THE SC SILANIANUM, 10 ce

The sponsor of the Senatus consultum Silanianum was the consul of 10 CE, one C. Junius Silanus, a member of a distinguished senatorial family.^[125] His cousin, Marcus, would also be consul nine years later and Marcus’ daughter, Junia Lepida, would marry the distinguished jurist and suffect consul of 30 CE, C.

Cassius Longinus, who, in 61 CE, would play a prominent and controversial role in the further evolution of the application of the SC Silanianum. Perhaps he may even have felt some sense that his family ‘owned’ the resolution or should, at the very least, have some privileged say in its interpretation.^[126]

Despite the seriousness of master-murder, and the setting-up under the SC of a publica quaestio, which would be conducted under the conventions governing criminal offences, the framework within which juristic discussion of the SC would be conducted was that of private or civil law. As part of its regulation of the quaestio process, the SC contained provisions, to be enforced by the praetor, which prevented the opening of the will of the deceased. These were incorporated at some point into the praetorian edict and were commented on by Ulpian and others in the context of the Edict, not of the law on homicide. Later sources, such as Paulus’ Sententiae (3.5) and Justinian’s Digest (29.5), followed his lead and incorporated interpretation of the SC Silanianum into discussion of how wills should be administered and under what conditions they should not be opened.

The instruction of the SC to the praetor declared that, where a master had been killed by open violence, the will of the deceased should not be opened, until an investigation (quaestio) into the death had been completed.^[127] The purpose of this was to prevent any possible murderer hoping to benefit from the will from profiting from its provisions, if they were implemented prior to investigation, trial and conviction.

This was especially relevant to slaves manumitted in the will. As the will would not be opened prior to the quaestio, the slaves who hoped for freedom would remain slaves, and thus subject to the other provisions of the SC, until the truth was known.

There was clearly, therefore, an obligation on the heirs not to open the will and confiscation of property would follow if the heirs were shown to have failed in their duty.^[128] That obligation could, however, be breached, owing to ignorance, which was excusable.^[129] The failure had implications; implementation of legacies or manumissions in the will could benefit a murderer or his associates and was a failure of duty, in that the heir denied himself the power to ‘avenge’ the death of the testator. The integrity of the will was not, therefore, a technical matter; it also reflected the social requirement on a dutiful heir to exact justice and punish the guilty.^[130] Still, an heir could not be held liable forever and, in 11 CE, a rider to the SC imposed a time limit of five years on the lodging of a complaint against him.^[131] Nor, as Severus Alexander ruled in 232, could an heir be held liable if the killers could not be traced.^[132]

What were the circumstances in which the SC Silanianum would apply? Ulpian’s commentary shows that four terms (at least) in the (now lost) text required elucidation. Dominus, he wrote, referred to the man who had full ownership (proprietas), not the usufruct, and the protection of the law should be extended to the filii familias, the sons of the household, and the other children in power (in potestate) - as well as, perhaps, those who were not.^[133] Servi, slaves, liable for interrogation, included also slaves who might achieve their freedom under arrangements already made, and slaves of a son, even when part of the son’s independently owned property as a soldier (peculium castrense).^[134] There were also debates about the liability of the slaves of spouses (who were liable) and of fathers-in-law, who were not, although Ulpian and others disagreed.^[135]

Moreover, masters could die without being killed (occisus).

Antistius Labeo, who could have been present at the debate, when the SC was agreed, stated that there had to be visible evidence that force had been used.^[136] Poison, therefore, by definition a secret crime, did not, initially, activate the SC, unless there was evidence that it had been forcibly administered. This exemption, however, had been overturned by the end of the third century.^[137] Nor, in Ulpian’s view, was it applicable if a master committed suicide in private, although the slaves were expected to intervene, if they knew about it. And, finally, there was the question of where the slaves were. Those liable were described as ‘under the same roof’ (sub eodem tecto), which evoked further discussion about how far away a slave could be, and still be liable. The ‘roof’ became a mobile concept; slaves in attendance (and therefore not under a roof) were liable if their master was killed on a journey away from home.^[138] Here judges’ law through court decisions made an unwelcome intervention. According to another jurist, cited by Ulpian, ‘it had often been adjudged’ (sic esse saepe iudicatum) that being under the same roof could apply to anyone close enough to hear a cry for help. Ulpian did not agree: the strength of voices, he said, varies.^[139] The last word on this lay with Justinian who, in 532 CE, ruled that, as the ancients had failed to provide an adequate definition of ‘sub eodem tecto’, henceforward all slaves who were within shouting distance of the master, wherever he and they were, would be liable, be that ‘in the house, on the road or in the countryside’.^[140]

<< | >>

↑

Source: Plessis P.J. du. (ed.). New Frontiers: Law and Society in the Roman World. Edinburgh University Press,2013. — 256 p.. 2013

THE SC SILANIANUM, 10 ce

More on the topic THE SC SILANIANUM, 10 ce: