CHAPTER VI LABOUR

The labour force of Rome consisted partly of free men (free-born and freed) and partly of slaves. It is not possible to make satis­factory generalizations about their relative numbers, except that obviously, while all slaves were part of the labour force, many free men were purely consumers.

�If a master wounds or kills a slave when disciplining him, is he liable under the Aquilian for �loss caused contrary to the law’? Julianus writes that the man who put his pupil’s eye out when disciplining him is liable under the Aquilian; all the more will the same hold if he killed him. Julianus also discusses the following situation: a shoemaker who had a free Jilius fatnilias as apprentice struck him with a last for not doing properly what he had shown him, and knocked the boy’s eye in... /

It is also characteristic that the code of regulations for the mining district of Aljustrel, when it lays down penalties for various offences connected with work in the shafts, like damaging pit­props, prescribes them for free workmen and for slaves; and it requires under certain circumstances a return from the contractor ofâ€?the number of slaves and free workers (mercennarii) he is putting in for this work’.⁴ Of course, the upper class thought working for one’s living at all rather sordid, but apart from that only one clear distinction can be drawn—the ancient and ubiquitous reluctance of the free-born to â€?do the washing-up’, to do, in fact, anything that could be thought of as domestic or household service.

*

The principal mode of acquisition of slaves, as distinct from having them bom and reared in your own household, was purchase from the slave-trader in the market. In one of the great nineteenth­century treatises there was given a masterly picture of the slave­market,⁷ with its total humiliation of the human personality taken for granted by all, and there is little to add;⁸ perhaps just the sinister—because casual—remark of Labeo in the Digest:⁹

�If you have contracted to transport slaves you cannot claim the passage-money for any slave that dies on board;’

perhaps just also the receipt given by the slave-trader from Miletus operating in Ravenna:¹⁰

�In the consulship of C. Curtius lustus and P. Julius Nauto, 2 October, I, Aeschines Flavianus, son of Aeschines, of Miletus, have written that I have received from Titus Memmius Montanus, ordinary seaman in the Augustan fleet, six hundred and twenty-five denarii, the price of a slave woman of Mar- maric origin.... Transacted in the camp of the praetorian fleet of Ravenna.’

In this large department of ancient business many shady characters operated. Slave-dealers, venaliciarii, says Paulus, get together in companies so as to â€?pass the buck’ when customers complain about the quality of their goods.¹¹ Consequently the aediles of Rome, who were responsible for the markets, propounded in their edict certain special actions and conditions which form a cele­brated chapter in the Roman law of sale.¹²

The ordinary principle in sale was caveat emptor; it was up to the buyer to take care that he did not make a defective purchase, and he could not complain afterwards.

�Since the defendant had known the facts at the time of sale, and had not disclosed, he must be liable to the buyer for his loss.’

Also, if there was an express guarantee in a contract that the goods had certain specific qualities, and they did not, the seller was liable. But the weakness in all this is clearly that it might be difficult to prove that the seller had known of a defect which you discovered. Therefore the aediles imposed upon the market for slaves and cattle a special and extremely severe rule, that (unless there was specific pact to the contrary—an important proviso)¹⁴ the seller must openly guarantee against a wide range of defects and was liable for them even if he had not known:¹⁵

�The aediles say: “Those who sell slaves are to inform buyers what illness or defect is in each, who is a fugitive or tends to wander, and who is undischarged from noxa (i.e. has committed an offence for which whoever owns him must pay up or surrender him),... and we shall give to the buyer or whoever it concerns an action that the slave be taken back.” It must be realized that the seller must be Hable even if he did not know the things the aediles require to be guaranteed; and this is right, because the seller could have found them out, and it is irrelevant to the buyer why he is deceived, whether through ignorance on the part of the seller or fraud.’

As a text of social history on the attitude to slaves, the discussions under this Digest title about what constitutes �illness’ and �defect’ are illuminating.

�If a slave has had his tongue cut out, there is a question whether he can be regarded as “sound”; the question appears in Ofilius in the case of a horse, and he says he does not think the horse is sound.

�There is a question about the case of a woman whose offspring are still-born every time, whether she is “unsound”; and Sabinus says that if this is due to a defect of her womb she is unsound.

�There is also a problem about the enuretic..

But to return to the aedilician rules: discovery of any of these defects gave the purchaser the right to an actio redhibitoria, a â€?handing-back action’, which simply means that he was entitled, within six months, to return the slave or beast and recover his price. (Perhaps, as an alternative, he could have within a year an actio quanti minoris for reduction of the price, but many think this post-classical.)¹⁸ Gaius tells us rather surprisingly that the edict of the aediles ran in the â€?provinces of the Roman people’, where the quaestors had the aedilician jurisdiction, but not in the â€?provinces of Caesar’, where nobody had it.¹⁹ (It must also be kept in mind that the edict applied only to slaves and cattle.) But the aediles went further. Not only defect but also eviction was a serious problem. Mancipation of res mancipi carried with it an ancient liability for double the value if the buyer was deprived of his thing by someone with a better claim, for example if the real dominus turned up and vindicated it. But the dealer would often be a peregrine, who could not mancipate anyway; you could acquire ownership by usucapio, of course, but, worse still, you did not know how he had come into possession of the slave, who might be res furtiva and so not susceptible of usucapio. So the aediles made it possible for the buyer to insist on a promise in the contract for reimbursement in case of eviction.

�There is usually a promise that the slave is healthy and free from theft and noxa\ or if the slave is not being mancipated a promise of double the value or (if such is the agreement) of the simple value.’

This custom the aediles made obligatory; and the promises thus made were actionable like any contractual promises in any jurisdiction, not only that of the aediles themselves.

There survive several contracts of sale of slaves in which we can see these clauses working. Of particular interest are those which turned up amongst the Herculaneum Tablets, because they make specific reference to the aedilician edict as it was propounded in Neronian days. Here are three passages:²¹

�(if possession is disturbed) then the sum for which the slave was bought, of that sum promise was called for by Hamillus, slave of Vibidia Procula, and duly given by Claudia Musa with authorization of her guardian M. Antonius Phaetus.’

�that the aforesaid slave woman is guaranteed sound, free from theft and noxa, not a fugitive or liable to wander, or that whatever sum has been laid down and settled by the authority of the curule aediles as customary in the buying and selling of slaves in the present year shall be paid; promise that all these things shall thus properly be paid and done was called for by Calatoria Themis and duly given by C. lulius Phoebus.’

�... and that if anyone makes eviction of said slave or any share in him to the detriment of the lawful possession of L. Cominius Primus or his heir, the simple value shall be given for the object; that these things are properly guaranteed as is customary, promise was called for by L. Cominius Primus and duly given by P. Cornelius Poppaeus.’

The extent to which the forms were standard will be apparent if we look at just two more documents, from places far apart in the Roman world. The first is one of the Transylvanian Tablets, the wooden triptychs from Verespatak in Hungary, a mining community in the Roman province of Dacia.

�Dasius, Breucian, has bought and received by mancipation the slave Apalaustus (or by whatever other name he is known), nationality Greek, apocatum pro uncis duabus, for six hundred denarii from Bellicus son of Alexander, M. Vibius Longus being surety. That this slave is guaranteed handed over sound, free from theft and noxa, not a wanderer, fugitive or epileptic; and if anyone makes eviction of said slave or any share in him to the detriment of the lawful possession and enjoyment of said purchaser or whomsoever it may concern, that in such case, whatever sum the loss by eviction has been, twice that sum shall be paid in good coin, promise was called for by Dasius, Breucian, and duly given by Bellicus son of Alexander, and the same promise duly given as surety by Vibius Longus. And Bellicus son of Alexander said that he has received and holds price of said slave, viz. six hundred denarii, from Dasius, Breucian. Transacted in the township of legion III Gemina, 16 May, consulship of Rufinus and Quadratus.’

The second is a papyrus, dated ad 166, found in Egypt but written at Seleucia in Pieria.²³ As its editor observed, the soldiers and the dealers who travelled took their receipts and so on with their impedimenta; and it was their requirements that helped to standardize the forms:

�C. Fabullius Macer, non-commissioned officer of the praetorian fleet of Misenum, vessel Tigris, has bought the slave, nationality Mesopotamian from beyond the Rivers, called Abbas or Eutyches (or by whatever other name he is known), about seven years old, price two hundred denarii plus poll-tax on import, from Q. Julius Priscus, ordinary seaman of same fleet, same vessel. That this slave is sound according to the edict, and that if anyone makes eviction of said slave or any share in him, the simple value without denunciation shall be properly paid, promise was called for by Fabullius Macer and duly given by Q. Julius Priscus, and promise fortified by good faith and authority of C. Julius Antiochus, manipularius of the vessel Virtue. And vendor, Q. Julius Priscus, declared that he has received and holds the aforesaid two hundred denarii in good coin properly paid over from buyer, C. Fabullius Macer, and has conveyed [tradidisse] the aforesaid slave Eutyches to him in good condition. Transacted at Seleucia in Pieria, in the winter quarters of the detachment of the praetorian fleet of Misenum, 24 May, consulship of Q. Servilius Pudens and A. Fufidius Pollio.’

Even the â€?Tablettes Albertini’ from Africa under the Vandals retain these long-lived formulae. Beneath the surface, however, changes are apparent. As the editor of the â€?Tablettes’ points out, in our classical period these instrumenta purport to be simply evidence of the carrying out of a whole series of separate formal transactions—the conveyance, the payment of price, the stipula­tions of quality and against eviction; whereas by the Vandal age, though the wording remained, the instrumentum as a whole had become a written contract.²⁴ Even within our own period, comparison between the Herculanean and Transylvanian docu­ments is instructive.²⁵ Already by the time of Nero the edict of the aediles is taken to apply to private sales as well as those in open market, but by a century later development has gone further.

The Dacian buyers and sellers are not—or not all—Roman citizens;²⁶ provincial peregrines have now picked up, and use, the Roman forms of mancipatio and the rest, and what is more, they are basing themselves on the aedilician edict in a â€?province of Caesar’, for all that Gaius may say.

The fugitivus is a slave actually â€?on the run’. Slaves naturally attempted to escape from bad masters, just hoping for a change or for some means of securing their freedom or passing as free. Slave-collars survive with such labels as:²⁷

T am Asellus, slave of Praeiectus, official on staff of the prefect of the grain-supply. I’ve got out through the wall. Seize me, for I am a fugitive, and return me to the barber’s quarter near Temple of Flora.’

The whole mechanism of society ground into action to restore this all-too-mobile property; Digest n. 4, â€?on fugitives’, shows how. There was right of entry to lands for search, help of the authorities, and there might be rewards. The search for Giton in the boarding-house has it all:²⁸

�Into the lodging-house came the crier with a town slave and various other people (not many, though); he waved a torch about, that produced more smoke than light, and announced: “Slave recently escaped in the baths, about sixteen years of age, curly hair, effeminate appearance, handsome, name Giton: anyone returning him or revealing his whereabouts will receive one thousand sesterces”.’

