Download Roman Slave Law - Medieval Mediterranean Slavery

Dr. Thomas Rüfner
Professor of Law
Fachbereich V – Rechtswissenschaften
Universität Trier, 54286 Trier, Germany
[email protected]
An Introduction to Roman Slave Law*
Libertas inaestimabilis res est. – Freedom is a priceless thing.
Iulius Paulus, Commentary on the Praetor’s Edict, Book 2, Digest 50, 17, 106.
I. Roman Law in General
1. The Historical Importance of Roman Law
Roman law is the law of the Roman city-state and later of the Roman Empire. The
history of Roman law in antiquity spans roughly a thousand years from the law of
the Twelve Tables (449 BCE) to the voluminous codification enacted by the
Emperor Justinian I. in the years 529-534 CE.
For several reasons, Roman law stands out among the legal systems of
antiquity. First of all, the Romans ruled an empire comprising all or most of the
known world for several centuries. That in itself gives the Roman legal system an
historical importance far greater than that of – say – the law of Athens or any
other Greek city-state. Moreover, the Romans were arguably the first people to
*
References in the footnotes are confined to the following primary source texts: Institutes of Gaius
(Gai inst.; English translation by O.F. Robinson and W.M. Gordon, London 1988, several reprints,
German translation by U. Manthe, Darmstadt 2004), Justinian’s Institutes (Inst.; English
translation by P. Birks and G. McLeod, London 1987, several reprints, German translation by O.
Behrends et al., 3rd ed., Heidelberg 2007), Justinian’s Code (Cod.; apparently no English
translation, German translation by C. E. Otto et al. Leipzig 1832) and Justinian’s Digest (Dig.;
English translation by A. Watson, Philadelphia 1985; German translation of books 1-27 by O.
Behrends et al., Heidelberg 1995-2005, complete translation by C. E. Otto et al. Leipzig 18311839). See p. 3 for information on the character and the contents of the Institutes of Gaius and p. 4
sq. on the various parts of Justinian’s codification.
Justinian’s Institutes as well as his Code and the Digest are divided into books and titles. Each title
of the Code and Digest consists of several textual units called constitutions in the Code and
fragments in the Digest. Longer constitutions or fragments are in turn divided into paragraphs.
Similarly, the titles of Justinian’s institutes are divided into paragraphs. A reference to a certain
text consists of the number of the book, title, constitution or fragment and paragraph. Thus
Dig. 40, 12, 7, 3 refers to Paragraph 3 of Fragment 7 in Book 40, Title 12 of Justinian’s Digest. –
The first paragraph of each text is called the principium (beginning). The following (second)
paragraph is numbered as Paragraph one. Therefore Dig. 40, 12, 7 pr. refers to the beginning of
Fragment 7 and Dig. 40, 12, 7, 1 actually points to the second paragraph of the same text.
2
Minerva School Jerusalem
develop a science of law. The Romans were the first to employ the methods of
reasoning and the concepts developed by Greek philosophers to solve legal
problems. In this way, they created a particularly sophisticated legal system.
Roman law was able to accommodate the needs of a complex economy and to
provide rational solutions for a large array of legal issues.
There is another, even more central reason for Roman law’s historical
importance: Roman law books were studied at universities and applied in legal
practice long after the end of the Roman Empire. In some European countries, the
practical application of Roman law continued into the twentieth century. The legal
systems of most European countries (and many countries outside Europe) are to
some extent based on Roman law (see below p. 6). It is therefore no exaggeration
to say that Roman law to this day exerts a considerable influence on legal practice
in a large part of the world.
The Roman jurists were interested mostly in private or civil law, i.e. the set of
rules governing the legal relationship between individuals. Criminal law was
treated to a lesser extent. Public law (the rules governing the functioning of the
state and the relationship between the state and the individual) was mostly
regarded as a political affair outside the scope of legal argument. Therefore, the
influence of Roman law on modern legal systems is felt most strongly in the area
of private law.
