Roman Slave Law

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Dr. Thomas RfnerProfessor of Law

Fachbereich V RechtswissenschaftenUniversitt Trier, 54286 Trier, Germany

[email protected]

An Introduction to Roman Slave Law*

Libertas inaestimabilis res est. Freedom is a priceless thing.Iulius Paulus, Commentary on the Praetors Edict, Book 2, Digest 50, 17, 106.

I.Roman Law in General1.The Historical Importance of Roman LawRoman law is the law of the Roman city-state and later of the Roman Empire. Thehistory of Roman law in antiquity spans roughly a thousand years from the law of

the Twelve Tables (449 BCE) to the voluminous codification enacted by the

Emperor Justinian I. in the years 529-534 CE.

For several reasons, Roman law stands out among the legal systems of

antiquity. First of all, the Romans ruled an empire comprising all or most of the

known world for several centuries. That in itself gives the Roman legal system an

historical importance far greater than that of say the law of Athens or any

other Greek city-state. Moreover, the Romans were arguably the first people to

* References in the footnotes are confined to the following primary source texts: Institutes of Gaius

(Gai inst.; English translation by O.F. Robinson and W.M. Gordon, London 1988, several reprints,

German translation by U. Manthe, Darmstadt 2004), Justinians Institutes (Inst.; English

translation by P. Birks and G. McLeod, London 1987, several reprints, German translation by O.

Behrends et al., 3rd ed., Heidelberg 2007), Justinians Code (Cod.; apparently no English

translation, German translation by C. E. Otto et al. Leipzig 1832) and Justinians Digest (Dig.;English translation by A. Watson, Philadelphia 1985; German translation of books 1-27 by O.

Behrends et al., Heidelberg 1995-2005, complete translation by C. E. Otto et al. Leipzig 1831-1839). See p. 3 for information on the character and the contents of the Institutes of Gaius and p. 4

sq. on the various parts of Justinians codification.

Justinians Institutes as well as his Code and the Digest are divided into books and titles. Each title

of the Code and Digest consists of several textual units called constitutions in the Code and

fragments in the Digest. Longer constitutions or fragments are in turn divided into paragraphs.

Similarly, the titles of Justinians institutes are divided into paragraphs. A reference to a certain

text consists of the number of the book, title, constitution or fragment and paragraph. Thus

Dig. 40, 12, 7, 3 refers to Paragraph 3 of Fragment 7 in Book 40, Title 12 of Justinians Digest.

The first paragraph of each text is called the principium (beginning). The following (second)

paragraph is numbered as Paragraph one. Therefore Dig. 40, 12, 7 pr. refers to the beginning of

Fragment 7 and Dig. 40, 12, 7, 1 actually points to the second paragraph of the same text.


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2 Minerva School Jerusalem

develop a science of law. The Romans were the first to employ the methods of

reasoning and the concepts developed by Greek philosophers to solve legal

problems. In this way, they created a particularly sophisticated legal system.

Roman law was able to accommodate the needs of a complex economy and to

provide rational solutions for a large array of legal issues.

There is another, even more central reason for Roman laws historical

importance: Roman law books were studied at universities and applied in legal

practice long after the end of the Roman Empire. In some European countries, the

practical application of Roman law continued into the twentieth century. The legal

systems of most European countries (and many countries outside Europe) are to

some extent based on Roman law (see below p. 6). It is therefore no exaggeration

to say that Roman law to this day exerts a considerable influence on legal practice

in a large part of the world.

The Roman jurists were interested mostly in private or civil law, i.e. the set of

rules governing the legal relationship between individuals. Criminal law was

treated to a lesser extent. Public law (the rules governing the functioning of the

state and the relationship between the state and the individual) was mostly

regarded as a political affair outside the scope of legal argument. Therefore, the

influence of Roman law on modern legal systems is felt most strongly in the area

of private law.

2.The Development of Roman Lawa)Classical LawThe development which transformed the art of Roman law-sayers into a science

began in the republican era of Roman history by most accounts in the middle of

the third century BCE. The innovative thinking of the jurists of this period paved

the way for the following golden or classical age of Roman law. The classical

period coincides roughly with the Principate (27 BCE 284 CE). Among the

classical jurists, whose contributions to the body of Roman law are of particular

importance, the following are especially worthy of mention:


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T. Rfner, Roman Slave Law 3

Publius Iuventius Celsus filius, lived in the second century CE. He served on

the privy council of Emperor Hadrian (reigned 117138 CE) and held the offices

of consul and provincial governor. Celsus headed one of two rivalling schools (or

sects) of jurists, the Proculiani. Celsus is best known for his spirited polemics and

for the celebrated definitions he coined. Among the latter is the definition of law

(ius) itself as ars boni et aequi, the art of the good and the just1.

Publius Salvius Iulianus was slightly younger than Celsus. Like Celsus, he sat

in Emperor Hadrians council and served as consul and later as governor of

several provinces. The Emperor entrusted him with the final redaction of the

edictum praetoris (the Praetors Edict), one of the most important legal

instruments. Julian was the head of the second school of jurists, the Sabiniani.

Many consider Julian as the greatest of all Roman Jurists.

Gaius is only known to us by this name and otherwise, too, very little is known

about him. Unlike Julian and Celsus, who lived in the same period, he was

probably not a member of the ruling (senatorial) class of the Roman Empire. He is

never cited by other jurists of his time, but in late antiquity his works became

popular for their didactic qualities. Gaius wrote a textbook for beginners called

Institutiones. This textbook is the only work by a jurist of the classical epoch to

have been preserved almost in its entirety.

Aemilius Papinianus belongs to a later generation than the first three. He

attained the office ofpraefectus praetorio (commander of the Imperial Guard a

position which by the time of Papinian had become the most important office at

the Emperors court) but fell out of grace with the Emperor Caracalla (reigned211217 CE) and was murdered in the year 212 CE. According to tradition,

Papinian was killed, because he refused to justify Caracallas murder of his

brother Geta. Papinians works are of characteristic brevity, which sometimes

1 Dig. 1, 1, 1 pr. this is he very first sentence in Justinians Digest.


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borders on obscurity. Yet they contain ingenious discussions of extraordinarily

complex legal issues.

The last two jurists that have to be mentioned are Iulius Paulus and Domitius

Ulpianus. Both were very prolific writers. In giant commentaries of many

volumes, they collected and summarized the body of legal wisdom which the

jurists of the classical era had accumulated. Paul wrote even more than Ulpian and

seems to have been the more original thinker. Ulpian had the more successful

political career and became praefectus praetorio like his teacher Papinian. Like

Papinian, Ulpian died a violent death, when most likely in 223 CE he was

killed by revolting soldiers of the Imperial Guard. Excerpts from the vast

writings of Paul and Ulpian make up one half of all the material in Justinians

Digest (see below p. 4).

b)The Post-Classical PeriodBy the middle of the third century CE, the Roman Empire was immerged in a

severe crisis. Military defeats and interior problems led to a prolonged period of

instability. The political and economic predicament brought about the end of

classical Roman law. The production of legal scholarship stopped and the law

underwent significant changes as the cultural and economic prerequisites of

classical law ceased to exist. No significant work of legal scholarship is known

from the following three hundred years.

The refined legal culture of the classical era was completely forgotten in the

western part of the Empire. In the east, the loss was less complete and less

definitive. Already in the third century, a law school existed in Berytos (modernBeirut). In the fifth century, a second school was founded in Constantinople. In

these schools, the texts of the classical jurists were studied and commented upon

and the tradition of legal science was preserved.

c)Justinians CodificationThe traditions kept alive in the law schools of Berytos and Constantinople and

professors from these schools played a crucial role when the East-Roman


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Emperor Justinian I. (reigned 527565 CE) set out to restore Roman law to its

former splendour. For a short time, Justinian managed to re-establish the Roman

rule all around the Mediterranean. His ambition to revive the great tradition of

Roman law came from the same impulse as his eagerness to rebuild the Empire by

military means. Starting in 528 CE, the Emperor commissioned the compilation of

several law codes, which are today the most important source of our knowledge of

Roman law:

The first step was a collection of statutes (constitutiones) enacted by the

Roman Emperors. These statutes were collected in a code, called the Codex

Iustiniani (Justinians Code2). The commission to which Justinian entrusted the

compilation of the Code used the Codex Theodosianus, an earlier collection of

imperial legislation, which had been initiated by Emperor Theodosius II. (reigned

408450 CE). Justinians Code was first enacted in 529. Later, the Emperor

commissioned a revised edition, which was completed in 534 CE. Only this

second edition has come down to us.