And waiting for the fugitive, to assist—or betray—him, was the fugitivarius, the â€?runaway-man’, an ingenious rogue whose activities were unmasked in the pages of the Corpus luris in a brilliant paper not long ago.²⁹ The runaway-man would say to the master â€?Of course you’ll never get him back, but I might; tell you what I’ll do, I’ll take the risk and buy him from you on the chance of recovering him.’ The master would not get much, but it was better than nothing; the runaway-man was now owner of the slave and so not guilty of plagium for harbouring him;³⁰ and the slave could now be sold for his true price to a master he preferred, or even manumitted if he could afford to pay what the runaway-man would ask. A senatusconsultum of unknown date (but within our period) therefore extended the offence of plagium to anyone who bought or sold a runaway, so that hence­forth both the master and the runaway-man would be liable to a penalty; it was fugarn vendere, to â€?sell a flight’.³¹ And there was another rule (conceivably to stop dodges that got round even the senatusconsultum), that a slave bought by a runaway-man could not be freed for ten years without the consent of his former master, which made the game not worth the candle for the slave who hoped for freedom.³³

There is no room in this book to describe the multifarious duties of slaves. As to the humble labourer or domestic, the law is more or less exhausted now that we have considered his acquisition and retention and the rules about damage to him which were dealt with in the previous chapter; but the slave in more responsible functions generated other sets of legal rules, to which we must now turn. He was immensely important in the labour force of Rome as agent and manager. At the highest level was the steward, servus actor or dispensator, who managed the accounts and carried out the financial transactions of the wealthy families and their estates.³³ Cicero’s dispensator, Eros, is a good example; Cicero grumbled about his inefficiency, but was clearly dependent on him:³⁴

�Eros’s accounting is holding up my departure. I ought to have had plenty in current account when he balanced up on 5 April; instead, I’m having to borrow.’

�Hordeonius is pressing—not gentlemanly at all; there’s only the third instalment owing, due on 1 August, and most of that he has been paid already, a bit ahead of time. But Eros will look after that on the Ides.’

Free men were willing to pass into slavery to secure this coveted position,³⁵ and the dispensator could expect to receive freedom on properly rendering account to his deceased master’s heir.³⁶ He might be in charge of estates abroad, entirely on his own:³⁷

�Men often think their assets are greater than they really are. This frequently happens to people who have overseas businesses in remote parts of the world, managed by slaves and freedmen; often the business declines over a long period without their knowing it..

He might, as actor publicus, be city treasurer of a municipality.³⁸ Then, on a rather lower level of standing, there was the vilicus or bailiff, managing a particular agricultural property, in charge of all the labour, slave and free. Horace’s bailiff, who had once been an indoor servant in Rome and longed for the country, but now, promoted, pined for Rome, is perhaps the best known,³⁹ but all the technical writers on agriculture expatiated on what kind of a man was needed.⁴⁰ Then again, the slave might manage enter­prises outside the family range altogether, such as taverns and shops;⁴¹ apparently even â€?children’ (adolescents, one supposes) ran such places—often, according to Gaius.⁴² And, going back to businesses, we hear of a slave (who decamped) managing a mixed affair that included money-lending, pawnbroking, and letting depository space to grain merchants;⁴³ and Ulpian envisages the possibility (though the way he puts it suggests it is a marginal one) of a slave being a full-scale banker.⁴⁴ As a yet further al­ternative slaves could be allowed to hire out their own services independently, operas suas I o care, in all sorts of crafts and skills: actor, teacher, nurse, shoemaker, prostitute and so on.⁴⁵

All these situations generated for the slave legal relationships not only with his master but with third parties. You could not engage in such activities without giving receipts and discharges, making contracts, taking tenancies, joining partnerships and so on. How could a mere â€?thing’, a â€?human tool’, with no rights, no duties and no access to the courts, fulfil this essential function in society? The law found its answer in peculium, and rules that were made to flow from it. We have met peculium of the Jilius familias, but its prime economic importance was as the personal fund of slaves. No master was obliged to give his slave a peculium, but no slave who was to have any independent role could manage without one. Technically it belonged to the master, was revocable at his will and was part of his assets, but the slave had day-to-day disposal of it.⁴⁶ It could consist of not only such parts of his earnings as he was allowed to keep but also stock-in-trade, land, inheritances, even other slaves—a vicarius was the slave of a slave; the slave might have a very wealthy fund at his disposal, and on this basis he could enter into legal relationships even with his master—common ownerships and tenancies and the like, with accounting of credits and debits as against one another (though settlement would be a purely domestic affair and any obligation only a naturalis obligatio, for the slave could not sue his master in respect of what in law belonged to his master).⁴⁷ Normally a slave’s peculium would pass with him if he were sold,⁴⁸ and so it would on manumission inter vivos unless expressly withheld.⁴⁹ When a master died he could leave his servants their peculia as legacies. On the other hand, a slave might have to â€?buy’ his free­dom with part or all of his peculium, i.e. leave it behind as a sacrifice for his liberty.

