CHAPTER XIV. SPECIAL CASES (coni.). S. PUBLICUS POPULI ROMANI, FISCI, ETC. S. UNIVERSITATIS.

In the course of the Empire great changes occur in the relations of these different funds. The Fiscus steadily grows to be regarded more and more as public property. Ulpian speaks of it as still the property of the Emperor^[1181], but Caracalla, and, later, Pertinax, both treat it as essentially public, and in the Monarchy, after Diocletian, all substantial difference between public property and fiscal property has disappeared. This change in the position of the Fisc necessitates a more clear distinction between it and the private property of the Emperor, and accordingly from the time of Septimius Severus there appears a separate machinery for the administration of the true res privatae and familiares of the Emperor. Yet another change must be noted. Justinian, and, perhaps, earlier Emperors, shew a tendency to extend to their private property, while still retaining the advantages of private ownership, the same privileges as exist for the Fisc².

These gradual changes of attitude make it impossible to say with certainty whether a particular rule which is applied by classical law to servi publici populi Romani is or is not in later law extended to servi fiscales or to servi privatae rei. Existing texts give little but negative results.

The name servus publicus populi Romani implies something more than that the slave in question is the property of the people: it imports that he is in some way employed on public affairs, and on that part of public affairs which belongs to the Senatorian department rather than to the Imperial. As we shall see, captives do not become servi publici by the mere fact of capture, but only by their being devoted to the permanent service of the public³. It is this limitation of the name which accounts for the fact, noted by Mommsen, that there is no trace of female servi publici*.

The true servus publicus is completely obsolete in Justinian’s time, and is nearly so in the classical law, so that it is not surprising to find little mention of him in the juristic texts.

Servi publici seem from the evidence of the inscriptions to have usually married, or cohabited with (for it is difficult to give a name to their connexion), freewomen, ingenuae or libertinae. Mommsen holds³ that they never cohabited with ancillae. But though such connexions might not be usual or creditable, it is unlikely that they did not occur. Indeed there are at least three inscriptions which seem to shew that

320 Servi Publici: Family Relations [pt. i

such connexions did occur and were avowed, though clearly they were open to objection on many grounds¹. In one inscription we have a memorial set up to a libertinus, by, inter alios, his patron, and his father who is a serous publicus². In another we have a man called Primitives, apparently therefore a slave, setting up a memorial to his father who was a servus publicus². In another we have a serous publicus setting up a memorial to his son Neptunalis, apparently a slave⁴. Halkin cites other inscriptions of the same type⁶. It is notable that in them, as in those cited above, the mother is always free. Mommsen does not advert to these cases, but Halkin disposes of them by assuming that the connexion existed and the child was bom before the man became a public slave. It seems at least equally consistent with the evidence to suppose that such connexions did occur, but that the public slave commonly secured the manumission of the woman and her children.

In any case however the child of a serous publicus would not be a servus publicus: no one was born into that position. They were thus ordinarily acquired, a circumstance which is expressed in the second name which most of them bore, commonly terminating in ianus, and recording the name of their former owner*. In many cases however they appear with only one name⁷, a circumstance which may indicate that they vested in the State otherwise than by purchase*.

Public slaves, while forbidden to wear the toga, seem to have had a special costume*. The lea; Julia Municipalis alludes to assignments by the Censor of sites for dwellings for the servi publici™, but it is not clear that this refers to slaves of the people, or even that, if it does, it expresses any general rule.

During the Republic seroi publici were employed on a great variety of works: as in private life, the greater part of the business of Rome seems to have been conducted through slaves. Most of their work was subordinate, though not all¹¹. It is not possible to go into their various employments¹². In connexion with some of these employments, though not it seems with all, the slave received an annual stipend, or rather

^ISee C. 6. 1. 8. 2 C. I. L. 6. 2334. * C. I. L. 6. 2340.

* C. I. L. 6. 2357. « op. cit. 119; C. I. L. 6. 2343, 2361.

6 Mommsen, loc. cit., and for illustrations, C. I. L. 6. 2307 sqq.

7 C. I. L. 6. 2313, 2331, 2343—5, 2365, 2366, 2369—71, 2374, 4847,11784, etc.

8 Capture, proscription, forfeiture. See Halkin, op. cit., 17 sqq. He says that dedittett, freed after they had been sold into perpetual slavery, came into this class. But we are told only that they become the property of the Roman people, not that they enter this privileged class, G. 1. 27.