2. The Development of Roman Law
a) Classical Law
The development which transformed the art of Roman law-sayers into a science
began in the republican era of Roman history – by most accounts in the middle of
the third century BCE. The innovative thinking of the jurists of this period paved
the way for the following ‘golden’ or ‘classical’ age of Roman law. The classical
period coincides roughly with the Principate (27 BCE – 284 CE). – Among the
classical jurists, whose contributions to the body of Roman law are of particular
importance, the following are especially worthy of mention:
T. Rüfner, Roman Slave Law
3
Publius Iuventius Celsus filius, lived in the second century CE. He served on
the privy council of Emperor Hadrian (reigned 117–138 CE) and held the offices
of consul and provincial governor. Celsus headed one of two rivalling schools (or
sects) of jurists, the Proculiani. Celsus is best known for his spirited polemics and
for the celebrated definitions he coined. Among the latter is the definition of law
(ius) itself as ars boni et aequi, the art of the good and the just1.
Publius Salvius Iulianus was slightly younger than Celsus. Like Celsus, he sat
in Emperor Hadrian’s council and served as consul and later as governor of
several provinces. The Emperor entrusted him with the final redaction of the
edictum praetoris (the Praetor’s Edict), one of the most important legal
instruments. Julian was the head of the second school of jurists, the Sabiniani.
Many consider Julian as the greatest of all Roman Jurists.
Gaius is only known to us by this name and otherwise, too, very little is known
about him. Unlike Julian and Celsus, who lived in the same period, he was
probably not a member of the ruling (senatorial) class of the Roman Empire. He is
never cited by other jurists of his time, but in late antiquity his works became
popular for their didactic qualities. Gaius wrote a textbook for beginners called
Institutiones. This textbook is the only work by a jurist of the classical epoch to
have been preserved almost in its entirety.
Aemilius Papinianus belongs to a later generation than the first three. He
attained the office of praefectus praetorio (commander of the Imperial Guard – a
position which by the time of Papinian had become the most important office at
the Emperor’s court) but fell out of grace with the Emperor Caracalla (reigned
211–217 CE) and was murdered in the year 212 CE. According to tradition,
Papinian was killed, because he refused to justify Caracalla’s murder of his
brother Geta. Papinian’s works are of characteristic brevity, which sometimes
1
Dig. 1, 1, 1 pr. – this is he very first sentence in Justinian’s Digest.
4
Minerva School Jerusalem
borders on obscurity. Yet they contain ingenious discussions of extraordinarily
complex legal issues.
The last two jurists that have to be mentioned are Iulius Paulus and Domitius
Ulpianus. Both were very prolific writers. In giant commentaries of many
volumes, they collected and summarized the body of legal wisdom which the
jurists of the classical era had accumulated. Paul wrote even more than Ulpian and
seems to have been the more original thinker. Ulpian had the more successful
political career and became praefectus praetorio like his teacher Papinian. Like
Papinian, Ulpian died a violent death, when – most likely in 223 CE – he was
killed by revolting soldiers of the Imperial Guard. – Excerpts from the vast
writings of Paul and Ulpian make up one half of all the material in Justinian’s
Digest (see below p. 4).
b) The Post-Classical Period
By the middle of the third century CE, the Roman Empire was immerged in a
severe crisis. Military defeats and interior problems led to a prolonged period of
instability. The political and economic predicament brought about the end of
classical Roman law. The production of legal scholarship stopped and the law
underwent significant changes as the cultural and economic prerequisites of
classical law ceased to exist. No significant work of legal scholarship is known
from the following three hundred years.
The refined legal culture of the classical era was completely forgotten in the
western part of the Empire. In the east, the loss was less complete and less
definitive. Already in the third century, a law school existed in Berytos (modern
Beirut). In the fifth century, a second school was founded in Constantinople. In
these schools, the texts of the classical jurists were studied and commented upon
and the tradition of legal science was preserved.
c) Justinian’s Codification
The traditions kept alive in the law schools of Berytos and Constantinople and
professors from these schools played a crucial role when the East-Roman
T. Rüfner, Roman Slave Law
5
Emperor Justinian I. (reigned 527–565 CE) set out to restore Roman law to its
former splendour. For a short time, Justinian managed to re-establish the Roman
rule all around the Mediterranean. His ambition to revive the great tradition of
Roman law came from the same impulse as his eagerness to rebuild the Empire by
military means. Starting in 528 CE, the Emperor commissioned the compilation of
several law codes, which are today the most important source of our knowledge of
Roman law:
The first step was a collection of statutes (constitutiones) enacted by the
Roman Emperors. These statutes were collected in a code, called the Codex
Iustiniani (Justinian’s Code2). The commission to which Justinian entrusted the
compilation of the Code used the Codex Theodosianus, an earlier collection of
imperial legislation, which had been initiated by Emperor Theodosius II. (reigned
408–450 CE). Justinian’s Code was first enacted in 529. Later, the Emperor
commissioned a revised edition, which was completed in 534 CE. Only this
second edition has come down to us.