The existence of peculium enabled the law to develop a series of rules making the slave an agent pledging his master’s credit in dealings with third parties; it gave, in fact, various actions to such parties against the master. The simplest was the actio de peculio: on any individual transaction of a slave, whether done with the knowledge or consent of his master or not, the master could be sued dumtaxat e peculio, up to but not in excess of the value of the slave’s peculium. And on any general course of transactions done with the knowledge of the master (which would be the normal case of the slave in business) there was a more complicated actio tributoria up to the value of the peculium, in which the master was not allowed to begin by subtracting from that value what he claimed the slave owed him. (On contracts which he had ex­pressly ordered the slave to enter into on his behalf he was liable in full in the suit called actio quod iussu.}⁵⁰ And we must run on here, beyond the slave context, for the law provided yet more important agency actions, which applied whether the agent was slave or free—another blurring of the formal status distinction.

The actio institoria for businesses on land, like shops and inns, and the actio exercitoria for the man who managed a vessel on behalf of a principal, whether the manager was slave or free, and whether the principal was owner of the vessel or himself only an agent, made the principal liable in full on the contracts connected with the concern, unless he gave express notice that he took no respon­sibility. Ulpian comments thus on the exercitoria:⁵¹

�The usefulness of this edict is apparent, as everyone realizes. We often, through the exigencies of travel, make contracts with ships’ captains with no chance of enquiring about their status or bonafides, so it is only fair that the principal who puts a master in charge of a vessel should be liable like the principal who has put an agent in charge of a shop or business. Indeed, the necessity of contracting with a ship’s captain is greater than that with an agent, for it is possible in the nature of things to enquire as to the status of an agent before you contract with him; not so in the case of the ship’s captain, for time and circumstances often leave no room for deliberation.’

He also gives, under the title on the institoria, the rule about notice:⁵²

�The man about whom a public notice has been put up that no contracts are to be made with him does not count as an agent.’

With many slaves acting in positions of financial trust it is not surprising that the praetor in his edict offered a special action de servo corrupto:⁵³

�He who is alleged to have harboured the male or female slave of another, or with unlawful intent persuaded such slave to some course making him a worse slave than before; against him I will give an action for double the value.’

Persuading or advising a slave to leave his master was one offence under this heading; so was persuading him to commit assault or theft, or tamper with another slave, or embezzle his peculium, or wander off in pursuance of a love-affair, or dabble in magic,

or spend too much time at the games, or take part in political agitation. So also was persuading an actor to strike out or mix up entries in his master’s accounts or those of his own business.⁵⁴

Permitting a slave to hire out his own craft labour was probably not as common as hiring him out yourself and taking the pro­ceeds. This latter would be the natural arrangement in the case of gangs, teams or parties hired as a group, such as builders, miners, orchestras, gladiators and agricultural workers. Operae servorum could be left to someone as a legacy (indeed, this is the only heading under which the Digest discusses them); the legatee or usufructuary could exploit them himself or hire them out to others. What you were hiring out was actually, of course, the slave himself, the res, but for many purposes, such as letting for a period, usufruct and so on, it was desirable to be able to convert the use of a slave for such-and-such a period into a monetary value; and this was achieved by talking not about the res but about the operae, an opera being a â€?man-day’, a work-unit with a money value, so that one could deal in terms ofâ€?five operae⁹ or â€?a hundred operae⁹ or their cash equivalent. And this provided a basis for contracts of work with free men (freeborn and freed), in whose case it was not possible to talk about letting and hiring a res.

★

The freedman doing his obligatory work for a patronus was, in labour terms, just an extension of the slave in the less sordid levels of his activity; most of what little we hear about the rules of labour comes from Digest discussion about operae liberti. He is found working for his patron as bailiff, exercitor, and all the rest of such jobs; very characteristic are the letters of Cicero to Ser. Sulpicius Rufus, Caesar’s governor of Greece in 46 bc, recommending to him the freedmen of his friends who had business in the province.⁵⁵ There is a curious passage in the Digest about mistake as to the obligation of operae:⁵⁶

�A freedman, thinking he owed operae to his patron, has paid them. Julianus in Bk. X of his Digesta says the man cannot recover (under �things paid by mistake’, which is the subject of

discussion), even though he thought he had bound himself expressly; for there is a natural obligation on a freedman to do operae for his patron. But suppose he has not done operae for the patron but, being asked for services, has commuted them for money and paid the money? Even then he cannot recover/

We have already seen that he could not be required to do degrad­ing or sordid things,⁵⁷ and that, unlike a master, a patron could not in principle hire out his freedman’s operae for reward to third parties. But to this latter rule there were numerous qualifications, especially to cover services that could not be exercised at all unless they were available to people outside the family circle, such as those of the doctor or the ballet-dancer (a point which elicited that rarest of phenomena in the Digest—a joke):⁵⁸

.. /for it is not required of a patron, in order to make use of the operae of his freedmen, that he should spend all his days watch­ing theatrical performances or being ill/

♦

What, then, of the fully free man, under no prejudicial obliga­tions, hiring out his services under contract?⁵⁹ It is not self-evident that he should have existed at all, or not, at least, in any but a formal legal sense. It must be left to the course of discussion to bring out how far, and in what spheres, he really did exist, and in no other question is it more important than in this one to relate our scraps of legal evidence to our scraps of economic and social evidence. From all the principal Near Eastern societies, and from very early times, there survive contracts of labour, but (as has recently been forcefully emphasized),⁶⁰ those societies were characterized by the â€?spectrum of statuses’: few men and women were absolutely free, few were absolutely slaves, and labour contracts were an entry into some degree or other of personal subjection to the employer. Arrangements of this kind went on in the Near East in Hellenistic and Roman times. In the Egyptian â€?apprenticeship’ contracts parents bound their children (and masters their slaves) to service for periods of years. This was one aspect oiparamone; but paramone, as recent work has shown, was a

contract of service that covered, without clear distinction, wide ranges of arrangement from virtual self-hire to hire of services for specific jobs and periods with terms of protection for the worker as well as the employer.⁶¹ We must not now be over­influenced by the famous papyrus of the time of Cleopatra:⁶²

. for 99 years, that is 1,204! months;... to do all that is commanded by you and your household;... wherever you bid me, and I will stand upright in your presence;... remain in your house and that of your work night and day,’

nor by the Dura contract of â€?squireship’ as quid pro quo for a loan never likely to be repaid.⁶³ What, instead, needs emphasis is that what all parties wanted was the labour, and the terms varied over a â€?spectrum’ related simply to diverse economic bargaining positions.⁶⁴ Formal legal change of status was not, socially and economically speaking, the relevant consideration. Thus we have plenty of contracts of what seem to be entirely free persons hiring their services for specific engagements and ordinary periods, and there is some Roman law on the rules that were applied, though not much; we get little out of the Digest, because it talks of labour in terms of operae, and in discussing them does not dis­tinguish between slaves and obligated freedmen and voluntarily hired workers.

It is true that the world was a rather different place from what the upper class, the writers and readers of our surviving literature, knew much about.⁶⁵ That their denigratory attitude towards labour, business and trade was not shared by the middle, let alone the labouring, class can be seen by anyone who looks at the Igel monument and the many other Gallo-Roman sculptures recording people’s professions and jobs, or at the wall-decorations of the House of the Vettii at Pompeii,⁶⁶ or who examines the composition of the town council at a com­mercial city like Ostia.⁶ These people, however, were the entrepreneurs, they owned the shops and ships and hired the labour, slave or free; and the fact that they were not ashamed of themselves does not tell us much about the status of the labourers.

N

It has become a standard opinion that the conditions of free labour were influenced—that is to say, debased—by the con­currence at every level of slave labour. With respect to wage rates this opinion has been properly challenged,⁶⁸ but the bargain­ing power of labour was certainly very limited. Apart from the â€?strikes’ of the Egyptian peasantry we hear virtually nothing of free labour unrest,⁶⁹ and virtually nothing of combination. Ancient society did not develop to a point where technical skills of high specialization were essential enough to its maintenance for its possessors to start calling the tune; â€?it is not only the opening analysis of The Wealth of Nations which is fifteen hundred or two thousand years ahead in the future, but the pin factory itself’.⁷⁰ Hence the argument has usually been accepted that the pattern of contracts of free labour was based on notions deriving from the letting out of a slave, a res.⁷¹

But we must in any case narrow the field. To begin with, the â€?professions’ or â€?liberal arts’ do not count; there were certainly some jobs whose practice was not thought of as a case of hire of labour. In the second place, another distinction must be made;⁷² it is not made explicitly in any legal texts of our period, does not correspond to anything that would nowadays be regarded as a dividing line, and has rather blurred edges, but it does correspond to the ancient reluctance of the free-born to work â€?for’ someone else. Roman lawyers of later ages recognized it as the distinction between locatio operarum, hiring your operae out as a servant, to work â€?for’ someone, and locatio operis faciendi, in which the cus­tomer hired out a job to be done to a craftsman. The latter, the contract of the fuller, tailor, glassblower, shipmaster and so on, had â€?more responsibility in it’,⁷³ and involved law about com­petence, negligence, custody and the like which we shall examine under the head of â€?business’ in the next chapter. There were, of course, borderline cases; is the contract of an Egyptian woman to serve as a wet-nurse⁷⁴ a hire or an undertaking (or even a man­date)? But this should not lead to the conclusion⁷* that there was no social and economic difference; it is clearly made by Cicero, even within his celebrated denigration of most of the things done by all except his own class:⁷⁶

â€?Illiberal and sordid are the means of livelihood of all hired workers (mercennarii), whose labour, not their arts, is bought; their wage is itself the contractual symbol of their servitude.’ If, then, we subtract all the people who worked â€?for’ themselves in their own ships, shops, laundries and back-parlours, the sphere of the hired free worker at a wage, the locator operarum, is very restricted. He is to be found as a casual field-labourer, mostly at agricultural peak seasons, in a well-known passage of Varro.⁷⁷ The labour force is partly slave and partly free, says Varro, and the free are partly independent subsistence farmers and partly:

. mercennarii, when the heaviest farm jobs like vintage and haymaking are done by hired labourers.... It is better to cultivate poor land with hired men than with slaves, and even in more healthy parts to give them the bigger jobs like storing the fruits of vintage or harvest.’

We are reminded of the workers on a building contract for Cicero at Tusculum, who went off to do harvesting in April.⁷⁸ In Columella, on the contrary, there is little mention of such casual work; the colonus was perhaps supplying the need.⁷⁹ Mining is another occupation in which free labourers appear; we have seen that at Aljustrel in Hadrian’s time contractors employed free and slave workmen in the mines, and the most famous labour contract of all, to be quoted presently, comes from the Dacian mines. Building labour was sometimes free,⁸⁰ and so were the personnel of hotels and the crews of ships.⁸¹ Pliny writes to Trajan about a man who had hired his services to a bakery firm at Nicomedia and whom—significantly—they had tried to detain (he actually was a slave, posing as free, but they did not know that).⁸² And it would be a shame to omit Corax, Eumolpus’s hired porter in the Satyricon :⁸³

