Roman Public Life

by A. H. J. Greenidge

The rules of the jus gentium—which in this instance, as in many others, is pure international law—permitted the captive to be enslaved until such time as he set foot again in his native land, if this country of his were an independent state.[561] This principle, applied to the victorious wars of Rome, had flooded Italy with specimens of various nationalities which were applied to various uses. These prisoners of war were, as a rule, immediately transferred from the ownership of the state to that of private individuals. They were sold by the quaestors,[562] often in the camp,[563] and the slave-dealer tracked the footsteps of a successful general.[564] War alone might have provided all that were needed for the most luxurious community, if we may judge from the result of the second conquest of Macedon, which swept 150,000 Epirot captives into Italy,[565] and from the consequences of the campaigns of Caesar and Lucullus. But it was supplemented by a brisk slave trade, which after the fall of Corinth and Carthage (146 B.C.) centred at Delos, and which at the close of the Republic had reached such dimensions that, during the reign of the Cilician pirates, 10,000 slaves are said to have been imported and sold there in the course of a single day.[566] It was chiefly from the latter source that the versatile natives of the East were brought, Phrygians, Mysians, Lydians, Lycians, Paphlagonians, the Hellenised members of the “nations born to slavery,” who, while professing to interpret, often guided and controlled, the wills of their slower Roman masters.

Their use was twofold; they were either labourers in the workshop and the field, or domestic members of the villa or the palace, and their presence in either capacity was fraught with important political consequences for Rome. Their cultivation of the mechanical arts and crafts made the Roman noble’s household self-sufficient[567] and the competition of the free artisan almost a hopeless task. In the country they were gradually replacing both the free labourer and the yeoman farmer. The advantage of cheap labour, which could not be snatched from the master’s hands by the needs of distant wars, was at an early period recognised by the nobles in the cultivation of their vast estates.[568] After the acquisition of the province of Sicily, which supplied cheap food to Rome, slave labour on the large estates became an economic necessity; for it was the only condition on which corn could now be productively grown. The lot of the plantation slave, unknown to his master and exposed to the mercies of the overseer, was a shameful parody of the earlier domestic servitude. Yet the state did nothing. The slave possessed no rights, as in the time when he, perhaps, required none. In the case of domestic slavery, the moral influence of an intellectually superior race was often an adequate substitute for the absence of rights, and a further solatium was found in the door of emancipation which was ever open to the favourite. The Roman was not ungrateful, and he recognised that it was the slave who made him an individual power in the world. The unequalled administrative capacity of men like C. Gracchus, Crassus, Caesar, and Pompeius, which has found no parallel in the modern world, was largely due to their absolute command of men of perhaps less originative power, but often of greater capacity for combination and detail than they.

Usefulness to the master was in fact the end to which the changes in the law relating to servitude were directed. The slave might benefit his lord by a contract entered into with a third party, but could not make his condition worse.[569] The dominus could sue on the contract, although the slave having no legal personality could conclude only a natural obligation (naturalis obligatio), but he was not liable for the losses. To protect third parties, however, and to give the necessary legal credit to this useful agency, the praetor gradually established a series of quasi-liabilities for the master, which were really in his interest; for without them slave-agency would have become impossible. Thus, if the master had countenanced the slave’s contract, he was liable (actio quod jussu); if the slave had embarked his peculium in trade with the master’s knowledge, this property, though in strict law not his own, could be claimed by the creditors, after the slave’s debts to the master had been deducted (actio tributoria). Finally, any liability incurred by the peculium could be recovered by creditors, the master’s right of deducting his own claims against it being preserved (actio de peculio), and any material advantage derived by the master from the contract of a slave was taken into consideration and the property of the dominus made liable to that extent (actio de in rem verso).[570] The slave, in fact, as having no personality of his own, is the best of agents, and the theory of agency, which the law of Rome has bequeathed to us, is one of the most perfect and permanent results of her system of slavery.

