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Interdictum de Homine Libero Exhibendo

By: Anavitarte, E. J.*

The interdictum de homine libero exhibendo (writ of exhibition of a person) is a procedural figure, by which, the praetor could demand the appearance of a free man who had been unjustly deprived of his freedom.

By 'deprived of their freedom' can be understood, both, the physical detention of the person, and their forced treatment as a slave, for which this writ protected the legal attribute of freedom.

It is an antecedent of the mechanisms for the protection of personal freedom, which prevented individuals from maliciously retaining someone. However, its purpose was not aimed at limiting the power of the authorities, as in the case of habeas corpus, but at protecting freedom as a quiritarian right (ius quiritium).

Subjects Protected by Homine Libero Exhibiting

The writ could be exercised on any person who was free, whether they were pubescent or prepubertal, men or women, one or a group, alieni iuris or sui iuris. Therefore, the only criterion to legitimize the subject, protected by the praetorian action, would be this: the state of freedom.

Haec verba "quem liberum" ad omnem liberum pertinent, sive pubes sit sive impubes, sive masculus sive feminine, sive unus sive plures, sive sui iuris sit sive alieni: hoc enim tantum spectamus, an liber sit.

(It is said "whoever is free" because it is relevant to anyone who is free, be it pubescent or prepubescent, be it man or woman, be it one or more, be it sui iuris or alieni iuris : then from here we only hope that they are free)

Ulpiano [1]
(Author's translation*)

Clearly the universality of the figure allows us to affirm that the exhibiting libero is a predecessor of Habeas Corpus in Western legal traditions, regarding the protection of personal freedom.

[1]: Ulpiano | Digest: Lib. 43, Tit. 29, Sec. 3, Para. 1.

Subjects Entitled to Trigger the Homine Libero Exhibiting

This action, as it belongs to civil law, could be exercised by any person who had a legitimate interest in seeing, whoever was detained in bad faith, by another. For example, in the case of agnates, and especially children, in which case the Justinian Code expressly compiles this power.

[...] Adi praesidem Provinciae ac nominates filios tuos exhiberi.

(Present yourself personally before the provincial guard and then demand that your children be exhibited)


Justinian [2]
(Author's translation*)

This operated, whether it was a detention by a private party, in which case the figure of the praetor is used to make these requests effective, [¶] or, if the free man was detained by the authority itself, as the aforementioned case, where it is authorized to bring this appeal directly to the praesidem.

[2]: Diocletianus, Maximianus, cit. Justinian | Justinian Code: Lib. 8, Tit. 8, Para. 2.

Historical Development of the Homine Libero Exhibiting

It is difficult to determine the birth of this figure, since it is of praetorian creation, but it is known that at least it had to exist during classical law. And it is already collected in the digest, from where it is said that "Those who are not allowed the freedom to go where they want are not much different from the serfs."

Subsequently, the Lex Fabia that speaks of the kidnapping also mentions sanctions regarding the deprivation of persons of their freedom and reiterates the powers of exhibition of free persons that the praetor had.

This injunction operated as a formal locution, which the praetor pronounced, forcing one person to show another:

Ait praetor: quem liberum dolo bad retines, you exhibit .

(Says the praetor: whoever retains a free man in bad faith, let him display it.)

Ulpiano [3]
(Author's translation*)

This institution sought to protect the legal good of personal freedom, in a social context where there was slavery, or noxal abandonment, so its creation obeys a legal guarantee of the condition of freedom.

However, in the western legal world the figure of habeas corpus is more famous - which was probably inspired by this praetorian writ - because it was a guarantee regarding the nascent state power of 17th century England.

For the injunction of homine libero exhibiting had a scope that limited other members of society, and not so much authority, due to the lack of the concept of state in Roman times.

[3]: Ulpiano | Digest: Lib. 43, Tit. 29, Sec. 1.

Roman Law

Table of Contents

  1. Definition
  2. Subjects
  3. Legitimized
  4. Historical development

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Anavitarte, E. J. (2016, September). Interdictum de Homine Libero Exhibendo. Academia Lab. https://academia-lab.com/2016/09/16/writ-of-homine-libero-exhibendo/