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The mind of the slave: the limits of knowledge and power in Roman law and society

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The mind of the slave: the limits of knowledge and power in Roman law and society

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Content THE MIND OF THE SLAVE: THE LIMITS OF KNOWLEDGE AND POWER IN ROMAN LAW AND SOCIETY by Nicole Julia Giannella _____________________________________________________________________________________________________ A Dissertation Presented to the FACULTY OF THE USC GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (CLASSICS) December 2014 Copyright 2014 Nicole Julia Giannella ii Acknowledgments This project began as a paper for Claudia Moatti’s graduate seminar on Roman Law at USC in the fall of 2008. It is to Claudia, my advisor, that the deepest gratitude is owed. Without her unique ability to challenge and encourage, this project would not have come to fruition. Thanks are also due to my committee: A. J. Boyle for his wisdom throughout the years on Latin literature and the intellectual life; Susan Lape for her guidance on Greek and theoretical matters; and Ariela Gross for her assistance in thinking about the wider historical implications of this project. I am deeply grateful to several of my peers at USC: Matthew Taylor and Lisl Walsh—my first friends in graduate school, Hamish Cameron, and Ashley McIntosh. Particular thanks are due to Jason R. Harris for literal wake-up calls, and to Christine Shaw, who took my calls no matter the hour. The final phases of this project took place at Cornell University and thanks are due to several people here. I am grateful to the Mellon Diversity Seminar at Cornell for reading and commenting on the final stages of this project, in particular Murad Idris and Suman Seth, intellectual heavyweights and lovely individuals both. Many thanks are due to Charles Brittain, Eric Rebillard, and the rest of Cornell Classics, who upon my arrival provided me with an intellectual home and have been incredibly supportive and encouraging through the last stages of the dissertation writing process. Lastly, I must thank my family. My parents, Julia and Giovanni, and my siblings, Davide, Monica, and Eric, have all patiently endured and supported my intellectual and geographical wanderings. Special thanks are due to my brother Eric, who has painstakingly read every word of this dissertation. iii Table of Contents Acknowledgments ii Abstract iv Introduction 1 1. Sanity and the Slave Market 24 2. Slaves at Work 99 3. Manumission and the Makings of the Good Citizen 153 Conclusion 213 Bibliography 224 iv Abstract This dissertation seeks to further our understanding of the dominium (ownership) of the master over his slave in the 1 st -3 rd c. CE. The institution of slavery at Rome was somewhat idiosyncratic both in the sense that slaves were viewed as both things (res) and persons (persona) and that emancipated slaves became freedmen Roman citizens. This project explores moments of evaluation and exchange in the master-slave relationship, specifically a master’s attempts to know the mind of the slave—the character and the intention behind his or her actions. I argue it was in these moments, in the realm of the unknowable interior of the slave, that the absolute ownership of the master was most challenged. The first two chapters take the juristic commentary of two different magisterial edicts as their starting point: discussing (1) the return of a defective or diseased slave (Digest 21.1) and (2) when an owner has the right to sue if his slave has been made worse by another man (the actio servi corrupti, Digest 11.3). The first chapter examines the process of appraisal and evaluation at the slave market and by the master to ascertain weaknesses, talents, and character. I argue that while the physical ability of slaves was important, there was a particular emphasis given to the internal qualities of slaves. The empirical nature of this evaluation process highlights the tension between the unknowable mind of the slave and the ownership of the master. The second chapter looks at the negotiation between a slave’s status as property and his faculties as a human being for independent thought and action. I argue that the juristic commentary about the actio servi corrupti removes these faculties from the slave and underscores the force a would-be corrupter must use to persuade a slave to betray his master. This chapter studies the anxiety, found v in both juristic and literary sources, between the need for highly talented slaves and the concern about betrayal. The third chapter studies the question of whether the status of the slave precluded the slave from exhibiting qualities and virtues of a good Roman citizen. In On Benefits, Seneca attempts to reconcile the capacity of slaves for natural goodness with their servile status; Roman jurists show a similar preoccupation with slaves’ actions when determining reasons to manumit. While the philosophers consider whether a slave can be a good man, the jurists measure the qualities of a good slave—deserving of manumission—against what the Romans considered to be a good Roman. This chapter also examines the question of who is a slave. This includes a study of trials of slaves who claimed to be free, as well as the philosophical discussions of what made a person a slave. The lack of a distinguishable “tell” of who was a slave created a conflict between the difficulty in knowing who was a slave and the Roman preoccupation with status. This comparative study of texts discussing the mind of the slave is grounded in a philological approach, which contributes to our understanding of the Latin language of the mind. A second method of study is a focus on the moments in Roman texts when authors compare the mind of the slave with that of a person of restricted freedom, such as soldiers, women, and sons in their fathers’ power. This project examines legal documents, juristic writings, and agricultural handbooks in tandem with contemporary philosophers, rhetoricians, and historiographers. Concerned with upholding Rome’s civil law, the Roman jurists’ judgement of slaves’ actions at times diverges from the literary sources’ treatment of similar scenarios. Jurists and literary writers’ diverse opinions about the relationship between master and slave provide inroads into the issues at the core of understanding the nature of slavery and ownership at Rome. 1 Introduction Project overview This dissertation aims to develop a better understanding of the dynamics of ownership between master and slave in the 1 st -3 rd c. CE through a study of the relationship between knowledge and power. Specifically, I examine why and how Roman authors and jurists attempted to know the mind of the slave—the character of the slave and the intention behind his or her actions—and what these attempts reveal about Roman conceptions of the nature of the slave and the dominium (ownership) of the master. Slaves in the Roman world had a double nature, classified as both things (res) and human beings (persona). This double nature, and the potential in Rome for freedom through manumission, has implications for our understanding of Roman slave status. As a human being, a slave’s legally recognized capacity for free will creates a situation in which he is stepping into a space of freedom. I argue that it is not in the bare fact of physical ownership, but in these moments—in the unknowability of the slave’s mind, as well as Roman attempts to account for it—that we can better examine the nature of a master’s ownership over his slave. This project studies moments of evaluation in the life of the slave in the 1st-3rd c. CE. It is based around points of decision and scrutiny in a slave’s life: when to sell, when to trust, and when to free a slave. When to sell: what is the value of a particular slave? What kind of slave is he? How does the master decide he will be a good slave? What is a good slave? When to trust: is the slave competent and loyal enough to make financial decisions on behalf of the master? Does he have the moral fortitude to resist bribes or running away? When to free: what virtues has the slave displayed to show him ready, in the eyes of the master and the law, to be a Roman citizen? Are the qualities that make a 2 slave a good slave the same that will make him a good citizen? How does this reflect on the ideal characteristics of the citizen-subject in the imperial period? The answer to these questions of character and intention invariably and essentially affect the slave and the master himself. These three moments (purchase, placement or loss of position, manumission) emphasize the constant evaluation of slaves recurring throughout their lives and underscore that the dominium a master had over his slave was not static and unchanging. These moments are significant because there are legal discussions pertaining to each scenario, which provide standards and models in the evaluation of slaves and help create a base level understanding of what can be expected of slaves. The reading of these legal texts in concert with the direct counsel or anecdotal evidence provided by literary sources creates a broader picture of the Roman preoccupation with the mind of the slave and how they attempted to understand it. Framing of the dissertation This dissertation focuses on the life of the slave as understood by his master, an inherently economic understanding. In each of these moments the financial value of the slave is weighed against a set of less tangible and changeable, but equally important, values; this set of values could include the slave’s physicality, skill set, character, or other factors depending on what the master was looking for in the particular slave. In the commentary on the regulations for purchasing slaves, we see the jurists discussing the different mental ailments of slaves and their severity, and the different legal ramifications for each. We find discussions of this appraisal process in literary sources that highlight different methods of evaluation and reveal the anxiety about purchasing a useless or insolent slave. Reading the juristic commentary together with the literary sources, the 3 texts create a more detailed understanding of the purchase of slaves and the desired or undesired traits in a slave. Following purchase, we see both legal and literary texts considering the master- slave relationship. The discussions I examine revolve around the nature of ownership of slaves. In their discussions of slaves at work, the jurists create a legal realm in which it benefits the master to not know what his business manager slave was doing in his day-to- day transactions. In the literary sources masters plan and consider how to decipher if their slaves will betray their trust. The literature surrounding slaves at work raises questions about the meaning of ownership: how far into the slave does the ownership of the master permeate, or where does the master end and the slave begin? To what extent can a master truly own a slave if he does not know the slave’s mind? How did the Romans contend with the relationship between knowledge and ownership? When deciding whether a particular slave should be manumitted, there is a concern among the jurists in understanding the character of the slave in question. Similarly, in the literary sources, we see this concern with the slave’s behavior and intention. These evaluations open up the question of the nature of the slave. For the Romans, did a servile “nature” exist? Are enslaved people inherently servile? In contrast to Aristotelian understandings of slavery, there has been a tendency among Roman historians to deny any kind of essentialism. Do we see a sense of determinism or essentialism in the Roman sources? I chose these instances of the slave’s life because they are all evaluative moments where we see the writers taking mental characteristics into account. They are moments of change; they are moments of empirical evaluation where Romans are seeking an understanding of the slave that is a necessary part of the dominium relationship between master and slave. 4 In order to contend with these questions I study how the legal construction of the mind of the slave speaks to its respective construction in the literary sources and how this identity, created from different bodies of literature, is intertwined. Additionally, I examine when the paradigmatic assumptions of slave identity and slave society were confronted in the sources. These points of interaction and exchange between master and slave involve questions of sanity (in mind and body), family, trust and responsibility, and larger societal constructions such as the Roman conception of honor. This comparative examination of texts discussing the mind of the slave is grounded in a study of language, which contributes to our understanding of the Latin language of the mind (animus, mens, and ingenium). A second method of study is a focus on the moments in Roman texts when authors compare the mind of the slave with that of a free person. This project reads the pragmatic texts—legal documents, juristic writings, and agricultural handbooks—alongside contemporary philosophers, rhetoricians, and historiographers. Concerned with upholding and interpreting Rome’s civil law, the Roman jurists’ judgement of slaves’ actions at times diverges from the literary sources’ treatment of similar scenarios. Jurists and literary writers’ diverse opinions about the double nature of slaves, and the relationship between those opinions and actual practice provide inroads into the issues at the heart of understanding the nature of Roman slavery. Do we see in the sources a sole preoccupation with slaves or does the study of these questions have bearing upon free citizens, particularly in a time of empire? This discussion is not simply a reflection on the ubiquity of slavery in the Roman society; when there are major discussions involving questions of the mind of the slave, we must view the discussion in light of the mind of the slave’s counterpart, that of the free citizen. William Fitzgerald explores this question in Slavery and the Roman Literary 5 Imagination. Fitzgerald focuses on the free-slave divide and that divide’s internal and social significance. The introductory chapter discusses the slave as the “other self,” and asserts that “reading the literature of slavery, then, will also involve reading its exposure of the gaps and rifts in ideology, its capacity to let the unspeakable be spoken, to assert what it apparently denies.” 1 Fitzgerald also recalls that slavery is “an extreme condition” and as such the slaves that free people interacted with everyday were a reminder of “humanity at its limits, a humanity against which they could measure themselves.” 2 He also examines the master-slave relationship as a measure or metaphor for other relationships; here the discussion includes three spheres of domination that are described in servile language: the individual, the family, and the state over the self. Sources The question then is how much regarding slavery in legal thought is reflected in other texts. Intra the texts, how autonomous is slave law; do the legal categories of slavery and freedom influence or permeate into the philosophical categories of bondage and freedom or vice-versa? Is it possible to find a coherent cultural answer to this? Stepping beyond the texts, how much does this question of the mind of the slave affect the Roman concept of the political subject? This project contends with the differences between separate fields of study—legal works and literary works. The sources of law too are not one form of work. Roman Law as we have it is comprised of statutes, resolutions of the senate, edicts, imperial enactments, and juristic writings. I will consider why the legal 1 Fitzgerald 2000: 10 2 Fitzgerald 2000: 11 6 sources, or other institutional sources of power, entertained these questions, how what the law intended differed from what the jurists interpreted, and what resulted in practice. In the imperial enactments and the juristic writings in particular we find the introduction of ideas like humanior interpretatio (“a more humane or kindly interpretation”), which expand the interpretations of the law, and allow us to view more complicated conceptions of slavehood and ownership. Along with the philosophical and other literary sources, these legal sources are critical for understanding the nature of slavery and ownership and reveal why the Romans were concerned with these questions. It is for this reason that we must study these sources of philosophy, literature, and law together. They all serve as instruments to examine the Roman understanding of ownership and the mind of the slave. The question of a cultural unity between the sources is important for a number of reasons. Most apparent is that agreement between the sources allows us to view these sources as beyond their own internal logics; that is, beyond the view of a single philosopher or philosophical movement, or transcending the pragmatic legal writings. We find common sentiments in works written for inherently different purposes. My interest with the cultural unity of the sources and the comparison between them is twofold: to examine the common language between the jurists and other writers concerning themselves with the nature of slavery and ownership, and second, to understand the different motivations and reasons for their comprehensions of slavery. What can we learn about the sources when we see that their ideas and conclusions diverge? Studying the sources together allows us to study the idea of the mind of the slave in a broader manner and focus on the Roman preoccupation with it that appears in the imperial period. What might be learned about Roman conceptions of consciousness and autonomy through a 7 survey of Roman texts that bear upon the question of slavery? Do the Romans view the minds of slaves as inherently different than that of a free person, a Roman citizen, or a foreigner and how does that bear upon master-slave relations and manumission? In what way is this discerned, through physical examination, past events, particular talents? While these questions regarding the nature of slavery and ownership have existed since at least the time of Plautus (c. 254 -184 BCE), this study will focus on the literature of the first centuries of the empire because our legal sources predominantly come from the 2 nd and 3 rd c. CE. The main form of legal literature discussed in this project is the juristic interpretation of magisterial edicts. The jurists’ writing is largely taken from the Digest of Justinian, a 6 th century compilation done by Tribonian under the order of the Emperor Justinian. Tribonian’s compilers edited the texts of the classical period to make them fit the needs of the 6 th c. CE. The extent of this interpolation is and was much debated, particularly at the turn of the 20 th century. 3 Nearly half of the Digest is made up of the works of Severan jurists (193-235 CE). The jurists that are discussed in this project can largely be grouped as the Antonine jurists (117-180 CE) and the Severan jurists, who make up the largest group of jurists that I will discuss. There are a few earlier jurists quoted, most importantly Labeo and Caelius, who were the heads of their respective schools, the Proculean (of which Labeo was the founder) and the Sabinian (of which Caelius was a leader). It is believed that the schools were divided over the Sabinian support of the new principate and Labeo’s fierce opposition (Tacitus describes him as having an incorrupta libertas). 4 Marcus Antistius Labeo (d. c. 10 CE) was a contemporary of Augustus and Caelius Sabinus was consul in 69 CE. In the early empire, jurists tended to 3 Ibbetson 2005: 187. 4 Tac. Ann. 3. 75. 8 hold high offices such as the consulship, but later on in the empire jurists were more likely to serve as civil servants. The shift was also one of birth, following Hadrian the jurists were less likely to be from the senatorial class and many were from the provinces. 5 Legal writing evolved in the early centuries of the empire, in particular, to incorporate the idea of humanitas. The Antonine jurists (particularly focused around the reigns of Hadrian, Antoninus Pius, and Marcus Aurelius) were the first to begin to use the ratio humanitatis in their arguments. 6 Quintus Cervidius Scaevola was a jurist of this period and was the praefectus vigilum. 7 He was a legal advisor to Marcus Aurelius and the teacher of the future Severan jurist Paul and possibly Papinian as well. Discussing the cultural backdrop of this period, Ibbetson notes, “[Hadrian’s] reforms of the civil service had paved the way for the consilium principis to play a greater role; and, whether by design or accident, jurists came to occupy an important position in this.” 8 The prominent role of the jurists in the consilium principis (counsel of the emperor) is important to this project because it allows us to understand the jurists, in their roles as advisors to the princeps as a part of the imperial court, and as such, their interpretations of the edicts must be viewed as concerned with both the protections of the rights of the master and the societal ramifications of the laws in question. 5 Ibbetson 2005: 184-5; Schulz 1946:103-7. 6 Palma 1992: 23. 7 Ibbetson 2005: 184 provides a summary of these sources. 8 Ibbetson 2005:184-5 continues, “Practically all of the leading jurists were sucked into it: Celsus, Neratius and Julian under Hadrian; Maecianus, Pactumeius Clemens, Vindius Verus and Marcellus under Antoninus Pius; Marcellus and Scaevola under Marcus Aurelius’ Tarruntenus Paternus under Marcus and Commodus; and under the Severans Papinian, Ulpian, Paul, Messius, Tryphoninus, Menander, Modestinus and Licinius Rufinus. The ubiquity of lawyers in the Antonine and Severan bureaucracy might be likened to that found in the late twentieth-century America.” See also Palazzolo 1974. 9 In Scaevola’s lifetime we begin to see that the juristic interpretations of the edicts expand under the justification of a more humane interpretation (humanior interpretatio). 9 We observe this in a case of testamentary manumission: a slave was to be manumitted when he had taken care of his master’s accounts and the master’s son turned sixteen. Things do not go as planned, and the son’s tutors give Cupitus, the slave, additional work (which he does). It’s asked whether Cupitus had to do this additional work before he is free. Scaevola reports that the response follows the original conditions of the will of the master, the management of the account and the age of the son, if he had lived. Strictly speaking, the slave could have never been manumitted because the son would never make it to sixteen. The response however suggests that by humanior interpretatio the slave should be freed. 10 The ruling of this case rests on the conditions of the will or the intention of the master, which is a common practice in Roman Law. We must understand this notion of humanior interpretatio and more generally, humanitas, as serving a purpose for the state; this is 9 Palma 1992: 42, “Appare, invece, evidente la maturazione tra i prudentes dell’età antoniniana di opiniones che mirano, nella risoluzione di casi pratici, al contemperamento degli interessi contrapposti alla luce di una interpretatio meno rigida, qualificata di humanior e benignior.” 10 D. 40.5.41.10, Scaevola, Respones, book 4, “Libertatem ita testamento dedit: “Cupitum servum meum, cum Marcianus filius meus sedecim annos impleverit, rationibus redditis liberum esse volo”: post mortem testatoris tutores Cupito exactionem commiserunt isque nummos redactos expensavit eisdem tutoribus: deinde filius impubes decessit, cui mater heres extitit et tutorem tutelae iudicio filii condemnatum habuit: Cupitus ad libertatem proclamat eo tempore, quo, si viveret Marcianus, annos sedecim aetatis habiturus esset, offerens rationes unius anni in diem mortis testatoris, quod ceterae subscriptae fuerunt. Quaesitum est, an eas quoque rationes, quas tutores periculo suo egerunt, Cupitus reddere compelli debeat. Respondit eum de quo quaeritur condicioni rationis reddendae ita videri paruisse, si omne ex eo, quod gessit, recte desiderari potest, reddiderit: nam alteram condicionem humaniore interpretatione ita accipi posse, ut defuncto pupillo tempus, quo, si viveret, sedecim annos impleret, exspectare satis fuerit,” “The following grant of freedom was made by will: ‘I wish my slave, Cupitus, to be free after rendering accounts, when my son, Marcianus, has completed sixteen years’; after the testator’s death the tutors entrusted Cupitus with the collection of debts; he got in the cash and paid it over to the same tutors; then the son died without reaching the age of puberty, and his mother, who was his heir, secured condemnation of the son’s tutor by a judgment on tutelage; Cupitus proclaims his right to freedom at the time at which, if still alive, Marcianus would have been sixteen, furnishing accounts for one year to the date of the testator’s death, since his other accounts had been certified. The question has been raised whether Cupitus should be compelled to render those accounts too which the tutors had passed at their own risk. He replied that the man in question seems to have complied with the condition that he must render account, if he rendered account in full to the extent that can rightly be required in respect of his administration; in fact, the other condition can be, by a more benign interpretation, accepted as meaning that if the pupillus had died, it is enough for him to await the time at which, if he had lived, the pupillus would complete his sixteenth year.” All Digest translation from Watson edition unless otherwise specified. 10 also a skilled slave who had performed above and beyond his duties and therefore made a good candidate for citizenship. The doctrine of humanitas perhaps did result in the practice of freeing more slaves than would be allowed by a strict following of the ius civile. This is particularly true in a scenario where the manumission could not proceed due to a technicality, such as the death of the son or a faulty will that nevertheless managed to make the intention of the master explicit. Keith Bradley touches on this in his 1984 book, Slaves and Masters in the Roman Empire: a Study in Social Control, which focuses on the power dynamic between master and slave. The book is an exploration of the various methods masters used to control slaves in the imperial period. Bradley discusses the question of the slave family and manumission and expresses, rightly, his skepticism about the anecdotes and fragments that tell us of masters respecting slave families for purely “humanitarian reasons.” 11 On manumission, Bradley stresses the important fact that even upon receipt of manumission, slaves were not rid of their responsibilities to their masters. 12 He also discusses the purpose of the Augustan slave legislation regulating manumission in terms of social control in order to encourage good behavior in a slave. His treatment also includes a discussion on loyalty and obedience, which focuses on the preoccupation of Columella and other Roman writers of the empire with slave management and how to secure trust in slaves. Bradley’s work is important because while individual masters could be kindly or benevolent, he shows that the institution of Roman slavery was one that was focused on the manipulation of slaves in order to benefit the master. 11 Bradley 1984: 19. 12 Bradley 1984: 81. 11 In his 1965 article “L’idea di humanitas come fonte di progresso del diritto,” Salvatore Riccobono illustrates how humanitas was a method used to incorporate the evolving standards of morality of the first century into the juristic literature and imperial constitutions. Antonio Palma, in his book Humanior Interpretatio: Humanitas nell’interpretazione e nella normazione da Adriano ai Severi, discusses the visible unification in Hadrian’s period of the intellectual elite classes, the jurists, and the emperor, which made the time ripe for a widespread use of humanitas in the interpretation of the ius civile. However, not enough scholars challenge the idea of humanitas of as solely an evolution of a particularly Roman morality, but that it additionally serves as a tool for conformity and social control. 13 It has been noted that in the age of the Antonines, aequitas along with humanitas prevailed, largely based on a juridical understanding of “human needs rather than abstract arguments,” and that by the time of the Severans, the jurists had “entirely absorbed the reason of humanitas.” 14 Papinian along with Paul and Ulpian were considered the main jurists of the Severan age (the majority of their work done between 190-220 CE). 15 Aemilius Papinianus was executed in 212 CE under the order of Emperor Caracalla. Before this (203-205 CE), he was a libellis, 16 and then praetorian prefect. Papinian has often been considered one of the more creative or original thinkers of the jurists and noted for having an “ingenious and delicate” style. 17 His importance in the later empire and preference in the Byzantine period is reflected in the Law of Citations of 13 Veyne 1993: 342-369; Woolf 1998 consider the role of humanitas as a barrier between Romans and others. 14 Palma 1992: 47, “Nel’età antoniniana, dati non trascurabili sul ruolo significativo della ratio humanitatis come fondante una giuridicità più consapevole dei bisogni umani e meno astratta nelle argomentazioni. I giuristi dell’età severiana sembrano avere pienamente assorbito le ragioni umanitarie.” 15 Ibbetson 2005: 186. 16 The a libellis was in charge of petitions to the emperor in the imperial chancery. 17 Ibbetson 2005: 191. This sentiment is also suggested by Syme and Palma, among others, though Schulz speaks negatively of his style, Schulz 1946: 236 n6. Syme 1972: 406. 12 426. 18 The Law of Citations declared that legal argument should come from the works of Papinian, Paul, Gaius, Ulpian, and Modestinus, with Papinian breaking a tie if there was disagreement. Ulpian was originally from Tyre, was possibly a libellis, and praefectus annonae, 19 then the praetorian prefect until his death in 223 CE. 20 As the other jurists of the classical period, Domitius Ulpianus focused most of his work on analysis of particular institutions; much of the material used in this project comes from Ulpian’s 81 book work on the Edict. Ulpian has the distinction of being one of the most quoted jurists of the Digest and the opening lines of the Digest belong to him. Tony Honorè has studied Ulpian quite closely and, in his book Ulpian: Pioneer of Human Rights, proposed that Ulpian’s legal method was a balancing act of five principles: (1) verba - what the text actually says; (2) mens/ scientia - the legal intent of the text; (3) utilitas - public (and private) interests, a sentiment Honoré says is matching in the attitudes of his fellow Severan jurists, Papinian and Paul; 21 (4) aequitas; and (5) humanitas. 22 Ulpian is often considered a great compiler rather than a particularly creative jurist, and certainly most of the quotations of the older jurists come from him; however, he was quite quick to point out fallacies in the logic of his peers’ work. 23 Paul, a contemporary of Ulpian, served as a memoria 24 and praetorian prefect under Alexander Severus from 228-235 CE. Not much is known about Iulius Paulus’ life. He is known for having written a commentary on the praetorian edict of 80 books and 18 CTh. 1.4.3 19 The praefectus annonae was in charge of food administration; he oversaw how much corn went to market and the state of prices. 20 Honoré 2002. 21 Honoré 2002: 247. 22 Honoré 2002: 152. 23 Ibbetson 2005: 191 and Honoré 2002 on Ulpian’s style. 24 The a memoria is in charge of the drafts for the emperor’s speeches. 13 the ad Sabinum on the ius civile. He also wrote a significant number of monographs focused on areas generally beyond legal commentaries. His most known work is his Sententiarum ad filium libri quinque (or the Sententiae Pauli). Along with the quotations we have in the Digest, about one-sixth of the work (not unadulterated) comes down to us via other texts including the Lex Romana Visigothorum. Paul’s works are noted for their study of what was at the heart of the matter and his method has been called “Socratic;” 25 he was honored with the title Prudentissimus. It has been argued that the Severan jurists, while having different approaches, were united in their legal thought through their commitment to the ideas of aequitas and humanitas. 26 The construction of humanitas as a unifying and particularly Roman conception brings us to the philosophers that will play a role in this project. In a letter on the liberal arts, Seneca discusses his view on humanitas. Humanitas is the base for universal kindness, the repellant for arrogance, and greed, and in connection to studia liberalia, it is the base for simplicity, temperance, restraint, thriftiness, frugality, and mercy. 27 Palma argues that the humanitas that we find in the juristic literature matches up with Seneca’s moralistic meaning (“l’accezione moralistica di stampo senechiano”). 28 This is critical to our understanding of the role that humanitas plays in the juristic interpretation on legislation 25 Ibbetson 2005: 191 describes Paul’s work as a dedication to the “underlying principles.” Palma 1992: 70 discusses Paul as falling in line with the common sentiments of the jurists of the period. Palma writes on Paul’s decisions regarding fideicommisary liberty, “Gli argomenti di Paolo sono dunque in linea con lo stato di evoluzione del diritto nei suoi tempi: personale invece appare il tentativo di giustificare in termini umanitari ed equitativi il mancato riconoscimento della qualità di erede necessario del servus, evitandogli le conseguenze di una possibile damnosa hereditas, in armonia peraltro con una ratio giurisprudenziale antica.” 26 See Casavola 1976, Honoré 2002, and Palma 1992, among many others. 27 Sen. Ep. 88.30. 28 Palma 1992: 23, “Nel lessico giuridico humanitas, humanus, humanius, sembrano essere stati utilizzati spesso nell’accezione moralistica di stampo senechiano, come modulo di contemperamento delle decisioni giuridiche, di stemperamento della sottigliezza del regula iuris a favore di soluzioni conformi alla moderazione ed alla benignitas erga omnes.” 14 relating to slaves. There is a morality that is guiding juristic interpretation, and it is a morality that is explicitly tied to and inherent in free Roman society. Particularly in cases of manumission, when the jurists are weighing the implications of allowing a slave his freedom and citizenship we must understand that they are doing so in relation to humanitas and its related virtues. The Stoic school of philosophy was the most prominent in the Roman Empire and this is generally attributed to the school’s acceptance and encouragement for students to participate in politics. This made the Stoics popular with the elite classes and as such we have many Stoics that were also politicians or in other professions of power. The philosopher I focus on the most in this project is Seneca the Younger. He was born in Cordoba between 4 BCE and 1 CE and died outside of Rome in the year 65 CE. Active under the Julio-Claudians (27 BCE - 68 CE), Seneca was subject to more and more despotic emperors. The 60s in particular were a dangerous time for the Stoics, when Seneca, his nephew Lucan, and others including Thrasea Paetus, Barea Soranus, Rubellius Plautus, and Musonius Rufus were killed, killed themselves, or were exiled. We have a relatively good understanding of his biography thanks to Tacitus and the other historians of the Julio-Claudian era. Seneca was an author of philosophical letters (Epistulae Morales) and treatises including the De Beneficiis (On Benefits) and De Ira (On Anger), both of which are important to my project, and the De Clementia (On Mercy), which is addressed to Nero. 29 Seneca’s philosophical merit has always been tarnished by his tie to Nero and more generally for being a product of “Silver Age” Latin; however, both of these claims have been receding since the last quarter of the twentieth century. 30 Seneca 29 On dating see Griffin 1976. 30 For example, Sandbach 1975: 149. 