The second and much more ambitious project was a collection of excerpts from

the writings of the classical jurists. This collection called Digesta or Pandectae

(Justinians Digest) was published in 533 CE. This immense compilation

contains fragments taken from more than 1,500 works by various authors. It is the

biggest and the most important part of Justinians codification. When the Digest

was published, all the legal opinions contained in it were given the force of law.

In the same year 533, the third part of Justinians codification was completed:

The work entitled Institutiones Iustiniani (Justinians Institutes) is atextbook for beginning students. It was to be used at the law schools of Berytos

and Constantinople to introduce aspiring law students to the new legislation.

Justinians Institutes are based on the earlier textbook by Gaius (see above p. 2),

2 Note that each of the three parts of Justinians work can justly be called a code, but that only one

part was actually entitled Justinians Code.


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which bore the same title. As in the case of the Digest, all legal rules laid down in

the Institutes were given the force of law.

Justinians legislative activity did not stop with the publication of his three

codes. The Emperor had plans to publish as a fourth part a collection of his

own constitutiones enacted after the promulgation of the second edition of the

Codex Iustiniani. This plan was never put into practice. There are only private

collections of Justinians Novellae (Novels, i.e. new pieces of legislation).

However, later these Novels were regarded as an integral part of the Corpus Iuris

Civilis which is the name that was given to the whole of Justinians codification

by the French humanist Denis Godefroy in the sixteenth century and which is

widely used today.

The legal texts that were not included in Justinians collections were no longer

relevant in legal practice after the publication of the new codes. They were

quickly forgotten and are almost completely lost today. With a few notable

exceptions like the Institutes of Gaius , Justinians works are the only extant

monuments of Roman legal culture.

d)The Medieval Renaissance of Roman LawWhen Justinian died, the western territories he had recovered for the Empire were

quickly lost again. Consequently, the memory of Justinians legislative

achievements faded rapidly in Western Europe. While some knowledge of the

Institutiones and the Codex persisted, the Digest seems to have been completely

unknown in the West from the seventh century onward. There is no mention of it

in any source until the end of the eleventh century.

Around the year 1070, a manuscript of the Digest was found in Italy. Scholars

started to study the ancient texts and to convey the knowledge they gained from

their studies to students. Soon, the old texts were used once more to solve

practical cases for which the customary law of the early middle ages provided no

solution. In a complex and gradual process, Roman law re-entered legal practice

and was again applied as the law of the land, first in Italy and later in other


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European countries as well. By the mid-16th

century, the process of the reception

of Roman law was completed in most European countries. In England, however,

the influence of Roman law was less strongly felt. For a variety of reasons, the

English common law remained mostly unaffected by the reception.

Where reception occurred as it did in France, Germany, Italy and Spain , the

law of Justinians codes remained applicable for a long period. Only from the end

of the 18th

century onward, Roman law was replaced by modern civil codes in

most countries. Each of these codes, however, is to a large extent based on Roman

law.

II.Roman Slave Law in ParticularAs in all societies of antiquity, slavery was an institution of great economic and

social importance in Rome and in the Roman Empire. Given the sophistication of

the Roman legal system, it is hardly surprising that the status of slaves and their

capacity to participate in legal exchanges was elaborated upon in great detail by

the Roman jurists and that a larger number of texts are devoted to issues of slave

law. It is estimated that no less than one third of all texts in the Digest deal with

slaves in one way or another.

1.Enslavement and Manumissiona)EnslavementThe most common ways of becoming a slave were (1) captivity in war or (2) birth

from a slave mother3.

When Rome went to war with another people, Roman law regarded all persons

on the enemys side as potential slaves. If they fell into Roman captivity, they lost

their freedom. This rule was not confined to enemy soldiers; it also applied to

civilians regardless of sex and age. The fate of prisoners of war was decided by

the Roman commander. He might choose to give them back their freedom or to

3 Dig. 1, 5, 5, 1 i. f.


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keep them as slaves. In the later case they either became slaves of the Roman state

or were auctioned off4. In this way, military action in the border regions of the

Empire for a long time procured a steady influx of new slaves into Rome.

The rule that every child born from a slave became a slave of the mothers

owner, provided for the natural reproduction of the existing slave force in Rome.

When a freeborn mother was enslaved during pregnancy, the rule was relaxed.

Originally, the child was regarded as free, if the mother had been free and legally

married at the time of conception. Later, the exception was extended to all cases

in which the mother had been free at any time between conception and birth5.

In principle, the childs status was determined exclusively by the status of the

mother. Yet, this doctrine was occasionally abandoned: Most importantly, a

resolution of the Roman senate (the senatus consultum Claudianum of 52 CE)

provided that the child of a free woman who had intercourse with a slave not

owned by herself became a slave6. If the slaves master had not consented to the

union of his slave with the free woman, the woman also lost her own liberty and

became a slave herself7. Even without the birth of a child, the free woman was

enslaved if she maintained the relationship with the slave despite repeated

warnings from the slaves owner. The enactment was repealed by Justinian8.

Apart from this special case entailed the conviction for serious crimes

frequently entailed enslavement: In the early times of the Roman city-state, the

penalty for refusal of military service or desertion was sale (as a slave) trans

Tiberim (i.e. a sale abroad, across the borders of the still tiny state which were

then marked by the river Tiber)

9

. In later times, every person sentenced to death,

4 Dig. 1, 5, 4, 2 = Inst. 1, 3, 3.

5 Dig. 1, 5, 5, 3 = Inst. 1, 4 pr.

6 Gai inst. 1, 84 and 91.

7 Gai inst. 1, 160.

8 Cod. 7, 24, 1 pr.

9 Dig. 49, 16, 10.


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to fighting wild beasts in the arena or to forced labour in a mine automatically

became a slave of the penalty (servus poenae)10.

Sometimes, parents were forced by economic hardship to sell their children as

slaves or to abandon them. However, Roman jurists strictly maintained the dogma

that neither the buyer of a free child nor the person who raised an abandoned child

could thereby acquire legal ownership. The child remained free and provided

the case could be proven could bring proceedings against the presumptive

owner. However, if someone tried fraudulently to take advantage of this strict rule

by agreeing to let themselves be sold to an unwitting buyer and later prove their

freedom in the law courts, the proceedings were dismissed as abusive11. Later,

such people were not only denied the procedural remedy to regain their freedom,

but were treated as slaves in every respect12

.

b)ManumissionApart from the relatively rare cases in which a slave was freed by the state,

manumission was the only way out of slavery. The motives for manumission

varied. Sometimes a slave was manumitted to reward him for loyal services. In

other cases, the slaves freedom was bought with money which the slave himself

or a friend or relative had put up. Slave owners could choose to set free their

slaves either during their own lifetime or after their death by testamentary

disposition.

Manumission during the lifetime of the owner was usually effected through the

ritual ofmanumissio vindicta. The alternative form of manumission by inscription

of the former slave in the list of citizens (manumissio censu)

13

seems to have beenforgotten soon after the end of the republican period. Manumissio vindicta was a

fictitious lawsuit. The owner of the slave and another citizen appeared before a

10 Dig. 28, 1, 8, 4; Dig. 49, 14, 12.

11 Dig. 40, 12, 7 pr.-3.

12 Dig. 1, 5, 5, 1.

13 Gai inst. 1, 138-140.


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Roman magistrate (a consul, praetor or a provincial governor). The second citizen

would assert that the slave was free, as though he wanted to institute a legal action

to declare the slaves freedom. The owner, who intended to free his slave, would

not answer to this assertion. As the freedom of the slave was asserted by a Roman

citizen and the person who had so far possessed the slave did not deny it, the

magistrate would pronounce the (former) slave to be a free person14

. In this way,

the judicial proceeding designed to clarify the status of a person was used to effect

manumission.

