CHAPTER I. DEFINITION AND GENERAL CHARACTERISTICS.

The Institutes tell us that all men are either slaves or free^[1], and both liberty and slavery are defined by Justinian in terms borrowed from Florentinus. " Libertas,вЂќ he tells us, вЂњ est naturalis facultas eius quod cuique facere libet nisi si quid vi aut iure prohibetur².вЂќ No one has defined liberty well: of this definition, which, literally understood, would make everyone free, the only thing to be said at present for our purpose is that it assumes a state of liberty to be вЂњ natural.вЂќ

вЂњ Servitus,вЂќ he says, вЂњ est constitutio iuris gentium qua quis dominio alieno contra naturam subicitur⁸.вЂќ Upon this definition two remarks may be made⁴.

i. Slavery is the only case in which, in the extant sources of Roman law, a conflict is declared to exist between the lus Gentium and the lus Naturale. It is of course inconsistent with that universal equality of man which Roman speculations on the Law of Nature assume⁸, and we are repeatedly told that it is a part of the lus Gentium, since it originates in war⁶. Captives, it is said, may be slain: to make them slaves is to save their lives; hence they are called servi, ut servatiвЂ™, and thus both names, serous and mancipium, are derived from capture in war⁸.

ii. The definition appears to regard subjection to a dominus as the essential fact in slavery. It is easy to shew that this conception of slavery is inaccurate, since Roman Law at various times recognised types of slaves without owners. Such were

(Р°) The slave abandoned by his owner. He was a res nullius. He could be acquired by usucapio, and freed by his new owner¹.

(Р±) Servi Poenae. Till JustinianвЂ™s changes, convicts or some types of them were servi: they were strictly sine domino; neither Populi nor Caesaris*.

(d) A freeman who allowed a usufruct of himself to be given by a fraudulent vendor to an innocent buyer. He was a servus sine domino while the usufruct lasted^[2] ^{^[3].}

It would seem then that the distinguishing mark of slavery in Rome is something else, and modern writers have found it in rightВlessness. A slave is a man without rights, i.e. without the power of setting the law in motion for his own protectionВ®. It may be doubted whether this is any better, since, like the definition which it purports to replace, it does not exactly fit the facts. Indeed, it is still less exact. At the time when Florentinus wrote, Antoninus Pius had provided that slaves ill treated by their owner might lodge a comВplaint, and if this proved well founded, the magistrate must take certain protective steps^[4]. So far as it goes, this is a right. Servi publid Populi Romani had very definite rights in relation to their peculia^[5] ^{^[6]. In fact this definition is not strictly true for any but servi poenae*. Nor does it serve, so far as our authorities go, to differentiate between slaves and alien enemies under arms. But even if it were true and distinctive, it would still be inadmissible, for it has a defect of the gravest kind. It looks at the institution from an entirely nonВRoman point of view. The Roman law of slavery, as we know it, was developed by a succession of practical lawyers who were not great philosophers, and as the main purpose of our definition is to help in the elucidation of their writings, it seems unwise to base it on a highly abstract conception which they would hardly have understood and with which they certainly never worked^[7]. Modern writers on jurisprudence usually make the conception of a right the basis of their arrangement of legal doctrines^[8]. The Romans did not, though they were, of course, fully aware of the characteristic of a slaveвЂ™s position on which this definition rests.}

вЂњ Servile caput,вЂќ says Paul, вЂњ nullum ius habet². вЂќ But they recognised another characteristic of the slave which was not less important. Over a wide range of law the slave was not only rightless, he was also dutiless. вЂњ In personam servilem nulla cadit obligatio³.вЂќ Judgment against a slave was a nullity: it did not bind him or his master⁴. In the same spirit we are told that slavery is akin to death⁵. If a man be enslaved his debts cease to bind him, and his liability does not revive if he is manumitted⁵. The same thing is expressed in the saying that a slave is pro nullo⁷. All this is much better put in the Roman definition. The point which struck them, (and modern writers also do not fail to note it,) was that a slave was a Res, and, for the classical lawyers, the only human Res. This is the meaning of FlorentinusвЂ™ definition. Dominus and dominium are different words. The statement that slaves as such are subject to dominium does not imply that every slave is always owned⁸. Chattels are the subject of ownership: it is immaterial that a slave or other chattel is at the moment a res nullius^s.