�Corax, the hired man (mercennarius), who was always moaning about his job, kept putting the luggage down and cursing us for hurrying and saying he would chuck the bags away or make off with the lot. “What do you think I am?” he said, “a pack-horse, or a marble-ship? I hired out the labour of a man, not a cart-horse; and I’m just as free a man as you are, even if my father did leave me a pauper.” And not content with cursing, every now and then he lifted up his leg and let an appalling... /

It looks as though Eumolpus and his companions could not afford a slave odd-job man; and Corax, though he would not (and legally could not) sell himself into slavery, was doing a servile job probably for less than a slave would have cost. Some kinds of locatio operis faciendi were at a scarcely less miserable level—the jobs mentioned by Juvenal, for instance, in a fine descending sequence: contracting for a temple, rivers, harbours, funerals, auctions,... public lavatories;⁸⁴ and yet they do not have quite the ring of slavery about them that sounds whenever the word tnercennarius is mentioned. One legal text says:⁸⁵

�A free man, who has control over his own status, can make it worse or better; and thus he hires out his services for day work and night work.’

The free servant in the agricultural familia is loco servorum, he counts amongst the slaves;⁸⁶ he is subject to the commands of the master or the bailiff, may be able to plead superior orders if he had done damage under the lex Aquilia;⁸⁷ and (astonishingly) will not be liable for theft against his hirer, presumably because it will be dealt with by domestic chastisement just as if he were a slave:⁸⁸

�If a freedman or client has committed theft against his patron, or a hired man (tnercennarius') against his hirer, no action of theft lies/

It is a fair point that the terms â€?hired for wage’, mercede con­duces, and â€?to hire onself out’, se locare, do not in themselves necessarily point to the hiring out of slaves as the origin of free labour contracts.⁸⁹ After all, in English law â€?what we hire is the servant. At the now obsolete hiring fairs the hind or maid let himself, or herself, rather than his or her services. We find no difficulty in thinking of a man as hiring himself out’.⁹⁰ And it is probably the case that in early Rome the polarity of statuses was less marked than in the late Republic, the heyday of chattel slavery, and slave and client and Jilius familias were all on a spectrum, neither wholly subject nor wholly free. But be that as it may, the law in the classical period talked of the work of all of them in terms of operae, â€?man-days’. We get a few rules; operae had to be complete days, for example,⁹¹ and there was a right to wages for the whole contracted period if it was not â€?up to the worker’ that his services were not used:⁹²

�He who has hired out his services ought to receive wages for the whole period if it was not up to him that he could not provide his services.’

(This did not mean illness or incapacity of the worker but such things as the death of the employer.) There is also one remark about the right to reasonable time off:⁹³

�Not only the freedman but anyone else giving services must be given meals or enough time to obtain meals, and in all cases they must be left adequate time for physical needs.’

More could be stipulated in the individual contract, of course, if the worker was in a position to demand it, such as days off for festivals.⁹⁴

This is the time to look at the one substantially preserved labour contract in Latin: a single wooden waxed tablet from the Transylvanian mines, dated ad 164:⁹⁵

�In the consulship of Macrinus and Celsus, 20 May. I, Flavius Secundinus, have written at the request of Memmius son of Asclepius, who claims to be illiterate, to the effect that he has declared himself to have hired, and has hired, his labour in gold mining work to Aurelius Adiutor from today until the Ides of November next, for seventy denarii and his keep. He shall be entitled to receive his wages in instalments. He shall be obliged to provide his labour in full health and strength to the con­tractor aforesaid, and if he wishes to resile or retire without consent of the contractor he shall owe five sesterces per diem in cash out of his total wage. If flooding intervenes he shall reckon this pro rata. If the contractor at the end of the period is in arrears with payment of wages he shall be Hable for the same penalty, except for grace of three days. Transacted at Immen- osus Maior.’ (Signatures of Memmius son of Asclepius and two other persons.)

In a similar but very badly damaged tablet from the same place, instead of �he has declared himself’ we read �he confesses..

a word which carries some implication that these miners, once they had signed on, felt they were abandoning their freedom for the six-months’ term of the contract—and would perhaps have done so for longer if they had been able to get a longer contract; nevertheless, note that the kind of work was fixed by the contract. For comparison (and entertainment) here is a contract from Philadelphia in Egypt which could be analysed either as hire of services or as locatio operis faciendi, but in which one can sense a different relationship between the parties;⁹⁶ the date is ad 206:

�To Isidora, castanet-dancer from Artemisia of Philadelphia. I wish to have you and two other dancers to dance for us for six days from the 24th of Pauni [old style], receiving thirty-six drachmas for each day as pay and for the whole period six artabae of barley and twenty double loaves of bread; and whatever garments or gold ornaments are brought, we shall guard safely. We shall also provide two mules for you, both in coming and going.’

★

A major subject of modern legislation has been compensation for injury to workers in the course of their employment. Did Rome know of such a principle, as far as free men were concerned? Damage or injury to slaves by third parties would give ground for an Aquilian action by their master; and wilful, purposeful injury or assault upon a free man by anyone constituted the offence of iniuria, civil and criminal, which it was up to the man himself to pursue (we shall study it later). But the question here is about injury caused through negligence or failure to take care or even without fault on the part of the employer, and as far

as free persons were concerned Roman legal doctrines stood in the way of action in such cases. The lex Aquilia gave an action only to the owner (or more or less owner) of the thing damaged, and â€?no man is owner of his own body’, said the Romans. They also said â€?no one can put a monetary value on a free man’—a noble principle, but one which helped to produce the con­sequence that if a free workman fell into a boiling vat his depend­ents had no claim on anyone. And for iniuria, intent to injure was required. Now there are four passages that suggest the possibility of actions available to free men. Three of them we have actually met already :⁹⁷

1 In the story of the master and the free apprentice, an Aquilian action is given to the paterfamilias for injury to \nsfilius familias on the basis of loss of earnings.

2 Gaius says that for pauperies, injury by animals, free persons can have actions for medical expenses and loss of earnings, and it looks as if again this was for a paterfamilias for injury to his filius.

3 In the rules about â€?things poured or dropped’ there is a fixed penalty for the death of a free man; but this is not very relevant to conditions of work. The first two of these passages takes us no further than that negligent injury to someone in potestate during his work might have grounded an action; a paterfamilias did not exactly own his son, but one can see the chain of ideas. Wc there­fore come with surprise to the fourth passage, from a fragment of Ulpian:⁹⁸

�A free man on his own behalf has an action on the analogy of the Aquilian—not a direct statutory one, because it is held that no one is owner of his own limbs.’

And of this text it must simply be said that the common opinion of modem authorities regards it as a post-classical interpolation.⁹⁹ We cannot accept it as law for our period. As commentary on all this, however, it is worth remembering that in early modem times things were no better, and they were worst under the common law: â€?only in the common law countries, which were first industrialized, were servants made to take the risk not only of accidental damage but of damage done to them by the negligence of their fellow-servants’.¹⁰⁰ When, in recent times, change finally came, it began by way of workmens’ insurance, another institu­tion which the Romans failed to invent; doubtless the propertied classes never thought of it and the workers were not organized, but in any case the Romans would probably not have been able to assemble the information or work out the statistics.

Ji­

lt is a pity that all our surviving documents on apprenticeship come from Egypt.¹⁰¹ The story of the master injuring his apprentice, in the Digest, confirms the reasonable supposition that it existed everywhere,¹⁰² shows that slave and free youths alike underwent it, and underlines that in most of the labour field there was no distinction when it came to jobs, and which you were was just an accident of fate. There were differences, however, in the form of apprentice contracts, between the more â€?highfalutin’ trades like flute-playing and stenography and the more banausic like weaving and hairdressing. In the former kind the trainee was pupil rather than apprentice, and was no use at all until he had passed the course,¹⁰³ and so the teacher must be paid for his instruction and the candidate maintained by the parent. Here is an example, dated ad 155:¹⁰⁴

�Panechotes, also called Panares, quondam cosmetes of the city of Oxyrhynchus, by the hand of his friend Gemellus, to Apollonius the stenographer, greeting. I have placed with you my slave Chaerammon to learn the shorthand-system of which your son Dionysius is an expert for a period of two years from the current month of Phamenoth, eighteenth year of the lord Antoninus Caesar, for the fee agreed between us of one hundred and twenty silver drachmas, which does not include the cost of holidays. Of this sum you have already received the first instalment, viz. forty drachmas; the second you are to receive when the slave has completed the whole textbook, viz. forty drachmas; the third I [mistake of writer for �you’] will receive at the end of the period if [or perhaps �when’] the slave can take down from any ordinary speech and read back faultlessly. If you get him through the course in less than the period I shall not delay till the agreed date for payment. It shall not be open to me to withdraw the slave within the period; and he shall remain with you beyond the period for any days or months he has been absent.’

In the second kind of apprenticeship the trainee could be of some use about the workshop from the beginning, and in such contracts we find the teacher paying the pupil’s keep, or even a wage. There can (as above) be stipulations as to holidays, making up lost time, and so on, but the word â€?apprenticeship’ must not mislead the reader into thinking that the purpose of these arrangements was wholly or even primarily educational. As has been pointed out,¹⁰⁵ they are a subspecies of paramont (the penalty for withdrawal is significant), and are a means whereby the craftsman gets his labour force and the parent or master gets an income out of the work of his child or slave, or in some cases pays for a loan of money by this means. Of this second kind of apprenticeship one document will be quoted which turned up comparatively recently. Its date is ad 48:¹⁰⁶

�Menodorus, son of Apollonius, of the district Althaea, to Lucius Pompeius Miger [he means �Niger’], greeting. I confess that you have handed over to me your son Fuscus, not yet adult, to be taught the trade of seated linen-weaver in every aspect as I myself am expert in it, in the two [years] from the month Germaniceius, eighth year of the Emperor Claudius Caesar Augustus Germanicus, on these terms: I am to pay you for him the wage of four silver drachmas per month, you his father undertaking his keep and clothing. And I will keep him at his lessons every day as an apprentice in the trade. He shall have three days’ holiday in each month, and I will deduct nothing from his wage; but for more, I will hold back the appropriate part of the wage, and will keep him at the same job after the agreed period for the equivalent number of days. And you are not to withdraw him from me during the period, nor shall it be permitted to me to dismiss him within the same period. And at the end of the time I will display him to you along with three fellow-workers.. (In a rough hand at the end, after the date, are the words �1 Menodorus, son of Apollonius, will teach and do as set out above?)

