‘VETUS MOS': CUSTOMARY LAW BEFORE THE SC SILANIANUM
In his account of the execution of the slaves of the murdered Pedanius Secundus, Tacitus did not ascribe their deaths to the provisions of the SC Silanianum but to ‘ancient custom’ (vetus mos).[119] As an advocate, Tacitus knew his law.
He knew also the difference between unwritten customary law and statute - and that the relationship between the two was far from straightforward and required frequent clarification. Adultery was a good example: adulterous wives had ‘customarily’ been punished by their families, but Augustus had, in 18 BCE, introduced a criminal court to try alleged offenders, and probably stipulated the penalty of confiscation of property and exile on separate islands.[120] Despite this, custom persisted. For example, when recording the sentence passed in 17 CE at the suggestion of Tiberius on Appuleia Varilia by her family for adultery, Tacitus refers to the ancestral customary practice of exile beyond the 200th milestone from Rome.[121] Tacitus’ treatment of the episode makes a clear distinction between the statute on the one hand and the procedures and penalties established by the customary law, that preceded it and still (thanks to Tiberius) ran in parallel with the Augustan reform.As Tacitus was fully capable of drawing the line between customary legal practice and formal legal enactment, we would expect similar care from him in his treatment of the Pedanius Secundus episode; ‘vetus mos’ was not to be identified with the SC Silanianum, because it was something different. This does not establish beyond doubt that the SC made no mention of the penalties that awaited slaves, under customary law, for failure to protect. The point is that it was not responsible for their introduction and that they were incidental to its main purpose, which, as we shall see, was to instruct the praetor, or investigating magistrate, on the rules governing conduct of the quaestio, the investigation into the causes of the master’s death and who (if anyone) was responsible.
Little is known of legal practice in cases of master-murder under the Republic, but two incidents are indicative.
One was the reaction of the slaves and freedmen of Marcus Marcellus, the ex-consul, to the murder of their master by a known individual with a grievance in Athens in 45 BCE.[122]They ran away, and ‘very few’ were left, when the body was discovered. We do not know specifically what consequences were anticipated by Marcellus’ familia; clearly, even though the murderer was not a member of the familia, they were terrifying enough for the slaves and freedmen to prefer the risks of running away to those of staying put.
The second, from a later source and therefore possibly anachronistic, is of more interest, as it shows a Republican jurist’s awareness of what the consequences to a slave might be of a master taking his own life. After the defeat of Brutus and Cassius at Philippi in 42 BCE, Pacuvius Labeo, father of the more famous jurist Antistius Labeo, committed suicide with the assistance of a slave. However, he manumitted the slave first, so that the slave could not be entrapped by the customary sanction that he should be punished, as a slave, for failing to, in effect, protect the master from himself.[123] It is possible that Appian, writing long after the passing of the SC Silanianum, has allowed his account to be influenced by later developments. However, the likeliest original source for the anecdote, if not an invention, would be a reliable one, Pacuvius’ son, Antistius Labeo, who would follow his father in keeping a sturdily ‘Republican’ distance from the new Augustan order.[124]
3.
More on the topic ‘VETUS MOS': CUSTOMARY LAW BEFORE THE SC SILANIANUM:
- The Influence of Customary Law
- Customary Law and the Leges Regiae
- The Customary Origins of Roman Law
- THE ORDERING OF THE CUSTOMARY LAW
- B. THE CONCEPT OF CUSTOMARY LAW
- THE SC SILANIANUM, 10 ce
- 5.7 An up-to-date mos italicus
- THE SC SILANIANUM IN THE SECOND CENTURY ce
- Chapter 4 The Senatus Consultum Silanianum: Court Decisions and Judicial Severity in the Early Roman Empire
- The law of obligations is one of the most significant contributions of Roman law to legal culture, illuminating the civil law tradition more than any other branch of Roman law.
- Roman private law developed from the law of procedure, otherwise recognized as the law relating to actions.
- Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p., 2004
- The Law of the Twelve Tables and the Growth of Statutory Law
- Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p., 2015
- Resolving conflicts between English law and European Union law
- Common law, equity, statute law and delegated legislation
- The second branch of the threefold division of all of private law which Gaius employs in his Institutes is that of the law of 'things'.