15 is a fruitful source because he not only wrote prolifically, but specifically about the questions that pertain to this project. Seneca’s works directly discuss different understandings of slavery and the master-slave relationship. We see for example Seneca considering the extent to which a slave could participate in free Roman society; he examines whether a slave had the capacity to give a beneficium, specifically, saving his master’s life, which facilitates my discussion on manumission and citizenship. Seneca’s writings on slavery also pertain to my study because he often uses legal language to describe states of liberty or slavery; however, he is a relatively early source compared to most of the jurists. Epictetus, another Stoic philosopher, lived from around 50 CE and to the reign Hadrian (117-138 CE). The circumstances of his birth are unknown, but he twice mentions his status as the slave of Epaphroditus, one of Nero’s freedmen. While he was still a slave, Epictetus was the student of the Roman Stoic Musonius Rufus. Epictetus was expelled from Rome in 93 CE with the other philosophers. He founded a school in Nicopolis where he had Arrian as a student. It is through Arrian’s transmission that we have the lessons of Epictetus. Arrian’s introduction to the Encheiridion (“The Handbook”) claims that he transcribed the works from the mouth of Epictetus. Along with the letters of Cicero’s slave Tiro and the fabulist Phaedrus, Epictetus is one of the closest instances in the ancient world to a slave narrative though clearly his is an elite and exclusive narrative. Epictetus’ work is interesting because of his own status as an ex-slave, but also because of his concentration on the volition of a man as a part of him that is inalienably free. Epictetus conceptualizes this construction of volition in terms of the language of property, which is particularly relevant to my study of the nature and meaning of the absolute ownership of a master over a slave. 16 Traditionally, there has been a hesitation to discuss the relationship between the legal texts of the Digest and other literary sources. However, the rhetorical training and philosophical thought of the period are a fruitful place to consider this relationship. It is not a matter of how closely we can map the “law” of declamation to the law of the legal sources, but rather a matter of studying the two together to gain a better understanding of the intellectual and social atmosphere that gave rise to the sort of declamation and law that were being practiced in the first centuries of the empire. 31 It has been noted that “declamation does follow certain inclinations of Roman law, for example, the tendency to recognize a will in disputed cases and the tendency to favor a resolution that confers freedom on a slave… The relation of declamation to Roman law, in addition to being the common training shared by every lawyer and by a citizen jury pool, is perhaps the relation of beneficium and officium to legal contract, that is, social obligations and roles to legal obligations and roles.” 32 Seneca the Elder’s work on declamation is useful because it is concerned with gaining an understanding of particular terms that have bearing both in law and literature. Additionally, as declamation was meant to have some relation to the law, many of the cases deal with matters of the familia, in particular the relationship between the paterfamilias and son or slave. 33 Declamation, which was a performance of a legal debate, was a part of the training of the elite. The education of the elite is in particular important because it helps reinforce the idea of a cultural unity among the elite classes regardless of their later professions. 31 Montefusco: 1996: 209-228 on the ties between rhetoric and jurisprudence, in particular, 210, “Ritornando adesso al rapporto tra retorica e giurisprudenza all’interno di questa dottrina possiamo dire che esso si manifesta in due modi: su un piano formale, nell’attenzione alla pratica processuale, e su un piano contenutistico, nell’implicazione quasi costante delle varie accezioni dello ius. E questo, si badi bene, non solo perché gli status trovavano un’applicazione naturale nel genera giudiziario della retorica.” 32 Bloomer 2010: 305. See also Dingel 1988. 33 See Gunderson 2003. 17 Aulus Gellius is a chronicler, who lived in the 2 nd century (c. 125-180 CE). Beyond his time in Athens and then Rome, we do not know much about his life, and what we do comes from his own work, the Noctes Atticae (Attic Nights). Aulus Gellius was not a jurist, his collection of quotations and notes range from discussions on grammar to law. However, he devotes several of his narratives to the discussion of legal language such as the differing opinions of the jurists on the meaning of disease and defect. He is a contemporary of the Antonine jurists and shared cultural interests can be seen, for example, in his exploration of the term humanitas. 34 Gellius’ work highlights the fact that ideas of Roman Law were a part of Roman education and elite culture; he underscores the idea that there was a cultural understanding of law and that the questions of juristic interpretation went beyond the courts. The agricultural work of Columella is significant as the reflections of a slaveholder and as a source of information on slave management. Columella was an agronomist of the 1 st century CE, born in what is modern day Spain, however, not much is known of his life other than that he was a tribune in Syria. His work, de Re Rustica (On Agriculture), is a 12-volume collection on how to best maintain one’s farm. He is writing in a genre that has a history in Latin literature; both Cato the Elder and Varro wrote similar farming treatises and Columella refers to both. It is a work that is steeped in the ideological concerns of the noble Roman as farmer, which were prevalent both in the Republic and early Empire. Despite a brief verse section and the discussion of gardens which Virgil left out of Georgics 4, Columella’s work serves as a handbook of farming. His writing is meant to be instructive and plainly informative. Columella’s treatise differs from his predecessors in his long and psychological discussions about slave management. Cato and Varro 34 Gell. NA. 13.17. 18 reflected on slaves on the farm, but not with the same preoccupation as Columella. He discusses in particular the different merits of slaves and free farmers, and the importance of maintaining a steady relationship with any slave in a position of power, such as a vilicus (foreman). In Columella’s work, we have a slaveholder writing explicitly about the best methods for controlling slaves and for getting the best results from slaves. His discussion of the vilicus is particularly important to understanding the conception and management of high-level slaves and complements the discussion of high-level slaves in the juristic writings. The genres and ends of these literary works are at times vastly different. However, these writers were all members of the elite classes and likely slave owners; they had both a personal and societal interest in understanding the nature of slavery and slavehood. There is, for example, an inherent difference in the purposes of the texts of the contemporaries Columella and Seneca. Columella is concerned with the nature of slaves with respect to the practice of farming; he seeks to control his slaves and exploit their ability to work in order to gain the maximum economic results. Seneca instead is concerned with the question of the nature of slaves with respect to understandings of freedom in the imperial period. Studying the two together in terms of understanding the nature of slavery, however, can be fruitful and shows us that it was not only the philosophers or the jurists in their separate domains that were considering these questions. There has been reluctance on the part of legal historians to study the work of the jurists alongside the more traditional literary sources, and similarly classicists have generally overlooked many of the legal sources. There is a trend among the legal historians to treat the juristic literature as an autonomous and discrete category of writing 19 and only incorporate literature outside of the juristic canon for particular circumstances, such as word study. There is a resistance, for example, in seeing the influence of philosophy in the jurists’ writings. 35 However, this seems to me to be limiting, and this project is an attempt to study the juristic sources in conversation with the philosophical and literary in an effort to find cultural sentiments rather than genre-specific ones amidst the sources. Documentation of and references to slaves exist in every genre and as such we see slaves in a variety of contexts. How, then, do these different forms of literature entertain these scenes of a slave’s life and what might we learn from the sources about Roman society when we examine these sources together? Where do jurists and philosophers agree about when it is right or just to free a slave or what should be taken into account: a slave’s actions, his intention, his faithfulness to his master? When do the sources differ? Do we get a unified idealized character of the slave if we study the sources together or do we see that the idealized character appears different in different sources? And what does that reveal about the goals of the people writing? Understanding the nature of the slave was an evolving and constantly deliberated question. Roman conceptions of slavery were no different than anything else in society; they were not static, ideas and sentiments changed, but Rome remained a slave society and as such, these questions on the nature of slavery and ownership and the relationship between slave and citizen remained. 35 For example, Casavola 1980:104-5, “I giuristi come ‘letteratura’ possono essere annientati in una esasperata indagine formgeschichtlich, che svuota la vasca dell’acqua e del bambino, come talore accade alla massima delle scienze del testo che è la biblistica; i giuristi come ‘intellettuali’ richiedono metodi e tecniche di ricerca più familiari ad una storia delle idee che non ad una storia delle norme o delle istituzioni.” Ibbeston 2005: 192 explores philosophy in the legal sources cautiously, “Ulpian seems to have been a Neoplatonist, for example, and there are strands of Neoplatonic thinking underpinning his formulation of specific legal rules; but it is all very implicit, and there is no hint in the legal corpus that this type of theoretical speculation had any substantial part to play in legal debate.” 20 Structure of the dissertation Sanity and the Slave Market. The sale of slaves was discussed in Roman legal, philosophical, and literary sources. The text of focus in the legal sources is the juristic interpretation of the Edict of the Aediles, which governed the sale of slaves (D. 21.1). My focus will be on the specific references to when a bought slave could be returned because of disease or defect (morbus or vitium). In this chapter, I look at literary sources discussing the slave market and the evaluation of slaves to examine the process of appraisal in order to ascertain weaknesses, talents, and character. The empirical nature of this evaluation process highlights the tension between the unknowable mind of the slave and the ownership of the master. Additionally, I study the medical terminology the jurists employ when discussing the mental defects of slaves in relation to the use of those terms in a broader literary context in order to understand the correlation between the mental defects (vitia animi) of slaves and free people. This chapter focuses on the beginning of the ownership of the master over his slave; it examines the evaluative nature of the relationship as well as what mental ailments might pose a challenge to the ownership of the master. I argue that while the physical health of slaves was important, there was a particular consideration given to the mind of slaves, which highlights the dual nature of slaves as res and persona. On the one hand, the deliberations of the jurists on the intention and mentality of slaves shows a sort of humanity, a recognition that while they were slaves, they still had will and choice in their behavior. On the other hand, however, this reveals the jurists’ desire to know and categorize this intention. Though the law was written in the interest of the protection of the master’s assets, it nevertheless created a 21 space of autonomy from the master in the mind in the slave. This comes to a head in the discussion of the runaway slave (a mental defect), whom the 1 st c. jurist Caelius says is in the species cuiusdam libertatis, “the appearance of a kind of liberty.” The construction of the runaway slave as having a mental defect and as being in an appearance of liberty both highlights the difficulties in reading status in the Roman Empire and emphasizes the performative, and therefore, adaptable nature of status. Slaves at Work. The second chapter looks at the negotiation between a slave’s status as property and his faculties as a human being for independent thought and action. This chapter focuses particularly on high-level slaves such as actores, institores, and vilici. The understanding of the disposition and character of a slave was critical to be able to trust a slave with such jobs. I examine the particular virtues the master was looking for before he sends his slave off to act as his business agent or entrust him with a peculium and how the Romans balanced the financial and social need for competent and trusted slaves with the underlying anxieties of a slave society. This chapter discusses the juristic interpretation on commercial actions (D. 14), the peculium (D. 15), and manumission (D. 40) alongside philosophical ideas of freedom of the mind. I study the relationship between the nature of ownership with the varying degrees of license accorded to slaves to carry out business operations. Additionally, I focus particularly on the actio servi corrupti (D. 11.3), which served to give the master of a degraded or damaged slave the right to sue. While the edict understandably covers physical damage, it focuses on issues of character and intention. I argue that the juristic literature about the actio servi corrupti diminishes these faculties from the slave and emphasizes the force a would-be corrupter must use to persuade a slave to betray his 22 master. The examination of commercial actions and the actio servi corrupti shows that the autonomy and agency a slave exhibited while conducting his master’s business was not a threat to the ownership of the master and was rather an acknowledged facet of dominium of these high-level slaves. However, we see that this autonomy needed to be constantly evaluated because it could easily come under threat from third parties or the slave himself. Manumission and the Makings of the Good Citizen. In the final chapter, I study the practice of manumission with particular attention paid to the fact that the former slave would not only become free, but also become a Roman citizen. This chapter examines the regulations and juristic interpretations on manumission to understand what particular qualities of character were desired before manumission was granted. I argue that these were qualities or virtues that were not found in a good slave, but rather in a good citizen. In contrast to the slaves in the previous chapter who betray their masters, these slaves have performed a deed beyond their servile duties and worthy of a citizen. The autonomy and understanding of free Roman society the slaves exhibit in these actions do not explicitly threaten the dominium of the master, but they do show that the slave could adopt citizen-like qualities and virtues. The chapter also focuses on a study of trials of slaves who claimed to be free, as well as the philosophical discussions of what made a person a slave. In both the philosophical and juristic sources, we see that the boundaries of status are not impervious and were able to be broken through either by legitimate means or through deception. The lack of a distinguishable marker of who was a slave and the ability to “pass” as 23 another status created a conflict between the difficulty in recognizing slaves and the Roman preoccupation with status. 24 Sanity and the Slave Market Vt nos in mancipiis parandis quamvis frugi hominem si pro fabro aut pro tectore emimus, ferre moleste solemus, si eas artis quas in emendo secuti sumus forte nesciunt, sin autem emimus quem vilicum imponeremus, quem pecori praeficeremus, nihil in eo nisi frugalitatem, laborem, vigilantiam esse curamus. When we are buying slaves, we tend to become annoyed if we bought a man—however honest he is—if we bought him for the purpose of being a workman or a plasterer, and if those skills, which we sought in buying, he happens not to know. If we bought a person whom we were installing as a foreman (vilicus), whom we would put in charge of our cattle, there is nothing we care about in him except thriftiness, hard work, and attentiveness. - Cicero, In Defense of Plancius 62. 1. Introduction: measuring the value of a slave In the process of purchasing a slave the owner of the slave performs his first act as a master: the evaluation of the slave. He appraises who the slave is, where he is from, his strengths and capabilities, education and intellect, and his moral character. This assessment of a slave is tied implicitly to the determination of his monetary value, his aestimatio. This aestimatio is important for several reasons. As Sandra R. Joshel puts in her recent book on Roman slavery, “No less for buyer than seller, the slave was his or her price.” 1 The prices of slaves varied depending on a number of factors and many scholars 1 Joshel 2010: 105 “and thus comparable to any other slave, despite differences of age, sex, origin, appearance, or, for that matter, species.” Sciandrello 2011: 85 defines aestimatio in the context of estimate contracts (contratto estimatorio), “intendendosi con tale vocabolo l’attribuzione—solitamente convenzionale—di un valore determinato ad un bene oggetto di un negozio giuridico effettuata prima della consegna del bene stesso.” Westermann 1955, Harris 1980, Scheidel 1997 and 2005, among others on slave prices and the slave population. Harris 1980: 122, “If the anticipated average was 1000 HS, a guess, but in my view not at all likely to be too low a one, the government probably expected, according to Dio's testimony, that each year there would take place some 250,000 slave sales in the open market where they could be detected and taxed. Since many slave sales must normally have taken place in private between individuals in such a way that tax evasion would be easy, the total number of slave sales throughout the empire was probably thought to be much larger than this (another reason for doubting that the supply was completely dominated by slave-born slaves).” The ancient sources also provide insight into price, though these are often exaggerated. See, for example, Martial 10.31: “Addixti servum nummis here mille ducentis, / Ut bene cenares, Calliodore, semel. / Nec bene cenasti: mullus tibi quattuor emptus / Librarum cenae pompa caputque fuit. / Exclamare libet: ‘Non est hic, inprobe, non est / Piscis: homo est; hominem, Calliodore, comes’,” “You gave up a slave yesterday for 1,200 sesterces, Calliodorus, so that you could dine well once. You didn’t dine well: the 4 pound mullet fish you bought for yourself was the 25 have made estimates as to what a “good price” for a particular slave was. The best documentary evidence on the price of slaves in the 1st-3rd c. CE comes from papyri found in Egypt. Jean A. Straus, who has collected this data, synthesizes it by explaining that there is not sufficient data in order to put an “average” price on slaves. 2 Straus gives the example of two slaves of the same sex and from the same place, who were sold around the same time and most likely in the same place (Alexandria). Despite their similarities, the two slaves have vastly different prices. We know that the more expensive slave was around seventeen years old and was an οἰκογενής, or home-born slave. 3 Roman legal and literary sources attest the desire for home-born slaves, and this likely holds true in Roman Egypt as well. We do not have the age of the other slave, who is labeled as an “Alexandrian” slave, but not as a home-born one. The uncertainty of age differences aside, the fact that the more expensive slave was a home-born slave may explain the price difference, as may any number of other undocumented things. Or perhaps one slave- dealer was much more adept at swindling his customers than the other. triumph and centerpiece of your dinner. It’s pleasing to shout: ‘this is not, you reprobate, this is not a fish: it’s a man, Callidorus, you ate a man!’” Pliny the Elder (NH 7.40) discusses the highest prices ever paid for slaves and tells the tale of the slave-trader who fooled Mark Antony into buying handsome allegedly twin boy slaves (NH 7.12.56, passage discussed below). Suetonius, Caesar 47 notes that Caesar bought slaves so expensive he did not put it in his accounts (servitia rectiora politioraque inmenso pretio, et cuius ipsum etiam puderet, sic ut rationibus vetaret inferri). 2 Straus 2004: 300 “Le nombre insuffisant de données ne permet toujours pas de se livrer à une analyse significative du prix des esclaves. Il n’est possible de mettre en lumière aucun élément qui puisse expliquer les prix compilés dans les tableaux qui précèdent. On ne peut évaluer ni les différences locales de prix, ni l'influence de l’âge ou du sexe sur celui-ci. Il est même impossible de montrer qu'un esclave importé de l'étranger coûte plus cher qu’un indigène. Un exemple illustre à merveille les difficultés devant lesquelles on se trouve. Le 28 mars et le 7 avril de la même année 154, deux esclaves de même sexe masculin, tous les deux indigènes, sont vendus, vraisemblablement dans la même localité, Alexandrie. L’un vaut 1400 drachmes, l’autre 2800. Ce dernier a environ 17 ans, on ignore l'âge de l’autre. Qu’est-ce qui justifie une telle différence de prix ? On peut laisser libre cours à son imagination, on ne peut rien prouver.” See the charts of the sales of slaves in Straus 2004: 296-300. 3 For more on home born slaves in Egypt see Straus 2004: 249 and Biezunska 1970: 31. On home-born slaves and loyalty see Bradley 1994: 34. 26 This chapter describes the process of evaluation: what qualities did masters seek in slaves? How did they go about determining whether a slave had those qualities? The process of appraisal at the slave market is an attempt to understand not only the physical nature of a slave, but his character, talents, and mental weaknesses. I focus on this evaluative and examinatory process because it is a first insight into the relationship between the mind of the slave and the ownership of the master. 4 In order to consider this, in this section I will proceed with a study of Roman literary sources that focus on the sale of slaves to see how Romans approached the purchase of slaves. Following a brief discussion on the slave market, I examine the juristic commentary on the faults of slaves in the Edict of the Aediles (the regulations of the slave market) in connection with literary sources discussing similar faults in free people. Lastly, I consider the case of the fugitive slave as a mental defect. These analyses will assist in the larger goal of this project by investigating the nature of the slave as the Romans understood it and its implications for a master’s ownership over a slave. The juristic discussions on the mental defect of slaves reveal, firstly, spaces of autonomy from the master’s ownerhsip in the slave, and secondly, show attempts to control this autonomy. This chapter will proceed in the following sections: (2) the slave market, (3) the faults of slaves and the Edict of the Aediles, (4) the question of the fugitive slave. Roman literary sources give detailed discussions of the purchasing of slaves. We find descriptions of the slave market and recommendations on how to pick a good slave who is suited to his particular duties. In a letter to his friend Plinius Paternus, the 1st-2nd c. CE writer and magistrate Pliny the Younger discusses the importance of knowing the character of his slaves and the methods of discovering it. 4 For a discussion on ownership (absolute dominium) see Birks 1985 and 1989; Zamorani 1977. 27 Ut animi tui iudicio sic oculorum plurimum tribuo, non quia multum (ne tibi placeas) sed quia tantum quantum ego sapis; quamquam hoc quoque multum est. Omissis iocis credo decentes esse servos, qui sunt empti mihi ex consilio tuo. Superest ut frugi sint, quod de venalibus melius auribus quam oculis iudicatur. 5 I assign the highest marks to your judgement of mind and eyes not because it is great (don't kid yourself), but because you savor things as much as I do, although that in and of itself is a lot. Kidding aside, I think the slaves whom were bought for me under your counsel were suitable, we'll see if they are honest (frugi), in slaves we judge that sort of thing better by ears than by eyes. Pliny underscores the difference between what one sees (oculi) and hears (aures), and even uses a word for tasting (sapio) to discuss getting a sense for a slave. While Pliny softens the criticism of calling into question the certainty of his friend’s judgement by equaling it to his own, Pliny tells us that when considering buying slaves it is better not to trust your own eyes, but to listen. The language that Pliny uses to describe Paternus’ encounter and assessment of the slaves calls attention to the subjective nature of the account (animi tui iudicio, ex consilio tuo, iudicatur, credo) and emphasizes the uncertainty that accompanies purchasing slaves. His letter speaks of the difficulty in knowing a potential slave’s character and the fact that this was a consideration that Roman masters took seriously. Pliny brings out the importance of the knowledge that will come from what is heard. There is an emphasis placed on the speech of the slave; having the slave speak reveals information otherwise hidden. Does he speak Latin? Is he eloquent? Does he stutter, which could (it was believed 6 ) be a sign of a greater impediment? The attention to the 5 Pliny Ep. 1.21. Sherwin-White 1973: 136 suggests this letter is from the summer of 97. The term frugi is often used to describe idealized slaves, see for instance, Hor. Sat. 2.7.1-4 “ ‘Iamdudum ausculto et cupiens tibi dicere servos / pauca reformido.’ ‘Davusne?’ ‘ita, Davus, amicum / mancipium domino et frugi quod sit satis, hoc est, / ut vitale putes.’” “I’ve listened for a while and wanted to say a few words, but being a slave daren’t.’ ‘Are you Davus?’ ‘Yes, Davus, a servant fond of his master, quite virtuous, but not enough so to die young.’” Frugi OLD s.v. 1. 6 cf. D.21.1.8-9, Ulpian, Curule Aediles’ Edict, book 1. This “heard” speech is not the dicta of the slave-dealer. On speech and mental deficiency see, for example, D. 21.1.10.5, Ulpian, Curule Aediles' Edict, book 1, “Quaesitum est, an balbus et blaesus et atypus isque qui tardius loquitur et varus et vatius sanus sit: et opinor eos sanos esse,” “It has been asked whether those are healthy who stammer, lisp, are inarticulate, speak with difficulty, ramble, or rave. I think that they are.” Ulpian notes elsewhere (D. 21.1.1.7, Ulpian. Curule Aediles’ Edict, 28 aures, or the ears, could also refer to any sort of reputation or notoriety a slave had accrued, which while unlikely was not beyond the realm of possibility in the Roman circumstance. 7 The understanding of a slave’s character had important economic repercussions and was a fundamental part of running a successful and efficient house. A master might also be embarrassed if his slaves constantly ran away, misbehaved, or challenged his authority. 8 We see in Pliny’s teasing of Paternus the idea that slave selection was something based on skill and experience. The concern about the unknowability of the slave’s character is present in the entire passage (superest ut frugi sint). Pliny’s letter reveals that the selection of slaves was not solely a rudimentary physical examination, the process was not taken lightly, and friends would counsel each other on how to make a successful purchase. The same concern with the discernment of internal character is present in the writings of 1st c. CE agronomist Columella, who has a substantial discussion on slave management in his De Re Rustica (On Agriculture). 9 Columella lived near Rome and held lands in Latium and Etruria when he was writing on farming. 10 He is one in a line of book 1 citing Sabinus) that stammering (balbus) is a defect. And at D. 21.1.9 Ulpian, Sabinus, book 11, Ulpian cites Sabinus noting that a mute slave is diseased (mutum morbosum esse Sabinus ait). Gaius refers to a mute slave as having a mental defect (D. 21.1.3, Gaius, Curule Aediles' Edict, book 1). Ulpian also cites Vivian (D. 21.1.1.9-10 Ulpian, Curule Aediles' Edict, book 1) saying that while a slave is still regarded as healthy even though he “from time to time, associates with religious fanatics and joins in their utterances,” “si servus inter fanaticos non semper caput iactaret et aliqua profatus esset;” however, he has a minor mental defect (minus animi vitiis). These passages will be discussed below. 7 Hoffer 1999: 45-49 discusses the idea of learning about slaves from their former masters. 8 Lendon 1997: 36 discusses honor from the procession of one’s slaves. Kirschenbaum 1970: 32 discusses honor accrued from successful, well-behaved, and skilled slaves. 9 R. Martin 1971, 1974; White 1970; and Maestre Maestre, Brea, and Cuesto (eds.) 1997 on Columella. 10 Forster 1950: 123 argues that Columella’s work was not simply theoretical, “the De Re Rustica is essentially a textbook,” and 125, “Columella is an exceedingly serious writer whose sole object is to instruct not to amuse his readers.” For more contemporary treatments of Columella’s work: Henderson 2002 for a particularly literary emphasis, Silke 2005 for Columella’s place among the other Roman agricultural writers, and Martin 1985 more generally. 29 agricultural writers, and it is seen that he studied those previous to him: the Carthaginian Mago, and his Roman predecessors, particularly Cato and Varro. Columella serves as a particularly informative source because while his work can be seen to speak to the larger project of elite Romans writing agricultural literature, he is also writing a work to Roman farm owners, instructing them on his idea of proper slave management. Columella’s writings are also a compelling source because they appear closely tied to practice. He advises that masters spend time getting to know their country slave hands as he found it lightened the slaves’ burdens. He writes, “Iam illud saepe facio, ut quasi cum peritioribus de aliquibus operibus novis deliberem, et per hoc cognoscam cuiusque ingenium, quale quamque sit prudens. Tum etiam libentius eos id opus aggredi video, de quo secum deliberatum et consilium ipsorum susceptum putant,” “Now I do this often, I consult with them as if they were more experienced about some new works and through this I know the natural talent (ingenium) of each one, and in what sort of way he is skilled (prudens). Then even more willingly I see that they take up this work, for which they think I consulted them and their own counsel was followed.” 11 Amidst other tenets of good slave management (including jocularity and manipulation), Columella describes his method of evaluation. Columella gets his slaves to reveal themselves through speech and planning so that he might know them. The process of assessing a slave’s abilities teachs the master about the slave’s character. The earlier passage of Pliny is echoing Columella’s idea of the importance of the knowledge that will come from what is heard—the speech of a slave. As with Pliny, the focus is on the internal and unseeable attributes of the slave. Columella suggests a master must study his slave’s character and natural talent (ingenium); it is in his interest to know what the innate capabilities of his slaves are and which ones possess greater skill sets 11 Columella, Rust. 1.8.15-16. See Bradley 1984: 21-24, 26-28 on Columella and slave control. 30 (prudens). Deceptively, he seeks out advice and learns (cognosco) not what his questions point to (advice on a new project) but about the slaves themselves. Most notable however is Columella’s recognition that his slaves can fall prey to the allure of ego: they will work harder on a project that they had a hand in planning. The agronomist shows that by asking the slaves’ their opinions on the new project (and presumably allowing them to carry it out in their planned manner), Columella grants them the ability to take control of the project, which allows them to proceed more willingly (or more freely - libentius eos id opus aggredi video). Learning about slaves’ aptitudes by asking them for advice had the additional benefit of getting them more invested in their work. There is a sense of economic instrumentalism in Columella’s desire to know his slaves’ minds: the more the slave is involved with the planning the harder he will work for the master. In both Pliny’s letter on the purchase of new slaves and Columella’s handbook we see these two Roman masters evaluating their slaves and trying to perceive something beyond physical capabilities and into the realm of a slave’s morality and mental abilities (frugi, ingenium, prudens). Both Pliny and Columella find that despite absolute legal ownership of their slaves, learning about their minds poses a challenge. Seneca too weighs how to evaluate slaves, not for productive labor, but for which slaves should keep him company at table. In Letter 47, Seneca discusses by what means a master should assess his slaves, but to different results than his contemporary Columella. 12 Seneca does not equate servility as an inherent part of the slave and proposes to judge each slave on the merits of his character rather than his duties in the house. “Quid ergo? Omnes servos admovebo mensae meae?” “Non magis quam omnes liberos. Erras si existimas me quosdam quasi sordidioris operae reiecturum, ut puta illum mulionem et illum 12 On any ties Columella may have had to Seneca see Griffin 1976: 89, 253, 290. Bradley 1984:145 expresses skepticism about this view. 31 bubulcum. Non ministeriis illos aestimabo sed moribus: sibi quisque dat mores, ministeria casus assignat. Quidam cenent tecum quia digni sunt, quidam ut sint; si quid enim in illis ex sordida conversatione servile est, honestiorum convictus excutiet.” “What then? Should I seat all my slaves at my table?” “No more than all free men. You are wrong if you deem (existimo) that I would reject certain slaves as if more foul because of their work, for instance, that mule driver, or that ploughman. I will evaluate (aestimo) them not by their duties, but by their character; each person gets character for himself, but chance assigns duties. Some dine with you because they are worthy and others so that they might become worthy; if there indeed is anything servile in them from their lowly interaction, it will be shaken off by interaction with more honorable men.” 13 To Seneca, the distinction between freeman and slave is less important than character in choosing his dining companions. The letter also brings up the idea of evaluation; a freeman judges another freeman (existimare) and a master (Seneca) evaluates his own slaves (aestimare). We see Seneca’s interlocutor question Seneca's idea that he should associate with his slaves. Seneca sets aside the question of status; he does not consider one slave more worthy of a seat at his table because of his assigned duty (ministerium), but on account of his character (mores). Seneca views the character of slaves as varied and changeable; the mores of a person are under his own control (sibi quisque); however, their ministerium is due to fate (casus). Seneca does not assign the administration of the ministerium to the master, as would be expected; he is speaking beyond the master and slave relationship. A man has the status of slave because of happenstance, but he can control how he chooses to act. Similarly to Pliny looking to see if his potential slaves are honest, Seneca proposes to judge his slaves on their character rather than their duties. These three texts have very different purposes; Pliny is considering slave purchase, Columella slave management, and Seneca a reconsideration on the typical view of people based on their status and position. Pliny concerns himself with honesty, Columella looks for innate aptitudes, and Seneca seeks good character. The three authors all wrestle with 13 Sen. Ep. 47.15. For general bibliography on Seneca see Fantham 2010, Grifffin 1976. 32 how they can understand the mind of a slave. Pliny, Columella, and Seneca all look for something beyond rudimentary physical ability and job performance. Seneca and Pliny look explicitly at moral character (mores, whether the slaves are frugi). Seneca and Columella differ in their views on slave nature, Seneca proposes that anything servile (servile) about the slaves will be removed by placing them in this more honorable association (honestiorum convictus). Columella instead associates with his slaves in order to understand their limitations and capabilities, and does not believe like Seneca, that slaves can be elevated beyond the servile. 14 Seneca’s conviction that slaves’ characters could change fits well with Roman manumission practice, which at times was based on a slave’s character or good deeds. 