*

Forced labour, except for penal hard labour, is not much in evidence in our period. The subjects of Rome could certainly be called upon for all sorts of services, such as providing mounts for the government postal service and billeting troops, and of these more will be said in Chapter VIH. A very ancient principle was the occasional call-out for the upkeep of roads and city walls. Cicero’s client Fonteius was alleged to have made money out of blackmail in connection with this compulsory levy when gov­ernor of Gaul.¹⁰⁷ It was formally enshrined in the charter of Julius Caesar’s colony at Urso in Spain:¹⁰⁸

Whatever road-work the decurions of this colonia have de­cided on, so long as a majority were present on the council when the decision was made, let it be lawful for it to be carried out; provided that they do not order more than five operae per year per adult male, and three operae per yoke of draught-animals,... and provided that no one be required to perform services, except voluntarily, who is less than fourteen years of age or more than sixty. Persons with domicile or land in the colonia or within its territory who are not citizens of the colonia shall be liable for this road-work as if citizens of the colonia.⁹

Such work is also occasionally referred to in inscriptions and in the Digest.¹⁰⁹ But the great bulk of the road and wall building of the Empire, military in function, was actually done by the military.¹¹⁰ Egypt was a special case; the maintenance of the vital irrigation system by de-silting the canals had always fallen to the peasantry as corvee, and continued to do so. A series of documents survive, known as the â€?Penthemeros-Certificates’, from the Fayum, each certifying that so-and-so has completed his annual five days’ corvee;¹¹¹ this is naturally compared with the five operae of Urso, but it is risky to deduce a general rule on this tiny point, spanning the whole Roman world. If one wonders about private, as opposed to public, labour requirements (whether, that is, landlords ever imposed corvee on tenants), evidence is scantier still. Nothing is said in the Digest about the possibility of rent being partly in labour on the landlord’s â€?home farm’; on the other hand there seems no strong reason for thinking that, if the parties so contracted, operae (which, as we know, were convertible into a money value) could not have been accepted in part lieu of rent, and one passage of Columella is taken by some scholars to provide evidence for such an arrangement:¹¹²

�(The landlord) should behave politely to his tenants and show that he is open to representations, and he should exact work (opus) with greater avarice than he exacts rent; for this gives less offence and yet pays better in the long run.’

This text may not be very cogent, but the point is just worth taking because we have seen that on the imperial domain lands in Tunisia corvee was a regular obligation on the coloni and was enshrined in the terms of the lex Manciana/which may have been invented by a private land-owner. On the whole, however, Rome in our period does not seem to have obtained any sub­stantial part of its labour requirements by conscription.

*

One of the most controversial topics of Roman law in recent years has concerned the remuneration of what we should now call â€?professional services’.¹¹³ There were certain cases or categories of dignified services which the Romans were reluctant to think of in the same breath as that of the niercennarius or even to regard as locatio operis faciendi, hire of services for a reward; but difficulty begins as soon as one tries to get clear, on confusing and con­tradictory evidence, what the professions or liberal arts were of which they took this view. Substantial changes took place during our period in the status of some of these elements in the labour force. In Republican times, for example, doctors and teachers of higher education were mostly slaves and freedmen, but though there continued to be such persons in those professions free-born doctors and teachers became more and more prominent and the eclat of their disciplines rose, until by Flavian times they were exempt from taxation and there were salaried chairs of literature at Rome and elsewhere with such incumbents as Quintilian. (In Trajan’s day Suetonius could even write a book of potted bio­graphies of celebrated schoolmasters.) In any case, the Roman notion of liberal arts was different from ours; there is no sign that painters or sculptors or musicians came into any special category of dignity. Discussion amongst Romanists centres on the question under what contract payment was made to persons of professional standing. Was it ordinary hire of services after all? Or was it mandate, the arrangement for services as between status­equals, supposed to be gratuitous (though you could sue for expenses) and rewardable only by an honorarium? Or was it neither, but some tertium quid?

We can say that we know definitely that philosophers and iuris prudentes had a special place above all others; their advice was supposed to be free and they were allowed no means at all of suing for any reward.¹¹⁴ We know also definitely that sur­veyors were held not to be governed by â€?hire of services’ nor their remuneration treated as a merces or wage (though it was known that they sometimes acted for a reward).¹¹⁵ We know that advocates were under a special regime, which was described in an earlier chapter and which meant that they were not in any event to bargain in advance for remuneration.¹¹⁶ But beyond these reasonably clear cases we are dependent on a difficult text of the Digest, in which Ulpian (if it is he and not a post-classical inter­polator) tells us that the remuneration of a list of people was sued for extra ordinem before the provincial governor.¹¹⁷ This, it has been maintained, strongly suggests a tertium quid, otherwise why not an ordinary actio locati or actio mandati?¹¹³ But the list is in any case baffling, because it goes so far down the social scale. Teachers of higher education (rhetor and grammaticus); geometrae (another name for surveyors); doctors and midwives, with the exception of certain kinds of quack; ordinary schoolmasters â€?by custom’, and librarians, notaries and accountants; members of a nurses (though the Egyptian nursing contracts are a kind of paramone)²²⁰ It can be said at least of the medical profession that there never ceased to exist slave and freedmen doctors, whose operae were subject to the ordinary contract for hire of services.¹²¹ And what of the procurator, not in the list, who could sue extra ordinem for his salary?¹²³ The whole problem remains curiously unsolved; no coherent set of rules to cover all the cases can be discovered, and the reason is probably connected with the changes over a long period in the relative social dignity of various branches of labour,¹²³ and also with the progressive abandonment in practice of the â€?gratuitousness’ of services which had in origin been given free on a basis of cfficium between status-equals—a point which will be considered further in the next chapter. The field of labour exhibits at every point that the tight and precise categories of the Roman law both of status and of contract are (and were) inadequate to characterize the rich and fluid diversity of social and economic situations in the Roman world.

governor’s official entourage (though elsewhere in the Digest this is surprisingly treated as a locatio) ;¹¹⁹ advocates; and wet-