections of some Iberian scholars, Roman slavery was a comparative reference point for the condition of unfree subjects overseas, and Roman law was deemed immediately applicable in matters of slavery by the 1636 Instructie of the United Provinces’ States General, without, moreover, slaves being openly reduced to the condition of res. Finally, Louis XIV’s edict of March 1685 explicitly denoted slaves »choses mobiliaires« (Art. 46). As we saw above, Pothier thought that the condition of Roman slaves was directly reflected in contemporary slaves in the colonies: Roman slaves »étaient regardés comme des choses, plutôt que comme des personnes, ut res, non ut personae erant in dominio heri«, and »nous avons dans nos Colonies de ces sortes d’esclaves, qui sont les Nègres, dont il se fait un commerce considérable«.¹⁷⁶

For Pothier and other early modern jurists, then, slaves were res in the simple sense of »chose« or, as also seen (e.g. in von Zeiller¹⁷⁷), »Sache«.

It is perhaps worth noting that this sharp separation between persona and res, or between person and thing, was elaborated for reasons that appear extraneous to historical-philological reflection on the Justinianic sources, or on Roman law as such. The latter could be directly applicable, as stated in the 1636 Instructie of the States General for the United Provinces’ territories in Brazil. Generally, however, the function of Roman law appears to have been that of providing a lexicon on the basis of which, even if only by comparison, jurists worked out solutions to the questions arising from the needs of their time.

This therefore seems to be a first possible conclusion:

1) Serfs and slaves defined the concept of person because they constituted its boundary. On one side of the boundary there were persons, on the other res: as if, in order for someone to remain a person,‍‍‍ someone else had to be a thing. In this way, serfdom and modern slavery together defined the contours of the concept of person, which the legal science of the Ancien régime transmitted to‍‍‍ that of the 19th century and the contemporary age.

However clear-cut, this boundary was also mobile, since it ran through individuals who, depending on the circumstances and the legal relations in which they found themselves, could be either personae or res. This was the case of the homines proprii: as we have seen, this term was used by most of the abovementioned jurists to define subjects of‍‍‍ servile condition who enjoyed »ius connubiorum«, »ius contractuum« and »ius testamentorum«.¹⁷⁸ They constituted a category so ambiguous as to represent a sort of »tertium genus« between freemen and slaves,¹⁷⁹ so much so as to lead early modern jurists to hypothesise the existence of a profoundly different servile condition from that of the Roman slaves.¹⁸⁰ To distinguish the two, homines proprii were attributed the | condition of persona and, at the same time and for the same reason, Roman slaves the condition of res.

But homines proprii, while not being slaves, could also be alienated: the fact of being personae did not protect them from being, in certain circumstances, mere objects of a legal relationship. They could be considered as persons or as things, depending on different legal relationships under civil law. However, this was also true for slaves stricto sensu if one considered their condition from the point of view of the law of nature, or canon law, or more simply their spiritual health.

This leads to the second possible conclusion:

2) The boundary between persons and things elaborated by legal thinkers between the 16th and 18th centuries was clear-cut, but it did not separate different groups; rather, it cut across individuals: it was an internal boundary within individual subjects.

This latter aspect, the result of both the estates-based and the colonial matrices, seems to have persisted in the subsequent stages of legal history: regardless of the qualities of person or thing, the fact that the notion of legal capacity was susceptible to gradations implied the permanence of boundaries within the same individual. However, in the 19th and 20th centuries, these boundaries would be the result of entirely new reasons.