From the fact that a slave is a Res, it is inferred, apparently as a necessary deduction¹⁵, that he cannot be a person. Indeed the Roman slave did not possess the attributes which modern analysis regards as essential to personality. Of these, capacity for rights is one^[9], and this the Roman slave had not, for though the shadowy rights already mentioned constitute one of several objections to the definition of slaves as вЂњ rightless men,вЂќ it is true that rights could not in general vest in slaves. But many writers push the inference further, and lay it down that a slave was not regarded as a person by the Roman lawyers¹². This view seems to rest on a misconception, not of the position of the slave, but of the meaning attached by the Roman lawyers to the word persona.

Few legal terms retain their significance unchanged for ever, and this particular term certainly has not done so. All modern writers agree, it seems, in requiring capacity for right. The most recent philosophy seems indeed to go near divorcing the idea of personality from its human elements. For this is the effect of the theory which sees in the Corporation a real, and not a fictitious person¹. If, now, we turn to the Roman texts, we find a very different conception. A large number of texts speak of slaves as persons^[10] ^{^[11]. There does not seem to be a single text in the whole Corpus Juris Civilis, or in the Codex Theodosianus, or in the surviving classical legal literature which denies personality to a slave. It is clear that the Roman lawyers called a slave a person, and this means that, for them, вЂњpersonaвЂќ meant human being^[12]. It must however be borne in mind that the word has more than one meaning. Its primary meaning is not the man, but the part he plays, and thus a number of texts, including many of those above cited, speak not of the man, but of the persona of the man. The distinction is not material, but it may have suggested a further distinction made in modern books. It is the usage of some writers to speak of two senses in which the word is used: one technical, in which it means вЂњ man capable of rights вЂќ; the other wide, in which it means simply вЂњ man^[13] ^{^[14].вЂќ But if the texts be examined on which this distinction is based, it will be found that, so far as Roman law is concerned, this means no more than that in some texts the topic in question is such that rights are necessarily contemplated, while in others this is not the case.}
A doctrine which purports to be really Roman law must necessarily be somehow rested on the texts. It is desirable to note what sort of authority has been found for the view that a slave was not a person for the Roman lawyers. One group of texts may be shortly disposed of: they are the texts which say that a slave is pro nullo, and that slavery is akin to death⁶.
These are, as they profess to be, mere analogies: they shew, indeed, that from some points of view a slave was of no legal importance, but to treat them as shewing that persona means someone of legal importance is a plain begging of the question. The others are more serious. There is a text in the Novellae of Theodosius⁶, (not reproduced in JustinianвЂ™s Code,) which explains the slaveвЂ™s incapacity to take part in legal procedure by the fact that he has no persona. This seems weighty, as it draws legal consequences from the absence of a persona. But it must be noted that similar language is elsewhere used about young people without curators^[15], and the true significance of these words is shewn by a text which observes that a slave is not a persona qui in ius vocari potest². A text in the Vatican Fragments (also in the DigestвЂ™) says that a serous hereditarius cannot stipulate for a usufruct because ususfructus sine persona constitui non potest. This is nearer to classical authority, but in fact does not deny personality to a slave. That is immaterial; the usufruct could never vest in him. The point is that a hereditas iacens is not a persona, though, for certain purposes, perВsonae vicem sustinet*. Thus in another text the same language is used on similar facts, but the case put is that of filius vel serous⁶. A text of Cassiodorus* has exactly the same significanceвЂ™. There are however two texts of TheophilusвЂ™ (reproducing and commenting on texts of the Institutes) in which a slave is definitely denied a persona. He explains the fact that a slave has only a derivative power of contracting or of being instituted heir by the fact that he has no persona. The reason is his own: it shews that in the sixth century the modern technical meaning was developing. But to read it into the earlier sources is to misinterpret them: persona, standing alone, did not mean persona civilis². Slavery has of course meant different things at different times and places¹⁰.