9 Mommsen, loc. cit. ¹⁰ Bruns, Fontes, 1.109.

^II They served as priests of Hercules, Halkin, op. cit. 49 sqq.

¹³ They were employed as messengers in all departments, as attendants on the magistrates, as servants in the temples, some being attached as a familia to certain priesthoods. Not to magistracies, on account, so Mommsen thinks, of the temporary nature of the office. They were employed in collecting unfarmed revenue, in libraries, in administration of justice, in fire and* water services, and generally in public works. See as to this Mommsen, D. P. Rom. 1. 862 sqq.', Staatsrecht (3) 1. 325sqq.', Halkin, op.

maintenance allowance—cibaria annua—paid annually from the aera- rium¹. Savings on this were doubtless among the sources of their peculia². But mere temporary employment on public work did not entitle them to rank as servi publici. Thus Livy tells us⁸ that of the prisoners taken by Scipio, some were declared to be public slaves, and these were set to various handicrafts with a prospect of liberty if they deserved it. Others were set to work as oarsmen in the naval galleys, and these were not regarded as public slaves at all⁴.

So far as private law is concerned we hear little of servi publici. In a text which as it stands is very corrupt, we are told that they had a power of devise of half their peculium*, the other half, and all if they were intestate, reverting no doubt to the State. As to acquisitions by the publicus, rights and liabilities on his contracts, and noxal liability for him, the texts tell us not a word. This does not mean that this sort of question did not arise, but that at the times when our texts were written the servus publicus populi Romani was obsolescent⁸. There can be no reasonable doubt that their acquisitions vested in the State, and little more that their free superior would be liable under a contract authorised by him. So much can be inferred from the rule in the case of slaves of municipalities. But beyond this there is no certainty: it is not to be taken for granted that they had an unrestricted right to bind their peculia. It seems that debt to the State could be paid to a public slave only with consent of the person entitled to receive it. If so paid without that consent the debt was still due, subject to a deduction for what was still in the peculium⁷. In relation to obligations incurred by them the rule may have been the same⁸.

It is obvious that they took a social rank very different from that of ordinary slaves.

In the Empire the field of employment of servi publici rapidly

¹ Pliny, Litt. Traj. 31; Halkin, op. cit. 115. ² 16. 2. 19; C. Th. 8. 5. 58.

⁸ Livy, 26. 47; Polybius, 10.17.

⁴ Gladiators were not public slaves, but often those of private owners, aspirants to office, or of Caesar. ⁵ Dip. 20.16; C. I. L. 6. 2354.

⁶ The surviving praejustinianian juristic texts contain no allusion to servi publici populi Romani.

⁷ 16. 2. 19. ⁶ Ante, pp. 163, 4, and, as to certain contracts by them, post, p. 322.

* C. I. L. 6. 2318. w C. I. L. 6. 2308. ^u C. I. Ii. 6. 2331.

¹² e.g., C. I. L. 6. 2338, 9 (monuments erected by public slaves); 6. 3883 (monument to public slave); 3. 7906 (not sepulchral). diminished. Mommsen could find no trace of any such persons outside the capital, after the founding of the Empire¹. The low standard of morality with which slaves were credited naturally led to restrictions on the financial side. Alexander enacts that cautiones, i.e. receipts, by public slaves of municipalities are not to be valid unless countersigned by the person to whom the money was payable’. This is not strictly relevant to our topic, but it indicates a tendency. From Diocletian onwards all important public service is done by freemen, though in the various forms of labour slaves are still employed. In the time of Alexander administratio is essentially servile. Arcadius absolutely forbids the employment of slaves therein*. But as will shortly appear, all this later legislation has no direct bearing on servi populi Romani.

