10 Pigs, Boars and Livestock Under the Lex Aquilia

GRANT McLEOD (EDINBURGH)

This chapter tries to answer a simple question on what is perhaps a small point. But scholarship depends on accumulating correct answers to such questions, as Alan Watson would surely agree.

My central text is an extract from Gaius in the Digest. He begins by giving the actual wording of chapter one of the lex Aquilia, or at least what he considers it to be. Then at section 2 he deals with the issue of which animals it covers:

“Chapter one of the lex Aquilia provides: �If anyone unlawfully kills a male or female slave belonging to someone else or a four-footed livestock animal [pecus], let him be condemned to pay the owner its highest value in the past year’.... 2. So it seems that the lex Aquilia equates with our slaves four-footed animals of the livestock [pecudes] class which are kept in herds, such as sheep, goats, oxen, horses, mules and asses. But are pigs to be included under the heading �livestock’ [pecudes]? Labeo quite rightly holds that they are. However, a dog is not part of the livestock. A fortiori wild beasts are not in this class, like bears, lions and panthers. Elephants and camels, though, are as it were mixed, since on the one hand they work as draught animals but on the other they are wild by nature and so they should be covered by the first chapter”.^[164]

What, then, exactly is a “livestock animal”, a pecus, for this purpose? The Oxford Latin Dictionary entry for pecus,-udis (f.) gives its meaning as “any ani­mal, bird, etc., included under the heading of the livestock of a farm”.² This wide sense of the term may have worried the draftsman of the lex.

Neither the restriction of having four feet, however, nor the everyday mean­ing of the word turned out to be precise enough for the jurists. Gaius in the text above suggests two further criteria for deciding whether an animal was a pecus. The first is the herd criterion, presumably explaining why dogs were excluded. Varro too, as we shall see, put dogs in a different category from other farm ani­mals.⁵ The second is the domestication criterion, so that truly wild beasts are excluded. Whether Gaius was responsible for these criteria or some earlier jurist we cannot say. They are certainly not explicitly attributed to Labeo; he might simply have dealt with pigs on an ad hoc basis, without worrying about general rules on this small point. Gaius may then have been the first to articulate rules about pecudes being domesticated herd animals, spelling out what had previ­ously been implicit in the term pecus. But even for Gaius there are three doubt­ful cases: pigs, elephants and camels. The part of the text on elephants and camels is peculiar and interpolation has been suggested.⁶ Gaius does, however, deal with the question of whether they are to be included in the category of res mancipi in his Institutes,⁷ so it is possible that he also discussed them here.

² OLD, sub voce “pecus”.

³ See D. 9.1.1pr (Ulpian 18 ad edictum); D. 9.1.4 (Paul 22 ad edictum).

⁴ See text infra at n.16.

⁵ See text infra at n.16.

⁶ See U Wesel, Rhetorische Statuslehre und Gesetzauslegung der romischen Juristen (Cologne, 1967) 51, citing the earlier literature.

⁷ G. 2.16.

⁸ D. 21.1.38.4 (Ulpian 1 ad edictum aedilium curulium) says “the term â€?draught animals’ means one thing, â€?livestock’ means something else”. simply be Gaius’s rather condensed way of saying that elephants and camels are sometimes domesticated as draught animals, in which case he is merely apply­ing the domestication criterion to them. Assuming that Gaius did say something about elephants and camels here, it is difficult to avoid the assumption that, fol­lowing on from what he had just said about wild beasts being excluded, he was asking whether creatures that were sometimes wild and sometimes tame could ever be considered pecudes. Elephants and camels, though known to the Romans of the late Republic and Principate, presumably did not often figure in actual cases on damage to private property.^[165] Gaius may well have been the first to deal with them, perhaps largely as an academic issue. As we shall see, the par­allel passage in Justinian’s Institutes does not mention them.

But how could there ever have been any doubt over whether pigs were pecudes and whether killing them gave rise to an action under chapter one of the lex Aquilia? Yet we know from the Gaius text there was some problem with them which Labeo pronounced on.