Already at the end of the republican period, other forms of manumission during

the owners lifetime existed. Sometimes the owner would simply declare the slave

to be free in front of a certain number of witnesses (manumissio inter amicos) or

he would give him a deed recording his manumission (manumissio per epistulam).

However, the jurists of the pre-classical and classical periods did not accept these

alternative forms as fully equivalent to manumissio vindicta. Only Justinian

specifically provided for manumissio interamicos and manumissio per epistulam

to have identical effects as the old ritual ofmanumissio vindicta15

. Already at the

beginning of the fourth century, Emperor Constantine I. (reigned 306337 CE)

had introduced manumission in a Christian church witnessed by the bishop and

the congregation (manumissio in sacrosanctis ecclesiis)as a functional equivalent

ofmanumissio vindicta16

.

Testamentary manumission existed in two forms. A testator could either ordain

that a slave should become free immediately17

. In that case, the manumission

became effective as soon as the deceaseds heir acquired the estate18.

Alternatively, the testator could provide for the slave first to become the property

14 Dig. 40, 2, 7-8; Dig. 40, 2, 23 cf. the explanation of a similar ritual for the passing of

ownership (in iure cessio) in Gai inst. 2, 24.

15 Cod. 7, 6, 1, 1c-2.

16 Cod. 1, 13, 1 and 2.

17 Gai inst. 2, 267.

18 Dig. 40, 4, 11, 2.


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of the heir (or of a third person to whom the slave was bequeathed in the

testament) and then to be manumitted by the designated person19.

While both forms resulted in the slave becoming a free man or woman after the

masters death, there was an important difference. Even after manumission, the

former owner (now called the freedmans patronus or patron) retained certain

rights over the freedman or woman. E.g. the patron was entitled to a share of the

freedmans inheritance after his death20

, if the latter died without issue. In the case

of a direct testamentary manumission, the patron was the deceased. His rights

over the freedman could only be passed on to his children, but not to any other

person21. If he died without children, then the rights of patronage would be lost. In

the case of an indirect manumission, those rights vested in the person who

acquired the slave at the testators death and had the task of performing the

manumissio vindicta. Thus, indirect manumission enabled the testator to make

sure that a certain person was to have the benefits of being the slaves patron.

The patrons entitlement to a share of the freedmans inheritance was not the

only encumbrance on the former slaves freedom that continued after

manumission: In many instances, manumission was conditioned upon the

freedmans readiness to render services to the patron even after the manumission

(operae libertorum)22

.

Still, the situation of freedmen in Rome was relatively good when compared to

other ancient legal systems. It was not unusual for a master to endow the

freedman or woman with a little capital to help them start their new life23

. It was

19 Gai inst. 2, 263-266.

20 Gai inst. 3, 40-41.

21 Gai inst. 3, 58.

22 Dig. 40, 12, 44 pr.; Dig. 38, 1, 31.

23 Dig. 33, 8, 6, 3; Dig. 33, 8, 14; Cod. 7, 23, 1.


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also customary to support freedmen who were unable to feed themselves and their

families and to provide for them in ones will24.

A particularly favourable feature of Roman manumission was that it made the

freedman a Roman citizen25

. The laws of the Greek city states only gave freedman

the status of a resident non-citizen (). The acquisition of citizenship made

it possible for former slaves to move further up in Roman society. There are

numerous cases of freedmen who became rich and influential in Rome.

Throughout most of its history, Roman law encouraged the manumission of

slaves. The jurists employed the doctrine offavor libertatis (favour of liberty) touphold manumissions of doubtful effectiveness wherever possible

26. The doctrine

offavor libertatis is regarded by many as evidence of a fundamentally humane

trait in Roman legal thinking. Yet, it should also be realized that it was in the best

interest of the slave owners themselves to give their slaves a realistic expectation

of manumission if they served well. The hope to be manumitted one day and to be

able to build a new life as a free citizen deterred slaves from rebellion and served

as an incentive to work hard without complaining. The doctrine offavor libertatis

made the expectation of manumission more reliable. It can thus be seen as a

means of stabilizing and perpetuating the Roman system of slavery.

In contrast to the generally favourable attitude of Roman law towards

manumission, Emperor Augustus (reigned 27 BCE14 CE) enacted two statutes

intended to lower the number of manumissions. The first of these statutes, the lex

Fufia Caninia of 2 BCE, restricted testamentary manumissions. The number of

slaves that could be freed by will was limited in relation to the absolute number of

24 Dig. 34, 1, 2 and 4.

25 Gai inst. 1, 17; Inst. 1, 5, 3; Cod. 7, 6, 1, 1c.

26 E.g. Dig. 28, 4, 3.


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slaves in a household. Moreover, an absolute limit of one hundred freed slaves per

testament was introduced27.

The second Augustan statute was the lex Aelia Sentia. It introduced a general

prohibition of manumissions by an owner below the age of twenty28

or of a slave

below the age of thirty29

. Manumissions in contravention of these prohibitions

were illegal and void unless the owner was able to convince a special committee

of senators and knights (consilium) that he had good reason to manumit the

slave30

. Manumissions that were made in order to prejudice creditors of the master

were generally void31

.

The practical impact of both statutes seems to have been limited. Justinian

abolished the lex Fufia Caninia in its entirety32

and also repealed the provisions of

the lex Aelia Sentia except for the prohibition against manumissions in prejudice

of creditors33

.

2.Slaves as Property and PersonsUnder Roman law, slaves are treated as things (res)

34. As such they have no legal

rights35

and are under the absolute control of their owners. However, Roman law

did not completely disregard the fact that the slaves were also human beings

capable of acting rationally and taking part in business transactions. By allowing

slaves a certain degree of autonomy, Roman law not only made the slaves lives

more bearable, it also enhanced the slaves usefulness to their masters. As in the

27 Gai inst. 1, 42-43.

28 Gai inst. 1, 38.

29 Gai inst. 1, 18.

30 Gai inst. 1, 19-20.

31 Gai inst. 1, 37.

32 Cod. 7, 3, 1 and Inst. 1, 7.

33 Inst. 1, 6.

34 E.g. Gai inst. 1, 13.

35 Dig. 50, 17, 32.


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case of the favor libertatis it is therefore not easy to determine whether the

pertinent legal rules should really be interpreted as evidence of Roman humanitas.

a)Slaves as PropertyFundamentally, slaves were regarded as property that was owned by their masters

just as they owned their houses, their farm animals and their money. Slaves could

be sold to a new master or be passed on to the heir or to a legatee at the death of

their master. Slaves could also be hired out36 or deposited with a bailee37.

Transactions involving slaves as objects are very frequently treated in the

sources of Roman law. The Digest contains many texts dealing with defects ofslaves sold

38, with the obligation of an heir to surrender certain slaves to a legatee

in accordance with the wishes of the deceased39 and numerous similar issues.

There were almost no legal limits to the power of the master over his or her

slave. While it was a punishable offence (and a civil wrong) to kill or maim the

slave of another person40

, the slaves master originally even had the right to kill

the slave41

. In cases of severe abuse, though, the censor a magistrate who had

the general task of upholding morality among the citizens would reprimand the

owner. During the Principate more severe sanctions became available: Emperor

Antoninus Pius (reigned 138161 CE) made killing ones own slave a criminal

offence42. In a constitutio from 319 CE, Emperor Constantine mandated that

killers of slaves be punished as murderers43

.

36 E.g. Dig. 19, 2, 45, 1 pr.

37 Dig. 16, 3, 7 pr.

38 E.g. Dig. 21, 2, 65.

39 E.g. Dig. 32, 61.

40 Gai inst. 3, 213.

41 Gai inst. 1, 52.

42 Gai inst. 1, 53 = Inst. 1, 8, 2 = Dig. 1, 6, 2.

43 Cod. 9, 14, 1, 1.


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Slaves were incapable of having legal rights. They could not own property44

,

nor could they have contractual rights or be creditors entitled to payment45

. They

had no standing in the courts46

. They were also unable to enter into a legally

recognized marriage47.