15 This question of whether the capacity for change exists in slaves is central in a society which manumits slaves and grants them citizenship. Columella and Seneca differ in this respect, the former believing that there will always be something servile about a slave, the latter arguing the opposite. Yet, both consider the extent to which the status of slavery produces a servile character or mindset. They have different answers, but their preoccupations rest upon the same issues: is there a true nature of a slave, can it be found, and can it be changed? This process of aestimatio underscores a (potential) master’s inability to truly know his slave’s nature. The attention to aestimatio, the evaluation of price, is important additionally because aestimare, to value, gives birth to the Roman concept of existimatio, the manner in which Roman elites measured their own abilities and selves. In his letter, 14 For Columella, a foreman must have the ability to humor the good workers and show consideration to the lesser ones; however the mind of the foreman could only hold these managerial virtues “as far as servile nature allows,” (sed et animi, quantum servile patitur ingenium, virtutibus instructus), Rust. 1.8.10. This passage is discussed further in the second chapter. 15 The relationship between the character of a slave and manumission is discussed in the third chapter. 33 Seneca uses existimo for the freeman and aestimo for the slave. In Pliny’s letter, as originally, it is used to measure the value of a slave, and we see Pliny and Paternus appraising slaves and their own abilities to purchase good slaves. Existimatio comes from aestimare, with the word for money, aes, in it. 16 The word is old and it is tied in its etymology with commercial interests. This firstly recalls the marketability of the slave; the master must evaluate the skills and nature of his slave versus his price. This nuance of the verb aestimare offers a reminder of the slave as a sellable good. Aestimare is not solely an economic word however; a value judgement is taking place as well. The 2 nd century grammarian Festus ties aestimo to example (exemplum); we follow or avoid examples after our mind has judged (animo aestimatur) if they are good or bad. This then becomes a model, which we can recognize by sight. 17 In the well-recognized scene of the slave market, each Roman buyer evaluating slaves on the platform creates a model of evaluation. 18 Slaves were being valued constantly and their value changed as they accrued more respect and trust (i.e., if they were foremen or managed their masters’ accounts honestly) and diminished if they acted cowardly (i.e., ran away). The importance of this evaluative process is seen in its prevalence in situations that do not directly involve slaves. In a different letter, Seneca counsels his reader to look 16 For a larger discussion on existimatio in Roman literature see Habinek 1998: 45-59. Habinek has shown that the verb forms an evaluative relationship between money (aes) and property: 46. On the selection of slaves and the tie to reputation, “the purchase of slaves is the grounds for a man’s sense of self,” Joshel 2010: 106. 17 Habinek also shows that Festus, the 2 nd century grammarian, provides a second nuance of the verb. Festus 72 Lindsay, “Exemplum est quod sequamur aut vitemus. Exemplar ex quo simile faciamus. Illud animo aestimatur, istum oculos conspicitur,” “An example (exemplum) is that which we should follow or we should avoid. We should make a model out of that instance. The first is evaluated (aestimo) by our mind, the second is perceived with our eyes.” Discussed in Habinek 1998: 185n44. 18 See Hughes 2006 on standardized artistic representations of the slaves on the platform. 34 past any accouterment that might distract from seeing the true person. 19 Seneca closes his letter with the language of the slave market to discuss the evaluation (aestimo) of one’s self; he discusses the deceit of slave dealers (mangones) who would work to hide any hidden defects (vitia corporis lateant), and tells his reader to weigh themselves with their money and effects set aside with the verb perpendere, which is used of the weights in the marketplace. 20 The evaluation of the mental qualities of the slave at purchase shows that firstly knowledge and ownership were not inherently linked and secondly reveals the deep interest in attempting to know the mind of the slave. 2. The slave market Slaves were sold in every city of the Roman Empire. Along with the continuous markets in large slave centers such as Byzantium, Delos, Ephesus, Puteoli, Alexandria, and of course Rome, there were occasional markets that came to individual towns and cities. In Rome the main market for slaves was in the forum near the Temple of Castor. 21 19 Sen. Ep. 80.9-10, “empturus solvi iubes stratum, detrahis vestimenta venalibus, ne qua vitia corporis lateant; hominem involutum aestimas? Mangones quicquid est, quod displiceat, aliquo lenocinio abscondunt, itaque ementibus ornamenta ipsa suspecta sunt. Sive crus alligatum sive brachium aspiceres, nudari iuberes et ipsum tibi corpus ostendi. Vides illum Scythiae Sarmatiaeve regem insigni capitis decorum? Si vis illum aestimare totumque scire, qualis sit, fasciam solve; multum mali sub illa latet. Quid de aliis loquor? Si perpendere te voles, sepone pecuniam, domum, dignitatem, intus te ipse considera. Nunc qualis sis, aliis credis,” “Preparing to buy a horse, you order the blanket to be removed; you take the clothes off slaves at market, so that no defects of the body may escape your notice; do you evaluate a man while he is bundled up? Slave-dealers hide whatever may be displeasing under some tawdry distraction (lenocinio). As a result any ornament is itself immediately suspected by buyers. If you should see a leg or arm bound up you order it to be uncovered and the body itself to be shown to you. Do you see that king of Scythia or Sarmatia, adorned with the badge of his office on his head? If you want to see and know all he's worth, what sort of man he might be, remove the wreath. A lot of evil lies underneath it. Why do I speak about other people? If you want to weigh yourself, set aside your money, house, rank, and you yourself look inside yourself. Currently you believe others about what sort of man you might be.” 20 Pendo, e.g. Ov. Met. 14.270; Suet. Aug. 12; Plin.19.3.15, 39; Tac. Ann. 2.87. 21 Sen. Cons. Sap. 13.4 refers to the slaves found here as worthless. Martial 9.59 tells us that better-looking slaves were found in the Saepta Julia. See Herrmann-Otto 2002: 115 on the different methods of slave acquisition (war captive, natural reproduction, sale of oneself). On the occasional markets see Harris 1980: 125. 35 Sales took place in different circumstances; markets for slaves would crop up after large battles that yielded many captives. The Roman commanders would decide either to sell the slaves at the site of battle or to take the prisoners to Rome. Bradley notes that it generally fell to slave-traders to negotiate and manage the movement or sale of the newly enslaved captives. 22 The sale of conquered people on site was called sale sub hasta or sub corona because they were taken by right of war. 23 Outside of the theater of war, a slave could be sold from his current master to another in a relatively small setting, the slave’s character, skills, and qualities being presumably known. Typically, buyers had a function in mind for slaves they purchased. Romans had stereotypes about what origins predisposed slaves to particular functions. 24 The census required the origin (natio), age, duties, and skills to be listed for each slave. 25 A slave whose origin was known generally came from a Roman province. 26 Harris explains that the origin of most slaves was likely Cappadocia or Phrygia; however, he warns “we must obviously be cautious, since cliches were no doubt commoner than careful observations.” 22 Bradley 1984: 44. See Gellius NA, 6.4.2-3. See also Scheidel 1997: 156-169. E. Herrmann-Otto 2002: 116 criticizes previous scholarship that holds war captives as a mass source of slaves. 23 On sales sub corona and sub hasta see Welwei 2000 and Talamanca 1954: 35-251. 24 D.21.1.31.21, Ulpian, Curule Aediles’ Edict, book 1, “Qui mancipia vendunt, nationem cuiusque in venditione pronuntiare debent: plerumque enim natio servi aut provocat aut deterret emptorem: idcirco interest nostra scire nationem: praesumptum etenim est quosdam servos bonos esse, quia natione sunt non infamata, quosdam malos videri, quia ea natione sunt, quae magis infamis est,” “Those selling slaves should declare their nationality when making the sale; for the slave's nationality may often induce or deter a purchaser; therefore, we have an interest in knowing the nationality; for there is a presumption that some slaves are good, coming from a race with no bad repute while others are thought bad, since they come from a notorious people.” Varro, Agri. 2.10.4-7 discusses suitable occupations for slaves of different origins. Martial 4.42 wants an Egyptian boy, though more for his beauty than his labors. See also Straus 1971 and 2004: 276-282; Joshel 1992: 40-41, 194n2, 196n65. 25 D.50.15.4.5 Ulpian, On Taxes, book 3 on the need to declare slaves in the census (In servis deferendis observandum est, ut et nationes eorum et aetates et officia et artificia specialiter deferantur). Discussed in Wiedemann 1980: 103. For a more comprehensive view on the natio of a slave see Isaac 2004:170-207. For a more detailed discussion of the sources of slaves in the Empire see Gonzalez 2002: 65-82. 26 Harris 1980: 125. See also Westermann 1955: 96 and 98 on how slaves were gotten from pirates, local markets, the long-distance trade from outside the empire. One could buy on the trade routes established long before the Romans were in the picture. 36 Despite this hesitation, natio always played an important role in the purchasing of slaves and we see the importance of the origin of the slave in the laws prior to the Severan jurist Ulpian. 27 Varro confirms that the name of the slave could be misleading. 28 The names of slaves (e.g., Eros or Fides) were often representative of what the owner was looking for. 29 Masters preferred to purchase either slaves whose slave status was recent or a verna, a home-born slave, who likely had never before been sold, and presumably had an understanding of servitude, Roman society, and Latin. 30 The newly enslaved often had their feet chalked white to indicate their new status. Plutarch tells us in his biography of Cato the Elder that the statesman preferred new slaves because they were easier to train. 31 This is echoed by the legal sources and literary writers. 32 In a letter to his friend Florus, who protests that Horace never writes, the poet uses the allegory of a sales pitch for a home-born slave to describe his friend complaining about the lack of correspondence, despite the fact that Horace told him of this particular fault. 27 Harris 1980: 122-123. Westermann 1955: 96, “Slaves with Greek names whose native homes were in non-Greek localities are frequently mentioned. In the papyri the inadequacy of the name to indicate the origo of the slave is attested by the phrase which frequently occurs in the contracts of sale of slaves ‘named so-and-so, or by whatever other name he (or she) is called.’” Westermann 1955: 98 also discusses what to do if one wants a slave from a particular place and cannot find him in his particular slave market. 28 Varro, LL 8.21, “Sic tres cum emerunt Ephesi singulos servos, nonnunquam alius declinat nomen ab eo qui vendit Artemidorus, atque Artemam appellat, alius a regione quod ibi emit, ab Ionia Iona, alius quod Ephesi Ephesium, sic alius ab alia aliqua re, ut visum est,” “So when three people have bought a slave at Ephesus, sometimes one person derives the name from he who sold the slave, Artemidorus, and so calls the slave Artemas; and the other man derives the name from the region where he bought him, so Ion from Ionia; and the last person called him Ephesius because he bought him at Ephesus. Thus each man chooses from one reason or another, as it seems right to him.” 29 Joshel 2010: 95, “Names like Eros (love), Fides (trust, good faith), Hilarus (cheerful), or Felix (lucky) imprinted the owner’s hopes or fantasies on the slave.” 30 On new slaves learning Latin in the slave market: Gellius, NA, 4.1.6 and Varro LL 8.6. 31 Plutarch records that Cato the Elder (Life of Cato 21.1) wanted new slaves, that is, war captives, because they were more easily trained than other slaves. 32 D.21.1.37 Ulpian, Curule Aediles’ Edict, book 1 on the desire for a new slave because they are more malleable. 37 siquis forte uelit puerum tibi uendere natum / Tibure uel Gabiis et tecum sic agat: “Hic et / candidus et talos a uertice pulcher ad imos / fiet eritque tuus nummorum milibus octo, / uerna ministeriis ad nutus aptus erilis, / litterulis Graecis inbutus, idoneus arti / cuilibet; argilla quiduis imitaberis uda; / quin etiam canet indoctum, sed dulce bibenti. / Multa fidem promissa leuant, ubi plenius aequo / laudat uenalis qui uolt extrudere merces. / Res urget me nulla; meo sum pauper in aere. / Nemo hoc mangonum faceret tibi; non temere a me / quiuis ferret idem. Semel hic cessauit et, ut fit, / in scalis latuit metuens pendentis habenae; / des nummos, excepta nihil te si fuga laedit, / ille ferat pretium poenae securus, opinor. / Prudens emisti uitiosum, dicta tibi est lex; / insequeris tamen hunc et lite moraris iniqua?” 33 Perhaps someone wanted to sell you a boy born at Tibur or Gabii and he said this: “He is fair and beautiful from the top of his head to the tips of his toes. He will be yours for 8,000 sesterces. This home-born slave is trained to do his duties at the nod of his master's head. He knows some Greek and is fit for whatever task is pleasing to you. With this wet clay you can copy him after whom you please. He can sing even, unlearned, but sweet to listen to when drinking. Many promises lower a buyer’s confidence, i.e., when a seller praises his slave who he wishes to sell more than is fitting. Nothing compels me. I am not wealthy, but I am not broke. None of the slave dealers would do this for you; a random stranger would not get the same from me. As it happens, he loitered once, and fearing the whip hanging on the wall, he hid under the stairs. Give me the payment, if the one exceptional flight mentioned is not a bother for you. As I think he surely gets the price without fear of penalty. You bought him aware of his defects; the law is known to you. Will you follow up on this and accuse him in an unjust suit?” Despite the fact that Horace’s sales pitch is fictional, it shows what a master could look for in a new slave: his price, his appearance (both in terms of beauty and well-being), his health, his character and intellect, and his skills and talents. Horace then stops listing off the slave’s qualities because he acknowledges that too many promises make the buyer skeptical and question why the slave-dealer must sell this ideal slave. He then reveals that the slave ran away once, and hid under the stairs. The admission of the slave’s relatively minor bad behavior and the fact that the slave remains controllable because he fears punishment more than he desires freedom makes the slave all the more appealing and the slave-dealer more trustworthy. Notably, Horace incorporates the legal language that comes to define the marketplace restrictions on the sales of slaves (lex, vitium, fuga, poena). Horace’s use of the same language as the legal sources for describing the conditions that 33 Horace Letters 2.2.2-19. Morris 1968: 164 suggests the date of this letter is 20-18 BCE. 38 may come up in sales of slaves allows us to see that even in this imagined sale in his letter to Florus, he is engaging with the well-known language and mindset of the slave market. 34 As seen in Horace’s letter, the health of a slave is one of the primary concerns for a potential buyer. This was tested in the market by asking the slaves to move and jump around; the slaves could be stripped, poked, and physically inspected. 35 The acknowledgement of the health of the slave is seen in contracts of sale, 36 but we find several accounts in literary sources on how to prepare slaves so that they looked healthier or fit for work. 37 Slave-dealers were notoriously deceptive; Horace’s letter alludes to the untrustworthy nature of slave-dealers. Pliny the Elder, writing in the 1st c. CE, tells the story of Marc Antony being swindled by a slave-dealer for an astonishing amount of money. The slave-dealer, Toranius, sold Mark Antony two handsome slave-boys whom, 34 Varro (Rust. 2.10.5) too uses legal terminology to discuss the qualities of a slave to be bought (health, no criminal activity), “In horum emptione solet…stipulatio intercedere, sanum esse, furtis noxisque solutum,” “In the purchase of slaves, it is customary…for a guarantee to be given that he is sound and has not committed thefts or damage.” Loeb translation. 35 Martial 6.66 tells the story of a crier who wanted to sell a female slave whom people believed to be disreputable. She could not be sold, even for a low price. So the crier kissed to show that she was clean and pure enough, but the effect was worse: the potential buyer rescinded his offer, “famae non nimium bonae puellam, /quales in media sedent Subura, / vendebat modo praeco Gellianus. / parvo cum pretio diu liceret, / dum puram cupit adprobare cunctis, / adtraxit prope se manu negantem / et bis terque quaterque basiavit. / quid profecerit osculo requiris ? / sescentos modo qui dabat negavit,” “A girl of not too good a reputation, one of such / as sit in the middle of the Subura, the auctioneer / Gellianus was lately selling. As for some time she / was going for small biddings, wishing to prove to all / that she was clean, he drew the unwilling girl to / him, and twice, thrice, four times kissed her. Do / you ask what he achieved by the kiss ? A bidder / of six hundred sesterces withdrew his bid!” Loeb translation. 36 FIRA 3.132, 166 CE, “C. Fabullius Macer, optio classis praetor(iae) Misenatium III Tigride, emit puerum, natione Transfluminianum, nomine Abban que <et> Eutychen sive quo alio nomine vocatur, annorum circiter septem, pretio denariorium ducentorum et capitulario portitorio, de Q. Iulio Prisco, milite classis eiusdem et triere eade[m]. Eum puerum sanum esse ex edi[cto], et si quis eum puerum partemve quam eius evicerit, simplam pecuniam sine denuntiatione recte dare stipulatus est Fabullius Macer, spopondit Q. Priscus: id fide sua et auctoritate esse iussit C. Iulius Antiochus, manipularius III Virtute.” “Gaius Fabullius Macer, subaltern of the trireme 'Tigris' of the praetorian fleet of Misenum, purchased from Quintus Julius Priscus, soldier of the same trireme in the same fleet, a boy of trans- Euphrates origin named Abbas, also known as Eutyches or by whatever other name he is called, about seven years old at a price of 200 denarii and the customs duty per head. Fabullius Macer demanded the formal acknowledgement in accordance with the edict that the boy was in good health.” 37 Mart. 10.98.8-10, 4.42 on slave appearance. Plin. HN 24.35, 32.135, 21.170 on how to prepare slaves for sale. Quint. Inst. 2.15.25 on how slave-dealers prepare slaves for sale. 39 on account of their similar appearance, the slave-dealer claimed were twins. They were not twins—one was from the across the Alps and the other from Asia—and Marc Antony discovered this shortly after the sale because of their speech. Antony returned to the slave- dealer to protest the deceit, in particular because he had paid 200,000 sesterces for the twins. Toranius convinces Marc Antony they are so expensive precisely they were not in fact twins. 38 The story reveals several important aspects of Roman slave-buying culture: the reasons why one buys a particular slave, the variability of price, the different origins of slaves, the deceitfulness of slave traders, and how Romans attempted to combat their trickery. It is this trickery that brought about stricter regulations on the sale of slaves. 3. The faults of slaves and the Edict of the Aediles As seen in the previous pages, the character and quality of slaves was a topic of discussion in different genres of Roman literature. 39 Masters worried about purchasing a defective or undesirable slave. Roman Law was more directly focused on this matter; the 38 Pliny, HN 7.56, “Toranius mango Antonio iam triumviro eximios forma pueros, alterum in Asia genitum, alterum trans Alpis, ut geminos vendidit: tanta unitas erat. postquam deinde sermone puerorum detecta fraude a furente increpitus Antonio est, inter alia magnitudinem preti conquerente (nam ducentis erat mercatus sestertiis), respondit versutus ingenii mango, id ipsum se tanti vendidisse, quoniam non esset mira similitudo in ullis eodem utero editis; diversarum quidem gentium natales tam concordi figura reperire super omnem esse taxationem; adeoque tempestivam admirationem intulit, ut ille proscriptor animus, modo et contumelia furens, non aliud in censu magis ex fortuna sua duceret,” “Toranius, a slave-dealer, sold to Antony, while he was one of the Triumvirs, two boys of remarkable beauty, as being twins, so strong was their resemblance; whereas, in reality, one of them was born in Asia, and the other beyond the Alps. The fraud, however, having been soon afterwards discovered through the difference in the language of the youths, Antony, who was greatly exasperated, violently upbraided the dealer, and, among other things, complained that he had fixed the price at so high a sum as two hundred thousand sesterces. The crafty slave-merchant, however, made answer that that was the very reason for his having set so high a price upon them; for, as he said, there would have been nothing particularly striking in the resemblance of the boys, if they had been born of the same mother, whereas, children found to be so exactly like each other, though natives of different countries, ought to be deemed above all price; an answer which produced such a reasonable feeling of surprise and admiration in the mind of the proscriber, that he who was but just before frantic under the injury he had received, was led to set a higher value on no part whatever of all the property in his possession.” Loeb translation. For more on slave dealers and what they legally must reveal see Watson 1987 and Harrill 1999b. 39 The pragmatics of the sale of slaves are mentioned by several ancient literary authors as well, for example: Prop. 4.5; Suet. Gram. 4.5; Petro. Sat. 29 40 laws protecting buyers evolved during the Republic. In this section, I will discuss the regulations on the sale of slaves and how these regulations created a legal language and framework for buyers to have better access to the character and qualities of their potential slaves. The Twelve Tables (451-450 BCE), according to Cicero, stipulate that if a vendor made a formal oral declaration that was not true, he was liable to a double penalty. 40 Later on, under the actio empti, protections for the buyer became a bit stronger. 41 Sales had to be made “in good faith” (bona fide); the buyer would have an action if the seller purposefully did not disclose a reason why the value of the thing bought would diminish. 40 Cic. Off. 3.65, “Ac de iure quidem praediorum sanctum apud nos est iure civili, ut in iis vendendis vitia dicerentur, quae nota essent venditori. Nam cum ex duodecim tabulis satis esset ea praestari, quae essent lingua nuncupata, quae qui infitiatus esset, dupli poena subiret,” “In the laws pertaining to the sale of real property it is stipulated in our civil code that when a transfer of any real estate is made, all its defects shall be declared as far as they are known to the vendor. According to the laws of the Twelve Tables it used to be sufficient that such faults as had been expressly declared should be made good and that for any flaws which the vendor expressly denied, when questioned, he should be assessed double damages.” Loeb translation. For discussion on early provisions to protect buyers of slaves specifically see Rogerson 1959: 116-118. 41 On the actio empti see Stein 1958: 5-27; Jolowicz and Nicholas 1972: 279-304 on contract and 292-297 on the actio empti specifically. De Zulueta 1945: 46-50, at 49 notes, “Undisclosed legal defects seem to have furnished the earliest cases. Non-disclosure of legal advantages which would be lost by non-use was reckoned dolose.” Dicta promissave: the buyer was protected also if the seller had specifically said or promised certain aspects of the thing bought (dicta promissave). See Nicholas 1959; Stein 1958: 30-1; Pugsley 1974: 254-255 on the dicta promissave. See Lenel 1927 3: 269 on his assertion that the dicta prosmissave was a part of the ius civile, actionable under the actio empti, and that the Aediles created a stronger remedy (rescission rather than damages) for things (slaves, livestock) under their jurisdiction. D. 18.1.43pr, Florentinus, Institutes, book 8, “Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant, veluti si dicat servum speciosum, domum bene aedificatam: at si dixerit hominem litteratum vel artificem, praestare debet: nam hoc ipso pluris vendit,” “What a vendor says at the time of sale to commend his merchandise imposes no liability upon him, if its content be obvious, say, that the slave is handsome or a house well built. But if he assert that a slave is well educated or a craftsman, he must make that good; for he obtains a higher price in consequence.” De Zulueta 1945: 46 on the problems of dicta promissave as a part of the contract, “a difficulty may arise in deciding whether a statement made before or at the time of contracting is part of the bargain or merely puffery.” 41 In order for the buyer to get justice, he had to show that the seller was aware of the defect. 42 Later still, the Curule Aediles, the magistrates in charge of the marketplace, introduced regulations specifically for the purchase of slaves that gave the buyer even more security. We are not certain when the Aedilician Edict came about. Some suggest a date for the Edict of the Aediles as early as Plautus (c. 254-184 BCE) on account of textual evidence, specifically the comic poet’s use of legal language for the restitution of slaves. 43 Others suggest the first half of the 2nd c. BCE because of the reference in D. 21.1.10.1 to Cato’s discussion of a morbus. Daube goes as far as to suggest that the Edict was created at the urging of Cato. 44 The Edict of the Aediles was in effect by the 1 st c. BCE, as Cicero notes the differences between the Aedilician regulations and the regular accommodations for sale. 45 The 2 nd c. CE Roman author Aulus Gellius quotes an earlier 42 Cicero and Valerius Maximus tell the story of a man selling a house that was to be razed. When the buyer brought an action, the judge declared that the seller was liable to the buyer because he was aware of the fact that the house was to be razed and did not tell the buyer, Cic. Off. 3.16.65-7; Val. Max. 8.2.1. Stein 1958: 6 discussing Cicero’s version of this tale, notes, “For sale, being a consensual contract, was governed by the principles of bona fides, which were never static but continually being developed to accord with prevailing moral ideas.” See also Arangio-Ruiz 1952: 358-260; Crook 1967: 180-1; Donadio 2004: 79-140 on the bona fides aspect of revealing defects. 43 See, e.g. Capt. 803-825; Merc. 416-419; Mostell. 795-800; Mil. 725-730. Impallomeni 1955: 92 and Rogerson 1959: 116 dismiss the Plautine date, Rogerson suggests early 1 st c. BCE. On the Plautine date Manna 1994: 23 suggests, “Non è possibile dire, sulla scorta delle nostre fabulae, se gli edili avessero trovato, all'epoca di Plauto, i mezzi più adatti a tale fine, ma ci sembra certo che già allora la magistratura edilizia avesse compreso la necessitas di un intervento.” For the relationship between Plautine comedy and Roman Law see Costa 1890; Scafuro 1997. On Plautus and slavery see Stewart 2012, specifically on the Edict of the Aediles see: 21-22. 44 Daube 1956: 91-97 based his dating on the use of the future imperatives, suggesting the late 3rd c. BCE to early 2nd c. BCE. Watson 1971 and Nicholas 1957: 251 dismiss this. On this question see also Jolowicz and Nicholas 1972: 294; Manna 1994: 26. 45 Cic. Off. 3.17.71, “Nec vero in praediis solum ius civile ductum a natura malitiam fraudemque vindicat, sed etiam in mancipiorum venditione venditoris fraus omnis excluditur. Qui enim scire debuit de sanitate, de fuga, de furtis, praestat edicto aedilium. Heredum alia causa est,” “It is not only in the case of real estate transfers that the civil law, based upon a natural feeling for the right, punishes trickery and deception, but also in the sale of slaves every form of deception on the vendor's part is disallowed. For by the aediles' ruling the vendor is answerable for any 42 version of the Edict than the one preserved in Digest 21.1, which was standardized by the jurist Julian along with the Praetorian Edict during the reign of Hadrian (after 132 CE). 46 The standardization of the Edict led to an increase in the production of juristic commentaries on the regulations of the martketplace and, as such, most of the juristic interpretation of the Edict of the Aediles comes from the 2 nd and early 3 rd c. CE. Our focus in the legal sources will be this juristic interpretation of the Aedilician Edict. The Aediles justify the provisions in this part of the edict as a means to ward off and protect against the trickery of slave-dealers. 47 The portion of the Aedilician Edict preserved in Digest 21.1 concerns the restitution of slaves (de mancipiis vendundis) and mentions also the restitution of livestock (de iumentis vendundis). 48 The edict supplemented the rather limited protections guaranteed to all buyers. 49 For goods other than slaves or livestock, the burden of protection was largely based on the buyer himself being a cautious consumer. There is a consensus among scholars that portions of the juristic deficiency in the slave he sells, for he is supposed to know if his slave is sound, or if he is a runaway, or a thief. The case of those who have just come into the possession of slaves by inheritance is different.” Loeb translation. Cic. Off. 3.50-65 on when it is necessary to reveal the defects of sale. Discussed by Vincent 1922: 131 (on the surety of dating); Stein 1958: 6-10; Ortu 2008: 48 n141, 67-69; Donadio 2004: 55 on the penalty for not declaring defects of slaves. 46 Aulus Gellius makes note of this while summarizing the Edict of the Aediles discussion, NA 4.2.1 “In Edicto Aedilium Curulium, qua parte de mancipiis vendundis cautum est, scriptum sic fuit: ‘Titulus servorum singulorum scriptus sit curato ita, ut intellegi recte possit quit morbi vitiive cuique sit, quis fugitivus errove sit nozave solutus non sit,” “the Edict of the Curule Aediles, in the section containing stipulations about the purchase of slaves, reads as follows: ‘See to it that the sale ticket of each slave be so written that it can be known exactly what disease or defect each one has, which one is a runaway or a vagabond, or is still under condemnation for some offence,” Elsewhere, Gellius (NA 17.6.2-3) also cites Verrius Flaccus on the servus recepticus, which is a slave returned on account of defects: recepticium servum, Cato in suasione legis Voconiae cum ait, significat, qui ob vitium redhibitus sit. De Zulueta 1945: 50 tells us this is an earlier form of the Edict, this is backed up by Manna 1994: 4, whereas Impallomeni holds that they are one in the same. See also Volterra 1955: 19ff and 1956: 141ff, Guarino, Arangio-Ruiz 366ff. 47 D. 21.1.1.2 Ulpian, Curule Aediles’ Edict, book 1, “Causa huius edicti proponendi est, ut occurratur fallacilis vendentium et emptoribus succurratur, quicumque deceptia venditoribus fuerint,” “This edict was promulgated to check the wiles of vendors and to give relief to purchasers circumvented by their vendors.” 48 On other parts of the Edict of the Curule Aediles see: Lenel 1927 3: 293-6, Impallomeni 1955: 44-74 on other rubrics for de manicipiis vendundis, 75-85 on the edict de iumentis vendundis. 49 See de Zulueta 1945: 35 on the obligations of all sellers. 43 interpretation of the Edict of the Aediles were interpolated; however, it is largely believed that the changes made by the Justinianic compilers of the Digest were in order to expand these provisions intended for the sale of slaves to encompass all sales. 50 Ulpian quotes the portion of the edict that refers to the rescission of slaves. The edict increased the protections when purchasing slaves beyond the actio empti, which, if brought successfully, resulted in the seller paying a penalty. The Edict of the Aediles introduced the actio redhibitoria, which allowed the return of a slave deemed defective or diseased for up to six months after purchase. 51 The aediles say the vendor must make known the slaves with physical defects and diseases, who have committed a capital offense, tried to kill themselves, or are runaways or wanderers. If the vendor fails to announce any of this then the aediles will grant an action for rescission (actio redhibitoria) within 6 months of purchase and, possibly, for a reduction in price within one year of sale (actio quanti minoris aestimatoria). 52 Some believe the actio quanti minoris aestimoria is a later 50 de Zulueta 1945: 49: “The universal application of these rules is declared by nominally classical texts, but modern opinion is agreed that these are interpolated. Nevertheless, the generalization of the aedilician rules may not be entirely Justinian's work; it is possible that in this matter, as in others, he merely registered and completed a post-classical advance made on a development which had already been begun by the classical jurists.” This is in reference to Ulpian’s citation of Labeo before he gives the quotation of the edict. Labeo lays out the parameters of the edict: it pertained to moveable, immoveable, and self-moving objects. It is largely agreed that this is interpolated, in particular because the jurists only discuss the restitution of slaves, and at times, livestock, in the juristic interpretation following the edict. On parts of the Digest treatment being interpolated: Index Interpolationum 2, 1-13 on possible interpolations of D. 21.1. See also Nicholas 1959: 91-101; Arangio-Ruiz 1954: 362ff for possible textual interpolations in the Aedilican Edict. 51 On the increased protections of the buyer between the actio empti and the action redhibitoria see Garofalo 2000, Donadio 2004. The edict has been studied widely in the larger grouping of the Roman Law of Sale in particular by Mackintosh 1907, de Zulueta 1945, Arangio-Ruiz 1952, and Stein 1958. The main study of the Aedilician Edict is still Impallomeni 1955 though others include Vincent 1922 and Monier 1930. Scholars have also occupied themselves with the study of the meaning of morbus and vitium, and when diseases and defects needed to be declared, Manna 1994, Ortu 2008. In English see: Buckland 1908: 52-72; Daube 1956: 91-97; Nicholas 1962: 181-182; Jolowicz and Nicholas 1975: 293-4; Watson 1971a and 1971b: 134-136. 52 D. 21.1.1.1 Ulpian, Curule Aediles’ Edict, book 1, “Aiunt aediles: ‘Qui mancipia vendunt certiores faciant emptores, quid morbi vitiive cuique sit, quis fugitivus errove sit noxave solutus non sit: eademque omnia, cum ea mancipia venibunt, palam recte pronuntianto. Quodsi mancipium adversus ea venisset, sive adversus quod dictum promissumve fuerit cum veniret, fuisset, 44 addition. 53 Differently than the rules of sale guided by bona fides, the seller was now liable for defects even if he was unaware of them. 54 The Digest treatment of the Edict of the Aediles is largely culled from Ulpian’s commentary, where he quotes many other jurists. My interest here is not on the protections the edict afforded a buyer, but on the actual juristic interpretations of potential diseases and defects that may affect slaves. I focus on one aspect of the slave market: the evaluation of a slave and the resulting revelations about the slave’s physical and mental health. The amount of detail that goes into the particular diseases and defects of slaves that constitute a possible redhibitory action is not surprising given the high price of slaves and the many roles they played in Roman society. In the literary sources we have seen Roman writers discuss methods of evaluating not only the physical capabilities of slaves but also their mental qualities and character. Here the jurists discuss a variety of quod eius praestari oportere dicetur: emptori omnibusque ad quos ea res pertinet iudicium dabimus, ut id mancipium redhibeatur. Si quid autem post venditionem traditionemque deterius emptoris opera familiae procuratorisve eius factum erit, sive quid ex eo post venditionem natum adquisitum fuerit, et si quid aliud in venditione ei accesserit, sive quid ex ea re fructus pervenerit ad emptorem, ut ea omnia restituat. Item si quas accessiones ipse praestiterit, ut recipiat. Item si quod mancipium capitalem fraudem admiserit, mortis consciendae sibi causa quid fecerit, inve harenam depugnandi causa ad bestias intromissus fuerit, ea omnia in venditione pronuntianto: ex his enim causis iudicium dabimus. Hoc amplius si quis adversus ea sciens dolo malo vendidisse dicetur, iudicium dabimus,’” “The aediles say: ‘Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a runaway, a wanderer, or still subject to noxal liability; all these matters they must proclaim in due manner when the slaves are sold. If a slave be sold without compliance with this regulation or contrary to what has been said of or promised in respect of him at the time of his sale, it is for us to declare what is due in respect of him; we will grant to the purchaser and to all other interested parties an action for rescission in respect of the slave. The purchaser, however, will have to make good in such cases all of the following: any deterioration in the slave after the sale and purchase which is attributable to the purchaser himself, his household, or procurator; anything born of or acquired through the slave since the sale; and anything else which accedes to the slave consequent upon the sale or any profits which the purchaser acquires through him. Equally, there will be due to the vendor any accessories which he himself may have provided. Again, vendors must declare at the time of the sale all that follows: any capital offense committed by the slave; an attempt which he has made upon his own life; and whether he has been sent into the arena to fight wild animals. On these grounds, also we will give the action. In addition, we will grant the action if it be alleged that a slave has been sold, with deliberate wrongful intent, in contravention of our provisions.’” 