CHAPTER II THE SLAVE AS RES.

Slaves were res mancipi and it does not appear that there was in their case any question of maturity or taming such as divided the schools, in relation to cattle, upon the point as to the moment at

CH.

Custodia in relation to Slaves

11

which they became res mancipi¹. No taming or educating process was necessary to give their owner control over them. Most of the few surviving records of actual sales in the classical age refer to slaves. The silence of the sources, on the use of the actio Publiciana by the ā€œ bonitary owner,ā€ makes it hard to say when traditio superĀ­seded mamcipatio, in practice, for moveables, but this very silence, coupled with the fact that in nearly all these cases there was a mancipatio, leads to the conclusion that it was after the age of the classical lawyers; for most of these cases fall between a.d. 140 and a.d. 160². On the other hand one of a.d. 166 was by traditio, but this was in Asia Minor, as also was one of a.d. 359^s. There is, indeed, a record of a conveyance of land in Egypt by traditio as early as a.d. 154⁴.

The slave, like any other chattel, might be the subject of all ordinary transactions⁶, and these transactions gave rise to many questions owing to the special characteristics and powers of the slave. Most of these, however, result from the slaveā€™s powers of acquisition, of contracting, and of wrong-doing, and will therefore be most conveniently considered in the chapters which deal with the slave considered as a man. A few points may, however, be taken here.

The difficult questions concerning the liability for Custodia, and the various meanings of this obscure word in different connexions and at different epochs have no special connexion with slaves and may be omitted⁶. It is necessary, however, to note that certain texts deal specially with custodia in connexion with commodatum of a slave. They shew that a commodatarius of a slave might be liable err comĀ­modate, if he was stolen⁷. But they shew also that this liability did not arise if the slave ran away⁸, unless he was of such a kind that he needed special guarding (as might appear from his age, or his being handed over in chains), or there was a special agreement⁹.

1 G. 1. 120; G. 2. 15.

2 Bruns, Fontes, i. 288 sg?.; Girard, Textes, 806 sqq. In old Jewish law slaves were similarly grouped with land, Winter, Stellung der Skiaven, 25ā€”26. The whole Talmudic law of slavery is much affected by Boman Law.

⁸ Bruns, op. cit. 325; Girard, op. cit. 809.

⁴ Bruns, op. cit. i. 322. The emptio areas on the same page is doubtful.

⁵ 21. 1. pass.; 13. 6. 5. 13; C. 4. 28. 2; 4. 24. 2. In late law servi aratores might not be seized (by pignoris captio) under a judgment. C. Th. 2. 30. 1; C. 8. 16. 7.

⁸ Lusignani (Studi sulla Responsibility per Custodia, i. ii.) gives a full account of the texts affecting this matter in relation to sale and locatio. His introductory section gives an account of the views of Hasse, Baron, and Pernice. See also for discussion and references, Windscheid, Pand. Ā§ 264, n. 9.

⁷ 47. 2. 14. 5. His right to sue implies the liability.

Ā« 13. 6. 5. 13; 13. 6. 18. pr. ² 13. 6. 5. 6 ; 6. 1. 21; 50. 17. 23 in fin.

¹⁰ See especially 13. 6. 5.13, Cartilius ait periculum ad te respicere...quare culpam in earn quoque praestandam. Can hardly be genuine, since if the risk is with a man his culpa is not material.

of the above-mentioned difficulties. If, or in the cases in which, the liability for custodia involves something more than liability for culpa, no breach of the obligation is committed by the slaveā€™s running away, though he is fur sui¹. And such a flight is no proof of culpa in the commodutarius. Even an agreement for custodia would not impose this liability, unless expressly. All this turns on the fact that a slave is necessarily left at large, and thus it does not apply in the case of those who would not be left at large in any case by a careful man.

Like other chattels slaves were recoverable by vindicatio and by the actio Publiciana^{[45] [46], and, in consequence of the equivocal character of their offspring, and of the fact that slaves could be the medium of acquisition, there were special rules as to what was recoverable in a vindicatio of a slave. Inasmuch as the rules of retention by the possessor will call for full discussion hereafter[47] [48] [49], the only point which need here be considered is the fate of those acquisitions which were made after litis contestatio in the real action.}

The well-known rule is that the defendant must restore the thing itself cum omni causa, which is explained, by Gaius, as meaning everyĀ­thing the plaintiff would have had, if restitution had been made at litis contestatio*. It may be that defendant has usucapted the man pendente liteĀ·, in that case he must, besides restoring, give security against dolus, since it is possible that he may have pledged or freed him^[50]. So too he must give up all acquisitions post litem contestatam except those in re sua, i.e. in connexion with the possessorā€™s affairs. Thus he must give up inheritances, legacies and the like, the child of an ancilla who is being claimed, even though born after she was usucapted⁶. If, pending the action, he has become entitled to fructus which had been received by some other possessor, and has recovered them, these too must be accounted for^[51]. If he has usucapted the man pendente lite he must cede any action which he may have acquired on his account, e.g. an actio Aquilia^{[52] [53]. He must restore all fructus, which, in the case of a slave, means earnings and results of labour, such as, we are told, even an impubes may make8. Conversely, a bonae fidei possessor could make certain deductions, as even could a malae fidei possessor, so far as actual benefit had accrued to the thing[54].}

CH. n]

Vindicatio: Retentiones

18

not set off ordinary costs of education and maintenance, but for such expenditure, before litis contestatio, as was necessary to preserve the man, e.g. paying damages in a noxal action, he might claim allowance by an exceptio doli¹.

In relation to merely utiles impensae, there is a difficulty. The general rule was that the plaintiff had the alternative of paying for them or allowing the possessor to take away the result^{[55] [56]. But this could not be applied to special training given to a slave. This could not be undone, and the strict rule was that no account was taken of it[57] [58]. This harsh rule was subject, however, to three exceptions, (a) Allowance was made, si venalem habeas et plus ex pretio eius conĀ­secuturus sis propter artifidwm*. The plain meaning of this is that if the claimant proposes to sell him, and he has a higher market value, by reason of the teaching, the cost of it must be allowed. This has an unĀ­practical look, though it is the usual explanation of the text. In another text, on another point, a plaintiffā€™s claim is made to depend on his intention to sell, but here the proof is the other way, and it is not easy to see how the possessor could prove the claimantā€™s intention[59] [60]. In practice it probably meant little more than that, if the market price was increased, the training must be allowed for. (6) If the possessor, knowing that a claim was on foot, notified the intending claimant that he intended to incur this expense, it would have to be allowed, if the claimant did not at once take steps, (c) The cost of the training could in any case be deducted from the earnings made by it. A text of Modestinus[61] following that in which this is said, adds: Quodsi artificerĀ» fecerit post dcedmum quintum annum eius qui artifidum consecutus est impensae factae poterunt pensari. These words seem to mean that by the time the man is twenty-five these costs will have been compensated for by earnings, and no account of them need be taken in any vindicatioā€™ā€™.}

We are told that if a slave is handed over, post conventionem, security must be given by a bonae fidei possessor against dolus, but by malae fidei possessor against culpa too, and that, after litis contestatio, a bonae fidei possessor is on the same footing so far as this is concerned⁸. This too is obscure: how can a man be guilty of dolus in respect of a thing which he regards as his own^[62]? According to one view the dolus

contemplated is any misconduct of the possessor in relation to the slave¹, such as lessens his value and is plainly contrary to public morality. But this is extremely artificial. Another view is that the text refers to one who, having been a bonae fidei possessor, has learnt that the thing belongs to another². But such a person is now a malae fidei possessor, and there is no reason to confine the rules of malae fidei possessio to the case of one who was so ab initio, a praedo. But the true solution may be not far from this. A bonae fidei possessor is one not proved to know that he was not entitled. The formal notice of claim, involved in the word conventio³, is not enough to saddle him with this knowledge, but it has definitely altered his position, and the rule seems to say that if a person so notified wilfully exposes the slave to dangers which result in damage he is not to be heard to sayā€”ā€œ So far as I knew, it was my own slave, with whom, so far as you are concerned, I could do what I liked.ā€ It may be that a man would not readily expose to risk a slave he thought his own, but it is not so clear that he would not risk one as to whom his knowledge to the contrary was not yet proved. And there are steps between belief that one is owner and knowledge that one is not.

If the man die pending the action, without fault or mora of the possessor, his value is not due⁴, but the case must still go on to judgment, on account of fructus and partus, and because on the question of title may depend the further question, whether either party has a claim on eviction against some third party⁵. The defendant, if judgment goes against him, must account for fruits up to the death. It may be impossible to tell what the actual earnings were, and they are therefore estimated so that for any period during which the man was so ill that he could earn nothing, nothing can be charged⁶. If, now, the defendant was already in mora at the time of death, he must account, of course, for omnis causa, and for fruits up to the day on which judgment was given, estimated in the same way⁷. It is not clear when a bonae fidei possessor is in mora. The expression seems to belong to the law of obligatio and to be out of place in real actions. Its use is further evidence of the insufficiency of the distinction between bonae and malae fidei possessors. Pellat thinks he is in mora from the time when he knew or ought to have known that his title was bad⁸. This is a rather indeterminable time and a person so convinced is a malae fidei possessor. All that is certain is that it was not litis contestation

¹ Pellat, op. cit. ad 6. 1. 45. ² This view is as old as Azo.

3 Pellat, loc. cit. * 6. 1. 15. 3; 6. 1. 27. 2. Ā» 6. 1. 16. pr.; 46. 7. 11.

⁶ 6.1.79. 7 6.1.17.1. 8 Op. cit. ad h. I.

⁹ The possessor is not necessarily liable if the man die after litis contestatio. See n. 1 and 6.1.27.2. Savigny thinks that bonae fideipossessor is in mora only from the time of pronuntiatio which imposes an obligation in him. The texts in the Basilica which seem to connrm this are shewn by Pellat to contemplate mora before the pronuntiatio, and there is usually no material delay between pronuntiatio and condemnatio.

ch. n] Vindicatio of Slave. Legacy of Slave 15

If the possessor lessens the value of the slave, dolo, during the action, he is of course liable, but if the slave is afterwards killed by some cause in no way imputable to him, the effect is to end the plaintiffā€™s interest, and, therefore, the liability for the damage, in that action¹.

If the slave has run away, pendente lite, the bonae fidei possessor is free from liability, unless he has usucapted him, in which case he must cede his actions, or unless the slave was one of such a sort that he ought to have been carefully looked after, in which case his value is due. In any case he must give security to hand over the man, if he recovers him². If the possessor connived at the flight he is liable as if he still possessed⁸, and on the same principle if he sell the man, pendente lite, and the vendee kill him, he must pay the value⁴. In relation to all these rules it must be remembered that if the possessor was really owner before the action, he can proceed with his defence and get absolution. These rules suppose the claimant to prove his title.

Most of these points have nothing to do specially with slaves. They are therefore very shortly treated, and many difficulties have been ignored, especially in relation to the liability of possessor for the value of the man if he cease to exist during the action. It must, however, be noted that, to the ordinary cases of interitus rei which release the bonae fidei possessor, noxal surrender must be added⁵.

In the actio furti, condictio furtiva and actio Aquilia on account of a slave, the only points which require notice, are, that the interesse included the value of an inheritance upon which, owing to the slaveā€™s death or absence, his entry had been preventedā€™, and that the condictio furtiva was necessarily extinguished if from any cause he became free or was expropriated : domino solo competit.

The case of legacy of a slave gives occasion for many rules, the development of which cannot well be made out, owing to the supĀ­pression by Justinian of the differences due to form⁷. In the case of simple legacy, the heir must hand over with him any acquisitions through him, any earnings the legatee could have gained if the slave had been in his possession and, in the case of an andlla, any partus*. It may be assumed that, if the legacy was conditional, the legatee was entitled to such profits only from dies cedens. This is sufficiently clear

¹ 6. 1. 27. 2. Actio Aquilia durat. ² 6. 1. 21.

³ 6. 1. 22. Or if he fled through culpa of the possessor (21. 2. 21. 3).

⁴ 6. 1.17. pr. Though the claimant can in appropriate cases, (e.g. if the price is not paid,) take cession oil actions instead.

⁵ 6.1. 58.

⁶ G. 3. 212; Inst. 4. 3. 10; D. 13. 1. 3; 47. 2. 52. 28...

1 The texts give no real help on the question whether, or how far, legacies per vindicationem and per damnation#ā„¢ were on the same footing, in the classical law, in relation to the questions now to be considered. See for a discussion and references Pernice, Labeo 2. 2.113.

⁸ 30. 39; 30. 86. 2.

on the texts^[63], and the enactment of Justinian which gave the fulfilĀ­ment a certain retrospective effect does not appear to have touched this point².

If a specific slave is left, in either form, he must be taken talis qualis^z, and any promise of quality the heres may make is void*. But if there is a general gift of ā€œ a slave,ā€ per damnationem, (and probably per vindicationem,) then, as it is the duty of the heres to give a good title, he must warrant the slave given to be free from noxal liability, though he need not promise that he is sanus, since he is not obliged to give one of good quality⁶. But he must not give one of the very worst quality, and thus, if he gave one whom he knew to be on the point of death, this would be a case of Dolus. Where he gave one whom he knew to be a thief, and the slave stole from the legatee, there was an actio doli by which he could be compelled to give another, and he must leave the bad slave pro noa>ae dedito⁶.

If a servus heredis, or alienus, is legated, and has run away, Paul tells us that, if the flight were after the testatorā€™s death, the heres must give security for his production, and pay the expenses involved in his recovery, but not if the flight had been before the death⁷. Africanus lays down this latter rule for all slaves (left apparently in any form), giving the reason that the heres can only be bound to give him as the testator left him⁸. This seems to imply that Africanus would impose the duty of recovery on the heres, even though it were the slave of the testator, if the flight were after the death. Ulpian says that if the slave were in flight or at a distance the heres must operam praestare, in order that the slave be handed over, and adds that he, Julian and Africanus, are agreed that the expense must be borne by the heres⁹. As it stands the text gives no restriction as to the time of flight, the origin of the slave, or the form of the gift. In view of the texts just cited¹⁰ it seems that this extreme generality must be an error, even for the time of Justinian, but, as to the liability of the heres to incur expense, if the flight is after the death, the texts are explicit. It must be noted that he is not liable for the value of the slave but only to incur reasonable expense in recovering him^[64].

If a servus alienus legatus is freed by his owner, the heres is no longer liable¹, unless he was already in mora or was in some way privy to the manumission, which is a case of dolus¹.

The same is true, a fortiori, if the slave was the property of the testator and was freed by him^{[65] [66] [67]. In one text Celsus tells us that if a servus legatus is freed interim, and becomes again a slave, the legacy is good[68] [69]. Interim seems to mean during the testatorā€™s life, since the case is coupled with one in which the expression medium tempus is used; the ordinary term for the interval between the making of the will and the death. The reenslavement may, so far as the words go, have been either before or after the death, the manumission cannot have been by the heres or after alienation by him, for, as we shall see, this case was differently dealt with. But the rule given by Celsus seems very doubtful. If applied to a case in which both manumission and reenslavement occurred before the death, it is not in conflict with the principles of legatum per vindicationemā€”media tempora non nocent. But the manumission was a complete ademption[70]. In later law this was not necessarily so in case of sale6 of the res legata, but manuĀ­mission is on a different footing: a testator cannot be regarded as having contemplated reenslavement[71]. And the rule cannot be harmonised with the principle that a slave freed is a new man, and if reenslaved is a new man again[72] [73].}

For the case of a servus alienus it is certainly not the law. In these matters the rules as to promise of a slave can be applied to legacy⁸, and elsewhere we learn that where a servus alienus was promised, and was freed by his owner, the promisor was released, and that, if the man again became a slave, the promise was not enforceable : the obligation once destroyed is gone for ever, and the new slave is another man. The text expressly repudiates the view, which it credits to Celsus, that the obligation was revived by reenslavement¹⁰. Our case differs, in that, since the manumission preceded the death, there was never an obligation on the heres, but this is not material, and it is evident that Celsus held views more favourable to the validity of such gifts than were generally current¹¹.