The second and much more ambitious project was a collection of excerpts from
the writings of the classical jurists. This collection called Digesta or Pandectae
(Justinian’s Digest) was published in 533 CE. This immense compilation
contains fragments taken from more than 1,500 works by various authors. It is the
biggest and the most important part of Justinian’s codification. When the Digest
was published, all the legal opinions contained in it were given the force of law.
In the same year 533, the third part of Justinian’s codification was completed:
The work – entitled Institutiones Iustiniani (Justinian’s Institutes) – is a
textbook for beginning students. It was to be used at the law schools of Berytos
and Constantinople to introduce aspiring law students to the new legislation.
Justinian’s Institutes are based on the earlier textbook by Gaius (see above p. 2),
2
Note that each of the three parts of Justinian’s work can justly be called a code, but that only one
part was actually entitled ‘Justinian’s Code’.
6
Minerva School Jerusalem
which bore the same title. As in the case of the Digest, all legal rules laid down in
the Institutes were given the force of law.
Justinian’s legislative activity did not stop with the publication of his three
codes. The Emperor had plans to publish – as a fourth part – a collection of his
own constitutiones enacted after the promulgation of the second edition of the
Codex Iustiniani. This plan was never put into practice. There are only private
collections of Justinian’s Novellae (Novels, i.e. ‘new’ pieces of legislation).
However, later these Novels were regarded as an integral part of the Corpus Iuris
Civilis – which is the name that was given to the whole of Justinian’s codification
by the French humanist Denis Godefroy in the sixteenth century and which is
widely used today.
The legal texts that were not included in Justinian’s collections were no longer
relevant in legal practice after the publication of the new codes. They were
quickly forgotten and are almost completely lost today. With a few notable
exceptions – like the Institutes of Gaius –, Justinian’s works are the only extant
monuments of Roman legal culture.
d) The Medieval Renaissance of Roman Law
When Justinian died, the western territories he had recovered for the Empire were
quickly lost again. Consequently, the memory of Justinian’s legislative
achievements faded rapidly in Western Europe. While some knowledge of the
Institutiones and the Codex persisted, the Digest seems to have been completely
unknown in the West from the seventh century onward. There is no mention of it
in any source until the end of the eleventh century.
Around the year 1070, a manuscript of the Digest was found in Italy. Scholars
started to study the ancient texts and to convey the knowledge they gained from
their studies to students. Soon, the old texts were used once more to solve
practical cases for which the customary law of the early middle ages provided no
solution. In a complex and gradual process, Roman law re-entered legal practice
and was again applied as the law of the land, first in Italy and later in other
T. Rüfner, Roman Slave Law
7
European countries as well. By the mid-16th century, the process of the reception
of Roman law was completed in most European countries. In England, however,
the influence of Roman law was less strongly felt. For a variety of reasons, the
English common law remained mostly unaffected by the reception.
Where reception occurred – as it did in France, Germany, Italy and Spain –, the
law of Justinian’s codes remained applicable for a long period. Only from the end
of the 18th century onward, Roman law was replaced by modern civil codes in
most countries. Each of these codes, however, is to a large extent based on Roman
law.
II. Roman Slave Law in Particular
As in all societies of antiquity, slavery was an institution of great economic and
social importance in Rome and in the Roman Empire. Given the sophistication of
the Roman legal system, it is hardly surprising that the status of slaves and their
capacity to participate in legal exchanges was elaborated upon in great detail by
the Roman jurists and that a larger number of texts are devoted to issues of slave
law. It is estimated that no less than one third of all texts in the Digest deal with
slaves in one way or another.
1. Enslavement and Manumission
a) Enslavement
The most common ways of becoming a slave were (1) captivity in war or (2) birth
from a slave mother3.
When Rome went to war with another people, Roman law regarded all persons
on the enemy’s side as potential slaves. If they fell into Roman captivity, they lost
their freedom. This rule was not confined to enemy soldiers; it also applied to
civilians regardless of sex and age. The fate of prisoners of war was decided by
the Roman commander. He might choose to give them back their freedom or to
3
Dig. 1, 5, 5, 1 i. f.
8
Minerva School Jerusalem
keep them as slaves. In the later case they either became slaves of the Roman state
or were auctioned off4. In this way, military action in the border regions of the
Empire for a long time procured a steady influx of new slaves into Rome.
The rule that every child born from a slave became a slave of the mother’s
owner, provided for the natural reproduction of the existing slave force in Rome.
When a freeborn mother was enslaved during pregnancy, the rule was relaxed.
Originally, the child was regarded as free, if the mother had been free and legally
married at the time of conception. Later, the exception was extended to all cases
in which the mother had been free at any time between conception and birth5.
In principle, the child’s status was determined exclusively by the status of the
mother. Yet, this doctrine was occasionally abandoned: Most importantly, a
resolution of the Roman senate (the senatus consultum Claudianum of 52 CE)
provided that the child of a free woman who had intercourse with a slave not
owned by herself became a slave6. If the slave’s master had not consented to the
union of his slave with the free woman, the woman also lost her own liberty and
became a slave herself7. Even without the birth of a child, the free woman was
enslaved if she maintained the relationship with the slave despite repeated
warnings from the slave’s owner. The enactment was repealed by Justinian8.
Apart from this special case entailed the conviction for serious crimes
frequently entailed enslavement: In the early times of the Roman city-state, the
penalty for refusal of military service or desertion was sale (as a slave) trans
Tiberim (i.e. a sale abroad, across the borders of the still tiny state which were
then marked by the river Tiber)9. In later times, every person sentenced to death,
4
Dig. 1, 5, 4, 2 = Inst. 1, 3, 3.
5
Dig. 1, 5, 5, 3 = Inst. 1, 4 pr.
6
Gai inst. 1, 84 and 91.
7
Gai inst. 1, 160.
8
Cod. 7, 24, 1 pr.
9
Dig. 49, 16, 10.
T. Rüfner, Roman Slave Law
9
to fighting wild beasts in the arena or to forced labour in a mine automatically
became a ‘slave of the penalty’ (servus poenae)10.
Sometimes, parents were forced by economic hardship to sell their children as
slaves or to abandon them. However, Roman jurists strictly maintained the dogma
that neither the buyer of a free child nor the person who raised an abandoned child
could thereby acquire legal ownership. The child remained free and – provided
the case could be proven – could bring proceedings against the presumptive
owner. However, if someone tried fraudulently to take advantage of this strict rule
by agreeing to let themselves be sold to an unwitting buyer and later prove their
freedom in the law courts, the proceedings were dismissed as abusive11. Later,
such people were not only denied the procedural remedy to regain their freedom,
but were treated as slaves in every respect12.
b) Manumission
Apart from the relatively rare cases in which a slave was freed by the state,
manumission was the only way out of slavery. The motives for manumission
varied. Sometimes a slave was manumitted to reward him for loyal services. In
other cases, the slave’s freedom was bought with money which the slave himself
or a friend or relative had put up. Slave owners could choose to set free their
slaves either during their own lifetime or after their death by testamentary
disposition.
Manumission during the lifetime of the owner was usually effected through the
ritual of manumissio vindicta. The alternative form of manumission by inscription
of the former slave in the list of citizens (manumissio censu)13 seems to have been
forgotten soon after the end of the republican period. Manumissio vindicta was a
fictitious lawsuit. The owner of the slave and another citizen appeared before a
10
Dig. 28, 1, 8, 4; Dig. 49, 14, 12.
11
Dig. 40, 12, 7 pr.-3.
12
Dig. 1, 5, 5, 1.
13
Gai inst. 1, 138-140.
10
Minerva School Jerusalem
Roman magistrate (a consul, praetor or a provincial governor). The second citizen
would assert that the slave was free, as though he wanted to institute a legal action
to declare the slave’s freedom. The owner, who intended to free his slave, would
not answer to this assertion. As the freedom of the slave was asserted by a Roman
citizen and the person who had so far possessed the slave did not deny it, the
magistrate would pronounce the (former) slave to be a free person14. – In this way,
the judicial proceeding designed to clarify the status of a person was used to effect
manumission.