We have seen that in all probability the servus publicus was super­seded outside the city under Augustus, and indeed the method of farming the republican revenues prevented his appearance in a field of activity in which the slaves of the Fisc are prominent in later times. But apart from this, the gradual absorption of the Senatorial power by the Emperor and of the Aerarium by the Fisc, seems to have involved the disappearance of the old servus publicus populi Romani. This absorption is said to have been completed early in the third century⁴, at about which time the affairs of the Fisc come to be regarded as public⁵. There are however a few texts in Justinian’s compilations in which the servus publicus seems to be referred to*. We are told of three cases in which security may be taken by a public slave in what is essentially private business. On adrogation of an impubes, the adrogator may give the necessary security to a public slave⁷, since the obligation, as civil, would be destroyed by the confusio resulting from the adrogatio, if it was given to the impubes himself or to one of his slaves. So the goods of a person in captivity with the enemy may be placed in the custody of one who gives security to a public slave®. And, where a pupillus has no slave, an intended tutor, in the case in which security is needed, can give security rem salvam fore pupiUo to a public slave’. Of course the lawyers were aware that a servus populi was not the property of individual citizens¹⁰, and indeed the texts nowhere rest the rule on any community in the slave. But it is difficult to resist the opinion that it is on this ground that a public slave is chosen: his stipulation, that the goods shall be given to the person entitled¹¹, would be void except for this fictitious ownership as a stipulation for a third person¹â€™. But the rule has convenience on its side, and that it is recog-

¹ Zoe. cit. ^a C. 11. 40.

⁸ C. 10.71.3; 11.37.1. As to progress and causes of the change, see Halkin, op. cit. 224 sqq. * Marquardt, Org. Financ. 386. ⁶ Mommsen, D. P. Rom. 5. 293 sqg.

6 Wallon, op. cit. 3.135 sgg., cites several from the Codes but they all refer to slaves of mum’ctpia, or the Fisc.

71. 7.18; C. 8. 47. 2. ⁸ C. 8. 50. 3. ’ 27. 8. 1. 15; 46. 6. 2.

io 48.18.1. 7. ¹¹ C. 8. 47. 2. ^u In. 3.19. 4. nised as having no more appears from the fact that in the case last stated, i.e. of the tutor, we are expressly told that the pupil acquires only an actio utilis¹. All these texts give an intelligible sense, if they are understood of municipal slaves, and in none of them is the slave called a semus publicus populi Romani*. Nevertheless they cannot well be understood as representing the law of Justinian’s time. In the case of the adrogator the Institutes say that the security is given publicae personae hoc est tabulario*. It is certain that public tabularii were not slaves in Justinian’s time^{[1182] [1183] [1184]}. In the case of the tutor, one of the texts allows the magistrate to nominate a person to take the promise with the same resulting actio utilis to the pupillus, and the other text dealing with the same matter gives him the right to take the promise himself’. The fact seems to be that the fictitious part ownership which was the excuse for allowing the security to be given to a serous publicus was lost sight of in the later law, and his public character illogically regarded as the essential, so that in later law the security is given to a public person whether he is a slave or not. It may then fairly be assumed that the true servus publicus populi Romani has long ceased to exist in the law of Justinian.

Of slaves the property of the Emperor it is possible to make three classes: serin (patrimoniales) Caesaris or Augusti·; semi fiscales·, semi privatae rei Caesaris. All of them are Caesar’s, and most of the rules which are stated of semi Caesaris may be applied to all three.

Semi Caesaris present close analogies with the public slaves just discussed. The name however does not seem to be confined to those who exercise some function in Caesar’s name, though neither semi privatae rei nor vicarii of semi Caesaris are commonly called semi Caesaris^[1185]. Like semi publid they wear a special dress^{[1186] [1187], - and it is common for them to have two names. Sometimes the second name has the termination ianus indicative of acquisition from a private owner’, but more often it is not in this form[1188] [1189] [1190]. In the majority of the inscrip­tions and in all the later ones, only one name appears11. There are many references to ancillae Caesaris18, some unmarried[1191] [1192], some having two names1, and one who is described as a vilica, which, as her husband is not named, may mean, not the wife of a vilicus, but one herself exercising that function[1193]. Servi Caesaris sometimes married freewomen*, but more usually andllae, often, it is likely, andllae Caesaris[1194] [1195] [1196] [1197] [1198] [1199]. Thus many servi Caesaris are so by birth: vernae Caesaris are common in inscriptions'. Persons so described are no doubt, usually, the offspring of a servus Caesaris and an andlla Caesaris not in his peculium. If she were in peculio, the child would not be technically a servus Caesaris, but a vema servi Caesaris': a vicarius of a servus Caesaris is not a servus Caesaris. Probably many of the slaves described as vicarii servi Caesaris are children of the servi concerned. In some cases we are expressly told that this is so[1200] [1201], and this may be the reason for stating the obvious rule that they may not manumit their vicarii1. If the andlla is not a vicaria, but a serva Caesaris, the child is a servus Caesaris* and may be a vernau.}