53 See de Zulueta 1945: 50 for further explanation on the provisions of the Edict of the Aediles. For the question of the dating and the actio quanti minoris aestimatoria see Monier 1930: 170. 54 D. 21.1.1.7 Ulpian, Curule Aediles’ Edict, book 1, “dummodo sciamus venditorem, etiamsi ignoravit ea quae aediles praestari iubent, tamen teneri debere,” “It must, though, be recognized that the vendor is still liable, even though he be unaware of the defects which the aediles require to be declared.” 45 physical and mental ailments and deficiencies and catalogue them into corporeal or mental diseases (morbus) or defects (vitia). This process, particularly the scrutiny given to mental ailments, explicitly draws attention to the slave as persona. As these actions are for the return of or financial compensation for a defective slave, they bring to the fore the master’s inability to know the slave he has taken ownership over. A close study of the juristic literature will reveal the attention paid to the mind and character of slaves. Similar to the literary authors’ concerns about determining who and what their slaves exactly were, I argue that in order to gain a fuller understanding of a slave, the jurists’ engaged with the broader cultural discussion of diseases and defects of the mind. From here, (3a) I will examine the terms morbus (disease) and vitium (defect), then (3b) I will look briefly at the specific cases of physical disease and defect in the juristic commentary of the Edict of the Aediles. Following that, (3c) I will look at the mental diseases and defects discussed in the commentary of edict along with philosophical discussions of disease and defect in order to understand where we see similarities or differences between the jurists and other writers. 3a. Toward an understanding of morbus and vitium Understanding the meaning of morbus and vitium in a broader Roman context is important for two reasons. Firstly, it will help us understand the method with which the jurists and other Roman writers characterized, evaluated, and catalogued the bodies and minds of both free people and slaves. Secondly, finding similarities and discrepancies in the morbi and vitia of free people in contrast to slaves will help us understand if the Romans perceived any fundamental differences between statuses and when these 46 differences manifested. Following the quotation of the edict, Ulpian gives his own understanding of morbus and vitium. As the edict is a self-stated protection against trickery, very obvious diseases and defects would not be grounds for restitution. Ulpian gives his explanation, “Ego puto aediles tollandae dubitationis gratia bis κατὰ τοῦ αὐτοῦ idem dixisse, ne qua dubitatio superesset. Proinde si quid tale fuerit vitii sive morbi, quod usum ministeriumque hominis impediat, id dabit redhibitioni locum, dummodo meminerimus non utique quodlibet quam levissimum efficere, ut morbosus vitiosusve habeatur,” “Personally, I am of the opinion that the aediles employed a pleonastic expression to preclude any doubt. So if there be any defect or disease which impairs the usefulness and serviceability of the slave, that is a ground for rescission; we must, however, bear in mind that a very minor flaw will not lead to his being held defective or diseased.” 55 Ulpian considers the question of morbus and vitium in terms of utility, arguing that the aediles use both terms in order to cast a wider net over potential ailments. Ulpian’s pragmatism is not surprising; before giving his opinion on why the aediles concerned themselves with both morbus and vitium, he explains that the aediles crafted the regulations for the sale of slaves in the broadest terms to guard against deceitful slave-dealers, who otherwise might find a means to escape taking back a defective or diseased slave. As such, Ulpian’s interpretation is not one on the nature of a disease or a defect and what the difference between the two might be, but rather that anything (morbus or vitium) that might impede a slave’s ability to perform his assigned use or duty (usus ministeriumque) is grounds for rescission. For Ulpian then we see the slave 55 D.21.1.1.7-8, Ulpian, Curule Aediles' Edict, book 1. See Ortu 2008: 161 discussing Ulpian's ultimate indifference on the difference between morbus and vitium. 47 begins and ends with his usus and ministerium, he considers the question of diseases and defects not in a medical light, but in terms of utility. The distinction between morbus and vitium was not ignored however, Ulpian gives us the difference between diseases and defects as understood by the 1 st c. CE jurist Caelius Sabinus. 56 While several non-juristic sources discuss the differences between morbus and vitium, the 2 nd c. CE Aulus Gellius produces the same distinction, but in more detail, from Caelius Sabinus’ On the Edict of the Curule Aediles. Propterea quaesierunt iureconsulti veteres, quod “mancipium morbosum” quodve “vitiosum” recte diceretur quantumque “morbus” a “vitio” differret. Caelius Sabinus in libro, quem de edicto aedilium curulium composuit, Labeonem refert, quid esset “morbus,” hisce verbis definisse: “Morbus est habitus cuiusque corporis contra naturam, qui usum eius facit deteriorem.” Sed “morbum” alias in toto corpore accidere dicit, alias in parte corporis. Totius corporis “morbum” esse, veluti sit pthisis aut febris, partis autem, veluti sit caecitas aut pedis debilitas. “Balbus autem” inquit “et atypus vitiosi magis quam morbosi sunt, et equus mordax aut calcitro vitiosus, non morbosus est. Sed cui morbus est, idem etiam vitiosus est. Neque id tamen contra fit; potest enim qui vitiosus est non morbosus esse. Quamobrem, cum de homine morboso agetur, aeque” inquit “ita dicetur: ‘quanto ob id vitium minoris erit.’” Therefore the jurists of old raised the question of the proper meaning of a “diseased slave” and one that was “defective,” and to what degree a disease differed from a defect. Caelius Sabinus, in the book which he wrote On the Edict of the Curule Aediles, quotes Labeo, as defining a disease in these terms: “Disease is an unnatural condition of any body, which impairs its usefulness.” But he adds that disease affects sometimes the whole body and at other times a part of the body. That a disease of the whole body is, for example, consumption or fever, but of a part of the body anything like blindness or lameness. “But,” he continues, “one who stutters or stammers is defective more than diseased, and a horse which bites or kicks is defective rather than diseased. But one who has a disease is also at the same time defective. However, the converse is not also true; for one may be defective and yet not be diseased. Therefore in the case of a man who is 56 D. 21.1.1.7 Ulpian, Curule Aediles' Edict, book 1, “Sed sciendum est morbum apud Sabinum sic definitum esse habitum cuiusque corporis contra naturam, qui usus eius ad id facit deteriorem, cuius causa natura nobis eius corporis sanitatem dedit: id autem alias in tot corpore, alias in parte accideret (namque totius corporis morbus est puta φθίσις febris, partis veluti caecitas, licet homo itaque natus sit): vitiumque a morbo multum differre, ut puta si quis balbus sit, nam hunc vitiosum magis esse quam morbosum,” “It is to be noted that a definition of disease as an unnatural condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with health of body appears in Sabinus. Such condition may affect the whole body or only part thereof. (Tuberculosis and fever exemplify the former; blindness, even from birth, the latter). Defect, he says, is very different from disease; a stammerer, for instance, is defective more than diseased.” Watson translation slightly modified. See Buckland 1908: 54; Rogerson 1959; Ortu 2008: 93-186; Manna 1994: 33-39. 48 diseased,” says he, “it will be just and fair to state to what extent ‘the price will be less on account of that defect.’” 57 Gellius notes that the discussion of the difference between morbus and vitium is an old one, making reference to the iurisconsulti veteres (old jurists) and that Caelius Sabinus is actually giving the definition of morbus according to Labeo, the jurist of the Augustan period. While Gellius does not provide the title of Labeo’s work from which the definition of morbus is drawn, it is clear that Labeo is discussing the sale of slaves as he reasons that a diseased man (slave) will be worth less on account of and the extent to which he is defective. Labeo’s interpretation of morbus and vitium is, at the end, one of marketplace pragmatism; he nevertheless discusses the differences and relationship between the terms. His distinction between disease and defect is not always a strict divide. He notes that the stutterer (balbus) and the stammerer (atypus) are more defective than diseased (magis quam), while his example of the horse is clearer, the biting or kicking horse is not diseased, but defective. Labeo understands disease as more encompassing than defect; a diseased man is also defective, but the defective man is not necessarily diseased. Morbus is a habitus contra naturam, a state against nature. Vitium is not described as a state (habitus), in fact the discussion refers more to the defective (vitiosus) than the defect (vitium). A morbus can affect the whole or a part of the body, but it is unclear if a vitium can affect the whole body. However, the loss in value is due to the vitium not the morbus. The defect, it seems, for Labeo is the manifestation of the ailment; the defective part of the disease is the part that makes his use deteriorate (qui usum eius facit deteriorem). 57 Gell. NA 4.2.2-5 Loeb translation. On this passage see Ortu 2008: 93-144; Manna 1994: 34-39; Vincent 1922: 39; Buckland 1908: 54, Impallomeni 1955: 39-43, 94-98. 49 Ulpian’s rendering of Caelius Sabinus’ distinction between morbus and vitium tells us that vitium is very different than morbus (vitiumque a morbo multum differre); however, also citing that a stutterer (balbus) is more defective than diseased (magis quam), we see that the line between morbus and vitium for Ulpian is not entirely unambiguous. 58 While the late classical jurist (mid 3 rd c. CE) Modestinus is perhaps echoing the older jurists in his reference to the one-eyed person, he offers a different approach towards the distinction between morbus and vitium. 59 In a work discussing differences in terminology, Modestinus makes the distinction between morbus and vitium a temporal one; a permanent ailment is a vitium, a recoverable one a morbus. Beyond the jurists, we find that Roman authors at times use the terms morbus and vitium together to mean “by the defect of disease.” 60 Unsurprisingly, we see the phrase (vitium morbi) used in the medical writings of the encyclopaedist Celsus (c. 25 BCE - c. 50 CE). Vitruvius, the 1st c. BCE writer of De Architectura (On Architecture), uses the term to discuss a disease which people thought could be contracted at the Fountain of Salmacis. Vitruvius refers to the disease as venerius morbus, but it is not what we would immediately associate with a medical ailment. The problems (morbi vitia), as Vitruvius describes them, 58 D. 21.1.1.7 Ulpian, Curule Aediles’ Edict, book 1 text quoted n56. 59 D. 50.16.101.2 Modestinus, Distinctions, book 9, “Verum est morbum esse temporalem corporis imbecillitatem; vitium cero perpetuum corporis impedimentum, veluti si talum excussit: nam et luscus utique vitiosus est,” “It is right that ‘disease’ is a temporary weakness of the body, ‘defect,’ however, a permanent flaw in the body, as, for instance, if someone has broken his ankle; for someone one-eyed is also defective.” G. 3.214 discusses the loss of value that comes if a slave loses an eye (luscus servus). On this passage see Manna 1994: 36; Ortu 2008: 102. 60 Celsus, Med. 3.5.5, regarding common fevers, “Si vero ne tum quidem ulla requies aegris est, hoc ipso peius id tempus est, quod, cum sua natura melius esse debeat, morbi vitio non est,” “But if the patient has no relief even in the morning, it becomes all the worse time for food, just because, although by itself that time should be better, owing to the defect of the disease it is not so.” Vitr. De arch. 2.8.12, discussing the fountain of Salmacis in Halicarnassus, the water from which was reputed to cause effeminacy, or as Vitruvius says a morbus venerius (“love-sickness”). The defect of the disease (morbi vitio) was it made men molles and impudicos, though Vitruvius disputes this. Seneca Ep. 109.7 on whether a wise man can help another man. 50 are ones of character: a man is too effeminate or soft (mollis) and too impudent or wanton (impudicus). Vitruvius uses this medical terminology to discuss concerns about manliness and personality. Vitruvius may be speaking in medical metaphor, but what we see here, and what we will see in the jurist’s writings, is that the Roman cultural understanding and language of disease incorporated just these sorts of concerns about one’s character. Seneca uses the image of men so afflicted by a “defect of a disease” (vitio morbi) that they can not taste the sweetness of honey to suggest that the wise should only consort with other men of sound body and mind (i.e., those who can taste the sweetness of honey: sunt enim quidam, quibus morbi vitio mel amarum videatur). Seneca here uses the language of disease and defect to discuss the philosophical good and bad man. The medical terminology is used to discuss matters of character (as seen in the man made effeminate) and morality (the good of avoiding bad people, described by Seneca as being defective). Virtuvius and Celsus were writing at nearly the same time as Labeo, and Seneca (4 BCE or 1 BCE to 65 CE) shortly after. Their use of vitium morbi to mean “the defect of the disease” does not stray too far from Labeo’s understanding that the diseased man is defective (sed cui morbus est, idem etiam vitiosus est). For these authors the disease is the larger problem and the defect is the manifestation; the symptoms are the defects of the disease. The passages of Vitruvius and Seneca highlight how medical terminology found its way into a variety of different genres, such as technical writings and philosophical letters. The prevalence of medical metaphor and imagery is important to understanding that the jurists and other Roman writers were aware of the medicine of their day. 51 3b. Disease and defect of the body in the juristic interpretation of the Edict of the Aediles In this section I will briefly discuss the physical illnesses and injuries of slaves. The jurists discuss a series of deformities, mutilations, and physical illnesses and injuries that may allow for the restitution of a slave. I will examine some of these physical ailments of slaves in conversation with similar problems afflicting their free counterparts to study differences in understanding a similar ailment and the ramifications thereof (loss of power, value, agency) in the slave population and the free population. It is important to study the differences in physical (and even mental) natures of free and slave because slaves in Roman Law were simultaneously viewed as both a thing (res) and a person (persona). 61 The jurists consider physical injury to the slave, discussing if the loss of fingers or a limb was a deficiency. Ulpian reports that Cato called a slave who lost a finger or a toe diseased (morbosus). 62 Ulpian, however, quotes Ofilius (a jurist of the 1 st c. BCE) and maintains his rule that what matters is the utility of the slave (si tamen ob eam rem eo minus uti possit, Ofilius; si nihil impeditur numero eorum, non est in causa redhibitionis: propter quod non illud 61 G. 2.13 (slaves as things) and G.1.9 (slaves as persons). 62 D. 21.1.10 Ulpian, Curule Aedlies’ Edict, book 1. This is one of the passages that is used to date the edict, though Cato could be speaking of defective slaves before the edict came about, on this see Ortu 2008: 107- 117. Several other physical defects are considered including in the edict: blindness, castration and illness, among others. See Gell. NA 4.2.13-14 on eunuchs and the blind. D.21.1.10.3-4 Ulpian, Curule Aedlies’ Edict, book 1 on sight, “De myope quaesitum est, an sanus esset: et puto eum redhiberi posse. Sed et νυκτάλωπα morbosum esse constat, id est ubi homo neque matutino tempore videt neque vespertino, quod genus morbi Graeci vocant νυκτάλωπα,” “It has been asked whether a slave suffering from short sight is healthy. I think him a case for rescission. It is accepted that a dim-sighted person is diseased, that is, one who sees neither by day nor by night, who is so styled by the Greeks; there are those who think this to be the condition of one who, even when light be brought, sees nothing.” νυκτάλωπα: one who suffers from day-blindness. The “Greeks” mentioned are surely doctors: Id. Prorrh.2.33, Gal.19.435, 14.776. D. 21.1.6.2 Ulpian, Curule Aedlies’ Edict, book 1, “Spadonem morbosum non esse neque vitiosum verius mihi videtur, sed sanum esse, sicuti illum, qui unum testiculum habet, qui etiam generare potest,” “To me it appears the better view that a eunuch is not diseased, any more than one who, having one testicle, is capable of procreation. D.21.1.7 Paul, Sabinus, book 11, “Sin autem quis ita spado est, ut tam necessaria pars corporis et penitus absit, morbosus est,” “But if a slave is a eunuch in such wise that he lacks a necessary part of his body, he is diseased. The usefulness of the body is impaired.” Ortu 2008 discusses how eunuchs were valued. 52 spectandum est, quis numerus sit digitorum, sed an sine impedimento vel pluribus vel pauvioribus uti possit, Ulpian). 63 In D.21.1.14, where much of Ulpian’s discussion relates to diseases and defects from birth, Ulpian considers also the man born with conjoined fingers non sanum, but only if his utility is diminished. 64 The loss of a limb or deformity from birth causes a loss in value. The discussion of the loss of fingers and the loss of ability with the hands is particularly interesting in the Roman context because of the importance of hands (manus) to Roman relationships of power. 65 The jurists also consider which ailments would render a female slave defective. Pregnant women are healthy. The 1 st c. BCE jurist Trebatius says that women who were naturally sterile were healthy, but if the sterility was due to a physical defect (vitium corporis) then the woman was defective. 66 We see parallels with free women, where sterility was 63 D. 21.1.1.10pr Ulpian, Curule Aedlies’ Edict, book 1, “Idem Ofilius ait, si homini digitus sit abscisus membrive quid laceratum, quamvis consanaverit, si tamen ob eam rem eo minus uti possit, non videri sanum esse,” “Ofilius, again, says that if the slave has lost a finger or suffered the laceration of some limb, even though the injury be healed, he will not be regarded as healthy, if his usefulness be diminished thereby.” D. 21.1.10.2 Ulpian, Curules Aediles’ Edict, book 1, “Sed si quis plures digitos habeat sive in manibus sive in pedibus, si nihil impeditur numero eorum, non est in causa redhibitionis: propter quod non illud spectandum est, quis numerus sit digitorum, sed an sine impedimento vel pluribus vel paucioribus uti possit,” “Even when he has more, whether fingers or toes, if the loss does not impede his utility, there is no question of rescission; the issue is, therefore, not how many he has lost but, whatever their number, whether he can still be put to use.” 64 For more discussion, see Ortu 2008: 176-177. 65 For tying the loss of hands to a loss of authority and power in declamation see Gunderson 2003: 59-89, at 60: “Of the many bodily violations in declamation, loss of the hands is, relatively speaking, a not uncommon affliction. Women are raped; men lose their hands. This formulation smacks of the sexual, and perhaps rightly. Having one's hands cut off has two main associations in declamation: impotence and the father. Manus, the word for hand, itself means ‘authority’ in Latin. One seizes possession by laying a hand on an item (manum inicere). If a father renounces his claims on his daughter, he gives her into her husband’s manus. And a son or a slave can be released from a father’s or a master’s authority if he is ‘released from the hand’ (manu mittere). Thus the loss of hands is always ready to be confused with a loss of authority. Similarly outrages against authority will entail violence done both by and to the hand.” 66 D.21.1.14.1 Ulpian, Curule Aediles’ Edict, book 1 on pregnancy. D.21.1.14.3 Ulpian, Curule Aediles’ Edict, book 1 on naturally barren rather than due to bodily defect, “De sterili Caelius distinguere Trebatium dicit, ut, si natura sterilis sit, sana est, si vitio corporis, contra,” “Where a barren woman is concerned, Caelius says that Trebatius took a distinction: If she be naturally barren, she is healthy, but not if her infertility be due to some bodily defect.” See on this same passage, Gell. NA. 4.2.8-10. See Ortu 2008: 144-150 discussing the relevance or Donadio 2004: 101-2 on the difference between Trebatius and Labeo, suggests, “La ragione della posizione di Trebazio potrebbe essere cioè quella di 53 grounds for divorce. 67 The vitium corporis of the free woman has a slave counterpart, the free woman is divorced and the slave woman is devalued and perhaps sold off. There is also discussion among the jurists about whether a slave who does not speak or does not speak clearly is healthy. If a slave has no tongue, Ofilius says he is not healthy. The question becomes more nuanced when considering a slave who does not speak, but appears physically healthy. Ulpian quotes Sabinus saying “mutum morbosum esse Sabinus ait: morbum enim esse sine voce esse apparet. Sed qui graviter loquitur, morbosus non est, nec qui ἀσαφῶς: plane qui ἀσήμως loquitur, hic utique morbosus est,” “Sabinus says that a dumb slave is diseased; for it appears a disease to be without a voice; but one who speaks with difficulty or unclearly (ἀσαφῶς) is not diseased; the slave whose speech is unintelligible (ἀσήμως); however, obviously is diseased to that extent.” 68 This is particularly important given that as we saw with Pliny and Columella, Roman masters used slaves’ speech to have a better understanding of their character and their mental abilities. Roman free people were put under the care of a curator if they were mute; they lost their ability to evitare che la redhibitio rei emptae concessa nel tribunale degli edili curuli si trasformasse in un facile strumento per ottenere lo scioglimento del compratore, non più convinto dopo l'acquisto della concenienza e vantaggiosità dell'affare concluso.” 67 Dalla 1978 discusses the role of sterility in divorce: 246-250. See also Treggiari 1991: 442, 462, 465 on sterility as grounds for divorce. Bonner 1949: 122-4 on the trope of divorcing a wife after 5 years if not child was born. See Evans Grubbs 2002 on children being the purpose of marriage: 81, 83, 122, 171-3. In the legal sources see D.24.1.60.1 Hermogenian, Epitome of Law, book 2. The discussion also concerns whether a woman who always bore stillborn children was defective: D.21.1.14.7 Ulpian, Curule Aediles’ Edict, book 1. See Ortu 2008: 152-153 for a discussion. Donadio 2004: 102, “le decisioni di Labeone appaiono precipuamente rivolte ad estendere il campo di applicazione dell’actio redhibitoria a nuove ipotesi di difettosità dei mancipia e dei iumenta, che pur formalmente non avrebbero potuto essere definite morbus o vitium, nella prospettiva di una considerazione di aspettative specifiche del compratore; ovvero, anche al di là del mero interesse all'utilizzazione dell'animale o dello schiavo secondo la naturale destinazione e generale impiego. Con Labeone sembra farsi strada la considerazione dell'interesse sepcifico del singolo acquirente in merito alle caratteristiche della res empta e la rilevabilità del vizio ai fini della tutela edilizia sembra porsi dunque sotto un profilo soggettivo.” 68 D.21.1.9 Ulpian, Sabinus, book 44. Dalla 1989 on deafness and muteness. Ortu 2008: 169; Donadio 2004: 113- 119 on servus mutus. See Donadio 2004: 105-113 on balbus and atypus as a vitium corporis. 54 make decisions on their own. There is a close tie between madness and unclear speech or lack of speech. 69 Speech was revelatory; it gave people an avenue to understand the mind. 3c. Disease and defect of the mind in the juristic interpretation of the Edict of the Aediles The distinction the jurists draw between the mental and physical ailments highlights two aspects of the law regarding the restitution of slaves. First, most plainly, mental diseases and defects were harder to detect and as such, it is less likely a vendor would know of them. 70 Secondly, the value of the slave was largely in his body; this may not seem surprising for a slave, but it is noteworthy given the vast array of tasks and duties slaves performed that were beyond the realm of solely the physical. If the mental defect comes from a physical cause, rescission was allowed, but the jurists consider mental 69 The relationship is most clearly noted here: D. 21.1.4.1 Ulpian, Curule Aediles' Edict, book 1, “Sed si vitium corporis usque ad animum penetrat, forte si propter febrem loquantur aliena vel qui per vicos more insanorum deridenda loquantur, in quos id animi vitium ex corporis vitio accidit, redhiberi posse,” “But if a physical affliction should have mental consequences, say that the slave raves in consequence of his fever or wanders through the city quarters, talking nonsense in the manner of the insane, there is, in such cases, a mental defect flowing from a physical one, and consequently, rescission will be possible.” See for example the relationship based on their proximity in the text: D. 29.5.3.8-11 Ulpian, Curule Aediles’ Edict, book 50 on a slave being punished for not providing aid to his master, “Sordus quoque inter imbecillos numerandus est aut inter eos qui sub eodem tecto non sunt, quia ut illi per spatium, ita hic per morbum nihil audit. Caecus quoque veniam mereri debet. Mutum simili modo excipimus, sed ibi, ubi voci tantum auxilium superfuit. Furiosus excipi nequaquam dubium,” “A deaf slave is also to be counted among the helpless or among those who are not under the same roof, because, as those hear nothing because of distance, he hears nothing because of a deficiency. A blind slave also ought to gain pardon. In the same way, we except a dumb slave, but only where shouting was the only form of assistance possible. There is no doubt at all that lunatics are excepted.” Aulus Gellius, NA 4.2.15, in his discussion of the terms of the Edict of the Aediles, adds, regarding the mute, “Verba Masuri Sabini apposui ex libro iuris civilis secundo: 'Furiosus mutusve cuive quod membrum lacerum laesumve est aut obest, quo ipse minus aptus sit, morbosi sunt. Qui natura longe minus videt tam sanus est quam qui tardius currit,'" "I have added a passage from the second book of Masurius Sabinus On Civil Law, 'A madman or a mute, or one who has a broken or crippled limb, or any defect which impairs his usefulness, is diseased. But one who is by nature near-sighted is as sound as one who runs more slowly than others."' 70 See Donadio 2004; Manna 1994; Stein 1959: 100-105; Rogerson 1959: 113 on latent and mental defects. 55 defects from non-physical origins as well. 71 The jurists discussing the potential mental ailments of slaves quickly dispense with morbus and discuss the problems as vitia animi (defects of the mind). The vitia animi fall largely into three kinds: faults of character, forms of madness, and being a runaway. I will begin this section discussing the faults of character in the juristic interpretation of the Edict of the Aediles and in Roman philosophical texts. Following that, I will discuss the juristic interpretation of madness and understandings of madness in philosophical works. The question of the runaway will be dealt with extensively in the following section (4). Vitia animi: faults of character The discussion of strictly mental ailments is introduced with a question by the first century CE jurist Vivian. Is a slave who participates in the rituals of religious fanatics from time to time considered defective? 72 Vivian says he is a little defective, but explains that the concern of redhibitory action is more for the health of the body than the defects of the mind. 73 What is considered a mental defect is laid out more clearly in the following passage, which discusses a slave who spends too much time at Bacchanalian revels. Idem Vivianus ait, quamvis aliquando quis circa fana bacchatus sit et responsa reddiderit, tamen, si nunc hoc non faciat, nullum vitium esse: neque eo nomine, quod aliquando id fecit, actio est, sicuti si aliquando febrem habuit: ceterum si nihilo minus permaneret in eo vitio, ut circa fana bacchari soleret et quasi demens responsa daret, etiamsi per luxuriam id factum est, vitium tamen esse, sed vitium animi, non corporis, ideoque redhiberi non posse, quoniam aediles de corporalibus vitiis loquuntur: attamen ex empto actionem admittit. 71 D.21.1.4.1, Ulpian, Curule Aediles' Edict, book 1 (quoted above n69). 72 D. 21.1.1.9 Ulpian, Curule Aediles' Edict, book 1, “Apud Vivianum quaeritur, si servus inter fanaticos non semper caput iactaret et aliqua profatus esset, an nihilo minus sanus videretur,” “The question is raised in Vivian whether a slave who, from time to time, associates with religious fanatics and joins in their utterances is, nonetheless, to be regarded as healthy.” 73 D. 21.1.1.9 Ulpian, Curule Aediles’ Edict, book 1, “magis enim de corporis sanitate, quam de animi vitiis promitti,” “The undertaking relates to physical, not mental, health.” 56 Vivian says further that although, at some time in the past, a slave indulged in Bacchanalian revels around the shrines and uttered responses in consonance therewith, it is still the case that if he does it no longer, there is no defect in him and there will be no more liability in respect of him than if he once had a fever; but if he persist still in that defect, running wild around the shrines in Bacchic rites and shouting utterances as if mad even though this be the consequence of excess and thus a defect, it is still a mental, not a physical, defect and so constitutes no ground for rescission, because the aediles pronounce in respect of physical defects; however, such facts give occasion for the action on purchase. 74 Bacchic revelry is considered a mental defect and therefore not grounds for rescission; but the actio empti may apply. Vivian presents two scenarios. The first involves a slave, who at one point celebrated Bacchic rites, running riot around the temples. If the slave no longer does this, he is deemed cured and healthy; action here guides the question of mental health. In the second scenario, the slave continues to engage in Bacchic revels and shouting as if out of his mind (demens). In this scenario, Vivian holds that the slave has a defect, but it is a mental one (and therefore the slave is not restitutable). The defect, Vivian tells us, comes from luxuria, extravagance. Here the vitium animi of the slave originates as a character flaw, which leads to the slave behaving as if he was out of his mind. Those who participated in Bacchic rites were generally considered to be in a state of frenzy. When Vivian first posited the question of slaves joining in religious rites he considered the participants fanatici, which can mean someone inspired by a divinity, but also comes to mean mad. While the supposition that a slave might participate in Bacchic rites may seem somewhat idiosyncratic at first, two matters must be considered. A slave who is running around temples and engaging in Bacchic rites has left his master’s house presumably without his master’s permission. Vivian does not bring up the idea of the runaway slave in this context, but the escape of slaves was a constant 74 D.21.1.1.10-11 Ulpian, Curule Aediles’ Edict, book 1. Translation slightly modified. Donadio 2004: 121-127, she notes that Vivian is the jurist that favors bringing the actio empti against silence about defects of the mind. 57 concern. A slave who leaves his master’s house like this is either heedless of his master’s commands or has been given a great deal of license to move around the city, which might be a way to understand Vivian basing the slave’s mental defect on luxuria, extravagance. Where did a slave who suffers from luxuria contract or acquire such a vitium animi? It is possible the slave is newly enslaved and was a Bacchant before his enslavement. It is also possible that the slave’s master prior to sale did not exert enough dominium over the slave to curb such impulses. In either case, the Bacchant slave introduces the notion of morality into the juristic interpretation of the vitia animi not solely because of his conduct during the revels, but because a slave with luxuria is a slave who is not behaving in an appropriate manner for a slave. As was seen in the discussion of Vitruvius and Seneca’s use of the term vitium morbi (defect of the disease), the jurists’ discussion of the vitia animi also paid particular attention to character faults. Before citing Vivian on the Bacchic revelers, Ulpian includes a passage of Vivian where he discusses slaves with minor mental defects as sane (minus animi vitiis aliquos sanos esse intellegere debere). The jurist wants to ensure that restitutions will not be attempted for insignificant problems. Vivian gives us a few examples: the frivolous (levis), superstitious (superstitiosus), quick to anger (iracundus), or insolent (contumax) slave. These are all vitia animi, but too minor to bring about any sort of recompense. 75 The jurists were primarily concerned with the master getting the use (usus) of his slave; Vivian does not believe these mental defects will impair the slave’s ability to work. In contrast, Vivian argues that masters who realized that their slaves were too timorous (timidi), desirous (cupidi), greedy (avari), or quick to anger (iracundi again) could bring an action on purchase 75 D. 21.1.1.9 Ulpian, Curule Aediles’ Edict, book 1 58 (actio empti) just as with a slave who is too extravagant (luxuria). 76 These flaws of character were severe enough that the master could seek some damages. The 2 nd c. CE jurist Pomponius, as cited by Ulpian, does not believe the edict applies to gamblers (aleatores), wine-drinkers (vinarii), gluttons (gulosi), imposters (impostores), liars (mendaces), or the belligerent (letigiosi). In trying to explain the applicability of the redhibitory action, Pomponius notes that a slave-dealer does not need to sell a wise slave (sapiens), but if the slave is too silly or such a fool (fatuus vel morio) that he cannot perform his task (usus) he will be considered defective. 77 Other mental defects mentioned by the jurists include someone who is impudent or wanton (protervus), or watches the games or studies paintings too much. 78 The juristic commentaries on the Edict of the Aediles were pragmatic documents; the jurists are primarily concerned with ensuring that the new master is able to make use of his slave as he wishes. The fact that these character flaws did not generally comprise restitutable defects highlights the fact that the value of the slave was primarily in the body and specifically in a slave’s ability to carry out his usus, job. The slave’s ability to do physical work would have been of primary importance for owners. Yet, the Roman jurists 76 D. 21.1.4 Ulpian, Curule Aediles’ Edict, book 1 “ob quae vitia negat redhibitionem esse, ex empto dat actionem,” “For all these defects, for which he says that rescission is not applicable, Vivian would give the action on purchase.” While this holds true with the examples given just above, given the manner in which the compilers of the Digest put this section on vitia animi together we must be cautious to necessarily apply the actio empti to the vitia animi discussed in D. 21.1.1.9 (see n75). Donadio 2004: 126 notes that D. 21.1.2 Paul, Curule Aediles’ Edict, book 1 and D. 21.1.3 Gaius, Curule Aediles’ Edict, book 1 are both incomplete and must have been cut down by the compilers of the Digest. 77 D. 21.1.4.3 Ulpian, Curule Aediles' Edict, book 1 citing Pomponius, “Idem Pomponius ait, quamvis non valide sapientem servum venditor praestare debeat, tamenm si ita fatuum vel morionem vendiderit, ut in eo usus nullus sit, videri vitium. et videmur hoc iure uti, ut vitii morbique appellatio non videatur pertinere nisi ad corpora: animi autem vitium ita demum praestabit, si minus, non,” “Pomponius, again, says that although a vendor is not required to produce a slave of full intellect, still if he sell one so silly or moronic that he is useless, there is a defect under the edict. Generally, the rule which we appear to observe is that the expression 'defect and disease' applies only in respect of physical defects; a vendor is liable in respect of a defect of mind, only if he undertake liability for it; otherwise, not.” 78 D.21.1.3 Gaius, Curule Aediles' Edict, book 1, D. 21.1.65 Venuleius, Actions, book 5 59 also acknowledged the importance of the mind of the slave in determining his usefulness to his master. The attention given to the different defects of the mind of the slave and the different levels of mental defectiveness stresses the jurists’ desire to understand the mind of slaves. Moreover, the flaws or deficiencies of mind that might make a slave less useful to the master often had a moral underpinning. The medical language of disease and defect is tied directly into ideas of Roman morality. The juristic discussion of the vitia animi came about because slaves were not behaving as society expected or wanted from their slaves, they were, in a sense, bad slaves. This is not simply because of the particular character flaws that a slave may have—whether he was too extravagant, promiscuous, a liar or a cheat, or if he has control over his appetites, but as we will see, similar standards of morality could be found in the discussions of the vitia of free people. Vitia animi: faults of character in Roman philosophy The study of the juristic interpretation of the Edict of the Aediles in tandem with other Roman texts discussing disease and defect allows us to build a wider picture of how sanity of mind and body was viewed, and how it valued or devalued people. Cicero discussed the differences between mental and physical disease and defect in several places, but he does not directly reference any of the jurists who investigate the issue and at times differs from their understandings. 79 In the De finibus bonorum et malorum (On the Ends of Good and Evil), written in 45 BCE, Cicero discusses the contrary-to-nature movements of a man, citing a man who is too effeminate. He argues that even if it is caused by a mental defect it leads to a physical problem, “etiamsi animi vitio id eveniat, tamen in corpore immutari 79 Cicero was a friend of the Republican jurists Ofilius and Trebatius Testa, both of whom are quoted in the juristic commentaries of the Edict of the Aediles. 60 hominis natura videatur,” “So that even if that should happen through any fault of mind, still the nature of man would seem to be changed in his body.” 80 Cicero’s conception tracks well with the juristic idea of mental defects becoming a problem when they affect the body. 81 The mental defect reveals itself through the body. Cicero considers the relationship between the morbi and vitia of the body and mind in his Tusculan Disputations, also written in 45 BCE. 82 The third and fourth books of the Tusculan Disputations concern Stoic disorders of the mind. The third book focuses on grief and the fourth considers disorders of the mind more generally. Here Cicero contrasts the morbi, aegrotationes (sicknesses), and vitia of the body with those of the mind. Cicero explains that a morbus is a corruptio (a corruption, spoiling) of the whole body, 83 an aegrotatio a morbus with imbecillitas (weakness), and a vitium a corruptio leading to an asymmetry in the body parts. Cicero goes on to say that a vitium is a pravitas, distortio, or deformitas of a limb or body 80 Cic. Fin. 5.35. Loeb translation. 81 Donadio 2004: 125 discusses how the jurist Vivian the vitium corporis that goes even to the mind (usque ad animum penetrat, D. 21.1.4.1). Pigeaud 1989: 250 discussing Tusc. 3.4.22 notes that Cicero uses language that ties the ailments of the body to the mind (or in his terminology, the soul, animus), "Le génie de la langue fournit un terme qui connote le rapport avec la maladie du corps, tout en dénotant specifiquement la maladie de l'âme." 82 Cic. Tusc. 4.13.28-29 “Morbum appellant totius corporis corruptionem, aegrotationem morbum cum imbecillitate, vitium, cum partes corporis inter se dissident, ex quo pravitas membrorum, distortio, deformitas. Itaque illa duo, morbus et aegrotatio, ex totius valetudinis corporis conquassatione et perturbatione gignuntur; vitium autem integra valetudine ipsum ex se cernitur. Sed in animo tantum modo cogitatione possumus morbum ab aegrotatione seiungere; vitiositas autem est habitus aut adfectio in tota vita inconstans et a se ipsa dissentiens,” “Disease is the term applied to a break-down of the whole body, sickness to disease attended by weakness, defect when the parts of the body are not symmetrical with one another and there ensue crookedness of the limbs, distortion, ugliness. And so the first two, disease and sickness, are a result of shock and disorder to the bodily health as a whole; defect, however, is discernible to itself, though the health is unimpaired. But in the soul we can only separate disease from sickness theoretically. Defectiveness, however, is a habit or a disposition which is throughout life inconsistent and out of harmony with itself." Loeb translation. Pigeaud 1989: 250 offers an idea with regards to Tusculan Disputations 3 and 4: "Selon un procédé constant chez lui [Cicero], il s'agit demontrer la rencontre et l'accord entre la philosophie révélée par les Grecs, mais construite et élaborée, avec la philosophie naturelle des Romains, qui se manifeste dans le langage; une étude sémantique prouve d'ailleurs la supériorité de la philosophia naturalis sur l'artefact. Ainsi le vocabulaire latin de la démence est plus élaboré que celui des Grecs." Graver 2002: 148-160 on this passage generally. At 149 she discusses Cicero’s relationship to his Stoic sources. 83 Corruptio often means morally debased: Tac. Ann. 2.55.5, 11.2.1, 12.46.3 On aegrotatio see Graver 2002: 152. 61 part. This is different than Sabinus’ understanding that diseases could affect either a part or the whole of a body. Cicero’s choice of language brings an element of morality into his discussion of morbus, aegrotatio, and vitium. Corruptio can be used to mean a bodily condition, highlighting an aspect of degradation; though, corruptio is rarely used without a moralizing tone. 84 The tie of these physical ailments to corruptio, the tie of aegrotatio with imbecillitas, 85 and vitium with pravitas, distortio, and deformitas suggest that to have an ailment of the body takes away from the goodness of the man. 86 The term pravitas when referring to the body concerns a physical crookedness; 87 but the word also carries strong ties to the morally debased. 88 Deformitas too contains both a physical aspect: the malformation of a limb along with the idea of disgrace. 89 Cicero then turns directly to the distinction between morbus, aegrotatio, and vitiositas (defectiveness) in the mind (animus). 90 For Cicero, the difference between a morbus and aegrotatio of the mind is only theoretical. He describes vitiositas of the mind as a permanent state or a manner that is out of sorts and inconsistent with itself. Cicero’s description of the defectiveness (vitiositas) of the mind is similar to Labeo’s understanding of a disease (morbus); Labeo considers a morbus to be a state against nature (habitus contra naturam). Cicero here regards the defectiveness of the mind as a state or manner (habitus aut adfectio) that is in disagreement with itself (a se ipsa dissentiens). Cicero’s discussion of morbus and vitium differs from that of the jurists in technical terminology; however, what we see is that 84 Cic. Verr. 1.6.15; Tac. Ann. 2.55, 11.2, 12.46. 85 Imbecillitas refers to a feebleness or helplessness. Marcel. Dig. 46.3.68; Ulp. Dig. 16.1.2.2; Cic.ad brut. 1.10.4; AH 7.16.2, 9.2a.2; Fam. 1.4.3; Off. 2.75; Sen. Ben. 7.27.3. 86 Garland 1995: 73-86 on the derision of the disabled. 87 Cic. Leg. 1.19.15 - a distortion of the mouth when speaking, de Or. 2.22.98; Columella 4.20.1. 88 Sen. NH 3.5; Quint. Inst. 2.15.2, 1.1.37; Tac. Ann. 3.16, 3.34, 14.38. 89 Cic. Fam. 10.6, Sen. Ben. 1.10.2, Ep. 83.27, Tac. Ann. 11.32, Gel. NA 3.3.6. 90 Graver 2002: 158 notes that vitiositas is created by Cicero. 62 he, like the jurists, uses the language of morality to discuss physical and mental ailments. The morality that is seen in Cicero is consistent not only with the larger Roman ideas on deformity (and illness) but also with the jurists who consider vitia animi as problems of character and intrinsically tied to morality. Cicero’s discussion of vitium and morbus suggests that there is something morally wrong with a man suffering from a mental ailment. In the first book of De finibus bonorum et malorum, Cicero discusses the Epicurean idea of living without pain. In this discussion he considers the charms (iucunditates) of life being impeded by diseases of the body and the mind (morbi corporis and morbi animi). He describes the diseases of the mind, “animi autem morbi sunt cupiditates inmensae et inanes divitiarum, gloriae, dominationis, libidinosarum etiam voluptatum. Accedunt aegritudines, molestiae, maerores, qui exedunt animos conficiuntque curis hominum non intellegentium nihil dolendum esse animo, quod sit a dolore corporis praesenti futurove seiunctum,” “But the diseases of the mind are boundless and vain desires of riches, or glory, or domination, or even of lustful pleasures. Besides these there are melancholy, annoyance, sorrow, which eat up and destroy with anxiety the minds of those men who do not understand that the mind ought not to grieve about anything which is unconnected with some present or future pain of body.” 91 Cicero’s discussion of the diseases of the mind ends on the consideration that men should not concern themselves with diseases of the mind unless they have a physical manifestation. The diseases of the mind that Cicero relates are similar to those that the jurists also discuss. Both focus on the melancholic and the greedy and several of the diseases of 91 Cic. Fin. 1.59. Loeb translation. 63 the mind which Cicero describes are echoed (though not in the same terminology) by the jurists describing the defects of the mind of the slave. The “boundless and vain desires of riches” (cupiditates inmensae et inanes divitiarum) hold accord with the luxury (luxuria). 92 “Lustful pleasures” (libidinosarum voluptas) follows with the jurists’ determination of impudence (protervus), wantonness (gibberosus), 93 and desiring (cupidus) as vitia animi. 94 “Annoyance” (molestia) has a similar meaning to quick to anger (iracundus); 95 and “melancholy” (aegritudo) and “sorrow” (maeror) are similar concerns as the jurists have with the melancholic (melancholicus). 96 While the language that the jurists and Cicero are employing to discuss ailments of the mind are not the same, the conception of what constitutes a mental ailment has similar overtones. While Cicero focuses on the animus of the freeman and the jurists the slave’s, both are engaging in the language of medicine to discuss problems of character. Beyond Cicero, the term vitium animi holds more traction in Roman literature than morbus animi. There is a trend in Roman literary sources for using vitium when the defect is one of character and can be translated as “vice.” Vitium is often discussed in terms of virtue and vice or accompanied by moralizing terminology such as peccare (to mistake, err, transgress). 97 Seneca employs the term vitium animi several times in his philosophical 92 D.21.1.1.9 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian. 93 D.21.1.3 Gaius, Curule Aediles’ Edict, book 1. 94 D.21.1.1.10 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian. 95 D.21.1.1.9 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian. 96 D.21.1.2 Paul, Curule Aediles’ Edict, book 1. Cicero also mentions aegrotationes animi that have some relation to the vitium animi the jurists discuss, Tusc. 4.11.26: avaritia, ambitio, mulierositas, pervicacia, ligurratio, vinulentia, cuppedia, “et qua similia.” Compare the servus cupidus or avarus (D. 21.1.4 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian) or the servus gulosus or vinarius (D. 21.1.4.3 Ulpian, Curule Aediles' Edict, book 1 citing Pomponius). See Graver 2002: 150 on the Greek terms for the aegrotationes Cicero lists. 97 See for example, on jealousy Hor. Sat. 2.3; on cruelty Cic. Clu. 199; on cupiditas Cic. De or. 2.339; Off. 3.5.26; Quint. Instit. 6.2.30, 12.9.9; Plin. HN. 30.14. 64 works. 98 In the preface to the Natural Questions, Seneca tells Lucilius that he has evaded the defects of the mind (effugisti vitia animi), and proceeds to outline what some of the defects are: dishonesty (non est tibi frons ficta), sycophancy (nec in alienam voluntatem sermo compositus), greediness (avaritia), extravagance (luxuria), or ambition (ambitio). Seneca follows Lucilius’ evasion (effugio) of vitium with his search for virtues (affecto virtus). Seneca’s rendering of the defects of the mind corresponds well with the jurists’ version. Where Seneca says dishonesty (not est tibi frons ficta) Pomponius describes a liar (mendax), 99 and where Seneca describes not following others, but speaking his own mind (nec in alienam voluntatem sermo compositus), Vivian calls the superstitious and religious fanatics (superstitiosus, fanaticus) mentally defective. 100 Vivian too describes the greedy (avarus) and the luxurious (luxuria) as having a mental defect. 101 Seneca is describing a self-evaluative process, he himself is determining if he is honest or generous. The jurists are making use of the understandings of the defects of the mind of their day in their commentaries; they turn this self-evaluative process into an evaluation of others, slaves. Virtue and vice: Vitr. De arch 3.pr. Peccare: Cic. Tusc. Disp. 3.2; peccatorum vitiorum, 5.2; Sen. Ep. 97.10 non pronum est tantum ad vitia sed preceps, et, quod plerosque inemendabiles facit, omium aliarum artium peccata artificibus pudori sunt offenduntque deerrantem, vitae peccata delectant; 108.23 vitio peccatur; Juv. 8.140-1. Gell. NA. 18.1.5 98 In the De Clementia 2.4.3 he calls misericordia (pity) a vitium animi. In the De Ira (On Anger), he describes the more minor faults of some gentler minds: misericordia, amor, and verecundia, (pity, love, and shame). De Ira 2.15.3, see also De Ira. 2.2.2 “Ira praeceptis fugatur; est enim voluntarium animi vitium, non ex his, quae condicione quadam humanae sortis eveniunt ideoque etiam sapientissimis accidunt, inter quae et primus ille ictus animi ponendus est, qui nos post opinionem iniuriae movet," “But anger may be routed at our behest; for it is a weakness of mind that is subject to the will, not one of those things that result from some condition of the general lot of man and therefore befall even the wisest, among which must be placed foremost that mental shock which affects us after we have formed the impression of a wrong committed.” 99 D. 21.1.4.2 Ulpian, Curule Aediles’ Edict, book 1 citing Pomponius. 100 D. 21.1.1.9 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian. In Ep. 123.16, Seneca refers to the superstition (superstitio) as an error insanus. 101 D. 21.1.1.11 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian; D. 21.1.1.10 Ulpian, Curule Aediles’ Edict, book 1 citing Vivian. 65 The use of the medical language of disease and defect permeates thoroughly into philosophical texts. 102 The double use of vitium as vice and defect helps establish the medical in philosophical questions. Catherine Edwards notes that Seneca uses descriptions of physical disease and defect as an allegory for problems of the mind. 103 We have seen that the jurists are similarly using the language of disease and defect to discuss the character flaws of slaves. The jurists are using this medical language, both participating in a larger conversation in Roman society on mental defect and adapting that conversation for the slave market. Vitia animi: madness The jurists discuss different forms of madness, including a slave who is φρενητικός, 104 a servus melancholicus, 105 a servus lunaticus, 106 and two servi furiosi. 107 The servus φρενητικός, or a deranged slave, became so due to a fever he suffered. If the deranged slave did not recover his previous mental state after the fever and the slave-dealer did not reveal the mental defect even though he knew about it, the new master could bring an actio empti (action on the purchase), but not a redhibitory action. The servus melancholicus is 102 In the De Ira (1.16.4), Seneca describes seeing so many different kinds of mental defects and cures (varia in tot animis vitia video et civitati curandae adhibitus sum). Seneca invokes the practice of medicine, of curing the vitium even though the vitia he is concerned with are not physical, but character based. In the De Vita Beata (26.5), Seneca again invokes the idea of the remedy for the mental defects (haec dicet ille, cui sapientia contigit, quem animus vitiorum immunis increpare alios, non quia odit, sed in remedium iubet). 103 See, for example, Tranqu. 2.11-12, Ep. 8.2, 53.5-9, 68.8-9, 75.7 Edwards 2002: 257 comments on the long tradition in the ancient world of the link between the philosophical and medical, and emphasizes that this is found most in Stoic texts. See also Nussbaum 1994: 316. 104 D. 21.1.1.9 Ulpian, Curule Aediles’ Edict, book 1. 105 D. 21.1.2, Paul, Curule Aediles' Edict, book 1. On the meaning of the servus melancholicus see Parlamento 2001. 106 D. 21.1.43.6 Paul, Curule Aediles’ Edict, book 1. 107 D. 21.1.23.2, Ulpian, Curule Aediles’ Edict, book 1 citing Vivian, and D. 21.1.43.6 Paul, Curule Aediles’ Edict, book 1. 66 considered to have a mental defect, but not one so severe that the slave can be returned (the compilers of the Digest place Paul’s mention of the servus melancholicus in the midst of other jurists discussing non-restitutable vitia animi). Discussing the actio quanti minoris aestimatoria, or the action on the diminution of price, the Severan jurist Paul mentions the lunaticus, lunatic, slave alongside the furiosus, frenzied, slave. He says that if the slave is so worthless (adeo nullius sit pretii) that a master has no want for him, the judge can actually allow a redhibitory action. 108 The legal outcomes, then, for a servus furiosus and a servus melancholicus are different. The servus melancholicus is discussed in terms of potential problems that may occur with a slave, but the jurists hold the servus furiosus as far more problematic than the melancholicus. According to Paul, there is a division between these forms of madness, the melacholicus slave can still serve his purpose (usus), while a lunaticus or furiosus slave might not be able. Cicero recalls that the Twelve Tables did not allow someone (a free person) deemed furiosus to have control of his property (eum dominum esse rerum suarum vetant duodecim tabulae). 109 The furiosus is often equated with an impubes, a child, therefore without legal rights and responsibilities. The slave deemed furiosus (also compared to an impubes) is not able to commit a capital crime. 110 Ulpian prefaces the fact that a furiosus or impubes cannot 108 D. 21.1.43.6 Paul, Curule Aediles’ Edict, book 1, “Aliquando etiam redhiberi mancipium debebit, licet aestimatoria, id est quanto minoris, agamus: nam si adeo nullius sit pretii, ut ne expediat quidem tale mancipium domini habeere, veluti si furiosum aut lunaticum sit, licet aestimatoria actum fueirt, officio tamen iudicis continebitur, ut reddito mancipio pretium recipiatur,” “Sometimes it may happen that a slave is to be returned, even though we proceed by the action for assessment, that is, for a diminution; for if the slave should be so worthless that it is not in the purchaser’s interests to keep him, for instance, he is mad or has periods of unreason, then, although the action for diminution for the price be brought, it is in the power of the judge to direct return of the slave and recovery of the price.” On the servus furiosus see Ortu 2008: 238-255. 109 Cic. Tusc. 3.5.11. 110 D. 21.1.23.2 Ulpian, Curule Aediles' Edict, book 1: "Unde Pomponius ait neque impuberem neque furiosum capitalem fraudem videri admisisse." "Pomponius, accordingly, says that neither an impubes nor a frenzied (furiosus) can be thought capable of a capital offense." 67 commit a capital crime by calling for an examination of intention and motive, “Veteres enim fraudem pro poena ponere solebant. Capitalem fraudem admisisse accipiemus dolo malo et per nequitiam,” “The earlier jurists visited what was a wrong, in fact, with penalty. We now require deliberate malice and wickedness for a capital offense.” 111 The jurists recognize that a person rendered furiosus is incapable of having the intention (the dolus malus and nequitia) to commit the crime. 112 In their commentaries on the Edict of the Aediles, the jurists do not give explicit distinctions on the differences between these different types of madness. Given that these different forms of madness had different legal ramifications for master and slave we must understand that this silence is not an oversight on the part of the jurists, but rather that these distinctions were known in a broader cultural context. Vitia animi: madness in the Roman philosophy We see that Romans looking to buy slaves were interested in a medical approach not solely from the juristic engagement of medical language to describe the potential Discussing property, D. 6.1.60 Pomponius, Sabinus, book 29 "Quod infans vel furiosus possessor perdidit vel corrupit, impunitum est,” "When the possessor is a child or frenzied and he destroys or damages something, the act is not penalized." G. 3.109, "Infans et quit infanti priminus est non multum a furioso difert, quia huius aetatis pupilli nullum intellectum habent." Discussing the lack of liability for the frenzied or the impubes, D.47.10.3.1 Ulpian, Edict, book 56: “Sane sunt quidam, qui facere non possunt, ut puta furiosus et impubes, qui doli capax non est: namque hi pati iniuriam solent, non facere,” "Of course, there are some who cannot be guilty, such as the frenzied and the impubes not capable of wrongful intent." Discussing the lex Cornelia on murder and poisoners, D. 48.8.12, Modestinus, Rules, book 8, “Infans vel furiosus si hominem occiderint, lege Cornelia non tenentur, cum alterum innocentia consilii tuetur, alterum fati infelicitas excusat,” "An infant or a frenzied man who kills a man is not liable under the lex Cornelia, the one being protected by the innocence of his intent, the other excused by the misfortune of his condition." 111 D. 21.1.23 Ulpian, Curule Aediles' Edict, book 1. 112 A furiosus' inability to have intention is stated more plainly elsewhere: D. 50.17.40 Pomponius, Sabinus, book 34 (discussed below). 68 maladies of slaves, 113 but also by the lost treatise of the physician Rufus of Ephesus, On Buying Slaves. Simon Swain conjectures that the work was about physiognomical indicators. 114 It seems then that it is incorrect to suggest, as scholars have done, that the discussion of madness in the Digest is in a vacuum, in particular because buyers of slaves could potentially have access to the ongoing discussion of madness. However, there has been a resistance among scholars to view the jurists as participants in the larger cultural understanding of madness. 115 Jackie Pigeaud engages with the question of the role of medicine in law and shows that of the three great traditions of madness (tragic, medical, and philosophical) the vocabulary of the law is set from the philosophical tradition. He 113 See, for example, D. 21.1.5 Paul, Sabinus, book 11, "Et quantum interest inter haec vitia quae Graeci κακοήθειαν dicunt, interque πάθος aut νόσον aut ἀρρωτίαν, tantum inter talia vitia et uem morbum, ex quo quis minus aptus usui sit, differ," "And just as there is a distinction between those defects which the Greeks describe as a malignant form of disease and those which they categorize as ills, disease, or sickness, so there is a distinction between these faults and a disease whereby the usability of a slave is reduced." See also D. 21.1.10.4 Ulpian, Curule Aediles' Edict, book 1 quoted above. 114 Swain 2008 121: "For physiognomy is regarded an important tool in the extensive Muslim medical and ethical literature on this subject which owes much to Rufus’ treatise." Buyers of slaves could potentially have access to the ongoing discussion of madness: Nutton 2008: 154-155, “The boundary was very fluid between the average healer and laymen such as Celsus, Seneca the Younger or even Plutarch, who arguably had a superior knowledge of medicine, simply because they were able to read and acquire learned volumes. Aulus Gellius, reporting dinner-table conversations at Athens in the 160s AD, thought it a social as well as an intellectual faux pas for a gentleman to confuse veins and arteries, and medical topics figure prominently in the literary banquets of Plutarch and Athenaeus. Galen, to judge from On Examining the Doctor, though that patients, as well as doctors, should have a knowledge of the major tenets of the great physicians, ad be able to judge the quality of the doctor's response to the patient's medical questions." 115 I emphasize this idea of the medical and philosophical in the juristic work on madness because for the most part there has been resistance to viewing legal texts as a part of this tradition. See for example in contrast Toohey 2013 and Trenchard-Smith 2010. Trenchard-Smith 2010: 513, “With so much at stake, it would be reasonable to expect a legal definition of furor, rather than mere description, and also a method by which the mental competence of persons might be ascertained. These do not exist. Nor does it appear that medical opinions were sought in determining madness. The separate development of Greek medicine and Roman law impeded their explicit mutual influence…The jurisprudence of civil law in the classical period on mental difference appears to have been little influenced by philosophy or medicine, at least not in an overt sense, but operated by its own logic.” Other scholarship on madness and the law: Audibert 1892, Nardi 1983, Diliberto 1984. On madness and rhetoric: Solazzi 1924 and 1952, Lanfranchi 1938, Paschall 1939, Achard 1981. 69 argues that the 3rd book of the Tusculan Disputations gave birth to the philosophical- juridical tradition of the study of madness. 116 The category of madness most distinct and most discussed by the jurists is the furiosus. Paul views the servus furiosus as restitutable because his condition is so severe. According to Pomponius, the furiosus, or someone not in charge of their property, has no will (voluntas). 117 In the Tusculan Disputations, Cicero distinguishes between frenzy (furor) and other types of madness (insania) as well. 118 Cicero is drawing from two older sources in his discussion of furor. The primary one is the Greek tradition. According to Cicero, the Greek equivalent for furor is μελαγχολία, but he seems unsatisfied with the term because he does not think that someone becomes furiosus solely from black bile (μέλαινα χολή, atra bilis). He thinks that often for the mind (mens) to be become frenzied deep wrath, fear, or pain were at play (vel iracundia graviore vel timore vel dolore). 119 116 Pigeaud 1989: 250. 117 D. 50.17.40 Pomponius, Sabinus, book 34, “Furiosi vel eius, cui bonis interdictum sit, nulla voluntas est,” “There is no will for the frenzied or he who does not have control of his property.” 118 Insania seems to function as a larger category of madness. See Tusc. 3.5.8-10 and the Celsus passage discussed below. 119 Cic. Tusc. 3.5.11, "Graeci autem μανίαν unde appellant non facile dixerim: eam tamen ipsam distinguimus nos melius quam illi; hanc enim insaniam, quae iuncta stultitiae patet latius, a furore disiungiumus. Graeci volunt illi quidem, sed parum valent verbo: quem nos furorem, μελαγχολίαν illi vocant, quasi vero atra bili solum mens ac non saepe vel iracundia graviore vel timore vel dolore moveatur." "Now I cannot readily give the origin of the Greek term μανία: the meaning it actually implies is marked with better discrimination by us than by the Greeks, for we make a distinction between 'unsoundness' of mind (insania), which from its association with folly (stultitia) has a wider connotation, and 'frenzy' (furor). The Greeks wish to make the distinction but fall short of success in the term they employ: what we call frenzy they call μελαγχολία, just as if the truth were that the mind is influenced by black bile only and not in many instances by the stronger power of wrath or fear or pain." Loeb translation. On Cicero's equating furor with melancholia in the Tusculan Disputations, Parlamento 2001: 11 notes that they are not the same in the jurists mind, or at least, the outcomes for a slave that is furiosus is different than a melancholicus slave. See Parlamento 2001: 10 on the difficulty, in particular, between μελαγχολία and madness and its relationship to redhibitory action, “Si tratta quindi di stabilire in maniera più esatta che cosa si intendesse nell'antichità per μελαγχολία e quale fosse il suo rapporto con la 'follia' in senso propio, dal momento che solo così si può essere in grado non soltanto di coglierne la rilevanza o meno ai fini redibitori, ma anche di fare luce su un campo tanto incerto come quello del rapporto tra vitia animi e azione redibitoria.” 70 The second place Cicero turns to for the distinction between insania and furor is the Twelve Tables. As noted above, the Twelve Tables prohibited a furiosus to be in charge of his property, and Cicero notes the distinction, “itaque non est scriptum, si insanus, sed si furiosus escit,” “and consequently we find the text runs, not ‘if of unsound mind,’ but ‘if he be frenzied.” Cicero draws a definition of sorts from this distinction in the Twelve Tables, “furorem autem esse rati sunt mentis ad omnia caecitatem,” “frenzy, however they regarded as an entire blindness of the mind.” 120 People with other sorts of insania could still function and perform their day-to-day tasks (mediocritas officiorum). Cicero’s description of furor as blindness of the mind suggests that the state is all encompassing and not recoverable. Graver suggests that mens here is the hegemonikon or the “directive faculty.” 121 A furiosus then cannot function according to reason or with intention, as Pomponius and Ulpian suggest. 122 The Twelve Tables, Cicero, and Pomponius all highlight the fact that a free furiosus will lose his property; he will not be able to be dominus, or he will be under the potestas of his family. The slave, in turn, never was dominus or had potestas. The slave who becomes furiosus then does not lose his power over others or material goods; he is 120 Cic. Tusc. 3.5.11, “Qui ita sit adfectus, eum dominum esse rerum suarum vetant duodecim tabulae: itaque non est scriptum, si insanus, sed si furiosus escit. Stultiam enim censuerunt constantia, id est, sanitate, vacantem posse tamen tueri mediocritatem officiorum et vitae communem cultum atque usitatum; furorem autem esse rati sunt mentis ad omnia caecitatem,” “Whosoever is so afflicted is not allowed by the Twelve Tables to remain in control of his property; and consequently we find the text runs, not ‘if of unsound mind,’ but ‘if he be frenzied.’ For they thought that folly, though without steadiness, that is to say, soundness of mind, was nevertheless capable of charging itself with the performance of ordinary duties and the regular routine of the conduct of life: frenzy, however, they regarded as a blindness of the mind in all relations.” The Twelve Tables continue following “si furiosus escit,” “adgnatum gentiliumque in eo pecuniaque eius potestas esto,” “then let his family members and relatives have power over him and his property.” Warmington 3.450-52. On this passage Graver 2002: 80-81. Cicero gives examples of frenzy: Athamas, Alcmaeon, Ajax, and Orestes. Sen. Ira. 2.4-5. 121 Graver 2002: 82. Pigeaud 1989: 258-9 argues that Cicero and Ulpian have the same “nosographic” table two centuries apart and that Ulpian’s discussion of furor is a return to Cicero. 122 In the Rhetorica ad Herennium (2.16) written in the 90s BCE, the author tells us it is mental defect (vitium animi) that takes away reason, “Nam qui se propter vinum aut amorem aut iracundiam fugisse rationem dicet, is animi vitio videbitur nescisse, non inprudentia, “For he who says his reason fled because of wine or love or anger will appear to have lacked comprehension through defect of mind rather than ignorance.” Loeb translation. 71 restituted solely for an internal problem; he has lost his voluntas or mens. The free furiosus has lost control over his worldy possessions and himself; in the case of the servus furiosus the master has lost control of his slave. The servus furiosus then is restituable while the melancholicus is not for two possible reasons. A slave without intention is not a functional slave; he is not able to carry out even the most basic tasks. Secondly, it was more likely that the melancholicus, like the φρενητικός and the quasi demens slave participating in Bacchic rites could be cured or stopped. 123 Phrenisis, which is discussed as delirium with a fever, was less of a concern for Ulpian because it was not chronic; generally people recovered when the fever passed or died. 124 The quasi demens slave is only discussed in such a manner when he participates in the rites, when he stops shouting he ceases to be considered demens in anyway. 125 Melancholia was certainly considered curable as Celsus gives us some remedies. The melancholicus has a long history in the ancient world, the term being derived from the Hippocratic idea of the humors, which held that black bile was the cause of the condition. 126 Celsus refers to a type of madness (genus insaniae) that is a depression caused by black bile (consistit in tristitia, quam videtur bilis atra contrahere). 127 He suggests that a patient suffering from melancholia should engage in light-hearted entertainment which healthy (sanus) people would not normally be interested in, namely story-telling and games (quaerenda delectatio ex fabulis ludisque, maxime quibus capi sanus adsuerat). 128 The games are notable because this was considered a defect of slaves as well. A buyer could not bring a 123 On the quasi demens slave, as discussed above, D.21.1.1.10-11 Ulpian, Curule Aediles’ Edict, book 1. 124 Pigeaud 1989: 257-8. 125 See Graver 2002: 6 on demens as “being out of one’s mind” (in contrast to amens “losing one’s mind”) in Tusc. 3.5.10. 126 For a detailed discussion of melancholia see Pigeaud 1989: 122-138. 127 Celsus, De Medicina 3.18.17. 128 Celsus De Medicina 3.18.18 72 case if he discovered his slave spent too much time at games, but the jurists consider that slave mentally defective. 129 The jurists’ attention of the different types of madness highlights the level of interest that goes into understanding the mentalities of slaves. The mention of four different kinds of madness (φρενητικός, melancholicus, lunaticus, furiosus) suggests that the jurists were not only aware of the ongoing conversation about madness that was occurring in philosophical texts (as they are not simply using a generic term like insania), but were invested in the differences between them. 130 There are discrepancies between how Cicero and the jurists conceive of the vitia animi, yet when they speak of the kinds of vitia animi that affect slaves and freemen, Cicero and the jurists’ discussion converge; they share a philosophical approach. The same morality that exists in Cicero’s discussion of the defective mind of a freeman exists in the mind of the slave. The vitium animi of the slave, like the freeman’s, can be seen to be a problem of character or mentality. The jurists’ discussion of the defects of the slave brings the on-going discussion of the maladies of the mind into the medical understandings of the sale of slaves. Peter King, in his dissertation “The cognitio into Insanity,” considers the idea that there was not a legal definition for “insanity” and discusses the investigations, cognitiones, that went on to determine if someone was to be rendered legally insane. 