Already at the end of the republican period, other forms of manumission during
the owner’s lifetime existed. Sometimes the owner would simply declare the slave
to be free in front of a certain number of witnesses (manumissio inter amicos) or
he would give him a deed recording his manumission (manumissio per epistulam).
However, the jurists of the pre-classical and classical periods did not accept these
alternative forms as fully equivalent to manumissio vindicta. Only Justinian
specifically provided for manumissio inter amicos and manumissio per epistulam
to have identical effects as the old ritual of manumissio vindicta15. Already at the
beginning of the fourth century, Emperor Constantine I. (reigned 306–337 CE)
had introduced manumission in a Christian church witnessed by the bishop and
the congregation (manumissio in sacrosanctis ecclesiis) as a functional equivalent
of manumissio vindicta16.
Testamentary manumission existed in two forms. A testator could either ordain
that a slave should become free immediately17. In that case, the manumission
became effective as soon as the deceased’s heir acquired the estate18.
Alternatively, the testator could provide for the slave first to become the property
14
Dig. 40, 2, 7-8; Dig. 40, 2, 23 – cf. the explanation of a similar ritual for the passing of
ownership (in iure cessio) in Gai inst. 2, 24.
15
Cod. 7, 6, 1, 1c-2.
16
Cod. 1, 13, 1 and 2.
17
Gai inst. 2, 267.
18
Dig. 40, 4, 11, 2.
T. Rüfner, Roman Slave Law
11
of the heir (or of a third person to whom the slave was bequeathed in the
testament) and then to be manumitted by the designated person19.
While both forms resulted in the slave becoming a free man or woman after the
master’s death, there was an important difference. Even after manumission, the
former owner (now called the freedman’s patronus or patron) retained certain
rights over the freedman or –woman. E.g. the patron was entitled to a share of the
freedman’s inheritance after his death20, if the latter died without issue. In the case
of a direct testamentary manumission, the patron was the deceased. His rights
over the freedman could only be passed on to his children, but not to any other
person21. If he died without children, then the rights of patronage would be lost. In
the case of an indirect manumission, those rights vested in the person who
acquired the slave at the testator’s death and had the task of performing the
manumissio vindicta. Thus, indirect manumission enabled the testator to make
sure that a certain person was to have the benefits of being the slave’s patron.
The patron’s entitlement to a share of the freedman’s inheritance was not the
only encumbrance on the former slave’s freedom that continued after
manumission: In many instances, manumission was conditioned upon the
freedman’s readiness to render services to the patron even after the manumission
(operae libertorum)22.
Still, the situation of freedmen in Rome was relatively good when compared to
other ancient legal systems. It was not unusual for a master to endow the
freedman or –woman with a little capital to help them start their new life23. It was
19
Gai inst. 2, 263-266.
20
Gai inst. 3, 40-41.
21
Gai inst. 3, 58.
22
Dig. 40, 12, 44 pr.; Dig. 38, 1, 31.
23
Dig. 33, 8, 6, 3; Dig. 33, 8, 14; Cod. 7, 23, 1.
12
Minerva School Jerusalem
also customary to support freedmen who were unable to feed themselves and their
families and to provide for them in one’s will24.
A particularly favourable feature of Roman manumission was that it made the
freedman a Roman citizen25. The laws of the Greek city states only gave freedman
the status of a resident non-citizen (µέτοικος). The acquisition of citizenship made
it possible for former slaves to move further up in Roman society. There are
numerous cases of freedmen who became rich and influential in Rome.
Throughout most of its history, Roman law encouraged the manumission of
slaves. The jurists employed the doctrine of favor libertatis (favour of liberty) to
uphold manumissions of doubtful effectiveness wherever possible26. The doctrine
of favor libertatis is regarded by many as evidence of a fundamentally humane
trait in Roman legal thinking. Yet, it should also be realized that it was in the best
interest of the slave owners themselves to give their slaves a realistic expectation
of manumission if they served well. The hope to be manumitted one day and to be
able to build a new life as a free citizen deterred slaves from rebellion and served
as an incentive to work hard without complaining. The doctrine of favor libertatis
made the expectation of manumission more reliable. It can thus be seen as a
means of stabilizing and perpetuating the Roman system of slavery.