In Rome it did not necessarily imply any difference of race or language. Any citizen might conceivably become a slave: almost any slave might become a citizen. Slaves were, it would seem, inВdistinguishable from freemen, except so far as some enactments of late date slightly restricted their liberty of dress^[16]. The fact that all the civil degrees known to the law contained persons of the same speech, race, physical habit and language, caused a prominence of rules dealing with the results of errors of Status, such as would otherwise be unВaccountable. Such are the rules as to erroris causae probatio¹², as to the freeman who lets himself be sold as a slave¹вЂ™, as to error in status of the witness of a will¹, and other well known cases^[17] ^{^[18]. There was also a rule that where a man, who afterwards turned out to be a slave, had given security iudicatum solvi, there was restitutio in integrum^[19]. To the same cause are expressly set down the rules as to acquisition through a liber homo bona fide serviens*, and the rule that the bona-fide sale of a freeman as a slave was valid, as a contract, quia difficile potest dignosci liber homo a servo³. The well-known rule that error communis facit ius had more striking illustrations than those already mentioned. Thus, though a slave could not validly be appointed to decide an arbitration^[20], yet an arbitral decision by one apparently free was deВclared to be valid though he ultimately proved to be a slave^[21]. And where a fugitive slave was appointed Praetor, his official acts were declared by Ulpian to be valid^[22]. Slavery did not necessarily mean manual labour: the various services involved in the maintenance of an establishment in town or country were all rendered by troops of slaves, having their appropriate official names, derived from the nature of their service. It is not necessary to recite these names: numbers of them will be found in the texts dealing with the interpretation of legacies and contracts^[23]. A broad distinction is repeatedly drawn between Urban and Rustic slaves, as it was customary to make legacies of the one or the other class geneВrally, probably with other property. Mancipia rustica were, broadly, those engaged in the cultivation of land and other rural pursuits; urbana were those whom paterfamilias circum se ipsius sui cultus causa habet^[24], elsewhere defined as quae totius suppellectilis notitiam gerunt'¹. The cook and the philosopher were alike urban, the land-agent (milieus) and the labourer were alike rustic. The distinction is founded partly on mode and place of maintenance, partly on nature of service, and partly on direct statement in the ownerвЂ™s register of slaves¹². Indeed in the construction of legacies, as the testatorвЂ™s intention was the point to be determined, this register was conclusive where it was available¹³. Place of residence was not conclusive; non loco sed usus genere dis- tinguunturV Residence might be temporary : a child put out to nurse in the country was not on that account rustic². Even nature of service was not conclusive. Some forms of service were equivocal, e.g. those of venatores and aucupes³, agasones or muliones*, or even dispensatores, who, if they were managing town properties were urban, but if they were in charge of a farm were rustic, differing little from villid³.
For many of their employments special skill and training were necessary, and a slave so trained (arte praeditus) acquired, of course, an added value, especially if he had several artifida³. In some texts a distinction is drawn, in this connexion, between offidum and arti- fidum¹. The language of Marcian suggests, as do other applications of the word, that an offidum was an occupation having reference to the person or personal enjoyments of the dominus³. The distinction is not prominent and was probably of-no legal importance, except in the construction of legacies and the like.
Work of the most responsible kinds was left in the hands of slaves. Among the more important functions may be mentioned those of negotiator, librarius, medicus, actor, dispensator, milieus, paedagogus, actuarius³. They managed businesses of all kinds¹⁰. We find a slave carrying on the trade of a banker without express orders¹¹. A slave rents a farm and cultivates it as tenant, not as a mere steward¹². Aulus Gellius¹³ gives a list of philosophers who were slaves among the Greeks and Romans. Broadly, it may be said that in private life there was scarcely an occupation in which a slave might not be employed: almost any industry in which freemen are now engaged might be carried on in Rome by slaves. It must however be rememВbered that all this is not true in the greater part of the Republican period. In that period the evidence shews that slaves were relatively few and unimportant¹⁴. And in the decline of the Empire there was a tendency to exclude slaves from responsible classes of employment, and to leave these in the hands of freemen¹⁵.
It is obvious that slaves so differently endowed would differ greatly in value. It is improbable that the increase in number involved any
I 33. 7. 12; 33. 10. 12, etc. ³ 50. 16. 210. ⁸ 32. 99. 1; P. 3. 6. 71.
* 32. 60. 1. 99. 2; P. 3. 6. 72. ⁸ 50. 16. 166.
⁶ 32. 65. 2; C. 5. 37. 22. Teaching slaves artes was among utiles impensae for the purpose of Dos. 25. 1. 6.
⁷32. 65. 1; 40. 4. 24; 50. 15. 4. 5; etc.
⁸32. 65. 1. See Brissonius, De Verb. Sign., Bub v. ojficium.
⁹ 9. 2. 22; 32. 64; 38. 1. 25; h. t. 49; 40. 5. 41. 6;вЂ?4O. 7. 1. 21. or.; 40. 12. 44. 2; P. 3. 6. 70; G. 1. 19, 39, etc.