Of the various employments of servi Caesaris it is not necessary to say much¹¹. There is the same history of a gradual transference of the higher posts held by them, to freemen, which has already been noticed in connexion with servi publid^a. In general their range of employ­ments is similar. Two points of difference must however be observed. The financial administration of the Imperial property was largely in their hands. The system of farming taxes, applied in a great many branches during the Republic, almost ceased under the Flavian emperors. It was never so freely used in Imperial matters, and even where it had been adopted it was almost completely abandoned¹*. Moreover the slaves of Caesar were largely employed in weaving and similar factory work, and there was legislation imposing heavy money penalties on those who concealed or abducted slaves belonging to these gynecaea or textrina¹*.

Servi fisd or fiscales are those employed on the business of the Fiscus. This term excludes on the one hand slaves who have merely become the property of the Fiscus by forfeiture or condemnation¹, those which belonged to estates forfeited for secret fideicommissa, those whose masters have died without heirs—mancipia vaga¹â€”and those belonging to estates on which the heirs have refused to enter’, and on the other hand those belonging to the patrimonium or to the private res Caesaris. But there are many texts which shew the close similarity which existed between these classes. Some have already been noticed⁴. The Fragmentum de iure Fisci hardly seems to distinguish between them⁵.

It is nowhere expressly said that either of these classes of slaves had any right of devise of the peculium. But a mutilated text tells us that certain persons, who may be either servi Caesaris or his liberti, may deal freely with their res, so long as their transactions are not in fraudem portionis Caesaris’. As the whole passage is dealing with slaves, it seems probable that this refers to the peculium of servi Caesaris, and that it implies an extension to them of a power of devise of a half. Huschke⁷ remarks that their right was much the same as that of filii familias in their peculium castrense. But they had no power of manu­mission’. Nothing is known as to the mode of reckoning of this half’.

Some Emperors reserved to themselves a power of punishment in excess of what was allowed to private owners¹⁰, but in general the capacity and position of servi Caesaris were apparently normal in most respects. They could enter on inheritances on the order of the person concerned¹¹. They could presumably acquire in other ways and contract like slaves in general. Clearly however there were some restrictions. Thus we are told that it was forbidden to lend money to a dispensator Caesaris, or to his vicarius, which here means, no doubt, any slave representing him¹â€™. The ordinary servus Caesaris must have had many occasions to contract, and it is not unlikely that on his private dealings his half of his peculium alone was liable, that of Caesar being in no way affected by his dealings, while on the other hand, on his contracts made on Caesar’s business, probably the head of the department was liable, at any rate to the same extent as in the case of slaves of a municipality¹â€™. Trajan indeed provided that with slaves of the Fisc,

¹ They are called fisci mancipia, C. 9. 51. 8.

* C. Th. 10. 10. 20; 10. 12. f, 2; 11. 1. 12.

⁸ Any of these might become a servus fiscdlis.

< e.g. 49. 14. 6. 1; In. 2. 6. 14.

⁵ Fr. de i. Fisci, 12,13. Property of deceased liberti Caesaris goes to the Fisc so far as it is not validly devised. So too of treasure found on land of the fiscus or of Caesar, the owner's part goes to the Fisc, 49.14. 3. 10.

⁸ Fr. de i. Fisci, 6 a. ¹ ad h. I., citing Ulp. 20.16.

8 C. 7.11. 2, post, Ch. xxv.

9 Many inscriptions shew servi Caesaris erecting monuments de suo, an expression used probably to make it clear that the pars Caesaris has not been encroached on. Dessau, 1654; 1821, cited Erman, op. cit. 413, 417; cp. C. I. L. 6. 479, 744.