131 King 129 D. 21.1.65 Venuleius, Actions, book 5, "Animi potius quam corporis vitium est, veluti si ludos adsidue velit spectare aut tabulas pictas studiose intueatur." "There are defects which are mental rather than physical, as when the slave is addicted to watching the games or studying works of art." 130 This is contrary to what Solazzi 1924 and 1952 asserts: that the law was interested in a singular version of insanity. 131 King 2000. See for example, Gunderson 2003: 116, "The Roman discussion of insanity proper turns around those instances where someone has lost his comprehension of the world around him: there is a problem with a person's intellectus, and in the context of discussions of madess, non intellegere or 'he doesn't understand' also means, 'he's lost his understanding of what things mean' or simply, 'he's mad.'" See also Bonner 1949: 93-94. 73 highlights several physical characteristics that indicate madness, including blanching and stillness, blazing, twisted eyes, and fierceness. 132 King, and before him, Rosen, show that flight is an indicator of madness in Roman literature. 133 Flight, or wandering, as an indicator of madness is particularly noteworthy because the jurists classify flight and wandering as a mental defect (vitium animi). The methods of determining madness, pulled together from different branches of literature and cultural knowledge becomes the manner in which the Romans understand wayward slaves. The inability of the master to predict that the slave he is purchasing will run away or become belligerent comes to be explained by the fact that he has a vitium animi. 4. The question of the fugitive slave The Aedilician Edict additionally mandates that slave vendors declare which slaves are runaways, wanderers, or are still under noxal liability, and later, the additional provisions: a slave vendor must declare any capital offenses, if the slave was condemned to the arena, and if the slave had attempted to take his own life. 134 The question of what makes a slave a runaway is answered with opinions and cases offered by different jurists; what becomes clear is that the guiding marker in their opinions is what the intention behind the flight was. Similarly to the servus furiosus, who cannot be held accountable for 132 King 2000: 20-23. 133 Rosen, 1968: 98. King 2000: 18. See, for example Cicero in the Verrines, 2.5.121 "praeceps amentia ferebare, qui te existimares avaritiae vulnera crudelitatis remediis posse sanare." Or Sen Rhet. Cont. 2.4.1 “Non expectavi dum iste permitteret: amens cucurri,” “I didn't wait till he should give his permission: I ran all the way, out of my mind.” 134 D. 21.1.1.1 Ulpian, Curule Aediles’ Edict, book 1: “Aiunt aediles: ‘Qui mancipia vendunt certiores faciant emptores, quid morbi vitiive cuique sit, quis fugitivus errove sit noxave solutus non sit… item si quod mancipium capitalem fraudem admiserit, mortis consciscendae sibi causa quid fecerit, inve harenam depugnandi causa ad bestias intromissus fuerit.” “The aediles say: ‘Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a runaway, a loiterer on errands, or still subject to noxal liability… Again, vendors must declare at the time of sale all that follows: any capital offense committed by the slave; any attempt which he has made upon his own life; and whether he has been sent into the arena to fight wild animals.” 74 his actions by his master because he lacks voluntas, here the determination of whether a slave was a fugitive is connected directly to intention of the slave. The main legal source of the fugitivus is D. 21.1.17 by Ulpian, where he cites many other jurists. The language of intentionality and thought plays a central role in the jurists' discussion of the runaway slave. This includes a group of words that have different meanings but revolve around the question of will such as causa, mens, consilium, propositum, animus, voluntas, and invitus. For the consideration of this question, the opinions of jurists are compiled into a number of different scenarios: (4a) the slave both in and out of the home, (4b) the wandering slave (erro), (4c) the suicidal slave, (4d) the self-preserving slave, and (4e) the unwilling or ignorant slave. The focus of the juristic interpretation of the fugitive slave passage is whether the slave had a good or bad reason (bona or mala causa—from the master’s perspective) to run away or, put another way, whether the act was dolus, which, to be ascertained, required the intention of the slave to be known. The question of if the slave’s action was dolus (deceitful) is determined by examining the intention behind the flight of the slave. 135 The following passage (in Digest 21.1.17) considers the specific causa of slaves. This is the beginning of a series of situational scenarios, which show the motivations for the slave and the resulting opinion of the jurist deeming whether he is a fugitive or not. The question is not whether the slave has a will, but whether it is a good one or a bad one. Good 135 D. 50.16.225 Tryphoninus, Disputations, book 1, “‘Fugitivus’ est non is, qui solum consilium fugiendi a domino suscepit, licet id se facturum iactaverit, sed qui ipso facto fugae initium mente deduxerit…tamen oportere eadem haec crimina adsumpto actu intellegi. Et ideo fugitivum quoque et erronem non secundum propositionem solam, sed cum aliquo actu intellegi constat,” “Someone is not described as a ‘fugitive slave’ if he only planned to escape from his master, even if he boasted that he would do it, but only someone who carried the beginning beyond planning by the actual fact of flight…one must realize that these offenses only occur when these acts have been perpetrated. And so it is agreed that someone is only called a fugitive slave or vagrant if he has done something and not if he merely has the intention.” See Martini 1966: 263 follows Mommsen thinking that “initium mente” should be “vitium mentis.” 75 intention must be in accordance with his status as a slave and the preservation of that status. Bad intention is indicated by his escape from his status as a slave. The action of leaving a master’s property of one’s own volition is not an offense in and of itself. The state of the fugitive exists from a development in the mind; slaves in Rome had a certain amount of freedom of movement. However, the vast majority of slaves found off their master’s property of their own volition were most likely attempting to flee and not escaping a burning building, taking refuge at the statue of the emperor, or running to their mother for help, or away from an abusive trainer. 136 Why did the jurists take the time to understand and explore the intellect and intention of potential fugitive slaves? The clearest answer is that vendors and buyers needed access to a formal understanding of what made someone a fugitivus. 137 Vendors were legally compelled to state physical defects and diseases that were not readily apparent and the most common form of slave tattoo found was the tattoo marking a slave as a habitual runaway. 138 We see the same preoccupation with why slaves ran away in literary sources. 139 136 D. 21.1.17.3 Ulpian, Curule Aediles’ Edict, book 1 quoting Vivian, “Nam eum, qui hostem aut latronem, incendium ruinamve fugeret, quamvis fugisse verum est, non tamen fugitivum esse. item ne eum quidem, qui a praeceptore cui in disciplinam traditus erat aufugit, esse fugitivum, si forte ideo fugit, quia immoderate eo utebatur,” “For a slave who flees from an enemy or brigand, a fire, or the collapse of a building, certainly runs away, but he is not a fugitive. In the same way, a slave who runs away from the instructor to whom he was entrusted for training is not a fugitive, if the reason for his running awy be the intolerable treatment which he receives." D. 21.1.17.5 Ulpian, Curule Aediles’ Edict, book 1 quoting Vivian, “Sin vero ut per matrem faciliorem deprecationem haberet delicti alicuius, non esse fugitivum,” “He is no fugitive if he seeks that some wrongdoing of his may be better extenuated by his mother’s entreaties." D. 21.1.17.12 Ulpian, Curule Aediles’ Edict, book 1, “Ne eum quidem Caesaris confugit, fugitivum arbitror,” “No more do I regard as a fugitive a slave who flees to the emperor’s statue." In a similar situation, Pliny counsels his friend to forgive an erring freedman who seeks out Pliny’s help in getting a pardon from his patron, Ep. 9.21, 24. 137 Marcus Aurelius gives us an answer of sorts, 4.29 “Εἰ ξένος κόσμου ὁ μὴ γνωρίζων τὰ ἐν αὐτῷ ὄντα, οὐχ ἧττον ξένος καὶ ὁ μὴ γνωρίζων τὰ γινόμενα. φυγὰς ὁ φεύγων τὸν πολιτικὸν λόγον,” “Alien: one who doesn't know what the world contains. Or how it operates. Fugitive: one who evades his obligations to others.” 138 See Rivière 2002: 115-196; Thurmond 1994 on slave collars. 139 In his 10 th Discourse, Dio Chrysostom has the Cynic philosopher Diogenes interrogate a man who is looking for his runaway slave. Dio Chrys. Or. 10.6-7 ἐκεῖνος γὰρ οὐδὲν ὑπ᾽ ἐμοῦ παθών, ὡς ὁρᾷς, ἐτόλμησεν ἀπολιπεῖν με: ὃς ἔργον μὲν παρ᾽ ἐμοὶ οὐδὲν ἔπραττεν ὅσα δοῦλοι ἐργάζονται, ἀργὸς δὲ ὢν ἔνδον 76 The aediles do not place the fugitivus under the category of disease or defect, but set the runaway alongside the other redhibitory categories. The jurist Pomponius, cited by Ulpian, explicitly marks the runaway as having a mental defect (vitium animi). Explaining that the vendors were generally only liable for physical defects and diseases, Pomponius notes that the aediles specifically refer to the fugitivus and the erro because they are mental defects, but still grounds for restitution. 140 In an exploration of different scenarios, the jurists examine the physical manifestations of the slave outside of his master’s house for signs of these vitii animi. 4a. The slave in and out of the home Ulpian begins his long discussion of the fugitivus with a citation from Ofilius, a jurist from the 1 st c. BCE. Ofilius’ definition of a fugitive is based on the causa of the slave’s actions. Ulpian quotes Ofilius, "fugitivus est, qui extra domini domum fugae causa, quo se a domino celaret, mansit," "a fugitive is someone who stays away from his master’s house for ἐτρέφετο, οὐδὲν ποιῶν ἢ ἐμοὶ ἀκολουθῶν. ἔπειτα, ἔφη, οὐδὲν ἠδίκεις αὐτὸν ἀργὸν ὄντα καὶ ἀμαθῆ τρέφων καὶ ποιῶν ὅτι κάκιστον; ἡ γὰρ ἀργία καὶ τὸ σχολὴν ἄγειν ἀπόλλυσι πάντων μάλιστα τοὺς ἀνοήτους ἀνθρώπους. οὐκοῦν ὀρθῶς συνῆκεν ὑπὸ σοῦ διαφθειρόμενος, καὶ ἀπέδρα δικαίως, ἵν᾽ ἐργάζηται δῆλον ὅτι καὶ μὴ σχολάζων τε καὶ καθεύδων καὶ ἐσθίων χείρων ἀεὶ γίγνηται. σὺ δὲ ἴσως οἴει μικρὸν ἀδίκημα εἶναι, ὃς ἄνθρωπον ποιεῖ πονηρότερον, ἀλλ᾽ οὐχὶ τοῦτον δεῖν πάντων μάλιστα φεύγειν ὡς ἔχθιστον καὶ ἐπιβουλότατον; καὶ ὅς, τί οὖν, ἔφη, ποιήσω; οὐ γὰρ ἔστι μοι ἄλλος οἰκέτης, "The man replied, 'What you say is right enough, Diogenes, but it is hard for a man who has been wronged not to seek redress. That renegade suffered no wrong at my hands, as you see, and yet he dared to desert me. At my house he did none of the work that slaves perform, but was kept inside in idleness with nothing else to do but to accompany me.' 'Then were you doing him no wrong,' Diogenes answered, 'by keeping him in idleness and ignorance and making him as bad as could be? For idleness and lack of occupation are the best things in the world to ruin the foolish. Therefore he was right in deciding that you were his undoing, and he was justified in running off, evidently so as to get work and not become worse and worse all the time by loafing, sleeping, and eating. But you, perhaps, think that it is a trifling wrong when anyone makes another man worse. And yet is it not right to keep away from such a man above all as the deadliest and most treacherous of enemies?'" Loeb translation. On runaway slaves in Roman literature, see for example, Plaut. Men. 79; Dio Chrys. Or. 31.42, 66.3; Sen. Controv. 7.6.22-24. 140 D.21.1.4.3 Curule Aediles’ Edict, book 1, citing Pomponius, "Et ideo nominatim de errone et fugitivo excipitur: hoc enim animi vitium est, non corporis," "Hence, the express reservation of the wandering or runaway slave; for their defects are of the mind, not physical." 77 the purpose of flight, whereby he should be hidden from his master." 141 The fugitivus is determined not by the slave remaining out of his master’s house, but if he did so for the purpose of flight, causa fugae. Ofilius describes his reasoning with the word causa, a word that can have many meanings, but which can be analogous to the purpose or intention of the action. 142 Other jurists provide more detailed scenarios to define the fugitivus. In the subsequent case, Caelius expands the definition that a fugitive is a slave who runs away for the purpose of flight (causa fugae) to contain a certain finality. Once the decision to run away is made, while a slave's actions may be reversible, his status as a fugitive is not erased or redeemable. Ulpian quotes Caelius, "qui ea mente discedat, ne ad dominum redeat, tametsi mutato consilio ad eum reuertatur: nemo enim tali peccato, inquit, paenitentia sua nocens esse desinet," "he, too, is a fugitive who leaves with a mind not to return to his master, but, with a changed conscience, returns; [Caelius] says no one purges his offense by remorse." 143 Caelius’ complication of the idea of who is a fugitive is grounded upon the original motivation of the slave; regardless of what the slave decides and does later, he remains a fugitive. 144 For Caelius, once the fugitive is a known entity he is forever a fugitive. This is not a curable vitium animi. The final action of the slave—the slave thinking better of his flight and returning to his master of his own will—does not nullify the charge of fugitive as returns or 141 D.21.1.17 Ulpian, Curule Aediles’ Edict, book 1. 142 On the legal uses of causa see Hellegouarc'h 1963: 417. 143 D.21.1.17.1 Ulpian, Curule Aediles' Edict, book 1. Translation modified. 144 Caelius begins his discussion with the phrasing qui ea mente, but then changes to mutatum consilium. There are obvious differences between these two words, firstly, mens is used in juxtaposition with corpus (Sen. Ben. 3.20), while consilium, among other things, is more something that is created out of thought or the will of one or more people, e.g., a judgement, a deliberation, an opinion (cf. Ox. Lat. Dic. consilium, 1, 2, 4, 5, 6, 7). It does not hold the same relationship to the corpus. Consilium suggests a more drawn out thought process than mens does. 78 compensation payments did in Roman commercial law. Cassius’ definition of a fugitive is similar, he writes of a certum propositum of the slave. 145 Ulpian quotes, "fugitivum esse, qui certo proposito dominum relinquat," "a fugitive slave is one who with deliberate plan leaves his master." 146 Two factors become apparent in these instances. First, as noted, what is emphasized is the intention behind the action of the slave. 147 Second, the jurists focus on the original intent, rather than the reformed one. A slave that flees must be judged on that first intent or mindset to not return, regardless that in the end, repentant, he returns. Through a study of a slave’s actions we see the jurists are concerned with a precise understanding of the slave’s mind: what he thought first, and what followed. The relative location of the slave to his master has no bearing upon the question of the fugitive slave; it is always the intention of the slave that is being judged. Two cases of Caelius comprise the end of Ulpian’s discussion of who is a fugitive. The first is a slave who hid overnight outside a locked house (on his master’s property) with the intention to escape. Caelius deems him a fugitive, but his assessment would change if the house were one that was not locked up in that manner (a tacit grant that the slave was allowed to leave the house). 148 A slave that is not in a locked house has the opportunity to escape; yet 145 In these two instances, three words have appeared that reveal the intent of the slave: mens, consilium, and propositum. Propositum is more similar to consilium than mens specifically in terms of its lack of physicality; this is the only use of propositum in this section (D. 21.1.17) of the Digest. 146 D.21.1.17.2 Ulpian, Curule Aediles' Edict, book 1. Translation slightly modified. 147 On understanding intention through action see Moatti 2013: 7, 19. 148 D.21.1.17.15 Ulpian, Curule Aediles’ Edict, book 1, “liberti apud patronum habitantis sic, ut sub una claue tota eius habitatio esset, seruus ea mente, ne rediret ad eum, extra habitationem liberti fuit, sed intra aedes patroni, et tota nocte oblituit: uideri esse fugituum Caelius ait. Plane si talem custodiam ea habitatio non habuit et in ea cella libertus habitauit, cui commune et promiscuum plurium cellarum iter est, contra placere debere Caelius ait et Labeo probat, "A freedman was living with his patron in such circumstances that the whole premises were locked with one key; a slave of the freedman was beyond the latter's quarters but still within the patron's establishment with a mind of not returning to him and concealed himself for the whole night; Caelius says that he should be deemed a fugitive. Of course, says Caelius, if the establishment was not of the type above indicated and the freedman dwelt in a room to which there was common and general access to and from several rooms, the answer would be different; Labeo takes the same view." 79 he does not, his inaction reveals his intention. The slave still on his master’s property, but outside the locked house is a fugitive because he should be inside the house. Ulpian gives us a second case from Caelius about a slave getting caught before he leaves his master’s house, “si servus, cum in fundo esset, exisset de uilla ea mente ut profugeret et quis eum, priusquam ex fundo tuo exisset, comprehendisset, fugitiuum uideri: animum enim fugitiuum facere,” “If a slave on a country estate leaves the house with the mindset (mens) of running away but is caught by someone before he has left the confines of the estate, he is a fugitive; for his mind (animus) makes him so.” 149 Caelius continues noting that even a step or two in flight will mark the slave as a fugitive. The flight of the slave comes from a particular mindset (mens) or decision to flee. This mindset permeates his entire animus; it is the animus that makes his a fugitive and is rendered defective. Both mens and animus are at times contrasted with corpus (body) in the juristic discussion leading up to the runaway slave (D.21.1), though animus, not mens, is used exclusively to discuss mental defects (vitium animi). Mens, like consilium and propositum, is used here to highlight the active decision making process that is occurring when a slave decides to run away, while the animus is a larger construct of the mind. This difference between mens and animus in the jurists’ discussion holds traction with other accounts. Cicero describes the mens as the governor of the whole animus in his discussion of morbi animi in his 3 rd book of the Tusculan Disputations. 150 In this section on the fugitive slave we see the shift from a discussion about 149 D.21.1.17.8 Ulpian, Curule Aediles’ Edict, book 1.Translation slightly modified. As Caelius continues to explain, “nec eum, qui ad fugam gradum unum alterumue promouit uel etiam currere coepit, si dominum sequentem non potest euadere, non esse fugitiuum,” “A slave who takes a step or two in flight or, indeed, begins to run but cannot escape his master who is in pursuit is a fugitive.” 150 Cic. Tusc. 3.5.11, “Qui igitur exisse ex potestate dicuntur, idcirco dicuntur, quia non sunt in potestate mentis, cui regnum totius animi a natura tributum est,” "Those then who are descrived as besides themselves are so described because they are not under the control of mind to which the empire of the whole soul has been assigned by nature." Loeb translation. 80 the vitia animi as particular conditions or faults to a discussion about actions that show a mental process—the decision to escape or return, or, as we will see, to wander off. 4b. The wanderer The jurists discuss types of slaves that remove themselves from their master: the wanderer (erro), the runaway (fugitivus), the suicidal slave, the slave who fears his master, and he who fears for his own health. The wanderer is dealt with only briefly, but in some sense he is the least troubling—though he does abandon his post, he unfailingly returns to his servitude. The suicidal slave, in essence, takes himself away from his master—his purpose is not freedom but death. The wanderer and the suicidal slave did not dispute their statuses. The runaway, on the other hand, challenges his status as a slave. There is an inherent legal distinction between the wanderer, the suicidal slave, and the runaway slave and the core of this distinction lies in the mental realm of thinking and willing. Ulpian records Labeo discussing the wandering slave, “Erronem ita definit Labeo pusillum fugitiuum esse, et ex diverso fugituum magnum erronem esse. Sed proprie erronem sic definimus: qui non quidem fugit, sed frequenter sine causa uagatur et temporibus in res nugatorias consumptis serius domum redit,” “Labeo defines a wanderer as a petty fugitive and, conversely, a fugitive as a great wanderer. However, if we wish to be accurate, we define a wanderer as one who does not indeed run away but frequently indulges in aimless roaming and, after wasting Cicero makes a similar claim in the De Finibus 5.12.34, where he describes the animus as the seat of the mind, “animumque ita constitutum, ut et sensibus instructus sit et habeat praestantiam mentis, cui tota hominis natura pareat, in qua sit mirabilis quaedam vis rationis et cognitionis et scientiae virtutumque omnium,” "his mind is so constituted as not only to be equipped with senses but also to possess the dominant factor of intellect, which commands the obedience of the whole of man's nature, being endowed with the marvellous faculties of reason, of cognition, of knowledge and of all the virtues." Loeb translation. This distinction between the mens and animus is divergent from the Stoic mens-animus distinction as represented in the passage by Aulus Gellius NA 19.1.17-18 (from the 5 th Book of Epictetus’ Discourses.) 81 time on trivialities, returns home at a later hour.” 151 The erro is one who wanders, goes out sine causa, without reason or intent. The description of the wanderer as being without causa echoes back to one of the indicators of madness; flight, roving, or wandering are all seen as signs of madness, and here Labeo describes him as doing so without an express purpose. However, the wanderer always comes back; he temporarily lacks causa, but unlike the fugitive slave he does not reject his status (causa fugae) and the dominium of his master entirely. Discussing military affairs, the early 3 rd c. CE jurist Arrius Menander compares the wanderer (erro) and runaway (fugitivus) with their military counterparts, the absent soldier (emansor) and deserter (desertor). 152 The emansor is similar to the erro, as Catherine Woolf explains, the length of time a soldier was gone mattered, but also his intention to return. 153 The discussions in the Digest of the emansor do not directly speak to the difference in mentality between an emansor and a desertor. Modestinus provides us with the difference: an emansor returns (regreditur) to camp while a desertor is brought back (reducitur). 154 The difference between the erro and the fugitivus is similar in the sense that the erro does always intend to return, a fugitivus only returns if he is captured. The primary 151 D.21.1.17.14 Ulpian, Curule Aediles’ Edict, book 1. Translation slightly modified. 152 D. 49.16.4.14 Menander, Military Law, book 1 "Levius itaque delictum emansionis habetur, ut erronis in servis, desertionis gravius, ut in fugitivis,” “So the crime of absence without leave is treated more leniently, as is the truancy among slaves, and that of desertion more seriously, as in the case of runaway [slaves].” On the difference between the erro and the fugitivus see Donadio 2004b: 137-177, at 151 "Il semplice extra domini domum manere allo scopo di nascondersi al padrone, su cui fa leva la definitio ofiliana, è ben diversa circonstanza rispetto allo status di quasi libertas, che caratterizza la condizione del fugitivus nella definizione di un giurista successivo, Celio Sabino." 153 Woolf 2009: xv "Mais en même temps que le délai, et tout autant que lui, ce qui compte, c'est l'intention: l'emansor est certes celui qui n'est pas rentré, ou qui est rentré avec beaucoup de retard, mais qui a toujours eu l'intention de rentrer, alors que le desertor part en pricipe en espérant bien ne jamais revenir." 154 D. 49.16.3.2-3 Modestinus, Punishments, book 4, Emansor est, qui diu vagatus ad castra regreditur. Desertor est qui per prolixum tempus vagatus reducitur, "A soldier absent without leave is one who, after absence for rather a long time, makes his own way back to camp. A deserter is one who, after absence for a prolonged period, is brought back." See also: D. 48.19.16.5 Claudius Saturninus, Penalties of Civilians, sole book, Tempus discernit emansorem a fugitivo, "Time distinguishes someone who absents himself without leave from a deserter." 82 reason a soldier deserted is due to fear of death in battle, which is not generally applicable to slaves. Other reasons such as fear of harsh masters, living conditions, and punishments fit well with the fears of soldiers that may make them desert. 155 4c. The suicidal slave The discussion of the Edict of the Aediles contains the difference between the suicidal or the fugitive slave regardless that the results were not so different in the eyes of the master. If the slave is successful in ending his life or in escaping his master, the result is the same: the master loses his a slave. If a slave tried but failed to run away or commit suicide, a vendor had to disclose these indiscretions to a potential buyer. 156 Perhaps a buyer is more likely to buy a runaway slave than a suicidal slave because, in purely pragmatic terms, a habitual runaway is recoverable while a slave who wants to kill himself may eventually succeed. There is a high level of scrutiny in the legal texts as to whether a slave should be classed as a fugitive or a suicidal slave. Vivian, Caelius, and Proculus, all jurists of the 1 st c. CE, are quoted by Ulpian discussing the matter. The slave cannot run away first and then decide to kill himself; even the planning of suicide beforehand would 155 Woolf 2009: 67 discusses the fear of death in terms of a moral failure due to cowardice (la lâcheté); 69, the bad conduct of those in charge, she mentions a story from Livy (23.26.4-5) where Hasdrubal's ship commanders betray him after he had blamed them rather harshly; 70, the harsh conditions of military life and the poor material conditions led some to desert. She at 85 argues that fear is the main cause of desertion and the generals in charge tried to change their soldiers fear of death in battle to a fear of punishment for running away. See more generally her psychological reasons for desertion 264-287. 156 D. 21.1.1.1 Ulpian, Curule Aediles’ Edict, book 1, “qui mancipia vendunt certiores faciant emptores, quid morbi vitiive cuique sit, quis fugitvus errove sit noxave...item si quod mancipium capitalem fraudem admiserit, mortis consciscendae sibi causa quid fecerit, inve harenam depugnandi causa ad bestias intromissus fuerit,” “The aediles say: ‘Those who sell slaves are to apprise purchasers of any disease of defect in their wares and whether a given slave is a runaway, a loiterer on errands, or still subject to noxal liability… Again, vendors must declare at the time of sale all that follows: any capital offense committed by the slave; any attempt which he has made upon his own life; and whether he has been sent into the arena to fight wild animals.” Manna 1994: 40 suggests that the suicidal slave is a part of a newer edict, "In una ulteriore rubrica eddittale, scuramente di formazione più recente, viene poi indicato un altro vitium animi, il tentato suicido." 83 make him a fugitive. The jurists largely agree that the suicide must be spontaneous, if the slave should happen upon a cliff or a riverbank, for instance. Proculus shows the precise line between the fugitivus and the suicidal slave, “ne eum quidem fugitivum esse, qui in hoc progressus est, ut se praecipitaret [ceterum etiam eum quis fugitivum diceret, qui domi in altum locum ad praecipitandum se ascendisset], magisque hunc mortem sibi consciscere volvisse,” "It cannot even be said that a slave is a fugitive who has come to the stage that he hurls himself from a height (though one could declare a fugitive one who goes up to a high point of the house to cast himself down); rather does he desire to end his life." 157 Proculus uses the verb volo to show the desire or will of the slave to die. Even the planned decision to run up to the roof to kill oneself makes one a fugitive, whereas, when a slave is on a cliff or a precipice, if he is moved to jump, he is not a fugitive because it was the will to die, rather than to escape that is guiding him. The desire to die is not considered a part of flight because the slave is not seeking to escape his status as a slave. Caelius asserts that a slave who throws himself in the Tiber is not a fugitive. Ulpian records, “si servum emeris, qui se in Tiberim deiecit, si moriendi dumtaxat consilio suscepto a domino discessisset, non esse fugitivum, sed si fugae prius consilium habuit, deinde mutata voluntate in Tiberim se deiecit, manere fugitivum. Eadem probat et de eo, qui de ponte se praecipitavit,” “If you buy a slave who throws himself into the Tiber, he will not be a fugitive so long as his only motive (consilium) was the desire to end his life; but if he first planned (prius consilium) to run away and then, with a changed intent (voluntas mutata), flung himself into the Tiber, he would be a fugitive; he says the same of a slave who throws himself from a bridge.” 158 The will to die rather than to escape his slavehood must guide the slave. The nuance of the 157 D.21.1.17.4 Ulpian, Curule Aediles' Edict, book 1 citing Proculus. 158 D.21.1.17.6 Ulpian, Curule Aediles' Edict, book 1. Both Proculus and Caelius use forms of will to describe the desire to die, Proculus uses the verb uolo, Caelius the noun voluntas. 84 jurist shows the level of interest in the precise thought process of the slave; was this slave trying to flee his master, or did he have a death wish (moriendi consilium)? As we saw with the fugitive who had a change of heart and returned home, Caelius here gives primacy to the slave’s first decision (prius consilium). We might view this extreme example of judging the slave a fugitive from his first intention as a means to understand more fully when a slave is a fugitive. A reason for this legal hairsplitting may be found in the comments of Ulpian’s contemporary, the jurist Paul. He explains why a slave would commit suicide, “Mortis consciscendae causa sibi facit, qui propter nequitiam malosque mores flagitiumve aliquod admissum mortem sibi consciscere voluit, non si dolorem corporis non sustinendo id fecerit,” “A slave commits suicide when he seeks death out of wickedness or evil behavior or because of some shameful act committed, but not when he is able to bear his bodily pain no longer.” 159 A slave kills himself over the morality of particular actions, as morality is essential in the terms nequitia, malus mos, and flagitium. This can be added to in particular because of the second part of Paul’s reasoning, that a slave does not kill himself because of his inability to endure bodily pain. The decision to commit suicide is not a question of physicality, but mentality. The bodily pain may come from an abusive master, or from the duties of being a slave. Is it the slave’s own actions that drive him to death, and if so, were they voluntary, something the slave did on his own account, or were they ordered? Was the slave simply a party to the actions or aware of them, or were they actions of his master that he assisted with? Is it, then out of the slave’s own shame that he kills himself? A slave who kills himself because of shame over his actions robs his master of his property, and 159 D. 21.1.43.4 Ulpian, Curule Aediles' Edict, book 1, translation modified from Watson. Conscisco: to inflict on one's self. 85 would suggest that a slave who is trying to live a more virtuous life is not necessarily a benefit for a master. If we consider the popularity of suicide as a literary trope and tool for political action in the Empire, the tie between suicide and morality in Paul’s judgement is perhaps not as surprising as it would seem. 160 The jurists discuss the consequences of a suicide or a suicide attempt in terms of the motivation behind the suicide. 161 Two jurists (Arrius 160 See Vanderbossche 1953; Veyne 1981; Grisé 1982; Griffin 1986a 1986b; Van Hooff 1990; Plass 1995; Hill 2004 which outline and discuss the role of suicide in the Rome, with particular emphasis on the 1 st century CE. Miriam Griffin 1968a: 68 describes the Rome of Seneca as "the Roman cult of suicide." Sen. Ep. 26.10, 'Meditare mortem': qui hoc dicit meditari libertatem iubet. Qui mori didicit servire dedidicit; supra omnem potentiam est, certe extra omnem. Quid ad illum carcer et custodia et claustra? liberum ostium habet. Una est catena quae nos alligatos tenet, amor vitae, qui ut non est abiciendus, ita minuendus est, ut si quando res exiget, nihil nos detineat nec impediat quominus parati simus quod quandoque faciendum est statim facere.“‘Think on death.’ In saying this, he bids us think on freedom. he who has learned to die has unlearned slavery; he is above any external power, or, at any rate, he is beyond it. What terrors have prisons and bonds and bars for him? His way out is clear. There is only one chain which binds us to life, and that is the love of life. The chain may not be cast off, but it may be rubbed away, so that, when necessity shall demand, nothing may retard or hinder us from being ready to do at once that which at some time we are bound to do.” 161 D. 49.16.6.7 Arrius Menander, Military Law, book 3, “Qui se vulneravit vel alias mortem sibi conscivit, imperator Hadrianus rescripsit, ut modus eius rei statutus sit, ut, si impatientia doloris aut taedio vitae aut morbo aut furore aut pudore mori maluit, non animadvertatur in eum, sed ignominia mittatur, si nihil tale praetendat, capite puniatur. Per vinum aut lasciviam lapsis capitalis poena remittenda est et militiae mutatio irroganda,” “If a man has wounded himself or has attempted suicide in some other way, the Emperor Hadrian wrote in a rescript that the circumstances of the matter should be established, so that, if he had preferred to die out of inability to bear pain, or taedium vitae, or disease, or madness, or shame, the death penalty should not be inflicted on him, but he should receive a dishonorable discharge; but if he could put forward no such excuse he should suffer capital punishment. The capital penalty should be remitted to those whose misconduct was due to drink or jest, and change of service imposed.” D. 48.21.3.4 Marcian, Accusers, sole book, “Si quis autem taedio vitae vel impatientia doloris alicuius vel alio modo vitam finierit, successorem habere divus Antoninus rescripsit.Videri autem et patrem, qui sibi manus intulisset, quod diceretur filium suum occidisse, magis dolore filii amissi mortem sibi irrogasse et ideo bona eius non esse publicanda divus Hadrianus rescripsit. Sic autem hoc distinguitur, interesse qua ex causa quis sibi mortem conscivit: sicuti cum quaeritur, an is, qui sibi manus intulit et non perpetravit, debeat puniri, quasi de se sententiam tulit. Nam omnimodo puniendus est, nisi taedio vitae vel impatientia alicuius doloris coactus est hoc facere. Et merito, si sine causa sibi manus intulit, puniendus est: qui enim sibi non pepercit, multo minus alii parcet,” "However, the deified Antoninus wrote in a rescript that if someone puts an end to his life through taedium vitae or unendurable pain of some kind, or otherwise, he has a successor. The deified Hadrian wrote in a rescript that it appeared that a father, who had laid hands on himself because he was said to have killed his son, had primarily killed himself for grief at losing his son, and that, therefore, his property should not be confiscated. But this distinction is made, that a person's motive for committing suicide is relevant, as when the question is raised of whether a soldier who has attempted suicide but has not carried it through should be punished, as if he carried out sentence on himself. For he should by all means be punished unless he was compelled to do so by taedium vitae or unendurable pain of some kind. And it is right that he should be punished if he has laid hands on himself without good cause; for he who has not been merciful to himself will much less be merciful to another." D. 3.2.11.3 Ulpian, Edict, book 6, “Non solent autem lugeri, ut neratius ait, hostes vel perduellionis damnati nec suspendiosi nec qui manus sibi intulerunt non taedio vitae, sed mala conscientia: si quis ergo post huiusmodi exitum mariti 86 Menander and Marcian) discuss a rescript of the Emperor Hadrian where he allows a soldier who attempted to take his life to be dishonorably discharged rather than executed. Arrius Menander and Marcian both cite that this was allowed if he wanted to die because of extreme pain or weariness of life (taedium vitae). Arrius Menander also includes disease (morbus), frenzy (furor), or shame (pudor) in the rescript. Similarly, Ulpian quotes the jurist Neratius discussing when a woman may remarry following the death of her husband. Neratius says that if the husband killed himself not on account of a weariness of life (taedium vitae) but for a guilty conscience (mala conscientia), his wife will be dishonored (infamia). The rescript of Hadrian, as reported by Arrius Menander, says that capital punishment should be left to those who have misbehaved due to drink or frivolity (vinum aut lascivia). Marcian, discussing the rescript of Hadrian and another of Antoninus Pius, notes that “a person’s motive for committing suicide is relevant,” “interesse qua ex causa quis sibi mortem conscivit.” We see that the motivation for the suicide of free people was important; the jurists were sympathetic to motives that were rooted in an intellectual or moral dissatisfaction with life. The jurists and emperors give consideration to the idea of the soldier who suffers from taedium vitae. The jurists also allow that unbearable pain is a reason for a free person to take his life, but Paul makes the claim that is not why a slave commits suicide. If Paul’s rationale can be read in this same spirit of moral dissatisfaction, it fits with Seneca’s Stoic view that when a man is presented with no options to live a virtuous life, it is right to end his life. 162 nuptum se collocaverit, infamia notabitur,” "As Neratius says, it is not customary to mourn enemies of the state, men found guilty of treason, those who have hanged themselves, or men who have committed suicide not out of taedium vitae but through a guilty conscience. If anyone, then gives herself in marriage after the death of her husband in this fashion, she will incur infamia." 