Justinian’s Institutes, having given a version of the wording of chapter one of the lex, goes on to say that it only covers pecudes, so that:

“We should not take it as applying to wild beasts or dogs, but only to those animals which can properly be said to graze [quae proprie pasci dicuntur] such as horses, mules, asses, oxen, sheep and goats. The same is held [placuit] to be true of pigs, for pigs are also included under the term �livestock’ [pecora], because they graze in herds too. Indeed Homer also says this in his Odyssey, as Aelius Marcianus notes in his Institutes: �You will find him sitting with his pigs as they graze by the Raven’s Crag near the spring of Arethusa’.”^[167]

There are obvious similarities with the Gaius text but also differences. First, although Justinian starts off by using pecus, - udis (f.), the word that appeared in the lex, he ends up with the term pecus, - pecoris (n.). They are obviously related words and there does not seem to be any difference in meaning between them; Varro uses them as interchangeable expressions for livestock.^[168] The rea­son for this change will become clear in a moment. The second difference from Gaius is the use of a new criterion for deciding whether an animal is a pecus, the grazing criterion. Like the herd criterion, this is another way of trying to spell out what was probably always implicit in the word itself.

Now we see why the Institutes text changes from pecudes to pecora. The compilers have taken this passage from Marcian on legacies of pecora and whether they included pigs and applied it to a different question, whether pigs are pecudes within the meaning of chapter one of the lex Aquilia. The definition of pecora is attributed to Cassius but it seems it was Marcian himself who was responsible for the part about pigs and the quotation from Homer, which sounds like a learned flourish rather than a genuine argument. Indeed it proba­bly appealed to the compilers of Justinian’s Institutes for that very reason.^[170] However there is no evidence that Cassius, Marcian or the compilers of the Institutes knew what Labeo’s Aquilian problem with pigs was, nor that any of them attributed to Labeo any argument based on pigs grazing in herds.

It is hard to believe that there was ever a time before or after Labeo when any jurist could have doubted that pigs grazed in herds any more than that they had four feet. It must have been a fact of everyday country life. Both Varro and Columella refer to pigs doing just this.^[171] Indeed, how could there ever have been any good legal argument against the proposition that a pig was a pecus? Varro, who lived from 116 to 27 BC, and thus provides us with evidence of agricultural practice from an older contemporary of Labeo, has the following passage on livestock:

“[T]here is a science of keeping and grazing [pascere] livestock [pecora]...

Varro seems to use pecora and pecudes as alternatives. Dogs are not consid­ered to be pecudes, just as in the Gaius text, though their connection with live­stock is explained. Unlike Gaius, Varro does not think that mules are pecudes either. But Varro expresses no such doubts about pigs—they are pecudes in the full sense. Wesel sets out clearly the standard modern solution to this problem. It supposes that there was a Republican controversy over whether pigs were pecudes for purposes of chapter one of the lex Aquilia. The controversy arose because, then as now, the other pecudes on Gaius’s list have a value and purpose while they are alive. Sheep give wool, goats give milk and oxen, horses, mules and asses can pull or carry things. But pigs are not the same; they are only use­ful once they have been slaughtered.^[173] Wesel’s theory assumes that some Republican jurists argued successfully that there was no difference in the value of a live pig and a dead one. One could almost claim that killing the pig has done its owner a favour by saving him the trouble of having it slaughtered! There are a number of objections to the theory, however, which may save us from this rather odd result.