If the slave belonged to the heres, and he freed him, (or alienated him, and the new owner freed him,) he was liable to pay his value whatever the state of his knowledge, and the same rule applies no doubt to the case of a servus hereditarius¹. His knowledge is immaterial because this is true in general of all obligations under an inheritance : he was not the less liable to pay a debt because he was not aware of its existence. Other circumstances not of his creating might make it impossible to deliver the slave, and so discharge him. Thus if the servus legatus gains his freedom by discovering the murderer of his master, the heres is released². So if the slave is justly killed for crime, either under judicial process, or by the heres, or by a third person, or if he dies before the heres is in mora³. But if the heres induced him to commit the crime, and so is guilty of dolus, he is liable under the legacy⁴. If the heres noxally surrenders him he is not released, since he could have paid the damages and can redeem him: the liability to hand over the slave with a clear title being, as it were, a debt imposed upon himā€œ.

A legacy giving the legatee an absolute choice (legatum optionis³) was not confined to legacies of slaves, but this seems to be the commonest case⁷. Such a legacy is said by Justinian to have been conditional in earlier law; selection by the legatee being the fulfilment of the condition⁸. There are some signs of difference of opinion, and it may be doubted whether it is not more correct to say that to have been chosen by the heres was part of the definition of the slave, and thus that, if he did not choose, no slave satisfied the definition*. Nothing in the present connexion seems to turn on the distinction: the rules are in the main those of a conditional legacy. We are told that optio servi is an actus legitimus¹³, and thus not susceptible of modalities. It is practically convenient that the choice should leave no doubt that one man has been finally chosen, since the moment of choice determines to whom he acquires. The principles of condition give the same result: a condition partially satisfied is not satisfied at all¹¹. Conversely it follows that a conditional choice

¹ In. 2. 20.16. So if he killed him without reason but not knowing of the gift, 36.1. 26. 2:

45.1. 91. 2.

Ā» Arg. 29. 5. 3.13.. ^s 29. 5. 3. 13; 30. 53. 3; 46. 3. 92. pr.

⁴ 30. 53. 8. So though torture of the man under the Sc. Silanianum, by which he was destroyed, released the heres if it were lawfully done, it did not if he was not legally liable to it. 29. 5. 3.13. So if servus cdienus legatus is captured, apart from dolus of heres, but he will be liable if and when the slave returns. 30. 53. 9; 46. 3. 98. 8. This is the effect of postliminium.

⁵30. 53. 4. As to the effect of a gift of ā€œ my slaves,ā€ see 32. 73.

⁶ U. 24.14; D. 33. 5. 2.pr. They varied in form (cp. 33. 5. 9. pr.). There might be optio servorvmĀ·, which, so Pius decided, gave a right to choose three (33. 5.1).

⁷ 33. 5. passim. And see C. 6. 43. 3 in which Justinian after laying down a rule for all cases adds without comment a tariff applicable only to slaves.

⁸In. 2. 20. 23. ⁹ Post, Ch. xxiv.

¹⁰ 50. 17. 77. If indeed the words Servi optio datio tutoris were not originally optio tutoris. If the allusion is to exercise of the right we are considering, it is not easy to see why it is confined to servi. And tutoris datio could certainly be conditional and ad'diem. In. 1.14. 3; D. 26. 1.14.

n 35.1. 23. would not bind the chooser¹. So if the legatee choose a servus alienus or a liber homo, this is a nullity, and does not consume his right of choice^{[74] [75]}. If the legatee chose a man who had conditional liberty, Julian held that the testator must be understood not to have included him; the choice being a nullity was not exercised. If, however, the condition on the gift of liberty failed, then, says Julian, following Q. Mucius, he may be chosen: the exclusion is only for the event of his being free^[76]. It follows that a real exercise of the option was decisive: in the case of gift per vindicationem, it vested the man in the legatee, and an act of his will could not substitute another for him.

The Institutes say that under the older law, if the legatee died without choosing, the gift could not take effect: the heredes could not choose^{[77] [78]. This is confirmed by the authority of Labeo, Proculus and Gaius, in another case. They say that if a thing is left to X, ā€œif he likes,ā€ and he does not himself accept, the right does not pass to his heresā€”conditio personae injuncta videtur[79]. Another text emphasises the need of personal choice by saying that the curator of a lunatic legatee could not choose8.}

All this puts the matter on the level of condition, but it is clear that there were doubts. Paul in one text gives the heres of legatee the right of choice^[80], and Justinian in his constitution⁸, in which he regulates the matter, tells us that the point was doubtful not only where the legatee was to choose, but where the choice was with a third party. He settles the matter by the decision that the right of choice may be exercised by the heres of a legatee directed to choose, and that, if a third party so directed died, or became incapable, or neglected to do it for a year, the legatee might choose. But since the third party was given the choice in order to choose fairly, the legatee must not choose the best.

In a joint legacy of optio there had also been doubts. Clearly the condition required actual agreementā€™. The doubt may have been whether, in case of failure to agree, the thing was void, or each was owner in part of the man he chose¹⁰. It is clear that the dominant view was that, till all had agreed, there was no choice. Thus if one chooses he is free to change his mind, but if, before he does so, the other fixes on the same man, he is at once common. How if the first chooser has died or gone mad in the meantime ? Pomponius decides that the man cannot become common as there can be no common consent. The compilers add that the humaner view is that he does become common, the original assent being regarded as continuing. Justinian also lays down the rule that in such gifts the choice is to be exercised by one chosen by lot: the man will be his and he must compensate the others on a scale varying with the kind of slave and following a tariff laid down by the constitution¹.

As in the case of aditio, the law fixed no limit of time for choice. To avoid inconvenience, the Praetor could fix a limit on the application of heres, or of a legatee who had a right subsequent to the right of choice, or even of a buyer of the hereditas*. The time would no doubt not exceed a year. If it were past, the heres was free to sell, free, or pledge the slave, and the acquisition of rights by third parties barred the legatee pro tanto. Apart from such transfer, his right was unaffected. But if some have been sold, while Pomponius thinks he may still choose among the rest, Paul thinks him barred, since to allow him to choose now that the heres, having disposed of those he did not need, has reorganised his household, would impose great inconvenience on him. No doubt the inconvenience would have to be proved. The passage of Paul is from his Quaestiones: it may be that the compilers have made a rule where he expressed a doubt³.

The rules in the case of promise of a slave are much the same as in legacy. If a servus alienus promissus is freed by his dominus without dolus or culpa of the promissor, he is released, and the obligaĀ­tion is not revived by reenslavement. Paul points out on the authority of Julian, that culpa could not arise in such a case unless there was mora*. So too the promissor is released if any slave promised dies before there is mora, even though the death is caused by neglect, since the promissor is bound ad dandum, not ad faciendum⁵. So too if the slave become a statu-liber, without act or complicity of the promissor, he is released by handing him over as such⁶. If he was promised as a statu-liber and the condition is satisfied, the promissor is released⁷. So too if he was duly killed for wrongdoing, or by torture under the Sc. Silanianum, or earned liberty by discovering crime. But if the torture is wrongly inflicted, the promissor is still liable : it seems to be assumed that he could, and ought to, have prevented it⁸. If the man is alienus and is captured by the enemy,

I C. 6. 43. 3. 1, cp. In. loc. cit. a 33. 5. 6, 8. pr., 13. 1.

s 33. 5. 6, 7. ā€? 45. 1. 51; 46. 3. 92. pr., 98. 8; 45. 1. 91. 1.

s 45. 1. 91. pr.; 46. 3. 92. pr. Ā« 46. 3. 92. 1.

7 45.1.91.1. ⁸ 29. 5. 3. 13; 45. 1. 96.

ch. n] Fructus and Partus of a Slave 21

Paul says he can be sued for on his return¹. Elsewhere, he seems to say that if it were the promissorā€™s own slave who fell into enemy hands, he was not released. The case is put on a level with manuĀ­mission by the promissor, and it seems that the very fact of not preventing capture is treated as culpa^{[81] [82]. In one text, Paul raises, but does not answer, the question: what is the result if the promissor kill the slave, not under such circumstances as clearly release him, but in ignorance that he is the subject of the promise[83]? If the text lays down a rule, it is the same. In fact, it leaves the matter open[84].}

A slave like any other res might have fructus, and, in his case, the fructus were of a very distinct kind. Not only did they include earnings^[85], which might arise equally well in connexion with other things, but there might be gifts and profits on transactions, which are not exactly earnings, and could not arise in connexion with other chattels. Conversely it is important to observe that partus are not fruits^[86]. Two reasons are given: quia non temere ancillae eius rei causa comparantur ut pariant^[87], and that it is absurd to regard man as a fruit, since all things are made for him^[88]. The first compares oddly with the rule that sterility might be a redhibitory defect^{[89] [90] [91], and still more oddly with the counsels of the writers on res rusticae[92]. The second must have seemed somewhat ironical to a slave. Both of them however express, somewhat obscurely, the real reason, which was respect for human dignity11, rather than any legal principle. Nor were partus accessories. These distinctions had several important results. Thus a gift of an andlla cum natis did not fail if she were dead, as would one of servos cum peculio12. They did not, like fruits, vest in the bonae fidei possessor[93]. Partus of dotal ancillae did not go to the vir, except where the dos was given at a valuation (dos aestimata), in which case only the agreed sum had to be returned[94]. Nevertheless they share in the qualities of fruits and accessories in many respects.}

A heres handing over an ancilla to fidei-commissary or legatee after mora must hand over her partus¹, but not those born before dies cedens or even before mora*. And the beneficiary could get missio in possessionem as of fruits^{[95] [96] [97] [98] [99] [100] [101].}

Where the sale of an ancilla was voidable as being in fraud of creditors, the transferee had a good title in the 'meantime, and thus, though, she was recoverable, and partus born post iudicium acceptum were included as a matter of course, those born medio tempore were not recoverable, as they were never in bonis venditoris*. Proculus however held that if she were pregnant of them at the time of the transaction, they must be restored³. The materiality of conception before the transaction was one on which there were differences of opinion, as will be seen in relation to some of the more difficult cases now to be conĀ­sidered. If the child conceived be regarded as already existing, it must be considered (since it certainly passed by the sale³) as a sort of accessory. Further, it could be pledged, sold and even freed before it was bornā€™. The first two cases prove nothing, since pledge and sale were possible of slaves not yet conceived^[102]. In the last this is not so clear, since it is a gift to the child. But this case loses its significance, in view of the well-known principle that a child in the womb is regarded as already existing, so far as this makes to his benefit, but not for the advantage of others, nor to his own detriment^[103]: alii antequam nascatur nequaquam prosit^{[104] [105]; aliis non prodest nisi natus11. A modification of this in favour of the owner of the ancilla at the time of conception is not surprising, and we shall see other signs of this[106].}

According to several texts^{[107] [108], one of which is an enactment of a.d. 230ā€œ, and assumes the rule as a standing one, children born to a pledged ancilla are included in the pledge, as future crops might be. In one of the Digest texts13 it is Paul who tells us the same thing. But, in his}

сŠ½. n] Pledge of Ancilla. Rules as to Partus 23

Sententiae^[CIX], he lays down the opposite rule, not as special to partus, but as applying to fetus also. Many attempts have been made to explain away this sharp conflict. Dernburg⁸ thinks the rule of inĀ­clusion was introduced by the enactment of 230ā€™, after the Sententiae were written. But the enactment clearly treats the rule as well known. Huschke⁴, observing that the mss. give various readings, some of which agree with the. general doctrine, and following the interpretatio, proposes to amend, so as to make Paul say, merely, that, though there was a right in a gratuitous lender, who had taken a pledge, to keep fruits in lieu of interest⁶, this did not apply to partus and fetus. It should be noted that fetus and partus differ from ordinary fruits in that they bear a much less constant ratio in value to the thing itself: it is not so plainly fair that they might go in lieu of interest. Ordinary fruits, as we have seen, might often go to the creditor, and indeed it is far from certain that they were covered by the pledgeā€™. The language of the enactment of Alexander³ indicates that the inclusion of partus was not based on any notion of identity, but on a tacit convention which came to be presumed, and it may be that, as Dernburg⁷ also suggests, this is all Paul means by his requirement of a conventio.

Acceptance of this rule does not end the difficulty. If a debtor sell the pledged thing, it is still subject to the pledge⁸. What is the position of partus born to the woman after the sale? A text which lays down the general rule of inclusion does not advert to any distinction⁹. One, from Julian¹⁰, implies that they are not strictly pledged, but adds that there will be a utile interdictum to recover them. Another text, from Paul, lays it down that if the partus is born after the sale, it is not subject to the pledge^[CX]. The texts are sometimes¹⁸ harmonised by the suggestion that, while Julian is dealing with a case in which the partus was conceived before the sale, Paul writes of one conceived after it. But as Vangerow says¹³, this distinction is arbitrary and inconsistent with the language of the concluding part of Paulā€™s text. He thinks the rule was that the partus (and fetus') were not included, if born apud emptorem, since a pledge can cover only property which is in, or grows into, the property

of the pledgor¹. This does not explain why Julian² allows an interĀ­dict, even utile, in this case. Vangerowā€™ supposes it to be due to a special importance attaching to a pledge for rent. It seems more probable that it is an individual view of Julian (who holds other individual views on connected topics⁴), that he held that partus were included, wherever born, but that the direct interdict applied only to the crops etc. bound by tacit hypothec, and not to express hypothec⁵.

Usucapio of partus ancillae gives rise to many conflicts of opinion in the texts, which have been the subject of much discussion by comĀ­mentators⁶. The differences are not surprising, in view of the many questions of theory to which the possible facts may lead. Is the child a part of the mother ? If not, when does its existence begin, and is it acquired by the same causa 1 Is it affected by tritium in the mother ? The matter is further complicated by the fact that the rules as to bona fides were not the same in all the causae. Emptio had, and donatio may have had, special rules, and in the cases disĀ­cussed this point is material. And in some of the texts the transaction under which the mother is held was between a slave and his master, and there is the further question how far the latter is affected by the mala fides of the slave. It will be convenient to deal first with the case in which the mother was capable of being usucapted, i.e. was not subject to any vitium.

As we are told by Ulpianā€™, the issue are not fruits, and so do not vest in the bonae fidei possessor, though some texts dealing with these matters group partus with fetus*, which are in turn grouped with fruits, and declared to vest in the bonae fidei possessor*. They are not a part of the mother¹⁰. As they do not vest in the possessor, they must be usucapted independently. If the mother is usucapted before the partus is born, no question arises, for as in the case of any other alienation, the new owner of the woman owns the child¹¹. If it is born before that date it must be independently acquired, and possession of it does not begin till it is born¹². So far the texts agree. But there is disagreement as to the titulus or causa by which it is

^ISee the reff. in Windscheid, Lehrbuch, $ cit. n. 7. ² 43. 33. 1. pr.

⁸ loc. cit. Lenel has shewn ground for thinking that the passage was originally written of the actio Servians (Ed. Perp. Ā§ 266).

⁴ See next page.

⁶ This is Salviauum utile, but not the quasi Salvianum which has been supposed to have existed.

⁶ See e.g. Buhl, Salvius Julianna, 190ā€”198; Appleton, Propriete Pretorienne i. 116 sqq., 250ā€”277, 318 sqq.

⁷47. 2. 48. 6.

⁸41. 3. 4. 5; h. t. 10. 2; 47. 2. 48. 5. 9 41.1.48.2..

¹⁰ 18. 2. 4. 1; 21. 2. 42; 41. 3. 10. 2; 50. 16. 26. In one text we are told that till born the child is a portio matris (25. 4. 1. 1), but this has no general bearing: it means only that till the child has an independent existence, the interdict de liberis agnoscendis has no application.