Interestingly, the position of slaves with regard to ownership of property is

similar to that of children under the power of their father. According to Roman

law, every father has far-reaching legal powers over his children as long as he

lives (patria potestas)48

. Just like slaves, the children are incapable of owning

property or having legal rights of any kind. Even so, the social position of

children under thepatria potestas was of course very different from that of slaves.

Notwithstanding the fathers powers, the children were free citizens and were

entitled to political participation. In this way, if someones father lived long

enough, his son might attain high office in the Roman state (e. g. that of a consul

orpraetor)49

and at the same time still be under thepatria potestas. In such a case,

the consul would not even own the toga he was wearing because he was still

incapable of acquiring property rights of his own.

b)Slaves as PersonsIn spite of the fact that slaves were legally regarded as pieces of property, their

acts were not devoid of legal consequences:

aa)Acquisition of RightsMost importantly, slaves were generally able to perform the acts necessary to

acquire legal rights. The right did not vest in the slave, who performed the act of

44 Gai inst. 2, 87 = Dig. 41, 1, 10, 1; Gai inst. 2, 96.

45 Dig. 15, 1, 41.

46 Dig. 50, 17, 107.

47 Dig. 16, 3, 27.

48 Gai inst. 1, 55 = Inst.1, 9 = D. 1, 6, 3.

49 Dig. 1, 6, 9; Dig. 40, 2, 18 pr.


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acquisition, though; it was acquired by the master50

. E.g. real property was

regularly conveyed through the ancient ritual of mancipatio. A slave could take

part in this ritual and accept the property conveyed by the owner. However, since

the slave was incapable of acquiring ownership for himself, the master would

become the new owner of the property in question. By the same token, if a

contractual promise was made to the slave, the master acquired the right to

enforce the promise. A slave could even be named as heir or as a legatee in a will.

Unless the slave was manumitted in the meantime, the master became the true

beneficiary of such testamentary gifts51

.

Slaves could also create liabilities for their masters, but the law was less

straightforward in that regard. If a slave made a contractual promise to another

person, the promise was void in principle: It could not be enforced against the

slave because the slave lacked legal capacity and it could not be enforced against

the master either, unless certain preconditions were met:

bb)Actio quod iussuThe slaves promise could be enforced without any limitations if the slave had

acted with the express authority (iussum) of the master. E.g. if one Titius ordered

his slave Stichus to go and buy a toga, the seller could bring an action for the price

against Titius (actio quod iussu)52

. A iussum of the master also enabled the slave

to convey the masters property to a third person53.

cc)Actio institoria and Actio exercitoriaSometimes, the grant of authority was implied in the appointment of a slave to a

certain task. If the master entrusted the management of a shop or another businessto a slave, all contracts made by the managing slave (institor) in the course of

running the business were binding on the master. In such cases, the remedy that

50 Gai inst. 1, 52; Gai inst. 2, 86 = Dig. 41, 1, 10 pr.

51 Gai inst. 2, 87; cf. Dig. 41, 1, 10, 1.

52 Dig. 15, 4, 1 pr.

53 Dig. 6, 1, 41, 1.


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lay against the master was called actio institoria54

. A close relative of this action

is the actio exercitoria which lay against the owner of a ship (exercitor) who had

employed a slave as captain (magister navis)55

.

dd)Actio de peculioAnother way of enabling a slave to create obligations binding on the master was

to grant the slave apeculium. The term peculium refers to certain property which

a master handed over to the slave and allowed the slave to administer on his or

her56

own57

. Thepeculium might consist of a certain amount of money, a piece of

land58

, a shop or anything else. It might even contain other slaves (servi vicarii)59

.

Technically, the peculium remained the masters property, but the slave was

allowed to use thepeculium as though it were his own; the slave was also able to

transfer the title to items of his peculium to a third party without the masters

iussum60

.

If a slave had a peculium then the master was bound to honour any contract

made by the slave, but only up to the value of thepeculium (actio de peculio)61.