First, it is not true that all pigs were worth the same dead as alive. The theory ignores the existence of the breeding boars and sows mentioned by Varro and Columella.^[174] To quote Marvell rather than Homer:

“The grave’s a fine and private place, But none, I think, do there embrace”^[175]

and where there is no “embracing” there are no piglets! Wrongdoers might have deprived a breeding boar or sow of three or four years of active life in this sense, causing their owners substantial loss. Why then should they not be sued under chapter one of the lex Aquilia? Secondly, it is not true that pigs were always worth the same dead as alive. It has been suggested that the value of slaves and grazing animals was subject to seasonal fluctuations, in the sense that they would always be less valuable in winter.^[176] The first chapter of the lex Aquilia took account of this by giving the owner of the slave or pecus killed in winter its highest value in the past year, that is the summer price. This seems a probable explanation of the time period under chapter one and it is difficult to see why the rule would not apply equally to domestic pigs.²¹ Another objection to this view on pigs is the absence of support for it in the agricultural writers; none of the texts Wesel cites from them actually make this point.²² The only original text he cites which does so is from Cicero: “It would take a long time to describe the uses of mules and asses, which were clearly created for the utility of mankind. As for the pig, what is it for other than food?... and because this pecus was designed to provide nour­ishment for man, nature created nothing more prolific”.²³ Cicero actually calls the pig a pecus; and however prolific the species may be it cannot reproduce without the breeding boars and sows mentioned above.

As well as what might be called these agricultural objections there are, how­ever, legal problems with Wesel’s theory. It assumes a long-running Republican juristic dispute over the application of the lex Aquilia to pigs not finally settled until the time of Labeo. Exactly how long a dispute depends, of course, on the date of the lex, which is controversial. Most scholars still argue for a date around 287 BC.²⁴ Even if passed later, it must have been before around 141 BC, for Brutus to have commented on it;²⁵ that would still be more than a century before Labeo’s time. It seems difficult to believe that controversy could have gone on for so long over the killing of such a common animal. Finally, the adherents of this theory do not spell out the full Aquilian consequences of doubting whether chapter one applied to pigs because they were worth the same dead as alive. Presumably the Republican argument here would have been framed in terms of the market value of the pig being the same before and after the killing, so that the damages in a chapter one action would be zero. As Daube has shown, this calculation based on market value was simply the rather unso­phisticated way in which the question of the owner’s loss (damnum) was origi­nally approached under chapter one.²⁶ If pigs were not covered by chapter one of the lex during the Republic would they fall under chapter three?²⁷ A later text by Gaius suggests this as a possibility for the killing of animals that were not pecudes: “The third chapter deals with all other loss (damnum). Therefore it

²¹ Varro says at 2.4.6 that pigs should not be turned out to pasture in winter until the frost has disappeared and the ice melted; this must mean that they require more indoor feeding. At 2.4.13 he says pigs born in winter are apt to grow thin because of the cold and their mothers’ lack of milk.

²² Wesel cites Varro 2.4.1; 2.4.4; 2.4.5 and Columella 7.9.1; 7.9.2; 7.9.6.

²³ Cicero, de Natura Deorum, 2.160.

²⁴ For a discussion of the recent literature, see Zimmermann, supra n.17, 955. P Birks, “Wrongful Loss by Co-promisees”, (1994) 22 Index 181, has recently argued for a date immediately before 141 BC.

²⁵ D. 9.2.27.22 (Ulpian 18 ad edictum).

²⁶ D Daube, “On the Use of the Term Damnum", in Studi Solazzi (Naples, 1948) 93, at 141 and 144.