w 14. 3. 5. 7. See Marquardt, Vie privee des Romains, i. Ch. iv.
II 2. 13. 4. 3.В· 12 33. 7. 12. 3. 20. 1. Cp. 33. 7. 18. 4.
¹⁸ Noct. Att. 2.18. For further reff. see Girard, Manuel, 93 sqq.
^u For further details as to the number of slaves at different epochs and as to their varied and independent employments, see Wallon, op. cit. ii. Ch. m.; Sell, Noxalrecht, pp. 129 sqq.\ Friedlaender, Sittengesch. ii. 228 (ed. 7); Voigt, Rom. R. G. 1. llSsjo.; Marquardt, loc. cit.; Blair, State of Slavery among the Romans, Ch. vi. В» Post, Ch. xiv. diminution in exchange value of individual similarly qualified slaves, for it was accompanied by a great increase in quantity of other forms of convertible wealth. Changes in economic conditions and repeated alterations in the intrinsic value of coins called by a particular name, make the task of tracing the changes in value of slaves too difficult to be attempted here. It is clear however that they were of conВsiderable value. In A.D. 139 a female child of six years of age was sold for 205 denarii¹. This seems a high price, and the presence in the contract note of the unexplained expression, вЂњ sportellaria empta,вЂќ leads Mommsen^{^[25]} ^{^[26]} to suppose that she was thrown in, вЂњsportulae causa,вЂќ in the purchase of her mother. But the price seems too low for this. In general, in classical times, the prices for ordinary slaves seem to have varied from 200 to 600 denarii^{^[27]}. These are ordinary commercial prices. Of course, for slaves with special gifts, very much higher prices might be given, and occasional enormous prices are recorded by the classical writers^{^[28]} ^{^[29] ^[30]}. The prices in JustinianвЂ™s time seem a little, but not much, higher. Two enactments of his fix judicial valuations, one for application in case of dispute where there is a joint legacy of Optio Seroi, the other for the case of manumission of common slavesвЂ™, and they are almost identical. The prices range from 10 solidi for ordinary children to 70 for slaves with special skill who were also eunuchs. From another enactment of his it appears that 15 solidi was a rather high priceвЂ™. Other prices are recorded in the Digest^{^[31]}, ranging from 2 to 100 solidi. But these are of little use: nearly all are imaginary cases, and even if we can regard them as rough approximations to value, we cannot tell whether the figures are of the age of Justinian or were in the original text. Another indication of price is contained in the fact that 20 solidi was taken as about the mean value of a slave by legislation of the classical age^{^[32]}.
It may be well to make some mention of the more important terms which are used as equivalent to serous, or to describe particular classes of slaves, in the sources. Serous appears to be used generally, without reference to the point of view from which the man is regarded. Man- dpium is usually confined to cases in which the slave is regarded as a chattel. Thus it is common in such titles as that on the Aedilician Edict⁸, but not in such as that on the Actio de peculio'⁰. Ancilla is
CH. l]
Nomendature
the usual term for an adult female slave, though mulier is of course found, and serva more rarely¹. Children are called puer and puella. Puer, for an adult, though it is common in general literature, is found only occasionally in the legal texts^[33] ^{^[34] ^[35]. Puella seems never to be used there without the implication of youth. A vema is a slave born and reared in the house of his master, and occupies a somewhat privileged position, but in law his position is not different from that of any other slave. A novidus* is an untrained slave, as opposed to a veterator, an experienced hand, or, more exactly, a man trained for a particular function. The edict of the Aediles contained a provision that a veteВrator was not to be sold as a novidus, the point apparently being that, at least for certain purchasers, a man not trained to a particular kind of work was more valuable, as being more readily trained to the work for which the purchaser wanted him. The provision seems to be menВtioned only twice^[36] ^{^[37] ^[38] ^[39]: the surviving contract notes shew that it was not necessary to state which he was; indeed, in none of them is the slaveвЂ™s employment mentioned. It was a secondary provision of the edictвЂ™; in fact it seems to have been found necessary to declare that the statement that a man was untrained was a warranty, because, while it was plain that to sell, as a trained man, one who was untrained, was a fraud, it was not so obvious that any material wrong was done in the converse case.}}
The morality of slaves is not within our scope. It is clear on the literary tradition that they had notoriously a bad reputation. The special legislation which we shall have to notice will sufficiently shew the state of things at Rome. But we need not go into details to prove for Rome what is likely to be a concomitant of all slavery^[40].}}

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Source: Buckland W.W.. The Roman Law of Slavery. Cambridge University Press 1908, repr.1970. вЂ” 754 p.. 1970

CHAPTER I. DEFINITION AND GENERAL CHARACTERISTICS.

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