^II 41. 1. 66. ¹⁸ 41. 3. 4. 16; h. t. 44. 2. acquired. According to Julian, and apparently Papinian, the titulus is the same as that of the mother¹: if the mother was being usucapted, pro emptore, so is the child. According to Paul it is by an independent titulus, pro suo^{[111] [112]}. The latter view necessarily leads to the rule that bona fides is necessary at the birth, which is clearly the initium posĀ­session's. And so Paul lays it down^[113]. Papinian however holds that good faith at the time of acquisition of the mother is enough^[114]. This is perhaps, as Buhl says, an expression of Julianā€™s view, but it goes beyond the logical implications of identity of titulus. This of itself would not do away with the need for good faith when possession began. Appleton regards it as treating the partus as an accessory, the destination of which is governed by that of the principal thing, subject only to the need for actual possession. As we have seen, this is contrary to the general attitude of the law towards partus, and there is no other textual authority for it. Regarded as an expression of Julianā€™s opinion^{[115] [116] [117]} and resting on his rule that the titulus is the same, it may be related with his view that a bonae fidei possessor did not cease to acquire through the slave, by learning that he was not entitled: supervening bad faith was, for Julian, immaterial^[118]. Other texts shew that this view did not prevailā€™, and it would appear that, in our case too, the other view prevailed⁸, so that in the case of an ancilla non furtiva, the conditions for usucapio of partus were the same as those for acquisition of fruits by a bonae fidei possessor. If that be so we get the result that the requirement of good faith at birth prevailed, while acquisition by the same titulus as that of the mother also prevailed. It seems to be supposed, by Appleton^[119], that if this part of Julianā€™s view prevailed, the other must. But there is no logical connexion. Two things acquired by the same titulus may be first possessed at different times, and good faith be necessary for each at the time of taking. It was only the conception of partus as an accessory that led to the view that good faith when the mother was received was sufficient^[120].

The case is somewhat different where the mother has been stolen, and is thus an ancilla furtiva, incapable of usucapion. The first point

26 Usucapion of Partus Ancillae Furtivae [pt. i

to notice is that the partus itself may be vitiosus, and thus incapable of usucapio by any one. If it is conceived before the theft or apud, furem, it is furtivus wherever born: it is grouped in this respect with fetus^[121]. There appears to be no disagreement as to the rule in the case in which the ancilla is pregnant when stolen; it is stated by Julian as an application of the rule that a child conceived is regarded as already existing². It is an extension, for the benefit of the owner, of a rule in general applied only for the benefit of the slave.

As to partus conceived apud furem, there is more difficulty. Ulpian tells us in one text that this too is furtivus, wherever born³. Elsewhere he reports a view of Marcellus, that if conceived apud furem or furis heredem, and born apud furis heredem, it cannot be usucapted by a buyer from him. In the same text he reports Scaevola as holding that on such facts the partus could be usucapted, as basing the view that it could not, on the idea that the partus is part of the ancilla, and as shewing that this would lead to the view that it could not be usucapted even if bom apud bonae fidei possessorem¹. This Scaevola seems to regard as a reductio ad absurdumĀ·, it is however exactly the view at which, as we have seen, Ulpian himself arrived, in the case of conception apud furem*. It does not seem to rest on the notion that the partus is a part, but to follow necessarily from the view on which the partus conceived before the theft was treated as furtiva, i.e. that it was to be regarded as already existing. For the thief is still ā€œ contrecting,ā€ and therefore still committing theft.

The case is different with conception apud heredem furis, (assuming, as we must, that he is in good faith). Here the view of Marcellus, that it is furtivus, cannot rest on continued contrectation, nor is it clear that it rests, as Scaevola thinks, on the view that partus is a part of the ancilla*. It seems, indeed, to involve a confusion. The heres succeeds to the defects of his predecessorā€™s possession, but he does not succeed to his guilt as a thief, yet this is what seems to underlie the view that partus conceived apud heredem furis is furtivus. He could acquire no more right in the thing than his predecessor could have acquired, but there is no reason why possession by him should affect the thing itself with any disability⁸, and the language of Paul and Ulpian in other texts is inconsistent with any such notion⁷. They treat conception apud heredem furis as being apud bonae fidei possessorem, and only exclude usucapio by him because he inherits the defects of his predecessorā€™s possession.

ch. n] Usucapion of Partus Ancillae Furtivae 27

If the child is conceived apud bonae fidei possessorem it is not furtivus, and can be usucapted by him on the same titulus as that of the mother¹. It is clear on these texts that the possessor must have been in good faith at the time of conception. Some texts speak of good faith only at this time^{[122] [123]. But none says that this is enough, and most of the texts say that good faith at the time of birth is necessary. It is noticeable that Julian takes this view[124]. Thus we arrive at the rule that good faith is necessary both at conception and birth, so that provided the child is not furtivus the fact that the mother was stolen makes little difference[125] [126]. One text, indeed, from Pomponius, citing the opinion of Trebatius that bad faith superĀ­vening after the birth was immaterial, expresses disagreement, and says that, in such a case, there will be no usucapio unless the possessor either does or cannot give notice to the person entitledā€™. This view is so contrary to the general rule that any isolated text expressing it is suspicious. When we see that the opinion is based on the proposition that if he does not take steps his possession becomes clandestine our doubts are increased, for nothing can be clearer than that a possession ab initio iusta cannot become cZawi[127]. The text cannot represent the law.}

The case is different where the bonae fidei possessor is a donee. Here we are told that he must continue in good faith up to the time of bringing the actio Publiciana^[128], i.e. for the period of usucapion. Of this principle, that in usucapio ex lucraiiva causa good faith must continue through the period, there are other scanty but unmistakeable traces^[129].

In another text we are told that a bonae fidei possessor can bring the actio Publiciana, for the partus conceived apud eum, even though he never possessed it^[130]. This has been explained¹⁰ as meaning that not only was the causa of the mother extended to the child, but also the possession. This conflicts with the conclusions at which we have arrived above, and has no other text in its favour. It is argued by Appleton¹¹ that for recovery in the Publician it was not necessary, on the words of the Edict, to have possessed, but only to shew that your

28 Further Rules as to usucapion of Partus [pt. i causa was such that if you had possessed you would have usucapted. This would certainly be the case in the supposed hypothesis, and it may be that this is the true solution of the difficulty¹.

Another text in the same extract says that the principle is the same in the case of partus partus, and in that in which the child is not born in the natural way, but is extracted from the body of the mother after her death, by Caesarian section. The first point is simple: the rules applied to the non-furtive partus are applicable to the issue of partus furtivus. The reason for the statement of the second proposition is not so clear. The principle which is declared to be applicable to this case too, is that of extension to the partus of the motherā€™s causa. The remark may be intended to negative the conceivable doubt whether the connexity may not be excluded by the fact that the mother was non-existent for a certain interval of time^{[131] [132]. But it may be merely that a doubt might arise as to whether a thing never actually born could be called partus[133].}

Another group of texts raises a fresh hypothesis. It was common for a slave to provide another in lieu of himself, as the price of his freedom^[134]. If the ancilla provided was only possessed in bad faith by the slave, we are told by Paul, on the authority of Celsus, that the master cannot usucapt her because prima causa dur at^[135]. The slaveā€™s acquisition was the masterā€™s: the intervening quasi-sale was immaterial. The slaveā€™s vitium would clearly affect the master. For the same reason it must be supposed that he could not usucapt partus even conceived apud eum. And so, for the case where the slave stole the ancilla, Paul tells us, on the authority of Sabinus and Cassius, and for the same reasonĀ®. But Julian appears as accepting another view of Urseius and Minicius, who say that the transaction between slave and master is tantamount to a sale, and is thus a causa under which the master as a bonae fidei possessor can usucapt partus conceived apud eum⁷. The effect of this is to avoid the difficulty that a master is affected by a vitiurn in his slaveā€™s possession. It can hardly be doubted that the other view represents the accepted law. In another text, adjoining that last cited from him⁸, Paul applies the same rule even if the substitute were given by a third person for the freedom of the slave: the master cannot usucapt her partus. One would suppose the master was an ordinary bonae fidei possessor in such a case. The simplest explanation is to treat Paul as still dealing with the case of theft by the slave⁹. But the text gives little warrant for this, and its conclusion is that the same is true if

the stolen ancilla is handed to us in exchange, or by way of payment or as a gift. These cases can have no relation to the procuring of manumission, and the notion of a slave stealing an ancilla and giving it to a third person in order that he may make a present of it to the slaveā€™s master seems a little improbable: it is more likely that Paul contemplates the slave as knowing of the defect in title¹. It may be remarked that a slave is suis nummis emptus for the purpose of manumission even though the price is actually provided by a third person^{[136] [137], and it may be that Paul has in his mind this assimilation, and declares that for this purpose too the whole thing must be imputed to the slave.}

For injuries to slaves delictal actions lay as for injury to other chattels. Thus there was an actio Aquilia for hurting or killing a slave, unlawfully, i.e. unless it were in self-defence, or the slave were caught in adultery or the like^[138]. This action being available to the owner lay even where he had pledged the slave^[139], and even though he were a buyer about to redhibit^[140]. If he were freed after the wound and then died, the wounder was liable to the late owner, de occiso, the injury having been done while he was owner^[141]. If on the same facts he had been freed and made heir by his late owner, he could presumably sue for the wounding, but if he died his heir could not sue de occiso, since an heir could not inherit an action which could not have belonged to the person he sucĀ­ceeded. If, however, the slave had been made part heir, and died, his co-heir could sue esc Aquilia⁷. Castrating a slave, and so increasing his value, did not give rise to an actio Aquilia, though it might to other proceedings⁸.