²⁷ D. 9.2.27.5 (Ulpian 18 ad edictum) says that the third chapter began with the words “Of other things, besides slaves or cattle killed” (“ceterarum rerum praeter hominem et pecudem occisos”). For literature on whether these words actually appeared in the lex and on the controversy over the original scope of chapter three, see Zimmermann, supra n.17, 956 and 962—9. Whatever its original scope, by classical times the third chapter was interpreted as covering any kind of property not cov­ered by chapter one (see G. 3.217, infra n.28). Even those, such as Jolowicz and Daube, who argue for an originally more restricted scope assume that the classical position had been reached before Labeo’s time. provides an action... if a four-footed animal not in the pecudes class such as a dog or a wild beast (bestia) like a bear or a lion is wounded or killed”.^[177] Thayer says that “the utility of pigs suggests a difficulty as to interest” in that “no dam­age may result from merely killing an animal bred only for food. The rules for wounding... should apply in these cases”.^[178] That is, he thinks that pigs should always have been covered not by the first but by the third chapter, and that not only Labeo and Gaius but also the draftsman of the lex failed to grasp this point! This will not do. If the defendant has suffered no loss, he has no Aquilian action at all, not just no action under chapter one. Chapter three actually uses the word damnum, as does Gaius in the text just quoted.^[179] Even one of the texts that Thayer himself cites in his favour shows that there can be no Aquilian action under chapter three if there is no loss.^{[180] [181]} So the logical outcome of the theory would be that killers of pigs would go scot-free as far as Aquilian liability was concerned. Moreover, this would not simply have been a Republican problem; the texts on loss we have just cited are from the classical age. Indeed one might wonder what ingenious argument Labeo did put forward to counter this view so as to include pigs under chapter one. Or is there any possible alternative to the standard theory that would avoid these strange results?

The key to Labeo’s problem, I would suggest, is to be found in another pas­sage from Varro. He has just been discussing early man’s domestication of wild beasts and he notes that the wild versions of common farm animals still exist: “Even now there are several kinds of wild livestock [pecudes ferae] in many places, such as sheep in Phrygia... As for pigs, everyone knows about them, apart from those who think that wild boars ought not to be called pigs [nisi qui apros non putat sues vocari]”.32 It is interesting that he can use the expression “wild livestock” here. The wild version of the domestic pig (sus) is the wild boar (aper). What Varro says—and the way he says it—suggests that he and most people of his time thought that an aper could be called a sus, though there was a view to the contrary; there was certainly room for doubt. Varro was not the only Latin writer to use the word sus in this way. Ovid, who lived from 43 BC to 18 AD, and was thus a contemporary of Labeo, uses it of the legendary Calydonian boar.^[182] Virgil also calls a ferocious boar a sus in his Georgics.^[183] Other examples of this usage can be found in the Oxford Latin Dictionary.^[184]

Let us suppose, then, that the case put before Labeo was the killing of a wild boar, an aper.^[185] The plaintiff who had suffered the loss would want to claim that it was a kind of pig and therefore a pecus, just like a domestic pig. This approach assumes that there had never been any doubt that domestic pigs were pecudes. So according to the plaintiff, the killing of his boar would be covered by chapter one of the lex Aquilia with its more favourable measure of damages than chapter three. The defendant would have had to argue the opposite. Labeo’s opinion might simply have been in favour of the plaintiff, that is that an aper was a kind of sus. This after all seems to have been Varro’s view. Labeo might then have said something like “all pigs are included under the heading of pecudes”, so as to include boars. He might just as easily have found for the defendant, however, and said “only domestic pigs are included under the head­ing of pecudes”, so as to exclude boars. Either way the original context of the decision was lost. Gaius then reports Labeo’s decision as being about domestic pigs and can only agree, perhaps in a rather puzzled way, that of course Labeo was right to include them.

In the final section of this chapter I should like to suggest a setting in Roman life when the issue of Aquilian liability for killing someone else’s wild boar might arise. The English expression “wild boar” itself hints at the problem here; how could a plaintiff ever claim that he had owned the wild boar that the defen­dant killed? He would have to do this to satisfy the requirements under chapter one that the animal belonged to him and that the damages should be paid to him as its owner.^[186] The answer is that some wild boars were less wild than others. Another passage from Varro shows what I mean:

“You know, Axius, boars [apri] can be kept in a warren [leporarium] without much trouble and those that have been captured and the tame ones born there usually grow fat in them. On the estate near Tusculum which Varro here bought... you saw wild boars and goats gather for food when a horn was blown at a set time... I myself... saw it done in a more Thracian way at the home of Quintus Hortensius near Laurentum... There was a forest which covered more than fifty iugera; it was enclosed by a wall and he called it not a warren but a game-park [therotrophium]”.^[187]

Varro knows about keeping apri in game-parks from personal experience. They are clearly tame, or almost so; some have even been bred in captivity. They live in an enclosed area. Quintus Hortensius and Varro could reasonably claim to own them and wish to bring an Aquilian action against anyone who killed such a beast without their permission.