In contrast to the generally favourable attitude of Roman law towards
manumission, Emperor Augustus (reigned 27 BCE–14 CE) enacted two statutes
intended to lower the number of manumissions. The first of these statutes, the lex
Fufia Caninia of 2 BCE, restricted testamentary manumissions. The number of
slaves that could be freed by will was limited in relation to the absolute number of
24
Dig. 34, 1, 2 and 4.
25
Gai inst. 1, 17; Inst. 1, 5, 3; Cod. 7, 6, 1, 1c.
26
E.g. Dig. 28, 4, 3.
T. Rüfner, Roman Slave Law
13
slaves in a household. Moreover, an absolute limit of one hundred freed slaves per
testament was introduced27.
The second Augustan statute was the lex Aelia Sentia. It introduced a general
prohibition of manumissions by an owner below the age of twenty28 or of a slave
below the age of thirty29. Manumissions in contravention of these prohibitions
were illegal and void unless the owner was able to convince a special committee
of senators and knights (consilium) that he had good reason to manumit the
slave30. Manumissions that were made in order to prejudice creditors of the master
were generally void31.
The practical impact of both statutes seems to have been limited. Justinian
abolished the lex Fufia Caninia in its entirety32 and also repealed the provisions of
the lex Aelia Sentia except for the prohibition against manumissions in prejudice
of creditors33.
2. Slaves as Property and Persons
Under Roman law, slaves are treated as things (res)34. As such they have no legal
rights35 and are under the absolute control of their owners. However, Roman law
did not completely disregard the fact that the slaves were also human beings
capable of acting rationally and taking part in business transactions. By allowing
slaves a certain degree of autonomy, Roman law not only made the slaves’ lives
more bearable, it also enhanced the slaves’ usefulness to their masters. As in the
27
Gai inst. 1, 42-43.
28
Gai inst. 1, 38.
29
Gai inst. 1, 18.
30
Gai inst. 1, 19-20.
31
Gai inst. 1, 37.
32
Cod. 7, 3, 1 and Inst. 1, 7.
33
Inst. 1, 6.
34
E.g. Gai inst. 1, 13.
35
Dig. 50, 17, 32.
14
Minerva School Jerusalem
case of the favor libertatis it is therefore not easy to determine whether the
pertinent legal rules should really be interpreted as evidence of Roman humanitas.
a) Slaves as Property
Fundamentally, slaves were regarded as property that was owned by their masters
just as they owned their houses, their farm animals and their money. Slaves could
be sold to a new master or be passed on to the heir or to a legatee at the death of
their master. Slaves could also be hired out36 or deposited with a bailee37.
Transactions involving slaves as objects are very frequently treated in the
sources of Roman law. The Digest contains many texts dealing with defects of
slaves sold38, with the obligation of an heir to surrender certain slaves to a legatee
in accordance with the wishes of the deceased39 and numerous similar issues.
There were almost no legal limits to the power of the master over his or her
slave. While it was a punishable offence (and a civil wrong) to kill or maim the
slave of another person40, the slave’s master originally even had the right to kill
the slave41. In cases of severe abuse, though, the censor – a magistrate who had
the general task of upholding morality among the citizens – would reprimand the
owner. During the Principate more severe sanctions became available: Emperor
Antoninus Pius (reigned 138–161 CE) made killing one’s own slave a criminal
offence42. In a constitutio from 319 CE, Emperor Constantine mandated that
killers of slaves be punished as murderers43.
36
E.g. Dig. 19, 2, 45, 1 pr.
37
Dig. 16, 3, 7 pr.
38
E.g. Dig. 21, 2, 65.
39
E.g. Dig. 32, 61.
40
Gai inst. 3, 213.
41
Gai inst. 1, 52.
42
Gai inst. 1, 53 = Inst. 1, 8, 2 = Dig. 1, 6, 2.
43
Cod. 9, 14, 1, 1.
T. Rüfner, Roman Slave Law
15
Slaves were incapable of having legal rights. They could not own property44,
nor could they have contractual rights or be creditors entitled to payment45. They
had no standing in the courts46. They were also unable to enter into a legally
recognized marriage47.