The case of a slave injured twice and dying after the second injury gave rise to some interesting distinctions. The rules laid down in the texts appear to be the following :

(1) If he is mortally injured by A and afterwards dies of a certainly fatal stroke by B, B has killed, A has only wounded. This is laid down by Celsus, Marcellus, Ulpian and Julian⁹.

(2) Julian lays down an analogous rule for the case in which having been mortally wounded by A he dies in a shipwreck or ruinaā„¢.

(3) If having been wounded by several at once or at different times he dies and it is clear which killed him, that one alone is liable for killing, but if it is uncertain which killed him, all are liable. This is laid down by Julian (as an ancient rule) and by Ulpian".

30 Damnum by more than one. Distinctions [pt. i

(4) If it is certain that Aā€™s blow would have killed, but not certain whether Bā€™s would or would not apart from Aā€™s, both are liable. So says Julian. Ita vulneratus est servus ut eo ictu certum esset moriturum...postea ab alio ictus decessit: quaero an cum utroque de occiso agi possit. respondit.-.igitur si quis servo mortiferum vulnus infiixerit eundemque alius ex intervailo ita percusserit ut maturius interficeretur quam ex priore vulnere moriturus fuerat, statuendum est utrumque eorum lege Aquilia teneri¹.

(5) For the purpose of this last rule it is immaterial whether the death does or does not immediately follow the second injury. The fact that it follows at once does not prove that the second injury was of itself mortal. In the actual case the death occurred at once since Julian, while laying down the rule that the year, the highest value during which is payable, dates from the injury backward, says also that here it dates from the death². The slightly adverse inference which might be drawn from the words maturius interficeretur is negatived by the use of a similar expression where the second event was naufragium vel ruina*.

(6) Where two persons are thus liable, the damages may not be the same. In the case supposed the slave was instituted heres by someone between the two injuries. The loss resulting from his failure to enter is imputable to the second injurer, not to the first⁴.

These texts have given rise to much controversy: it has been supĀ­posed that in 9. 2. 51. pr. Julian is in at least apparent conflict with Marcellus, Celsus, Ulpian and himself in 9. 2. 11. 3,15. 1. This opinion seems to rest on the assumption that the cases in 11. 3. and 51. pr. are the same, i.e. that the words alius postea exanimaverit, ex alio vulmere periit (11. 3) mean the same as ab alio ictus decessit, alius...ita percusserit ut maturius interficeretur. It is plain that they do not: the latter formula leaves uncertain the question whether the second injury was itself mortal. It is noticeable that Julian expresses his rule as an inference from the old rule already laid down for the case where there was doubt as to the fatal character of both of the injuriesā€™. Thus the contradiction, improbable in itself, appears to be non-existent. The discussions also contain the assumption that if the death follows immediately on the second injury, this shews that the second injury was mortal. In a certain sense it does so, but not in Julianā€™s sense. It does not shew that it was mortal apart from the firstā€œ.

i 9. 2. 51. pr. 2 Pacchioni, Law Quarterly Rev. 4. 180, arg. 9. 2. 51- 2.

⁸ 9. 2. 11. 3. Pernice, Sachbeschädigungen, 180. ⁴ 9. 2. 51. pr., 2.

⁶ 9. 2. 51.1. Idque est consequent auctoritati veterum, qui cum a pluribus idem servus ita vulneratus est ut non appareret cuius ictu perisset omnes teneri iudicaverunt.

⁸ It seems unnecessary to set out the various hypotheses which all start from one or both of these assumptions. The views of Vangerow, Pernice, Grueber and Ferrini are set out by Pacchioni (loc. cit.) who gives also an explanation of his own.

The title De furtis in the Digest^[142] is full of cases of theft of slaves, but so far as it is merely theft, they give rise to few special questions. The rules as to fugitivi will be more conveniently treated at a later stage: here it may be remarked that a fugitivus was regarded as a thief of himself². If, however, two slaves persuade each other to run away, they have not stolen each other⁸. The reason no doubt is that there is no contrectation, and theft at your mere suggestion is not ope et consilio tuo. This was certainly the law for Justinian⁴. Consilium, to make a man liable, must be more than advice to steal; it requires advice how to do it: it must be in some way helpful, though not necessarily in the nature of material help⁸. But it is not clear that early law took the same view. Its principles were not so strictly defined, and this very extract suggests a broader liability. Pomponius says, with Sabinus, (who is known to have taken a wide view of liability for theft,) that if the runaway took anything with him the man who advised the flight was liable for furtum^e. If this is so he ought to be a thief in the simpler case of the fur sui. There was no doubt a change of view. Again, if I urge a slave to run away intending that he shall fall into the hands of a third person, this is furtwn in me, for I have helped the thief. Here, too, Pomponius thinks that if he actually does fall into a thiefā€™s hands I am liable, though I did not intend this⁷. According to Gaius this was not theft, but gave rise to an actio in factum presumably for an indemnity⁸.

It must be observed that, in relation to delict, it is impossible to ignore, absolutely, the human aspect of the slave. Some acts assume distinct characters according as they are done to a slave or to some other thing. Thus, killing a slave was not only a delict: it was also a crime⁸ The Twelve Tables impose, for breaking a slaveā€™s bone, a penalty half that in the case of a freeman¹⁸. The Lex Cornelia, which made it capital to kill a man, included slaves in the term homo^[143]. The connexion of the slave with the wrong may be somewhat different. Thus goods in his custody may be stolen: whether they are or are not peculiares they are stolen from the master¹². In the same way if a third personā€™s property is stolen from the slave, the master has actio furti, if the slaveā€™s holding imposed on him the duty of custodia, as if stolen from himself. There was, however, one limitation: if the thing had come into the slaveā€™s custody through his contract, the masterā€™s liability on the contract would be only de peculio, and his interesse, being measured by his liability, would be similarly limited¹.

Some wrongs might be committed in relation to slaves, which were inconceivable in relation to other things. Thus, if my slave, falsely accused, was acquitted after torture, I had an action for double damages, apart from the remedy for calumnia^{[144] [145]. Two cases require fuller statement.}

Abduction of slaves, by force or by solicitation, was punishable by the Lex Fabia^[146], apart from the civil remedy. Mere receiving of a runaway did not suffice: there must be complicity, and of course, there was no plagium if the owner consented^[147]. It is described as consisting in chaining, hiding, buying or selling, dole male, inducing to flight from their master, or being in any way interested in such transactions^{[148] [149]. We are told on the authority of a rescript of Hadrian, that furtum of a slave was not necessarily plagium*. Indeed many well known kinds of theft are such that it is impossible to suppose the heavy penalties of the lex, or the capital punishment of later law, to have applied to them[150] [151]. To take away, and have intercourse with, an ancilla aliena non meretrix was furtum but not plagium, but, si suppress'd, poena legis Fabiae coercetur3. Here there was concealment; in fact, plagium seems to be such a furtum as amounts to repudiation of the ownerā€™s right[152].}

It required dolus and thus the act of hiring persons who were in fact fugitivi was not in itself plagium, where they had been letting themselves out before^{[153] [154]. But though bona fide claim of right was a defence, the mere allegation of ownership did not suffice, and if this point was raised it must be decided before the criminal charge was tried. Death of the abducted slave did not end the charge11.}