10 Flav. Vopisc. Aurelian, 49. ¹¹ 29. 2. 25. 2.

i® Fr. de i. Fisci, 7. ^u Cp. 16. 2.19. the provincials should not contract at all under a penalty of, apparently, twice any resulting loss^[1202]. This refers of course to slaves engaged in the collection of revenue, the only ones to which the name serous fiscalis seems to be properly applicable. The language of this text and that just mentioned as to loans to dispensatores suggests that such a tran­saction though prohibited was not void. If so, the liability must have been de peculio et in rem verso.

Prohibitions of delatio did not prevent servi fiscales from reporting to the treasury in money matters: it was in fact their master’s business²â€™³.

We have already observed that the fiscus though technically the private property of the Emperor is practically, and in the later law admittedly, public property. We have also seen that the privata res follows somewhat the same course, or rather, to put the matter more accurately, that the Emperors claim for it the same privileges as those possessed by the fiscus and the public part of the patrimonium, while not in any way loosening their hold or power of disposition of it. Accordingly servi privatae rei are in most respects on a level, in later law, with those just discussed. They enter on inheritances for Caesar at the command of him or his procurator⁴.

There are extant several enactments as to the tribunal which may try them. In a.d. 349 it was provided that crimes of slaves of the res privata might be tried in the provinces by the regular iudices, and the interpretatio perhaps makes this apply to patrimonial and fiscal slaves, while it seems to give the procurator Caesaris a right of intervention⁵. There was legislation about the same time requiring the presence of the rationalis both in civil and in criminal cases⁸, but so far as criminal cases were concerned this was dispensed with in a.d. 398⁷. For the capital, at least, Theodosius and Valentinian laid down, in a.d. 442^s, a different rule. Any litigation civil or criminal in which the slaves of the household were concerned was to go before the Praepositus sacri cubiculi or Comes Domorum. This rule clearly does not apply to Fiscal slaves, though the rubric of the title groups together such slaves and those of the privata res“.

XXI. Servi Publici of Municipia.

These are really only an instance of the wider class of servi univer­sitatis. But as practically nothing is known of special rules affecting servi of other forms of corporate bodies, servi collegiorum, and the like, and as the slaves of municipalities played a very important part, closely analogous to that of the servi populi Romani, it seems convenient to treat them separately. Such slaves are the property of the community, not of the individual citizens or corporators^[1203]. Thus they can be tortured for or against such persons², and, after manumission, they are not liberti of individuals, and thus can bring legal proceedings against them without venia, though they cannot proceed against the corporation without it². Heavy penalties are imposed on those who use slaves of the municipality for their own purposes⁴. The illogical exceptions recently discussed are not such as to create any real difficulty: they are recognised as mere subterfuges⁸. The texts may not refer to the slaves of towns at all, but there seems no reason why these should not be covered by them. Certainly such slaves are called public’. Ulpian and Gaius indeed tell us that the application of the epithet “ public ” to the property of anything but the State is incorrect⁷, but the practice is perfectly clear though it may have begun in a false analogy. The municipality has in general the same rights of ownership as ordinary owners⁸. The slaves usually bear only one name, but some are found with two, of which one is sometimes that of the person from whom they were acquired⁹. It is clear on the evidence of juristic texts and inscrip­tions brought together by Halkin¹⁰, that there are female slaves of towns, that these intermarry with the male slaves, and that the class of servi publici (civitatis) is recruited by birth. Children born into the class are themselves described as publici^[1204], so that, as here used, the name has no relation to their service.

They are employed in much the same ways as servi publici populi, but even more freely, since they serve in some cases as military guards“. They are employed in financial administration: even the responsible position of actor is ordinarily filled by a slave“. There is the same tendency as in the case of slaves of the State, in the later Empire, to exclusion from responsible duties such as those of a tabularius¹. They receive pay, or rather maintenance allowance’. They have peculium³, which is the property of the municipality⁴. Halkin is of opinion’ that they have the same right of devise of their peculium as have slaves of the Roman people. He cites in support of this an inscription from Calais in which a monument is set up to a public slave of the town by his two heredes*. But this is not conclusive. Such persons are frequently members of collegia'', and, even though slaves, are allowed to leave their funeratida to persons, who are called their heredes, precisely that they may put up memorial tablets⁸. On the other hand, the fact that their peculium belongs to the community is emphasised⁰, and Ulpian, if his text is properly read, which is far from certain, imposes a limitation which, if Halkin’s view is correct, is quite unnecessary, since he speaks only of slaves of the people¹⁰. It is noticeable that in the case of servi Caesaris to whom there is some evidence that the privilege extends“ we are clearly told that half of their peculium is their own“.

They can acquire for the municipality with all the ordinary results. Thus a traditio to a serous publicus entitles the munidpes to the actio Publiciana¹⁸. According to the old view, municipalities cannot possess, quia universi consentire non possunt¹*. The reason is Paul’s, and, as his language shews, is a confusion between common and corporate owner­ship. The true reason is that the corporation is incapable of either animus or the physical act of apprehension. It cannot authorise another to do what it cannot do itself; moreover, as the text adds, it does not possess its slave, and so cannot possess through him. Nerva fiUus however holds that the corporation can possess and usucapt what the slave receives, peculiariter™. This recalls the exception to the rule that a man cannot possess through his slave without his own knowledge¹*. But it clearly carries the exception further, as in the case of capUm⁰. Even the implied authorisation involved in the gift of a peculium^ cannot arise here, for the corporation, unlike the captive, never was capable of authorising. The general rule that we cannot acquire possession through one whom we do not possess, early breaks down, but so far as our own slaves are concerned this case seems the only

50. 4.18.10; C. 7. 9. 3; Halkin, op. cit. 179. At pp. 153—192 he gives a fall account of

Ante, p. 294. There also capacity and possession in the principal are both ignored. M 15. 1. 46; 41. 2. 1. 5.

exception, even in late law^[1205]. But convenience, which dictated the whole institution, needed a further step. Ulpian lays down the rule in general terms, that municipes can possess and usucapt through slaves². No doubt, in non-peculiar cases, the animus was provided by praepositi administrationi.

The corporation acquires through its slave’s stipulation*, and thus he can take the various cautiones on its behalf⁴. There is not much authority on the liability of the corporation on its slave’s contracts. We are told that a praepositus administrationi on whose iussum a contract was made with a slave of the corporation is liable to the actio quod iussu*. It may be supposed, though not confidently asserted, that similar rules apply to other actions of this class. The same conclusion may be reached with a little more confidence as to noxal liability for the slave, just as it is fairly clear that the praepositus was entitled to sue if the slave, or any other property, was injured’.

Nerva provides that legacies may be made to civitates⁷. In the classical law towns and other corporations cannot be instituted heirs, for two reasons. They are regarded as incertae personae, says Ulpian, and moreover whether the gift is to the municipium or to municipes (of both which expressions the legal result is the same), the donee is incapable of the acts involved in cretio or pro herede gestio*. As we cannot institute the civitas, neither can we its slave, for we can never institute the slave of one with whom we have not testamenti /actio*. To this rule the classical law admits few exceptions. A senatusconsult allows them (and thus their slaves) to be instituted by their liberti¹*, and bonorum possessio can be claimed under such a gift or on intestacy^[1206]. The entry will be at the order of a praepositus. Again, though Hadrian forbids fideicommissa in favour of incertae personae, Ulpian records a senatusconsult allowing them in favour of municipalities¹². He tells us also that certain deities can be instituted¹*. Classical law seems to have gone no further, so far as general rules are concerned, though there are traces of special concessions of testamenti factio to certain coloniae¹¹. In one text it is said that slaves of a municipium or collegium or decuria instituted and either alienated or freed, can enter¹⁵. In Justinian’s time this is obvious, but for Ulpian’s it seems to imply that the institution may have this modified validity, that if the slave passes into such a

330 Servi Publici of Municipia [pt. i, ch. xiv

position that a gift then made to him would be good, it may take effect But this is entirely contrary to general principle^[MCCVII]. We know that where the slave of one without ius capiendi is instituted the gift may take effect if he is alienated*, but that is a different matter: here it is a case of lack of testamenti factio.

Leo allows all forms of gift by will to be made to municipalities’. As to other corporate bodies, we gather from an enactment of Diocletian⁴ that some collegia could be instituted by special privilege. Several enactments authorised gifts to churches and charities’, and finally Justinian abolished the rule forbidding institution of incertae personae altogether⁶. Wherever a body can be instituted, no doubt its slaves can⁷.