The value of these boars to their owners did not lie simply in their being a source of fresh meat. Game-parks were also places of entertainment, where guests could hunt or watch these animals being hunted, as Columella describes in the following text:

“I come now to the keeping of wild pecudes... which can also be said to be fed on the farm, since ancient custom set up game-reserves [vivaria] for young hares, goats and wild boars [sues feri] near the farm, usually within sight of the owner’s home, so that he could enjoy seeing them hunted in the enclosure; and when the custom of giving feasts demanded game, it could as it were be taken out of store”.^[188]

Like Varro, Columella has no difficulty calling wild boars pigs (sues), or with the idea of “wild” pecudes. The leisure aspects of these parks along with their size suggest they were always rich men’s indulgences. It is hard to visualise the peasant farmers of the early Republic keeping wild boars in this way and indeed a text of Pliny suggests that such a thing had only been introduced in Varro’s lifetime.^[189] This would explain why Labeo, his younger contemporary, might have been the first jurist to pronounce on whether they were covered by chapter one of the lex Aquilia. Clearly later classical jurists encountered legal problems with these game-parks. In one text Tryphoninus discusses the rights of usufruc­tuaries over the animals in them.^[190] In another Paul deals with the question of the ownership of genuinely wild animals placed in game-parks.^[191] Aquilian prob­lems over killing such animals are not then unthinkable.

There are two texts that might seem to go against my theory. One of these, from Gaius, has already been quoted above.^[192] In it Gaius says that the killing of an animal not in the pecus class like a dog or a wild beast is covered not by chap­ter one but by chapter three. If an aper had always been classified as a wild ani­mal then there could never have been any doubt about whether it was covered by chapter one, even in Labeo’s time. But the examples of wild beasts that Gaius gives—bears and lions—suggest that he means truly wild, ferocious creatures that could never be thought of as pecudes. He would not necessarily have taken the same view of the almost tame boars mentioned above. Indeed if Gaius in our central Digest text quoted above did discuss animals which, like elephants and camels, were sometimes tame and sometimes wild, his conclusion was that such creatures were covered by chapter one.^[193]

The second text, by Ulpian in the Digest, actually mentions wild boars: “The action under this [the third] chapter of the lex can be brought over damage to all animals which are not pecudes, for example a dog; but the same can be said of boars (apri) and lions and all other wild beasts and birds”.^[194] Again the placing of boars and lions in the same category suggests that Ulpian meant that only genuinely wild boars were not pecudes. Such animals were often hunted in the Roman world and appear in the Digest in this context;^[195] there can be no doubt that killing them would be covered by chapter three not chapter one of the lex Aquilia.

To sum up, there was never any Aquilian problem over killing ordinary domestic pigs in Roman law. They were clearly one of the kinds of four-footed pecudes that the draftsman of the lex intended chapter one should cover. There was no Republican juristic controversy over them. Labeo’s opinion was given in a case about a special kind of pig that had recently become fashionable, a “wild” boar kept in a game-park. But the context of Labeo’s decision was forgotten, so that by Gaius’s time it was simply taken as authority for the view that domestic pigs were pecudes for this purpose, a statement with which Gaius can only agree. Marcian in a different context later quoted Homer to prove that domes­tic pigs were pecora because they grazed in herds. This appealed to the compil­ers of Justinian’s Institutes, who inserted it as a kind of learned footnote to an Aquilian issue they did not really understand. The picture presented here is very different from the standard one found in modern scholarly works. But the truth about pigs deserves to be rooted out from underneath the debris on the forest floor however long it has lain there.^[196]