Interestingly, the position of slaves with regard to ownership of property is
similar to that of children under the power of their father. According to Roman
law, every father has far-reaching legal powers over his children as long as he
lives (patria potestas)48. Just like slaves, the children are incapable of owning
property or having legal rights of any kind. – Even so, the social position of
children under the patria potestas was of course very different from that of slaves.
Notwithstanding the father’s powers, the children were free citizens and were
entitled to political participation. In this way, if someone’s father lived long
enough, his son might attain high office in the Roman state (e. g. that of a consul
or praetor)49 and at the same time still be under the patria potestas. In such a case,
the consul would not even own the toga he was wearing because he was still
incapable of acquiring property rights of his own.
b) Slaves as Persons
In spite of the fact that slaves were legally regarded as pieces of property, their
acts were not devoid of legal consequences:
aa) Acquisition of Rights
Most importantly, slaves were generally able to perform the acts necessary to
acquire legal rights. The right did not vest in the slave, who performed the act of
44
Gai inst. 2, 87 = Dig. 41, 1, 10, 1; Gai inst. 2, 96.
45
Dig. 15, 1, 41.
46
Dig. 50, 17, 107.
47
Dig. 16, 3, 27.
48
Gai inst. 1, 55 = Inst.1, 9 = D. 1, 6, 3.
49
Dig. 1, 6, 9; Dig. 40, 2, 18 pr.
16
Minerva School Jerusalem
acquisition, though; it was acquired by the master50. E.g. real property was
regularly conveyed through the ancient ritual of mancipatio. A slave could take
part in this ritual and accept the property conveyed by the owner. However, since
the slave was incapable of acquiring ownership for himself, the master would
become the new owner of the property in question. By the same token, if a
contractual promise was made to the slave, the master acquired the right to
enforce the promise. A slave could even be named as heir or as a legatee in a will.
Unless the slave was manumitted in the meantime, the master became the true
beneficiary of such testamentary gifts51.
Slaves could also create liabilities for their masters, but the law was less
straightforward in that regard. If a slave made a contractual promise to another
person, the promise was void in principle: It could not be enforced against the
slave because the slave lacked legal capacity and it could not be enforced against
the master either, unless certain preconditions were met:
bb) Actio quod iussu
The slave’s promise could be enforced without any limitations if the slave had
acted with the express authority (iussum) of the master. E.g. if one Titius ordered
his slave Stichus to go and buy a toga, the seller could bring an action for the price
against Titius (actio quod iussu)52. A iussum of the master also enabled the slave
to convey the master’s property to a third person53.
cc) Actio institoria and Actio exercitoria
Sometimes, the grant of authority was implied in the appointment of a slave to a
certain task. If the master entrusted the management of a shop or another business
to a slave, all contracts made by the managing slave (institor) in the course of
running the business were binding on the master. In such cases, the remedy that
50
Gai inst. 1, 52; Gai inst. 2, 86 = Dig. 41, 1, 10 pr.
51
Gai inst. 2, 87; cf. Dig. 41, 1, 10, 1.
52
Dig. 15, 4, 1 pr.
53
Dig. 6, 1, 41, 1.
T. Rüfner, Roman Slave Law
17
lay against the master was called actio institoria54. A close relative of this action
is the actio exercitoria which lay against the owner of a ship (exercitor) who had
employed a slave as captain (magister navis)55.
dd) Actio de peculio
Another way of enabling a slave to create obligations binding on the master was
to grant the slave a peculium. The term ‘peculium’ refers to certain property which
a master handed over to the slave and allowed the slave to administer on his or
her56 own57. The peculium might consist of a certain amount of money, a piece of
land58, a shop or anything else. It might even contain other slaves (servi vicarii)59.
Technically, the peculium remained the master’s property, but the slave was
allowed to use the peculium as though it were his own; the slave was also able to
transfer the title to items of his peculium to a third party without the master’s
iussum60.
If a slave had a peculium then the master was bound to honour any contract
made by the slave, but only up to the value of the peculium (actio de peculio)61. –
Consider the following example: Stichus, a slave of Titius, has a peculium
consisting of a piece of land worth 100,000 sestertii and cattle worth another
50,000 sestertii. Now the slave takes out a loan of 200,000 sestertii from one
Sempronius which he promises to pay back within three months. After three
months, Stichus has lost all the money loaned from Sempronius and refuses to pay
back the loan. Sempronius cannot sue Stichus because he is a slave. But
54
Dig. 14, 3, 1.