Consider the following example: Stichus, a slave of Titius, has a peculium

consisting of a piece of land worth 100,000 sestertii and cattle worth another

50,000 sestertii. Now the slave takes out a loan of 200,000 sestertii from one

Sempronius which he promises to pay back within three months. After three

months, Stichus has lost all the money loaned from Sempronius and refuses to pay

back the loan. Sempronius cannot sue Stichus because he is a slave. But

54 Dig. 14, 3, 1.

55 Dig. 14, 1, 1 pr.

56 Dig. 15, 1, 27 pr.

57 Dig. 15, 1, 4 pr.

58 Dig. 33, 8, 6 pr.

59 E.g. Dig. 33, 8, 6 2 and 3.

60 Dig. 6, 1, 41, 1.

61 Gai inst. 4, 72a = Inst. 4, 7, 4 and 4b.


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Sempronius can bring the actio de peculio against Titius. Yet, as the peculium is

only worth 150,000 sestertii, Sempronius only recover that amount from Titius.

ee)Actio de in rem versoEven if the slave had acted without written or implied authority from the master,

this did not necessarily exclude the masters liability: The master was liable on the

actio de in rem verso to the extent that any proceeds of the slaves transaction

reached his pockets or were used for his purposes62

. If e.g. in the case discussed

above Stichus has used the loan of 200,000 sestertii obtained from Sempronius to

pay back a debt in the same amount that his master Titius owed to one Maevius,

then Sempronius could bring the actio de in rem verso to recover the full amount

from Titius. The same holds true if Stichus has simply handed over the loaned

money to Titus or if he has used it to buy food for the household of his master. In

all these cases, the proceeds of the contract between Stichus the slave and

Sempronius are deemed to have made Titius richer. To the extent that Titius has

been enriched through the acts of Stichus, he is bound by the contractual promise

made by Stichus.

c)Tortious Acts of SlavesIt is difficult to decide whether the rules governing liability of the master for

tortious or illicit acts of a slave should be discussed under the heading Slaves as

Property or rather under Slaves as Persons. That is why we devote a special

section to this subject. The difficulty arises, because the regime governing the

liability of masters for torts committed by their slaves applies in almost identical

manner to torts committed by children under the patria potestas63

and to

damage caused by animals64

.

62 D. 15, 3, 1 pr.; Gai inst. 4, 72a = Inst. 4, 7, 4-4b.

63 Gai inst. 4, 75; Justinian abolished the application of this regime to children under patria

potestas: Inst. 4, 8, 8.

64 Dig. 9, 1, 1 pr.


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If a slave committed a tortious act like stealing or destroying the property of

another person the master was liable for compensatory and in some cases also

for punitive damages65

. However, the master could escape all further liability, if

he or she was prepared to surrender the perpetrator to the person who had suffered

it (noxae deditio)66

. The original purpose ofnoxae deditio was probably to give

the injured party an opportunity to take their revenge on the wrongdoer. Later it

was seen as an alternative way of compensating the injured party for their loss.

The possibility of noxae deditio had the practical effect of limiting the

economic exposure of slave owners. Even though they were in principle liable

for damage caused by their slaves, the liability could never exceed the value of the

slave. Losing the slave was the maximum risk of the owner. If the amount of the

damage exceeded the value of the slave, the owner could resort to noxae deditio

and escape all further liability.

III.ConclusionIt is advisable to resist the temptation to judge the attitude of Roman jurists to

slaves by modern standards. The approach of Roman law is neither markedly

humane nor extraordinarily pitiless. Despite occasional remarks to the effect that

slavery was recognized by the law of nations (ius gentium) but contrary to the law

of nature (ius naturae)67

, the Roman jurists did not fundamentally question

slavery as an institution. They accepted it as part of the society they lived in and

resolved all legal issues surrounding it in a highly rational and efficient way. The

question how a law of slavery was compatible with the conception of law as the

art of the good and the just68 does not seem to have occurred to them.

65 E.g. in the case of theft: Gai inst. 3, 189 and 190; Inst. 4, 1, 5.

66 Gai inst. 4, 75 Inst. 4, 8 pr.

67 Dig. 1, 1, 4 pr. = Inst. 1, 5 pr.; Dig. 1, 5, 4, 1 = Inst. 1, 3, 2.

68 See above, p. 3.

Roman Slave Law

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