INTRODUCTION

In status-conscious ancient Rome, while legal discourse aspired to fairness (aequitas),^[109] the poor were more cruelly punished, when convicted of criminal conduct, than the rich,^[110] and the slave’s legal protection was almost non-exist­ent compared with that of the free man or woman.^[111] In some respects, Roman attitudes to slavery were benign: good slaves could be freed by will or in the master’s lifetime; freedmen were often close confidants of their masters, as Tiro was of Cicero; and the manumitted slave might live to see his descend­ants prosper as full Roman citizens.

A policy of deterrence was the answer. One element in this was the Senatus Consultum (SC) Silanianum, which was passed in 10 CE, and modified over time by a series of court decisions, supplemented by juristic interpretations. The Roman Senate had, through its resolutions (senatus con­sulta), a role as a legislator, which became more significant after the popular assemblies ceased to function late in the reign of Augustus (30 BCE to 14 CE).^[112] But where its own interests were at stake, the Roman Senate made its decisions not on the basis of the kind of dispassionate legal thinking we might associate with Roman law as a discipline, but in line with its own emotions, social attitudes and prejudices. Whatever their personal relation­ships with their slave establishment, senators were terrified of ‘Slaves’ in the abstract. The reaction of the Younger Pliny, early in the second century

CE, to the brutal murder by his slaves of an admittedly cruel master, was representative of this attitude:^[113] even kind and considerate masters were in danger, he wrote, because slaves were not reasoning beings but followed their instincts, like animals.

The evolution of the SC Silianianum therefore provides a useful case study of the impact of elite self-interest on the development of law. But it should be emphasised that, in some respects, the elite behaviours revealed in their reactions to master-murder are extreme. Other voices were more understanding, notably those of philosophers like Seneca,^[114] who emphasised the shared humanity of master and slave, although none challenged the institution of slavery as such. Legal discourse acknowledged the ‘quality’ of slaves as people, although sometimes only because this affected their value as property: the damages, for example, that could be sued for because of an injury to a slave would be assessed in terms of his qualitas, as honest and entrusted with important responsibilities or, alternatively, as a notorious convict.^[115] Under the Early Empire, the killing of slaves by masters could qualify as homicide^[116] and, in the second century, cases of maltreatment of slaves by their masters could reach the attention of provincial governors, even of emperors. In 152 CE Antoninus Pius listed a series of cases of abuse, which had come to the attention of the governor of Baetica in southern Spain; in all three cases, the complaints of the slaves were taken seriously - in part because disaffected slaves were less valuable - and their abusive masters (or mistresses) cautioned or punished.^[117]

The SC Silanianum is peculiarly harsh, designed to address exceptional situations, in which slaves had (apparently) got out of control. Perhaps because it was they who were most threatened, senators were the most active in the extension of the application of the SC, through senatus consulta and decisions reached by them acting as a court. Through these and the occasional verdict issued by provincial governors, who in the first and second centuries CE were also senators, the elite as a collective, rather than the jurists, control­led its implementation, and their fears, as we shall see, created new and, in general, harsher precedents.

The SC Silanianum was also of interest to jurists although, as we shall see, it was categorised in a characteristically technical and specialist way, as a civil law matter. But for the attitudes that drove its evolution, we must rely on Roman senatorial writers, especially the Annales of the advocate and his­torian Tacitus, and the Letters of his contemporary the Younger Pliny. Both flourished under the Flavians (r. 69-96) and Trajan (r. 98-117). Pliny died in around 112 CE and Tacitus’ Annales are the product of the end of Trajan’s reign and the early years of Hadrian (from 117). As senators and prominent orators, they observed the reactions of their colleagues to events; Pliny in particular also shows their social assumptions at work by voicing them as his own. But, although both Tacitus and Pliny knew some law, they did not write as legal specialists. Theirs, therefore, is the perspective on law of the intelligent layman, who appreciated from their own experience that law was not the preserve only of lawyers, and that the Senate had considerable discre­tion to act in matters concerning itself, as it saw fit. It was also the perspective of literary craftsmen, masters of allusion, who reshaped the raw material of law and history as commentary on their times.

Although not the main decision-makers, the jurists, especially Ulpian, have an important role as a supplement and a corrective to a record domi­nated by senatorial decisions.

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