The lex fixed large money penalties payable to the treasury^[155]. Mommsen thinks that in its first stage the proceeding was an actio

ch. n] Abduction of Slaves. Servi Corruptio 33 popularis, tried before the ordinary civil courts¹. In the later empire it has become an ordinary criminal proceeding^{[156] [157] [158] [159], a indicium publicum tried by Praefectus Urbi in Rome, Praefectus Praetorio in Italy, Praeses in a province[160].}

The punishment is capital, varying in form according as the criminal is ingenuus, honestior, humilior, libertinus or serous, the commonest punishment being apparently in metallum datio*. An enactment in the Code speaks of a penalty payable to the fisc, at least for dealing in fugitivesā€™. The extreme penalty is thus reserved for the actual abductor^{[161] [162], if we can assume that this text was originally written of the lex Fabia, but this is far from certain. There was much legisĀ­lation on fugitivi, though it seems to be all based on the lex'ā€™.}

The exact date of the change is not known. It must be as early as Caracalla, if the Collatio is to be trusted, since he dealt with the jurisdiction in ways which shew that he is dealing with a indicium publicum⁸. It cannot be much earlier since Ulpian and Paul both speak of money penalties^[163]. It is noticeable that the same writers are made in the Collatio to treat it also as a indicium publicum¹⁸, which would mean that the change was made in their time, and the closing words of the title, in the Collatio¹¹, which deals with this matter, are, (the compiler being the authority,) that novellae constitutiones have made it capital, quamvis et Paulus crucis et metalli huiusmodi reis inrogaverit poenam. It is clear that there was legislation with this effect after Paul, and indeed the Code contains enactments of Diocletian which seem to lay down the capital and public nature of the proceeding as a new thing¹². It may be that this was an extension of legislation which had not covered the whole field of the Lex, or that, till the time of this later legislation, the actio popularis was an admissible alterĀ­native, and was commonly used. It no doubt had the advantage of entitling the informer to a certain share of the penalty, though we do not know how much.

For certain forms of damage to a slave, the Edict provided a special remedy by an action called indicium de servo corrupto. It was an actio in factum, for double damages. The Edict gives it against one who is shewn seroum(am) recepisse persuasisseve quid ei dolo male quo eumfam) deteriorem faceret¹³. The word corruptio is not in the Edict,

and was probably not in the formula¹. The title dealing with the matter gives many instances of the kind of wrong which was met by it². Knowingly receiving a fugitivus was enough, though mere charitable shelter with innocent intent was not. In general it was no defence that the man corrupted was thought to be free, (except, of course, in receiving a fugitivus, in which case this belief would negative the dolus,) for the necessary dolus is the intention to make him worse, which can be done to a free manā€™. The words of the Edict are very comprehensive, but it is clear from this list, and the language of some of the texts, that the harm contemplated is usually moral⁴. The facts may often, however, amount to another delict as well, and as the corruption of the slave is a distinct wrong, the two actions would be cumulative⁵. The action is in duplum even contra fatentem, i.e. for twice the damage to the slave and loss immediately consequent on the wrong*. Thus if a slave were incited to flight or taken away, it covered the value of anything he took with him, but not the loss and liability from subsequent thefts caused by the habit formed⁷. So if he was induced to destroy docuĀ­ments, the loss caused was chargeable, but not that from later similar acts*. This might lead to severity in some cases, for it was theft in the adviser as to what the man took with him, and the offender would thus be liable to pay twice the value for the corruptio, and twice or four times for the theft⁹.

The death, alienation or manumission of the slave, or the return of the property does not extinguish the action¹⁹. Like other rights of action it passes to the heres, though the slave is legated¹¹, but, as it is penal, it does not lie against the heresā„¢. Though it is Praetorian and penal, it is perpetual, a characteristic found in some other such actionsā€œ.

¹ Lenel, Ed. Perp. Ā§ 62.

² 11.3. Among them are receiving clandestinely the slave of another, making such a slave do anything which lessens his value, encouraging one, already badly inclined, to steal, corrupt others, commit iniuria, or ruin his peculium by debauchery or otherwise, leading him into vice, idleness, neglect of business, prodigality, flight, disobedience, contempt of his master, trickery or intrigue, inducing him to run to the statue of the Emperor to the shame of his master, inducing him to copy, alter or destroy private documents or contract notes. P. 1. 13a. 5; 2. 31. 33; D. 11. 3. 1, 2, 11. 2, 15; 47. 2. 52. 24; 47. 10. 26.

Ā» 1. 3. 5. pr. 1. * 11. 3. 15; C. 6. 2. 4.

⁵ 11. 3. 11. 2; G. 3.198. Thus to induce a man to run away was furtwn ope consilio, in the adviser, if it was done with the intent that he should fall into the hands of a third person, and similar cases might arise under the I. Aquilia, 11. 3. 3, 4.

⁶ 11. 3. 9. 2; h. t. 14. 5; h. t.14. 8. 7 n. 3. U._pr,

⁸ 11. 3.11.1. It covered liability for any wrong or breach of contract he was induced to commit to third persons.

⁹ 47. 2. 36. 2. As to theft in this case, ante, p. 31. As to the literature on cumulation, Demburg, Pandekten, 1. Ā§ 135.

w 11. 3. 5. 4ā€”7; h. t. 16. n 11. 3. 8,13. pr.

¹² 11. 3.13. pr. Except as to actual profit.

¹⁸ 11. 3.13. pr. Contrary to the rule expressed in 44. 7. 35. pr. Furti manifesti iaperpetua, but it is only a modification of a civil law liability. Our action is purely Praetorian. The actio iniuriarum was annua though not contra ius civile (0. 9. 35. 5). Doh though purely indemni- ficatory was annua (44. 7. 35 ; 0.2. 20. 3). De rebus effusis was perpetua in duplum (9. 3. 5. 5). Some were fourfold or twofold for a year and single after: Oalumnia, 3. 6.1; damnum in turba, 47. 8.4.pr.; wrongs by familia pubhcani, 39. 4. 1; wrongs on occasion of incendium, ruina etc. 47. 9. 1. pr. De sepulchre violate was apparently perpetua^ though praetorian and penal, 47. 12. It may be noted that Ulpian says of our case, haec actio perpetua est, non temporaria¹, a pleonastic way of putting the matter which is unusual if not unique. It may be that this betrays a change and that, like some other of the actionsā€™, to which it is closely analogous, it was originally in simplum after a year.

The action was available to the owner, even though he had pledged the slave, and against anyone, even a usufructuary[164]. In strictness it was not available to anyone but the owner, but it was allowed in the case of corruption of a servus hereditarius, and, as an actio utilis, to the fructuary even against the owner⁴. It was not available either to or against the bonae fidei possessorā€™¹.

The words of the Edict* are so wide as to include any kind of wrong done by persuasion, but we have seen that it was used, in practice, mainly in case of moral damage (often with material consequences), such as could not otherwise be reached by existing law. One case is peculiar: we are told, by Ulpian, that, if you persuaded a man, dolo malo, to a dangerous feat in which he suffered bodily harm, this action lay. Paul adds that an actio utilis Aquilia is better⁷. The case is clearly not within the lea: Aquilia, and it is likely that our action was applied to such cases, (the Edict being an old one⁸,) before the subsidiary actions analogous to the actio Aquilia were fully developed.

In general, actual damage had to be shewn: indeed to no other hypothesis could double damages be fitted. There was, however, a case in which there seem to have been doubts, hardly justified on logical grounds, but inspired by considerations of expediency. A tries to induce Bā€™s slave to steal from him. The slave tells B who, in order to catch A, tells the slave to do as A suggests. Was there any liability? Gaius is clear that there was no furtum, because of the consent, and no indicium servi corrupti because the slave was not corrupted. He seems indeed, though his text is uncertain, to treat the doubt as obsolete. Justinian treats it as an open question, and, observing that there had been doubts, decides that both actions shall lie, to prevent a wicked act from going unpunished⁹. It is not to be supposed that there was any intention to do away with the general rule requiring actual deterioration.

One remarkable text attributed to Paul remains for discussion in connexion with this action¹⁰. It provides for a choice in the master, if the slave inutilis sit (1 fit) ut non expediat eum habere, either to keep the man with double damages for his deterioration, or to receive his original value and hand him over (or if the man is absent, his rights of action). The latter alternative is destroyed if the slave be dead or freed. The rule is no doubt Tribonianā€™s¹. On the assumption in the text that the slave is made worthless, the damage is his value, and the choice is absurd: it is a choice between value and double value. Indeed there is no case in which surrender and taking his original value would be as profitable a course as the other².