Apart from these relations to his master the slave was still ignored by law. He could not give evidence in court except under torture.[571] In case wrongs were done him, it was not he but his master that demanded reparation;[572] while his lord himself was the judge of the delicts which he had committed against himself or the household.[573] That for crimes against others the slave was tried by the ordinary process of criminal law was a concession to society rather than to the wrongdoer, and the sense of insecurity of the free population amidst their far more numerous dependants was expressed in the atrocious law that the murder of a Roman in his own house should be avenged by the death of the whole familia that were sleeping beneath the roof at the moment of the commission of the crime.[574]

The state itself owned slaves who were known as servi publici. Some were in the service of temples or of colleges of priests. Others were at the disposal of magistrates, such as the censors or aediles,[575] for the minor duties of attendance and police. Their agency in contracts was doubtless as useful to the state as that of private slaves was to individuals. Such an agent (actor publicus) was kept by the treasury for the acquisition of property,[576] which, as his peculium, fell under the dominium of the state.

We have seen that manumission in due form made a citizen of a slave. The libertini, therefore, are not a third class in the state, and only demand a separate treatment in so far as their grant of freedom was conditioned by the performance of certain duties to their former masters, and in so far as the lack of free birth (ingenuitas) entailed certain political disabilities.

The relation of the libertus[577] to his former master, who now became his patronus, was to some extent modelled on that of the ancient client to his lord. The freedman owed his manumitter reverence and obedience (obsequium);[578] he could not prosecute, or appear as a witness against him, in the criminal courts,[579] and he required the permission of the praetor to bring even a civil action against his former master or that master’s near relatives.[580] The patron’s right of succession to the freedman’s estate if he died intestate and without heirs,[581] if it was not a family right, was justified by the fact that the capital with which the freedman started life must have been generally the gift of the master, whether it took the form of a peculium or not. This circumstance must have been also felt to justify manumission on the condition of continuing to perform certain services to the dominus. But the privilege of imposing such conditions was abused, and had to be limited by the edict of a praetor Rutilius,[582] which practically confined them to the performance of certain personal services (operae). The fact that the freedman was still regarded as an appendage of the familia was most clearly shown by the criminal jurisdiction—even extending to capital punishment—exercised over him by the head of the family even at the close of the Republic.[583]

The political position of the libertini was probably better at the beginning than at the end of the Republic. Under the Servian régime they were, with all other citizens, members of the tribes; whether they were at first members of the centuries depends on the question whether free birth was always a requisite for military service, and this is a point on which evidence entirely fails us;[584] but when the comitia centuriata had ceased to be a military and become a purely political institution, there is no reason to assume their exclusion. They would have been members of the comitia tributa and concilium plebis from the earliest institution of these two bodies. The freedmen (rarely landowners and usually mechanics) belonged in the main to the four old city tribes. This accident had become a legal prescription by the year 312 B.C. In that year the revolutionary census of App. Claudius, which we shall describe elsewhere,[585] spread them over all the tribes,[586] and probably, according to their census, over all the centuries. In 304 B.C. the old arrangement, which limited the freedman’s vote, was reverted to.[587] The censors of 169 went further and restricted them all to a single tribe.[588] The conflict required the intervention of law, and it was probably the lex Aemilia (of M. Aemilius Scaurus, consul in 115 B.C.) which re-established the old principle of restriction to the urban tribes.[589] But the question of the freedman’s vote became a battle-cry in the last century of the Republic. In 88 B.C. the democratic tribune Sulpicius passed a law which gave the libertinus the tribe of his patron.[590] It was repealed by the optimates; but the second triumph of the democrats in 84 B.C. again restored the law,[591] until Sulla’s ascendency finally established the limitation to the four city tribes.

The freedmen were excused the burden, because not thought worthy of the honour, of regular military service in the legions.[592] The same prejudice did not apply to the fleet, and for this service libertini were freely employed.[593] The lack of free birth was also a ground of exclusion from the magistracy, and therefore from the Senate, to which this was the stepping-stone.[594]