55
Dig. 14, 1, 1 pr.
56
Dig. 15, 1, 27 pr.
57
Dig. 15, 1, 4 pr.
58
Dig. 33, 8, 6 pr.
59
E.g. Dig. 33, 8, 6 2 and 3.
60
Dig. 6, 1, 41, 1.
61
Gai inst. 4, 72a = Inst. 4, 7, 4 and 4b.
18
Minerva School Jerusalem
Sempronius can bring the actio de peculio against Titius. Yet, as the peculium is
only worth 150,000 sestertii, Sempronius only recover that amount from Titius.
ee) Actio de in rem verso
Even if the slave had acted without written or implied authority from the master,
this did not necessarily exclude the master’s liability: The master was liable on the
actio de in rem verso to the extent that any proceeds of the slave’s transaction
reached his pockets or were used for his purposes62. If e.g. in the case discussed
above Stichus has used the loan of 200,000 sestertii obtained from Sempronius to
pay back a debt in the same amount that his master Titius owed to one Maevius,
then Sempronius could bring the actio de in rem verso to recover the full amount
from Titius. The same holds true if Stichus has simply handed over the loaned
money to Titus or if he has used it to buy food for the household of his master. In
all these cases, the proceeds of the contract between Stichus the slave and
Sempronius are deemed to have made Titius richer. To the extent that Titius has
been enriched through the acts of Stichus, he is bound by the contractual promise
made by Stichus.
c) Tortious Acts of Slaves
It is difficult to decide whether the rules governing liability of the master for
tortious or illicit acts of a slave should be discussed under the heading ‘Slaves as
Property’ or rather under ‘Slaves as Persons’. That is why we devote a special
section to this subject. The difficulty arises, because the regime governing the
liability of masters for torts committed by their slaves applies in almost identical
manner to torts committed by children under the patria potestas63 – and to
damage caused by animals64.
62
D. 15, 3, 1 pr.; Gai inst. 4, 72a = Inst. 4, 7, 4-4b.
63
Gai inst. 4, 75; Justinian abolished the application of this regime to children under patria
potestas: Inst. 4, 8, 8.
64
Dig. 9, 1, 1 pr.
T. Rüfner, Roman Slave Law
19
If a slave committed a tortious act – like stealing or destroying the property of
another person – the master was liable for compensatory and in some cases also
for punitive damages65. However, the master could escape all further liability, if
he or she was prepared to surrender the perpetrator to the person who had suffered
it (noxae deditio)66. The original purpose of noxae deditio was probably to give
the injured party an opportunity to take their revenge on the wrongdoer. Later it
was seen as an alternative way of compensating the injured party for their loss.
The possibility of noxae deditio had the practical effect of limiting the
economic exposure of slave owners. Even though they were – in principle – liable
for damage caused by their slaves, the liability could never exceed the value of the
slave. Losing the slave was the maximum risk of the owner. If the amount of the
damage exceeded the value of the slave, the owner could resort to noxae deditio
and escape all further liability.
III. Conclusion
It is advisable to resist the temptation to judge the attitude of Roman jurists to
slaves by modern standards. The approach of Roman law is neither markedly
humane nor extraordinarily pitiless. Despite occasional remarks to the effect that
slavery was recognized by the law of nations (ius gentium) but contrary to the law
of nature (ius naturae)67, the Roman jurists did not fundamentally question
slavery as an institution. They accepted it as part of the society they lived in and
resolved all legal issues surrounding it in a highly rational and efficient way. The
question how a law of slavery was compatible with the conception of law as ‘the
art of the good and the just’68 does not seem to have occurred to them.
65
E.g. in the case of theft: Gai inst. 3, 189 and 190; Inst. 4, 1, 5.
66
Gai inst. 4, 75 ≈ Inst. 4, 8 pr.
67
Dig. 1, 1, 4 pr. = Inst. 1, 5 pr.; Dig. 1, 5, 4, 1 = Inst. 1, 3, 2.
68
See above, p. 3.