Even if the slave be regarded purely as a chattel, it does not follow, according to our modern ideas, that the ownerā€™s rights are quite unlimited, and this may excuse the treatment in this chapter of the restrictions which were imposed on the dominus.

During the Republic there was no legal limitation to the power of the dominus: iure gentium his rights were unrestricted³. It must not, however, be supposed that there was no effective protection. The number of slaves was relatively small, till late in that era, and the relation with the master far closer than it afterwards was. Moreover, the power of the Censor was available to check cruelty to slaves, as much as other misconduct. Altogether there is no reason to doubt that slaves were on the whole well treated, during the Republic⁴. But with the enormous increase of wealth and in number of slaves and the accompanying degeneracy of private life, which characterised the early empire, the case was changed. Legislation to prevent abuse of domiĀ­nical power was inevitable, and the steps by which full protection for the slave was reached are fairly fully recorded³.

As early as a.d. 20 rules were laid down by senatusconsult, as to trial of criminal slaves; the same procedure being ordered as in the case of freemen³.

By a lex Petronia⁷, supplemented by senatus consulta, masters were forbidden to punish their slaves by making them fight with beasts even when they were plainly guilty, unless the cause had been approved as sufficient by a magistrate. Rules of a kind similar to those of our lex were laid down, later, by Divi Fratres: perhaps only then was the rule applied to slaves whose guilt was manifest⁸.

Claudius provided that if a master, to avoid the expense and trouble of cure, exposed sick slaves on the island of Aesculapius, the slaves, if

i Lenel, Palingenesia, adh.l. ² Iniuria to a slave, post, p. 79.

8 1. 6.1.1; G. 1. 52; In. 1. 8. 1. The Jewish law was more favourable to slaves: a result of the ā€œ relative ā€ nature of Jewish slavery. Winter, Stellung der Skiaven bei der Juden, 33.

⁴ See Willems, Droit Public Romain, 288.

^s See Blair, Slavery amongst the Romans, 83sgg. ⁶ 48. 2.12. 3.

⁷ 48. 8. 11. 1, 2; 12. 4. 15. As old as a.d. 79, since a record of it was found in Pompeii. There was a Consul, Petronius, in a.d. 6. Karlowa identifies the law with a lex Junia Petronia of a.d. 19, which provided that on equality of opinion in a causa liberalis, the claimant should be declared free. Renn. Rechtsg. 1. 624. ⁶ 18.1. 42. they recovered, should be free and Latins. From the language of the Code and Digest, it seems that mere abandonment in sickness had, at least in later usage, the same effect. Suetonius adds that if he killed such a slave, he was liable caedis crimine. But he is not a very exact writer and may have antedated this legislation¹.

Domitian forbade the castration of slaves for commercial purposes, and seems to have lessened the temptation to infringe the law, by fixing a low maximum price for spadones^{[165] [166] [167]. Later events shew that this legislation was ineffective8.}

Hadrian appears to have dealt frequently with these matters. He punished by five years relegatio a woman who cruelly treated her slaves for slight faults. He forbade masters to kill their slaves except after judgment by a magistrate. He forbade the torture of slaves, for evidence, until there was some case against the accused, and limited torture under the Sc. Silanianum to those slaves who were near enough to have heard what was doing. He suppressed private prisons (ergasĀ­tula) both for slaves and freemen. He forbade the sale of men or women to lenones or to lanistae (purveyors for gladiatorial shows), without cause. He increased the severity of the laws against castraĀ­tion, by bringing it under the lex Cornelia, with a penalty of publicatio. It was immaterial whether it was libidinis or promercii causa: consent was no defence and the slave might lodge the complaint. It was capital in the surgeon and the slave who consented. Emasculation by other means was put on the same level, to prevent what had probably been a common way of evading the earlier law^{[168] [169].}

Antoninus Pius provided that a master who killed his slave was as liable for homicide as if it had been a third personā€™s, a rule which seems to state only existing law except that it defines the penalty more clearlyā€™. On the occasion of a complaint of ill-treatment reported to him by the praeses, from the familia of one lulus Sabinus, he laid down a general rule for such cases. If a slave complaining of ill- treatment fled to fana deorum or the statue of the Emperor for sanctuary, the complaint must be enquired into, and, if it were true the slave was to be sold so that he should not return to the old master^[170]. The ground might be either cruelty or infamis vniuria, which probably means attempt to debauch an ancilla. It was to go before Pr. Urbi, Pr. Praetorio or Praeses, according to locality. The complaint was not to be considered as an occwsatw of the master¹, a rule which saved the masterā€™s reputation on the one hand, and on the other prevented the institution from being an exception to the rules that a slave cannot formally ā€œ accuse ā€ anyone or be heard against his master⁸. The rules as to jurisdiction may be due to later legisĀ­lation by Severusā€™.

Alexander expressed the tendency of legislation by a rescript⁴ which, in a case in which a master had in anger directed that a slave should be perpetually bound, provided that the arbiter familiae erciscundae was to ignore the provision, if the master could be shewn in any way to have repented.

Diocletian and Maximian issued a rescript, in itself unimportant, but suggesting that at that time (A.D. 285) immoderate chastisement was a ground of accusation⁵. Constantine declared the master not liable for killing in course of bona fide punishment, but guilty of homicide if the death was caused by a wantonly cruel mode of punishment, or the killing was merely wilful⁶. He also forbade the exposure of infant slaves⁷.

The Codex Theodosianus contains several enactments of about the end of the fourth century, dealing with the right of sanctuary, and with abuses and misuses which had crept in. They shew that Christian churches had superseded fana deorum and also the statue of the Emperor for this purpose⁸, and they systematise the procedure.

Leo forbade slaves to be made actors against their will, and Justinian forbade masters to prevent them from abandoning the stage if they wished to do so. It is clear from the language of the Institutes that the power of the master was in Justinianā€™s time limited to reasonable castigation⁹.

It is not necessary to give details as to the taxes to which slaves, as chattels, were subject¹⁰.

¹ G. 1. 53; In. 1. 8. 2; D. 1. 6. 1,2; Coll. 3. 3. 1, 2.

² Post, p. 85. Except in claims to liberty and the above case of castration, this was the only case in which a slave had access to the tribunals.

⁸ 1.12. l.pr., 1. 8. He also laid down rules against prostitution of slaves, Ibid. As to these and sales with proviso against prostitution and as to torture of slaves as witnesses, post, Chh. ni in fine, xxvi. Prohibition of sale to go ad bestias, 18.1. 42.

⁴ C. 3. 36. 5. ⁸ Coll. 3. 4.

⁶ C. Th. 9.12,1. h. t. 2; C. 9.14.1. There were also ecclesiastical penalties.

⁷ C. Th. 5. 9.1. Abrogated and superseded by Justinian, who enacts similar rules, C. 8. 51.

⁸ C. Th. 9. 44. 1, modified in C. 1. 25. 1; C. Th. 9. 45. 3, 4; C. 1. 12. 3.

⁸ C. 1. 4. 14, 83; In. 1. 8.2.

io Marquardt, Organisation Financifere, Part 8. The old tribntwn applied to them as long as it lasted. A similar tributum was exacted in the Empire from the provinces: there must be professio of slaves as of other taxable property. Failure to make it involved forfeiture: torture of slaves might be used to discover the truth. Forfeiture did not cover pectdia, and a procurator or one who had committed offences against his master, was not forfeited, for plain but different reasons, but the Fisc took his value. The tax was due on those used in any business. The professio must state nation, age and employment, misdescription involving forfeiture. A minor was excused, and error might be compensated for by double tax (Caracalla, who also excused non report of a trade carried on unlawfully by the man insciente domino). Succession duty was payable on slaves as on other property. There were duties on sales, and on manumissions, and there were customs dues, imperial and provincial, import and export, full professio being needed with various exemptions. See 39. 4. passim; 50.15. 4. 3, 5; 50.16. 203; C. Th. 11. 3. 2; 13. 1. 18; 18. 4. 4; C. I. L. 8. 4508.