162 Sen. Ep. 77. Especially 77.13-15, where Seneca likens a man unwilling to take his own life when he has no other option as living as a slave: “Infelix, servis hominibus, servis rebus, servis vitae. Nam vita, si moriendi virtus abest, servitus est.” 87 Philosophical discontentment certainly is playing a role in the jurists’ discussion of suicide, and perhaps not as explicitly, it does so in Paul’s rendition on the motives for a slave to kill himself. 163 Seneca too does not prescribe suicide for those wishing to escape their status. 164 The discussion of the suicidal slave is particularly interesting because so often in Roman literature the suicide of a slave is portrayed as an expression of loyalty to his master, but in the context of the Edict of the Aediles it is being discussed as a potential defect of the slave. This must be read against the common literary trope of the loyal slave, who takes his master's place in death, or kills himself when his master dies. 165 Literary sources do not describe runaway slaves in the noble same light. By and large, the runaway slave is described as weak and disgraced and is used as a metaphor for cowardly behavior. Sallust reports that Catiline rejected enrolling slaves into his cause 163 D. 28.3.6.7 Ulpian, Sabinus, book 10, Nec huius igitur testamentum irritum fiet, priusquam princeps de eo supplicium sumendum rescripserit: proinde si ante decesserit, utique testamentum eius valebit, nisi mortem sibi conscivit. Nam eorum, qui mori magis quam damnari maluerint ob conscientiam criminis, testamenta irrita constitutiones faciunt, licet in civitate decedant: quod si quis taedio vitae vel valetudinis adversae impatientia vel iactationis, ut quidam philosophi, in ea causa sunt, ut testamenta eorum valeant, "Therefore, the testament of such a person will not be made ineffectual before the emperor has replied that he should be executed; and, hence, if he has died before this, his testament will certainly be valid, unless he committed suicide. For constitutiones make ineffectual the wills of those who have chosen to die rather than be condemned, on account of their consciousness of having committed a crime, although they die still citizens; but if someone [chooses to die] because taedium vitae or unable to bear ill- health or as a gesture, like some philosophers, their situation is such that their wills are valid." 164 Sen. Ep. 77. On the idea of the reasons why a slave should run away see Aulus Gellius NA 5.14 (on cruelty to slaves and subsequent flight). See Reduzzi Merola 2011: 401-2. On the difference between flight and death: Sen. Ep. 70.25 “Vides quemadmodum extrema quoque mancipia, ubi illis stimulos adegit dolor, excitentur et intentissimas custodias fallant? Ille vir magnus est qui mortem sibi non tantum imperavit sed invenit. Ex eodem tibi munere plura exempla promisi,” "See how even the lowest class of slave, when suffering goads on him, is aroused and discovers a way to deceive even the most watchful guards! He is truly great who not only has given himself the order to die, but has also found the means." 165 See Parker 1998: 152-173, at 162: "The tales of loyalty thus resolve a disturbing paradox, for the noble slave is like the noble master. In times of crisis, he begins to act like his master. In many of the stories he literally imitates his master or takes his place. The good slave is brave (even to the point of death); he is resourceful (rich in stratagems); he is noble (preferring death to dishonor). In short, he shows all the characteristics of the ideal Roman citizen-soldier. Not only does this threaten to undo the distinction between slave and free, it rouses the terrifying specter of the brave, clever, armed, autonomous slave." On slaves killing themselves in their masters' place see Appian 4.29, 4.30, and on killing himself when his master is dying Appian 4.26. On slaves enduring torture for their master, see Tac. Ann. 4.29, Valerius Maximus 6.8.1, 6.8.5; Sen. Ep. 47.4-5 88 because he did not want to be associated with runaways. 166 Cicero uses the terminology of the fugitivi to call Verres worse than slaves, runaway slaves, barbarians, and enemies. 167 Epictetus, a former slave himself, argues that free people should not be as cowardly as slaves who run away. 168 4d. The self-preserving slave The jurists are concerned with determining why a slave is off his master’s grounds; whether the runaway had a good reason to be away from the house, that is to say, if the slave ran away on account of something that might be considered in his master’s interest. As is seen in earlier definitions of the runaway slave the focus is on the intention of the slave and what begins to emerge from this concentration on the mental is a recognition of a slave’s agency as separate from his master’s awareness. There is a space of autonomy from the master’s ownership where the slave can choose to behave as he wishes. In the case of the self-preserving slave it is a benefit for the master. As Vivian explains, “fugitiuum 166 Sall. Cat. 56.5 167 Cic. Ver 2. 4.112, “Tenuerunt enim P. Popilio P. Rupilio consulibus illum locum servi, fugitivi, barbari, hostes; sed neque tam servi illi dominorum quam tu libidinum, neque tam fugitivi illi ab dominis quam tu ab iure et ab legibus, neque tam barbari lingua et natione illi quam tu natura et moribus…quae deprecatio est igitur ei reliqua qui indignitate servos, temeritate fugitivos, scelere barbaros, crudelitate hostes vicerit?” "For while Publius Popillius and Publius Rupilius were consuls, slaves, runaway slaves, and barbarians, and enemies were in possession of that place; but yet the slaves were not so much slaves to their own masters, as you are to your passions; nor did the runaways flee from their masters as far as you flee from all laws and from all right…How, then, can a man beg for any mercy who has surpassed slaves in baseness, runaway slaves in rashness, barbarians in wickedness, and enemies in inhumanity?" Loeb translation. 168 See Epictetus 3.26.1-2, “Oὐκ αἰσχύνῃ δειλότερος ὢν καὶ ἀγεννέστερος τῶν δραπετῶν; πῶς ἐκεῖνοι φεύγοντες ἀπολείπουσι τοὺς δεσπότας, ποίοις ἀγροῖς πεποιθότες, ποίοις οἰκέταις; οὐχὶ δ᾽ ὀλίγον ὅσον πρὸς τὰς πρώτας ἡμέρας ὑφελόμενοι εἶθ᾽ ὕστερον διὰ γῆς ἢ καὶ θαλάττης φέρονται ἄλλην ἐξ ἄλλης ἀφορμὴν πρὸς τὸ διατρέφεσθαι φιλοτεχνοῦντες; καὶ τίς πώποτε δραπέτης λιμῷ ἀπέθανεν; σὺ δὲ τρέμεις, μή σοι λείπῃ τὰ ἀναγκαῖα, καὶ τὰς νύκτας ἀγρυπνεῖς,” "Aren't you ashamed to be more cowardly and ignoble than a runaway slave? How do they, when they run off, leave their masters? In what estates or slaves do they put their confidence? Don't they steal just a little bit to last them for the first few days, and then afterwards drift along over land or sea, contriving one scheme after another to keep themselves fed? And what runaway slave ever died of hunger? But you tremble, and lie awake at night, for fear the necessities of life will fail you." Loeb translation. See also Epictetus 1.9.7-8. 89 fere ab affectu animi intellegendum esse, non utique a fuga: nam eum, quit hostem aut latronem, incendium ruinamue fugeret, quamuis fugisse uerum est, non tamen fuitiuum esse,” “a fugitive is to be so determined from his attitude of mind and not necessarily from the fact of his flight; for a slave who flees from an enemy or brigand, a fire, or the collapse of a building, certainly runs away, but he is not a fugitive.” 169 The question of the slave’s action here might appear obvious, that when facing death, a slave should flee the situation; the master, in the interest of protecting his investment, would not see the fault in this. Here we have an example of how the physical location of the slave or even being caught in the act of flight does not make the slave a runaway. The reasons Vivian gives for running away are not a consideration of a slave’s mental state (as shame of nequitia, malus mos, and flagitium does), but from his desire to keep himself out of physical danger. In these scenarios of Vivian, the slave is escaping with bona causa, that is, he does not allow himself to be damaged. If we recall the purpose of defining a fugitivus, the reason behind these cases becomes clear. Three correlated ideas come out of this discussion. First, a slave’s location relative to his master did not necessarily matter; second, a slave does not become a fugitive every time he flees; and third, the way to determine if he is a fugitive is whether his reason was good in the eyes of the master (e.g., for self- 169 D.21.1.17.3 Ulpian, Curule Aediles' Edict, book 1. The bona causa of self-preservation comes up again when a slave runs from mistreatment. D. 21.1.17.3 Ulpian, Curule Aediles' Edict, book 1, Vivian states, “item ne eum quidem, qui a praeceptore cui in disciplinam traditus erat aufugit, esse fugitiuum, si forte ideo fugit, quia immoderate eo utebatur,” “In the same way, a slave who runs away from the instructor to whom he was entrusted for training is not a fugitive, if the reason for his running away be the intolerable treatment which he receives,” and in two similar cases, also put forward by Vivian, the same motif is shown, “idemque probat et si ab eo fugerit cui erat commodatus, si propter eandem causam fugerit,” “if that be the reason for his running away from someone who borrowed him,” or “si saeuius cum eo agebat,” “if the slave were savagely used.” Vivian reasons that in all of these circumstances the slave is running away with good intention, without malus dolus, so long as he runs back to his master, “haec ita, si eos fugisset et ad dominum uenisset: ceterum si ad dominum non uenisset, sine ulla dubitatione fuitiuum uideri,” “All this applies to those who, having fled, return to their masters; but, says Vivian, if they do not return, then they are unquestionably fugitives.” Vivian acknowledges the rationality of the slave; he has the judgement to flee when he is in danger, but also to make the decision to return to their master, the good will rather than the bad will. 90 preservation) or it was bad (e.g., for escape). Rather than in the previous scenarios, which gave a general reason for flight, such as causa fugae, the slave in these cases is fleeing from particular circumstances detrimental to his own person; the slave is protecting himself and protecting the master’s investment from damage. The slave has a bona causa for flight when he protects the master’s property even without consultation with the master. The slave uses his agency and autonomy to protect himself and as much as he is an extension of the master, the master himself. Proculus gives a scenario of a slave seeking refuge or assistance in which the slave hiding in the master’s house would not be considered a fugitive. In this case, it is a slave who hides until his master’s anger has passed. Proculus considered him to be the same as a slave who sought out a friend to plead on his behalf when an angry master wished to punish him with a beating. 170 This contrast between the slave who remains in the house, awaiting the right opportunity for escape and the slave that runs for assistance but is always intending to return illustrates the difference of the intentions of the slaves, and the concern of the jurists on that intention. The slave, as is seen in Proculus’ analysis of these cases, has the ability to leave his master’s home without permission, but not to entertain the desire of escape permanently. This sentiment is reaffirmed by Vivian, who reasons that a slave who stays out of his master’s house overnight without the permission of his master is not, immediately, a fugitive, but that what must be examined is his reason. Ulpian gives the passage, “Illud 170 D.21.1.17.4 Ulpian, Curule Aediles' Edict, book 1, “sin autem in hoc tantum latuisset, quoad iracundia domini efferuesceret, fugituum non esse, sicuti ne eum quidem, qui cum dominum animaduerteret uerberibus se adficere uelle, praeripuisset se ad amicum, quem ad precandum perduceret,” "But if he concealed himself until his master's wrath abated, he would not be a fugitive any more than one who, having in mind that his master wished physically to chastise him, betook himself to a friend whom he induced to plead on his behalf." Pliny on going easy on a freedman, and on not losing your cool when punishing slaves. 91 enim, quod plerumque ab imprudentibus, inquit, dici solet, eum esse fugitiuum, qui nocte aliqua sine uoluntate domini emansisset, non esse uerum, sed ab affectu animi cuiusque aestimandum," "The common assertion, particularly of the ignorant, that a slave who stays away for a night is a fugitive, if it be without his master's consent, is not true; one has to assess the man's purpose in so acting." 171 The passage gives Vivian's opinion of those who immediately judge a missing slave as a runaway: imprudentes. Vivian places the emphasis on thought; he criticizes the imprudentes and stresses that the judgement of the fugitive must be assessed (aestimo) by the disposition of the slave’s mind (ab affectu animi). To illustrate his position, Vivian adds that if a slave is absent from his master’s house because he has returned to his mother, the question of if he is a fugitive is one that must be deliberated. Did the slave go to his mother to hide or escape or to get an easier penalty on some delict he had committed? 172 This is a different flaw, a misbehaving slave who has erred and now seeks a softer punishment, but it is not flight, his master's ownership has not been challenged. The slave fears his master and his anger or punishment. The focus on the will of the slave is embodied in the deliberation between the slave who runs with the intent of never returning and the slave who goes to his mother to obtain an easier pardon of some transgression. Vivian regards a slave that is hiding out without the intent of returning to his master (celandi causa quo, ne ad dominum reuerteretur) as a fugitive. This judgement again rests on the causa, causa celandi is not a bona causa and the slave is a fugitive because he does not intend to return. 171 D.21.1.17.4 Ulpian, Curule Aediles' Edict, book 1. 172 D.21.1.17.5 Ulpian, Curule Aediles' Edict, book 1, “Si a magistro puer recessit et rursus ad matrem peruenit, cum quaereretur, num fugitiuus esset: si celandi causa quo, ne ad dominum reuerteretur, fugisset, fugitiuum esse: sin uero ut per matrem faciliorem deprecationem haberet delictii alicuius, non esse fugitium,” "If a slave leave his master and come back to his mother, the question whether he be a fugitive is one for consideration; if he so fled to conceal himself and not to return to his master, he is a fugitive; but he is no fugitive if he seeks that some wrongdoing of his may be better extenuated by his mother's entreaties." 92 The idea of the slave with the freedom to seek out assistance and protection is again discussed in terms of seeking asylum. Ulpian records the discussion of Labeo and Caelius, and he concludes that the slave seeking asylum is not a fugitive nor is the slave who flees to the statue of the emperor because he does not do so first with the intention of running away (causa fugiendi). 173 Ulpian expresses his own opinion, very similar to that of Caelius seen earlier, 174 that what is judged is the first intention, or here the animus fugiendi. The slave with a mind for flight is a fugitive, the slave seeking asylum is not. The caveat to this is the slave must not have originally (or ever) harbored the intent to runaway. The self-preserving slave is a good slave in the eyes of the master. This slave not only fears his master, but protects himself from damage. The self-preserving slave is seen to not be a fugitive, to not have a vitium animi, because he behaves as Roman masters expected and wanted from their slaves. He does not use his independent thought or agency to escape his status, but to preserve it. 4e. The unwilling or ignorant slave Moving to a different template of motivation for running away allows us to consider the question in a different light, one that revolves around the concept of bona fides. These last cases of slaves being away from their masters highlight how the jurists 173 D.21.1.17.12 Ulpian, Curule Aediles' Edict, book 1, “Ne eum quidem, qui ad statuam Caesaris confugit, fugitiuum arbitror: non enim fugiendi animo hoc facit. Idem puto et in eum, qui in asylum uel quod aliud confugit, quia non fugiendi animo hoc facit: si tamen ante fugit et postea se contulit, non ideo magis fugituus esse desinit,” "No more do I regard as a fugitivea slave who flees to the emperor's statue; for he does not so act with the intention of running away. Likewise, I think of a slave who seeks asylum or other sanctuary, because he does not do so with the intention of running away; but if he first runs away and then takes shelter, he does not cease to be a fugitive." 174 D.21.1.17.1, Ulpian, Curule Aediles' Edict, book 1, Qui ea mente discedat, ne ad dominum redeat, tametsi mutato consilio ad eum reuertatur: nemo enim tali peccato, inquit, paenitentia sua nocens esse desinet, "He, too, is a fugitive who leaves with the intention of not returning but, changing his mind, returns; for, he says, no one purges his offense by remorse." 93 envision a slave who is not with his master. Caelius discusses a case where a slave who ran away took his vicarius (assistant slave) with him. Caelius says that if the vicarius is invitus or imprudens and returns when he can, he is not a fugitive. 175 The point here is that if the vicarius (the assistant slave) is invitus, unwilling, or imprudens, ignorant, of the removal of his person from the authority of the master, he, because it was not his intent to escape, is not a fugitive. The determination of who is a fugitive is tied to the mind, as we have seen, here the vicarius lacks both the knowledge and the intention to be a fugitive. The final case in this question of the fugitive slave is regarding the freeing of a slave and the death of his master. Ulpian records Caelius, “Seruum in prouinciam missum a domino, cum eum mortuum esse et testamento se liberum relictum audisset et in eodem officio permansisset tantumque pro libero se gerere coepisset, hunc non esse fugitiuum: nec enim mentiendo se liberum, inquit, fugitiuus esse coepit, quia sine fugae consilio id fecit,” “A slave, sent off to a province by his master, who learns that the master is dead and has emancipated him in his will and who continues in the same office but acting for himself as a freeman is not a fugitive; he adds that he would not be a fugitive even if he falsely declared himself free because it is not done with the object of flight.” 176 There are two circumstances at play here. The first case is a slave freed by his master’s will. Following his manumission, he begins to behave as a freeman. In the second circumstance, the slave lies that he is a freeman. In neither case is the slave considered a fugitive because he had no plan to flee (consilium fugae). This passage 175 D.21.1.17.7 Ulpian, Curule Aediles' Edict, book 1 Ulpian records Caelius, “si seruus tuus fugiens uicarium suum secum abduxit: si uicarius inuitus aut imprudens secutus est neque occasionem ad te redeundi nactus praetermisit, non uideri fugitiuum fuisse: sed si aut olim cum posset noluit, contra esse. Idem putat dicendum de eo, quem plagiarus abduxit,” “If your slave in running away from you takes with him his vicarius and the latter goes unwillingly or not knowing what it is all about and seeks the opportunity to return, he will not be deemed a fugitive; but if he knew at the time of flight what was going on or later became aware of it and chose not to return to you when he could do so, the vicarius would himself be a fugitive. He thinks the same to apply to a slave abducted by a kidnapper.” 176 D.21.1.17.16 Ulpian, Curule Aediles' Edict, book 1. 94 shows how a slave could shift status easily (pro libero se gerere coepisset) and it highlights perhaps why the jurists spend such an effort distinguishing fugitive slaves from other slaves out of the house: the line between a slave and a free person could become confused. The preoccupation of the jurists in these cases has been on the inner workings of the slave’s mind. This concentration on the mind or thoughts of the slave is illuminated in one more passage of the fugitive discussion. Caelius, the main jurist of Ulpian’s passage, is quoted, “Idem recte ait liberatis cuiusdam speciem esse fugisse, hoc est potestate dominica in praesenti liberatum esse,” “Likewise, rightly [Caelius] says flight is an appearance of a kind of liberty, since he is freed from the power of his master in that present moment.” 177 Caelius places this idea of flight as the species cuiusdam libertatis, the appearance of kind of liberty, right after he has explained that it is the animus of the slave that makes him a fugitive. Caelius’ passages, where he discusses a slave who simply begins to act like a freedman upon being freed by the will of his master while working in the provinces, and the fact that a fugitive has an appearance of a kind of liberty brings together the tension between a master’s ownership of a slave and the fact that the master does not have total control over his property. The discovery or attempts to know if the slave at market had a history of running away matters to a potential master, but also to the larger state, which had a vested interest in controlling and knowing the status of its population. The idea that a slave could come upon the appearance of a kind of liberty (species cuiusdam libertatis) so easily is rather revealing. Both the desire of the jurists to define the fugitive by his intent and the fact that flight was an appearance of liberty shows a number of reasons for the jurists’ approach. The first and most evident is the commercial reason: the need to be aware of whether the slave one was to buy had a defect. There is a tension 177 D.21.1.17.10 Ulpian, Curule Aediles' Edict, book 1. 95 between the lack of legal status markers and the great importance placed on status (free, freedman, slave) in Rome. 178 The fugitive slave posed a threat to this division and to Roman status hierarchy. For a slave to be a successful fugitive, he must convince others that indeed he is not a fugitive, or a slave without his master, but a free person. The phrase species libertatis is perhaps best known from Tacitus’ opening of his Histories. 179 Discussing the Roman historiographical practice, he writes that since the start of the empire, Romans have been subjected to histories either too sycophantic or too harsh. He describes the first (adulatio) as a result of being under the thumb of the emperor (literally, “a shameful crime of slavery” foedum crimen servitutis) and the second (malignitas) as presenting a false appearance of liberty (falsa species libertatis). Like the fugitive slave who has too much license, Quintilian and Tacitus both use the phrase in a morally negative sense about a group of people showing too much license in their speech or actions. 180 As we will see in a later chapter, the idea of species libertatis will be compared with the freedom suits in Book 40 of the Digest where the idea of freedom is tied up in 178 See for example Seneca on the similarity between free people and slaves: Sen. Ep. 47.10. See also, Epictetus 1.29.58-63 where he incorporates a metaphor involving the fear of a runaway slave being caught by his master; 4.1.145 on liberty in the empire where Epictetus uses the language of slave detection; and Sen. Rhet. Contro. 7.6.22-24 on looking at slave's sale documents to ensure he is not a wanderer or a fugitive. D.1.5.3 Gaius, Institutiones, Book 1, “Summa itaque de iure personarum divisio haec est, quod omnes homines aut liberi sunt aut servi,” "And so, the greatest division in the law of persons is this: that all men are either free or slaves." 179 Tac. Hist. 1.1, “sed ambitionem scriptoris facile averseris, obtrectatio et livor pronis auribus accipiuntur; quippe adulationi foedum crimen servitutis, malignitati falsa species libertatis inest,” “But while we instinctively shrink from a writer’s adulation, we lend a ready ear to detraction and spite, because flattery involves the shameful imputation of servility, whereas malignity wears the false appearance of freedom.” Church and Brodribb translation, very slightly modified. 180 Quint. Inst. Or. 12.9.13, 12.10.73, Tac. Ann. 13.24. Livy uses the term to describe a peace treaty that left Greek cities with only a false appearance of freedom, 33.24. 96 behavior and performativity of status. 181 The objective status is not at the heart of the matter. There is no obvious marker of who is a slave and who is not and as such questions of status enter into this ambiguous realm. Does the person in question behave like a free person or does he seem slavish? Discussing the freedom suits, Alfenus Varus notes that a free person is in a state of liberty fraudulently if he is in flight. A free person should not engage in slavish behavior, such as running away. The idea of being a runaway, hiding from your duties, albeit as a free person, is viewed as spineless and shameful. We see this view of the runaway echoed in Epictetus, who describes runaway slaves as being cowardly and without forethought. 182 This idea of the performativity of liberty is present in other situations as well, such as jurists acknowledging the kinship ties between master and slave, household relationships that cross the boundaries of free and slave. 183 There is a great tension between the facility or difficulty in the recognition of slaves and the Roman preoccupation with status. Seneca reminds his audience that there is not a great difference between the freeman and the slave, “Vis tu cogitare istum, quem servum tuum vocas, ex isdem seminibus ortum eodem frui caelo, aeque spirare, aeque vivere, aeque mori! Tam tu illum videre ingenuum potes quam ille te servum,” “Kindly remember that he whom you 181 D. 40.12.10, Ulpian, Edict, book 55, Quod autem diximus “in libertate fuisse” sic est accipiendum non ut se liberum docet is, qui liberale iudicium patitur, sed in possessione libertatis sine dolo malo fuisse, si modo se pro liberis gerant, quamvis servi sint. Varus autem scribit eum, qui se liberum sciat, dum in fuga sit, non videri sine dolo malo in libertate esse: sed simul atque desierit quasi fugitivus se celare et pro libero agere, tunc incipere sine dolo malo in libertate esse: etenim ait sum, qui scit se liberum, deinde pro fugitivo agit, hoc ipso, quod in fuga sit, pro servo agere,” “Our expression, “to be in a state of freedom” should not be taken to mean that the man subject to a trial for freedom is not to show that he is free, but only that he was in possession of freedom without fraud. But let us consider what “without fraud means.” For Julian says that all who think themselves free have been in a state of freedom without fraud, provided that they behave as freemen, even though they are slaves, but Varus writes that a man who knows himself to be free is, while not a fugitive, not deemed to be in a state of freedom without fraud but that, as soon as he has ceased to hide like a fugitive and to act as a freeman, he begins from that moment to be in a state of freedom without fraud; in fact, he says that the man who knows himself to be free but acts as a fugitive is acting as a slave simply by being in flight.” Translation slightly modified. Also see D. 40.12.11-12. 182 Epic. Disc. 3.26 183 See D. 40.12.3 Gaius, Urban Praetor’s Edict, Ch. on Suits for Freedom, “quoniam servitus eorum ad dolorem nostrum iniuriamque nostram porrigitur,” “since the slavery of kinsmen affects us, causing us pain and outrage.” 97 call your slave sprang from the same stock, is smiled upon by the same skies, and on equal terms with yourself breathes, lives, and dies. It is just as possible for you to see in him a free-born man as for him to see in you a slave.” 184 Seneca urges his readers to think on the similarities between masters and their slaves, reminding that the divisions between free and slave are not necessarily overt. While both literary and legal sources have shown, tacitly or openly, the existence of the ambiguities of status, the reasons for their conclusions are very different. For Seneca, a philosopher and politician, the recommendation of harmony with all men instead of those only in the same status agrees very well with Stoic ideas. Seneca too reminds us that the senate was going to have slaves wear distinguishing clothes, but this was not taken up because of the fear that slaves would realize how few the free were in comparison with them. 185 In the case of the runaway slave, the jurists study the mind of the slave because it can threaten the tenuous boundaries established between free and slave. The desire to understand the mind of the slave must be seen as an aspect of social control in Roman society. There is at once a great humanity and a great authoritarianism in the juristic discussion of the runaway slave. The discussion of the mental defects of the slave created a space of autonomy from the master in the jurists’ recognition of the slave’s mentality 184 Sen. Ep. 47.10. The Digest also contains this passage which shows the little difference in work that occurred for a freedman versus a slave. D. 21.1.17.16 Ulpian, Curule Aediles’ Edict, book 1, “servum in provinciam missum a domino, cum eum mortuum esse et testamento se liberum relictum audisset et in eodem officio permansisset tantumque pro libero se gerere coepisset, hunc non esse fugitivum: nec enim mentiendo se liberum, inquit, fugitivus esse coepti, quia sine fugae consilio id fecit," “A slave was sent into a province by his master, when he heard that [his master] died and freed him in his will, the slave remained in the same duty, only that he began to conduct himself as a freedman; he is not a fugitive: [Caelius] said not even with him lying that he was a freedman would he become a fugitive, because he did this without the purpose of flight.” 185 Sen. Clem. 1.24.1, “Dicta est aliquando a senatu sententia, ut servos a liberis cultus distingueret; deinde apparuit, quantum periculum immineret, si servi nostri numerare nos coepissent,” “A motion was once made in the senate to distinguish slaves from free men by dress; but then it was discovered how dangerous it might be if our slaves began to count us.” 98 and intention. In the case of the Edict of the Aediles, this space of autonomy needed to be controlled and regulated because it revealed undesired chracteristics and choices on the part of the slave. The juristic commentary on the Aedilician Edict underscores the relationship between the power a master has over his slave and his knowledge of his slave's mind and character. In the following chapter, I will examine the desired space of autonomy created for high-level slaves in order to benefit a master in business relations. 99 Slaves at Work 1. Introduction: autonomy of the mind and ownership of the mind Roman slave society is somewhat distinct from other slave-holding societies because of the amount of responsibility placed on and autonomy given to certain slaves. 1 Slaves held a variety of economic positions that necessitated the master having confidence in his slave’s abilities and character. This uncertainty whether a slave will perform his duties in the manner prescribed lies seemingly at odds with the absolute ownership a master has over his slave’s mind and body. For both Roman jurists and literary writers, this relationship between the ownership of the master and the mental autonomy of the slave created much consideration and debate. A part of the legal literature of the 2 nd and 3 rd century CE acknowledged that slavery was against the law of nature; nevertheless, they recognized the institution as a necessary part of their own system of laws and that of other peoples. 2 That slaves were both people and property was well understood by the Romans. This double nature of slaves is a central matter in Roman slave relations, spanning genres and, in this context, producing a variety of opinions about a master’s inability to have the same exacting confidence in a slave as he would in his inanimate property. While my focus here is not on studying the philosophical difference between slaves as res and persona, it is always in the background of discussions on slavery and it is clear that this distinction played a role in the understanding of the nature of slavehood in Rome. 1 Among others, see Aubert 1994, Carlsen 1995, Gamauf 2009, and Watson 1987: 90-114 on the responsibilities of slaves. These were generally 'high-level' slaves, a term I borrow from du Plessis 2013. 2 D.1.5.4pr Florentinus, Institutes, book 9. 100 This chapter explores the necessary economic relationship between the mental autonomy of slaves and the ownership of the master. By the mental autonomy of slaves I refer to the intellect, character, and morality of slaves. We will see that the mental autonomy of slaves was not only acknowledged in literary and legal sources, but that it was used by the jurists in order to benefit the master economically. I argue that the mental autonomy of the slave was not a threat to the master’s ownership of the slave as long as the slave made use of this autonomy in order to benefit the master. We see challenges to the ownership of the master when another person tried to sway this autonomy or the slave himself stopped using his mental autonomy in the service of his master. This chapter speaks to my larger project of studying the mind of the slave and the master-slave relationship because it furthers our understanding of the nature of ownership and its relationship to the autonomy and agency of slaves. In the introduction of this chapter I examine a discussion on mental autonomy by Epictetus and look at different understandings of absolute dominium (1b). Following this, I study slaves in different economic positions: I consider the relationship between masters and high-level slaves, which I explore through the remedies based on a slave’s peculium available to third parties (2a). Then I consider the legal actions available to restore mastery over wayward slaves through a case study of the actio servi corrupti, the action available for damaged slaves (2b). Following this I look at a few cases of account management in order to examine the levels of autonomy different slaves had (2c). Lastly, I examine the role of the master and other freemen in relation to the mental autonomy of slaves (3). The 1 st c. CE Stoic philosopher and former slave Epictetus tells his students to accept their lots in life because everyone is at the mercy of external factors. His belief that nothing can take control over the internal will of a person without his or her consent 101 lightens the fact that everyone is subject to fate and circumstance. The first chapter (1.1) of the Discourses, as recorded by Epictetus’ pupil Arrian, discusses what is under a person's control; Epictetus gives the example of Lateranus, whom Nero ordered to be beheaded on account of his involvement with the Pisonian Conspiracy. When Nero's freedman (and Epictetus' former master) Epaphroditus asked Lateranus his offense, he responded that if he was to give up any information or any person he would do so only to Epaphroditus’ master (that is to say, Nero), and subsequently presented his neck for his sentence. Tacitus’ account of the death reveals that the very tribune who executed Lateranus was a part of the conspiracy as well, but Lateranus did not betray him. 3 Epictetus gives us this tale to serve as a model of behavior when faced with bodily harm or strife. ‘τί οὖν δεῖ πρόχειρον ἔχειν ἐν τοῖς τοιούτοις;’ τί γὰρ ἄλλο ἢ τί ἐμὸν καὶ τί οὐκ ἐμὸν καὶ τί μοι ἔξεστιν καὶ τί μοι οὐκ ἔξεστιν; ἀποθανεῖν με δεῖ: μή τι οὖν καὶ στένοντα; δεθῆναι: μή τι καὶ θρηνοῦντα; φυγαδευθῆναι: μή τις οὖν κωλύει γελῶντα καὶ εὐθυμοῦντα καὶ εὐροοῦντα; ‘εἰπὲ τὰ ἀπόρρητα.’ οὐ λέγω: τοῦτο γὰρ ἐπ᾽ ἐμοί ἐστιν. ‘ἀλλὰ δήσω σε.’ ἄνθρωπε. τί λέγεις; ἐμέ; τὸ σκέλος μου δήσεις, τὴν προαίρεσιν δὲ οὐδ᾽ ὁ Ζεὺς νι κῆσαι δύναται. ‘εἰς φυλακήν σε βαλῶ.’ τὸ σωμάτιον. ‘ἀποκεφαλίσω σε.’ πότε οὖν σοὶ εἶπον, ὅτι μόνου ἐμοῦ ὁ τράχηλος ἀναπότμητός ἐστιν; 4 "What aid, then, must we have ready at hand in such circumstances?" Why, what else than the knowledge of what is mine, and what is not mine, and what is permitted me, and what is not permitted me? I must die: must I, then, die groaning too? I must be fettered: and wailing too? I must go into exile: does anyone, then, keep me from going with a smile and cheerful and serene? 'Tell your secrets." I say not a word; for this is under my control. "But I will fetter you." What is that you say, man? Fetter me? My leg you will fetter, but my moral purpose (προαίρεσις) not even Zeus himself has power to overcome. "I will throw you into prison." My paltry body, rather! "I will behead you." Well, when did I ever tell you that mine was the only neck that could not be severed? 3 Tac. Ann. 15.49, 60. 4 Epic. Disc. 1.1.21-25. All translations from Loeb Classical Library with slight modification unless otherwise indicated. See also Epic. Disc. 4.1.72-75 where Epictetus reasons that while one may prohibit you from taking a walk (or other physical actions) no one can force another to desire or not to desire another. 102 Epictetus presents Lateranus as an example of someone who accepts that that he has no control beyond his own "moral purpose" or "volition" (prohairesis). 5 By retaining his hold on his prohairesis Lateranus can endure what is done to him without any internal compromise. Epictetus discusses the relationship between a person and his prohairesis in terms of possession and power; he uses πρόχειρος (at hand), which both indicates possession (along with ἐμός) and having something at your ready, to describe the relationship. 6 While the Emperor, or another person, can put someone into any number of grievous circumstances, he does not have the power to affect one’s mind. A student of Epictetus can refuse to divulge his secrets because those are in his power (τοῦτο γὰρ ἐπ᾽ ἐμοί ἐστιν). Epictetus explains that not even Zeus—let alone another mortal—can have power over the volition of another person (τὴν προαίρεσιν δὲ οὐδ᾽ ὁ Ζεὺς νι κῆσαι δύναται). The idea of a person owning his volition is a central aspect of Epictetan philosophy. 7 Elsewhere, 5 Long 2002: 28 suggests that prohairesis, a favorite term of Epictetus, be translated as "volition" or "will." On Epictetus' choice of prohairesis (instead of hegemonikon) see Long 2002: 210. It also has an element of freedom, as he says at 11, "the contrast between a mental freedom available in principle to anyone and self-inflicted slavery encapsulates his chief message throughout." Additionally, Long notes at 208, "Epictetus is at pains to emphasize three points about our rational faculty. First, it is quite distinct from flesh and blood of the body; secondly, in a further contrast with this bodily material, it is given to us to be ‘ours’ and to be naturally free, unimpeded, and unconstrained; and, thirdly, it includes not only intellect but also the capacity to be motivated to act as a consistently rational being." See Long 2002: 207-30 for further discussion on prohairesis. Bartsch 2007: 87 suggests "moral purpose" or "mindset" for prohairesis. See also Sandbach 1975: 165 who holds that the difference between what is in a man's power and what is not is at the heart of Epictetus' philosophy. Epictetus’ understanding of prohairesis differs slightly from Aristotle’s version as “moral choice.” 6 On ἐμός being used for ownership see Diósdi 1970: 60 on "meum esse" and LSJ II.3 7 On the relationship between Stoicism and property, Long 2006: 339-40 argues that the Stoics believed “that everyone has at least one inalienable possession—the essence of the individual self, as defined by each human being's autonomy or capacity to give or withhold assent (the mental faculty called synkatathesis, and which Cicero translated by assensio)." For a very brief explanation on the relationship between prohairesis (the larger capacity of volition or moral purpose) and assenting to a particular phantasia see Bartsch 2007. Braicovich 2010 for a longer discussion. Long 2006: 345, "Epictetus actually relies on the concept of possession in order to make his point about what is ultimately mine or yours. Far from rejecting the concept in principle, he insists that we are all owners 103 Epictetus discusses the inalienability and inaccessibility to others of the things that are of great care to us: i.e. the mind; he does this in the language of power and domination (δύναμαι and ἄρχω). The capability of another to rule does not extend beyond the physical. 8 The jurists consider a similar issue in arguments considering the relationship between the ownership of the master and the agency of the slave: while the slave is under the dominium of the master, the master cannot exert his mastery over the slave’s mind. Along with his discussion of the prohairesis in terms of ownership, Epictetus considers its salability. The prohairesis cannot be taken only given, and Epictetus counsels people not to sell it too readily. 9 For Epictetus, true freedom is found in the mind; the of one supremely valuable thing—our minds or moral purposes or autonomy. This is not, of course, property in the material sense of the word, but it is fundamental to the way Epictetus conceptualizes the self. As he sees it, all human beings are alike in their natural ownership of the one thing that makes each of them essentially human—an autonomous mind and power of moral choice or assent. " 8 Epic. Disc. 1.9.21, τί γὰρ ἡμῖν ποιήσουσιν; ἃ δύνανται ποιῆσαι, τούτων οὐκ ἐπιστρεψόμεθα: ὧν ἡμῖν μέλει, ταῦτα οὐ δύνανται. τίς οὖν ἔτι ἄρξει τοῦ οὕτως διακειμένου; "For what will they do to us? As for what they have power to do, we shall pay no heed thereto; as for the things we care about, over them they have no power. Who, then, will ever again be ruler over the man who is thus disposed?" See for example Epic. Disc. 1.1.10-13 where Epictetus has Zeus explain he himself could not give the body (σωμάτιον) and property (κτησίδιον) to man to truly have ownership over. Epictetus refers to the body as "clay" (πηλός — recall that Horace at Letters 2.2 described a young verna as clay as well). Epictetus tells us the limits of Zeus, and then what Zeus did give to man: ἐπεὶ δὲ τοῦτο οὐκ ἠδυνάμην, ἐδώκαμέν σοι μέρος τι ἡμέτερον, τὴν δύναμιν ταύτην τὴν ὁρμητικήν τε καὶ ἀφορμητικὴν καὶ ὀρεκτικήν τε καὶ ἐκκλιτικὴν καὶ ἁπλῶς τὴν χρηστικὴν ταῖς φαντασίαις,' "Yet since I could not give thee this, we have given thee a certain portion of ourself, this faculty of choice and refusal, of desire and aversion, or, in a word, the faculty which makes use of external impressions." 9 Epic. Disc. 1.2.33, “μόνον σκέψαι, πόσου πωλεῖς τὴν σεαυτοῦ προαίρεσιν. ἄνθρωπε, εἰ μηδὲν ἄλλο, μὴ ὀλίγου αὐτὴν πωλήσῃς,” "Only consider at what price you sell your freedom of will. If you must sell it, man, at least do not sell it cheap." On selling your prohairesis too cheaply see, also, when Epictetus chastises those who lower themselves to flattery and genuflection of slaves in order to gain a position: Epic. Disc. 4.1.148 “ἢ πάλιν ὅταν ὑπὲρ τῶν μεγάλων τούτων καὶ σεμνῶν ἀρχῶν καὶ τιμῶν τὰς χεῖρας τῶν ἀλλοτρίων δούλων καταφιλῇς, ἵνα μηδ᾽ ἐλευθέρων δοῦλος ᾖς;” "Or again, when for the sake of these mighty and dignified offices and honours you kiss the hands of other men's slaves, so as to be the slave of men who are not even free?" Conversely, see Epic. Disc. 4.1.151-2 where Epictetus ties care of the body to lack of freedom: “σὺ οὖν, φησίν, ἐλεύθερος εἶ;— θέλω νὴ τοὺς θεοὺς καὶ εὔχομαι, ἀλλ᾽ οὔπω δύναμαι ἀντιβλέψαι τοῖς κυρίοις, ἔτι τιμῶ τὸ σωμάτιον, ὁλόκληρον αὐτὸ ἔχειν ἀντὶ πολλοῦ ποιοῦμαι καίτοι μηδ᾽ ὁλόκληρον ἔχων,” " Are you, then, free, says someone?—By the gods I wish to be, and pray to be, but I am not yet able to look into the face of my masters, I still honour my paltry body, I take great pains to keep it sound, although it is not sound in any case." 104 body, on the other hand is not to be bothered over. He argues that only those that have rid themselves of worldly or bodily cares are free. ἄγε οὖν ἐπέλθωμεν τὰ ὡμολογημένα. ὁ ἀκώλυτος ἄνθρωπος ἐλεύθερος, ᾧ πρόχειρα τὰ πράγματα ὡς βούλεται. ὃν δ᾽ ἔστιν ἢ κωλῦσαι ἢ ἀναγκάσαι ἢ ἐμποδίσαι ἢ ἄκοντα εἴς τι ἐμβαλεῖν, δοῦλός ἐστιν. τίς δ᾽ ἀκώλυτος; ὁ μηδενὸς τῶν ἀλλοτρίων ἐφιέμενος. τίνα δ᾽ ἀλλότρια; ἃ οὐκ ἔστιν ἐφ᾽ ἡμῖν οὔτ᾽ ἔχειν οὔτε μὴ ἔχειν οὔτε ποιὰ ἔχειν ἢ πῶς ἔχοντα. οὐκοῦν τὸ σῶμα ἀλλότριον, τὰ μέρη αὐτοῦ ἀλλότρια, ἡ κτῆσις ἀλλοτρία. ἂν οὖν τινι τούτων ὡς ἰδίῳ προσπαθῇς, δώσεις δίκας ἃς ἄξιον τὸν τῶν ἀλλοτρίων ἐφιέμενον. 10 Come, now, and let us review the points on which we have reached agreement. The unhampered man, who finds things ready to hand as he wants them, is free. But the man who can be hampered, or subjected to compulsion, or hindered, or thrown into something against his will, is a slave. And who is unhampered? The man who fixes his aim on nothing that is not his own. And what are the things which are not our own? All that are not under our control, either to have, or not to have, or to have of a certain quality, or under certain conditions. Therefore, the body is not our own, its members are not our own, property is not our own. If, then, you conceive a strong passion for some one of these things, as though it were your immediate possession, you will be punished as he should be who fixes his aim upon what is not his own. He here defines ownership, the freeman, and the slave. Epictetus tells us what it means to have ownership over something: anything that is under our control constantly. He equates the inability to have complete control over the body (τὸ σῶμα, τὰ μέρη αὐτοῦ) and worldly possessions (κτῆσις) as a lack of ownership over those things. For Epictetus, ownership is absolute. The freeman only desires what he will always have control and access to: the mind or more specifically perhaps the prohairesis, which he described as being at hand earlier (πρόχειρος, πρόχειρα τὰ πράγματα). In contrast to the freeman who does not desire physical property the slave desires things beyond his control. The slave is hindered, forced, impeded (“to have their feet fettered”-ἐμποδίσαι) and, most notably someone who acts against his will (ἄκοντα). A slave fails to realize he cannot control external factors and exerts energy in "not wanting" to be treated this way. He considers a 10 Epic. Disc. 4.1.128-130. 105 person free if, regardless of legal status, he or she can let go of worldly and physical concerns and focus on internal choices, or a mindset. People are free to do what they like with their prohairesis, it can be given over to someone or something because of desires, needs, or persuasion, but it is their choice. Epictetus, former slave, citizen-subject of the imperial government, tells his pupils that regardless of whom they and what their legal status is, they have a space of autonomy in their minds. Epictetus is not alone in his consideration of mental autonomy as independent from status and situation; for example, Seneca tells us that slaves are only slaves in body, but are free in mind (mens). 11 Epictetus’ framing of philosophical or internal freedom in the language of ownership speaks to the jurists’ concern with the question of mental autonomy. Epictetus' discussion of the body and mind in terms of ownership lends his philosophy a particular Roman juridical credence. Epictetus and the jurists consider the mental autonomy of free people and slaves for very different reasons and audiences, but they are reflecting on a similar idea. As such, it is not my purpose to argue that the contemporary and later jurists and other Roman authors were necessarily hearing Epictetus' lessons or even were actively engaging in this line of Stoic or Epictetan thought, but rather that we see a similar awareness and concern over the mental autonomy of a slave—meant to be under their master’s dominium—in different circumstances. The question of ownership over the mind of a slave comes up, for example, in the discussions of commercial law, where the jurists specifically consider the respective levels of knowledge the master and his slave had in a specific business enterprise. The examination 11 Sen. Ben. 3.18-21. This passage is discussed in the following chapter in some detail. See Inwood 1995 on the relationship between Stoic ethics and the practice of gift exchange and Griffin 2003 and 2013 on the whole of the De Beneficiis and its relationship (as a promotion of gift exchange culture) with Roman society. Bartsch 2007 notes that Epictetus and Seneca are similar in that they connect the concern for the body to an obstacle for the virtuous life, cf. Sen. Ep. 14.1, Epic. Disc. 1.75.23. 106 of a slave’s mental autonomy was not the purpose of the law, which was to limit the master’s liability, the concern comes up indirectly. 1b. understandings of ownership The purpose of this section is not to survey of the concept of Roman ownership, but to draw out some aspects which are particularly relevant to my discussion. The jurists do not define ownership (dominium) and most of the legal concepts involving ownership are about how to transfer property (e.g. vindicatio for res mancipi, usucapio). 12 Dominium does not come into its meaning of ownership until the 1 st c BCE. 13 Ownership is exemplified if one has the ability to use, destroy, or alienate (i.e. sell) the thing in question. 14 Ownership in Roman Law is considered exclusive and often deemed absolute. Peter Birks most directly explores the concept of dominium and its "absoluteness." 15 There were limits to the rights 12 Birks 1985: 3 "There is no attempt expressly to articulate a concept of ownership [on the part of the jurists]," and "ownership is taken for granted, continually in issue but undefined and unexamined." See also Diósdi 1970: 122- 124. 13 See Diósdi 1970: 135 for dating. Monier places the term to Alfenus Varus, Kaser to Labeo. Diósdi 1970: 135 tells us that dominus meaning "owner" more generally rather than "master" which comes into use at the time of Varro and Cicero. 14 Birks 1985, Riggsby 2010: 136. 15 Birks 1985: 1 "'Absolute' is not, properly speaking, a word which admits of degrees. Hence if Roman ownership was at all restricted in its content, as indeed it must have been and was, it was not, strictly, absolute. However, if a looser usage is admitted, a last question to be asked is whether, if some measure can be said to have been set to the extent of permissible interference with an owner's freedoms, the remaining area of inviolability was so great as to attract the word 'absolute' as a useful description of the quality of Roman ownership." Conceptually absolute ownership is "the relationship between an owner, or co-owners, and the thing owned was conceived as excluding all other people from all possibility of asserting a similar relationship to the same thing." Birks 1985: 2 argues that the jurists were not at all concerned with theory, but with practice. Diósdi 1970: 124 "we are led to the inevitable conclusion that Roman ownership has always been, to adopt a contemporary terminology, an absolute right." See also Diósdi 1970: 131 In contrast, see Honoré 1961: 144 "'Absolute' is perhaps the most ambiguous word met in discussions of ownership. Sometimes it is used to deny the 'temporary' (intransmissable or determinate) character of an interest, sometimes to deny its defeasible character (liable to be divested by another, liable to escheat or forfeiture), sometimes to emphasize its exemption from social control. In the last sense, ownership has never been absolute. Even in the most individualistic ages of Rome and the United States, it has had a social 107 of owners over their property, including societal restrictions. However, as the 1 st c. BCE jurist Alfenus Varus tells us in a passage discussing obligations and actions, even if the slave is obeying his master when he kills or steals, the slave himself will still face a penalty when he is freed. 16 The former slave is held responsible for the actions he did when he was subject to his master's will. The passage of Alfenus Varus is rather odd because of its very particular scenarios, but Watson believes it to be valid. Alfenus Varus does not suggest that the state intercede and stop the master from ordering the slave to commit a criminal act, nor does he say that the slave should disobey the master and not break the law. The question of the slave's will and own sense of morality (and knowledge of the law) does not come into consideration. The legal hindrances to ownership were relatively few; the legal construction of ownership in the classical period is one that was conceived for all intents and purposes as absolute. The letters of Pliny and Seneca show there were differing opinions on the absoluteness of ownership with respect to the mind of the slave. Pliny the Younger relates aspect. This has usually been expressed in such incidents of ownership as the prohibition of harmful use, liability to execution for debt, to taxation and to expropriation by the public authority." 16 D. 44.7.20 Alfenus Varus, Digest, book 2, “Servus non in omnibus rebus sine poena domino dicto audiens esse solet, sicuti si dominus hominem occidere aut furtum alicui facere servum iussisset. quare quamvis domini iussu servus piraticam fecisset, iudicium in eum post libertatem reddi oportet. et quodcumque vi fecisset, quae vis a maleficio non abesset, ita oportet poenas eum pendere. sed si aliqua rixa ex litibus et contentione nata esset aut aliqua vis iuris retinendi causa facta esset et ab his rebus facinus abesset, tum non convenit praetorem, quod servus iussu domini fecisset, de ea re in liberum iudicium dare,” "A slave does not usually in all cases obey the orders of his master with impunity, for instance where the master had ordered his slave to kill a man or to commit theft against someone. Consequently, even though a slave had committed piracy on the orders of his master, an action must be brought against him after he is freed. And, therefore, whatever violent act he committed must afflict him with punishment, if the violence was not alien to a crime. But if some brawl arose from dispute and quarreling, or if some violence was committed in order to preserve a right, and no crime was constituted by these acts, then it does not behoove the praetor to allow an action against the slave when freed in respect of an act which the slave committed on the orders of his master." Watson 1968: 298-9 discusses this passage and argues that its "comic flavor" suggests that the text is valid. At 299 Watson notes, "The form of the text implies great magnanimity toward the slave, and an understanding of his weak position in respect of his master's commands. The substance of the text shows a much harsher attitude. The difference between the form and the substance is illuminating for the attitude of the jurist—he thinks that the slave is very generously treated." 108 the story of the dream of his slave and of his freedman. 17 In a rather fantastical letter (7.27) about ghosts, Pliny tells Licinius Sura, a member of the Emperor Trajan's staff, about how first his freedman and then his slave had dreams about getting their hair cut and when they woke, their hair was indeed cut. Contemplating the meaning of these instances, Pliny relates that nothing notable followed unless one counts the fact that he himself was not prosecuted, as he would have been if Domitian lived. The charge that Pliny claims would have come to him, which Sherwin-White dismisses, was his friendship with Artemidorus the philosopher. Pliny explains that generally the accused do not cut their hair so the twin dreams of his freedman and his slave reveal to him that he has escaped trial. The dreams of his slaves belong to him and relate to him; the mind that dreamt up the haircut is his, despite not being in his body. Sherwin-White and Joshel, subscribing tacitly to the idea of absolute ownership, both explain Pliny’s ownership over 17 Plin. Ep. 7.27.12-14, “Et haec quidem affirmantibus credo; illud affirmare aliis possum. Est libertus mihi non illitteratus. Cum hoc minor frater eodem lecto quiescebat. Is visus est sibi cernere quendam in toro residentem, admoventemque capiti suo cultros, atque etiam ex ipso vertice amputantem capillos. Ubi illuxit, ipse circa verticem tonsus, capilli iacentes reperiuntur. Exiguum temporis medium, et rursus simile aliud priori fidem fecit. Puer in paedagogio mixtus pluribus dormiebat. Venerunt per fenestras - ita narrat - in tunicis albis duo cubantemque detonderunt et qua venerant recesserunt. Hunc quoque tonsum sparsosque circa capillos dies ostendit. Nihil notabile secutum, nisi forte quod non fui reus, futurus, si Domitianus sub quo haec acciderunt diutius vixisset. Nam in scrinio eius datus a Caro de me libellus inventus est; ex quo coniectari potest, quia reis moris est summittere capillum, recisos meorum capillos depulsi quod imminebat periculi signum fuisse,” "This story I believe upon the affirmation of others; I can myself affirm to others what I now relate. I have a freedman named Marcus, who has some tincture of letters. One night, his younger brother, who was sleeping in the same bed with him, saw, as he thought, somebody sitting on the couch, who put a pair of shears to his head, and actually cut off the hair from the very crown of it. When morning came, they found the boy's crown was shorn, and the hair lay scattered about on the floor. After a short interval, a similar occurrence gave credit to the former. A slaveboy of mine was sleeping amidst several others in their quarters, when two persons clad in white came in (as he tells the story) through the windows, cut off his hair as he lay, and withdrew the same way they entered. Daylight revealed that this boy too had been shorn, and that his hair was likewise spread about the room. Nothing remarkable followed, unless it were that I escaped prosecution; prosecuted I should have been, if Domitian (in whose reign these things happened) had lived longer. For an information lodged by Carus against me was found in his scrutore. Hence it may be conjectured, since it is customary for accused persons to let their hair grow, that this cutting of my servants' hair was a sign I should defeat the peril that hung over me." See Sherwin-White 1966: 435-437 on this letter. Sura, along with being on Trajan's staff, was a former consul. See also Aelius Aristides and the dreams of his slaves, Or. 48.9 109 the slave's dream because he owns the slave through and through. 18 Another factor, however, is the dream of the freedman, which makes up half the evidence of Pliny's analysis. It would seem that Pliny, a former master, retains some ownership over the dreams and minds of his freedmen; this suggests the freedman has not been released from his former master's internal grasp entirely. Seneca writes to Lucilius and in a similar vein explores the mastery of slaves’ minds; but Seneca regards the master who thinks his slave's knowledge is his own to be in error. In Seneca's tale about Calvisius Sabinus, who "had the bank account and character of a freedman" (patrimonium habebat libertini et ingenium), the question of the freedman's mind arises again. The letter concerns the freedman's desire to appear learned even though he had a terrible memory (nihilominus eruditus volebat videri). Sabinus solves his problem by buying or training slaves who can recite Homer, Hesiod, and the nine lyric poets, and when Sabinus comments to one of his dinner companions, Satellius, about the price of these slaves, the companion responds that he could have bought as many bookcases for less expense. However, Seneca explains why Sabinus wanted the slaves, Ille tamen in ea opinione erat ut putaret se scire quod quisquam in domo sua sciret. Idem Satellius illum hortari coepit ut luctaretur, hominem aegrum, pallidum, gracilem. Cum Sabinus respondisset, 'et quomodo possum? vix vivo', 'noli, obsecro te' inquit 'istuc dicere: non vides quam multos servos valentissimos habeas?' Bona mens nec commodatur nec emitur; et puto, si venalis esset, non haberet emptorem: at mala cotidie emitur. 19 18 Sherwin-White 1966: 437 "The portents affected [Pliny's] own self because the boys were his own property." Joshel 2011: 237 writes on this passage, "In his consumption of agency, Pliny enjoys possession of his slave – not as object, but as subject. His paternalism requires agents who feel and think, rather than animals or tools with no desires, thoughts, or feelings to appropriate. In paternalistic discourse, slaves must have agency, yet their personhood must also be so transparent that they serve as blank screens onto which the master projects himself: their hair is his hair; their interests, his interests; their feelings, his feelings; their dreams, his dreams. There is no opposition, then, between slave as object and slave as human: rather, at the moment that the slave becomes visible as person, it is because he/she is most useful to the writer’s discourse. In effect, in attributing human thought and feeling to the slave, Pliny anthropomorphises an object." 19 Sen. Ep. 27.5-8. 110 But Sabinus held to the opinion that what any member of his household knew, he himself knew also. This same Satellius began to advise Sabinus to take wrestling lessons, – sickly, pale, and thin as he was, Sabinus answered: "How can I? I can scarcely stay alive now." "Don't say that, I implore you," replied the other, "consider how many perfectly healthy slaves you have!" No man is able to borrow or buy a sound mind; in fact, as it seems to me, even though sound minds were for sale, they would not find buyers. Depraved minds, however, are bought and sold every day. Setting aside Seneca's freeborn snobbery, his commentary to Lucilius on the ingenium libertini is noteworthy. Seneca's descriptor of Sabinus' ingenium as one of a libertus brings about the idea that there is something about former slaves, despite their freedom, that is not quite the same as a freeborn person, a remnant of their slavehood. 20 Seneca paints a picture that looks remarkably like the Cena Trimalchionis, and having slaves play an instrument or recite poetry was not unusual; however, here Seneca points out that the misguided freedman Sabinus considered whatever knowledge existed in his household as his own knowledge. He knows what his slaves know (scire). Satellius compares Sabinus' idea of having ownership over the minds of his slaves to having ownership of their bodies, which, of course, Sabinus does have. And yet, Sabinus will not entertain the idea of having a slave wrestle and consider it as if he himself is wrestling. The ownership of the mind and of the body manifest differently here; in his opinion, the ownership of the mind is more thorough and total than the ownership of the body. The removal of this more totalizing ownership from the abstract (the mind) to the tangible (the body) highlights Seneca's point about the folly of Sabinus' thinking. Having a slave compete in a wrestling match may be like owning a winning sports team; the owner can celebrate the win, but cannot take the credit for the physical prowess. The master does not have access to the physicality of his gladiator or laborer beyond the end results. 20 This is discussed in more detail below. 111 Seneca cautions that a good mind (bona mens) cannot be sold or borrowed (or swayed), but a bad one (mala mens) can be. The meaning of this passage reinforces Epictetus' warning of not selling your prohairesis too readily. Seneca's sentiment that you can only buy or borrow a mala mens indicates both that the bona mens (of a slave or a free person) is not for sale, but also that the bona mens is not obtainable for the master. If a slave can have a bona mens that part of him or herself is beyond the reach and bounds of ownership. Seneca's rebuff of the freedman's belief that he himself knows what his slaves know because their minds are all, in a sense, his intellectual property places us back into the space of our main question of the relationship between the absolute dominium of the master and the mental autonomy of slaves. These examples contemplate the ownership of the mind of the slave and complicate the absoluteness of that ownership. A master may own his slave in body, but never know his mind. Here what we see is not our own questioning of the absolute nature of ownership in Rome, but the Romans themselves considering it. While in theory, the mastery of owners over their slaves was nearly absolute, the precautions taken because of the inability to have total control over slaves revealed the anxieties of a slave society. This issue is particularly relevant in Rome because masters would place slaves in positions of power, such as in charge of accounts and overseas affairs. The very fact that a master must seek out, inquire, consider, and ultimately put his faith in his slave raises a number of challenges for the master-slave relationship. Seneca, Epictetus, and others of the philosophical class discussed a slave’s mental autonomy in an attempt to show how a bound man still had the freedom to be a good man, but this has been dismissed as a merely philosophical argument and not a legal one or one that is or could be put into practice. Indeed, the letter of Seneca discussed above is a philosophical lesson; however, 112 this same conversation and consideration regarding the absolute knowledge of the internal of the slave is behind some of the reasoning of the jurists and of other Romans concerned with slave management. Awareness of the fact that the master may not have total ownership over the minds of his slaves, and that he does not know the minds of his slaves, is seen in the reasoning of the jurists. If the master owns the slave through and through as Pliny or Seneca's freedman example suggest, then a slave would never be wayward on account of his own volition or the persuasion of others. There are fundamental differences in their conceptions of ownership of slaves. The freedman Sabinus and Pliny seem to believe that they have ownership over the mind of the slave even if they do not know the mind, while Seneca and Epictetus hold that no one, not even a master, can compromise the autonomy of his slave’s mind without consent. 2. Slaves at work How did the Romans balance the financial and social need for competent and trusted slaves with the underlying social anxieties of a slave society? Slaves in positions of financial trust and responsibility, such as business agents (actores), managers (institores) and foremen (vilici), were a source of concern for masters. The question of balance is particularly warranted considering how preoccupied the Roman jurists were with the idea of slaves breaking their master’s trust. 21 The question places the master’s lack of 21 For example: D.11.3.1.5 Ulpian, Edict, book 23 (discussed below) refers specifically to business managers. Digest 40 on manumission includes several provisions for slaves that ought to be freed so long as they took care of accounts well (discussed below). Aubert 1994: 190 mentions the actio servi corrupti briefly. “In the capacity of administrators, bookkeepers and treasurers, actores had plenty of opportunity to cheat their master, and it is no coincidence that a Roman jurist used the case of an actor altering his master’s accounts to illustrate his point about corrupted slaves.” Aubert 1994: 159 makes note of a number of inscriptions 113 knowledge about the character and actions of his slave at the forefront, and allows us to explore what it means to be a master without having the full knowledge of his object of dominion, his slave. The risk involved was in part an individual financial one; when a master appoints a slave as a business agent, the master is also held legally accountable. In some situations the jurists allow for whether the master was aware of the slave’s actions. 22 The divisions between actor, vilicus, and institor are not fully understood. For the sake of clarity here: an actor is a business agent, generally a slave; a vilicus is a foreman of an estate, a slave, who is in charge of other slaves; an institor is a more general title for a manager appointed to a business by his owner. 23 Slaves were allotted countless jobs and tasks, from basic menial labor to managing the accounts of a wealthy household. Literary texts provide good evidence that a slave’s responsibilities should be determined by his master’s comprehension of his abilities. Discussing the role of a foreman (vilicus), Columella, a writer of the 1 st century CE, raises in his work de Re Rustica (On Agriculture) the issue of the limits of a slave’s character (his ingenium, natural character or talent) and therefore potential responsibilities. Columella adds that along with husbandry, a foreman must have the ability to humor the good workers and show consideration to the lesser ones. This second more intangible requirement is qualified; the mind of the foreman could only hold these managerial virtues “as far as servile nature allows,” “Nec tantum operis agrestis sit artifex, sed et animi, thanking their slaves for being faithful, including CIL VI 9989 and CIL VI 9119. See also the very skewed Vogt 1975: 129-145 on the rareness of faithful slaves and the rewards of grateful masters and Holt 1998: 152-73 on loyal slaves (and the dangers of slaves being too "good"). 22 See for example, D.14.1.1.22 Ulpian, Edict, book 22 and D.14.4.5.1 Ulpian, Edict, book 29 discussed below. 23 See Carlsen 1995 and Aubert 1994: 117-199 for a discussion on the role of actores and other institores of agricultural estates. For a discussion about the legal status of vilici, actores, and dispensatores see Schumacher 2010: 31-39. For a comparative discussion of foremen (19 th c. American South and Rome) see Carlsen 2010: 75-90. See Berger’s Encyclopedic Dictionary of Roman Law. 114 quantum servile patitur ingenium, virtutibus instructus, ut neque remisse neque crudeliter imperet semperque aliquos ex melioribus foveat, parcat tamen etiam minus bonis, ita ut potius timeant eius severitatem, quam crudelitatem detestentur,” 24 “He should be not only skilled in the tasks of husbandry, but should also be endowed, as far as the servile nature allows, with such qualities of the mind that he may exercise authority without laxness and without cruelty, and always foster some of the better hands, at the same time have mercy even with those of lesser worth, so that they may rather fear his sternness than detest his cruelty.” Columella puts forth his ideal vilicus: he must be an artifex, a master of agricultural skill, and have certain qualities of mind (virtutes animi). The ideal vilicus has a bit of a paternalistic character: he commands (imperare), he fosters (fovere), he has mercy (parcere), and he has the capacity to be strict rather than cruel. The vilicus' severitas rather than crudelitas is important because like a master, a vilicus should not punish because he is angry or enjoys it, but he should punish because the slave needs discipline or correction. 25 The foreman behaves as an in between for the master and the slavehands 26 and he exhibits qualities of mastery even to the extent of military language. Columella’s conception of the vilicus goes far enough to grant the foreman the ability to order around other slaves, using the same terminology as a general would to give orders (imperare). 27 Columella frames the nature of a vilicus'—a slave's—authority in such a way that the slave remains a slave in description, but has the power and ability to control other 24 Columella Rust. 1.8.10, Loeb translation, slightly modified. Bradley 1987: 21-28 discusses Columella’s views on slave management as a method of control. 25 See, for example, Sen. Ira. 3.5.4, 3.40.2. 26 Carlsen 2010: 75-76 27 Tacitus refers to the static servile character (ingenium servile) of one of Claudius’ freedmen, Antonius Felix, who, Tacitus says, exercised a king’s right while equipped with a servile character (e quibus Antonius Felix per omnem saevitiam ac libidinem ius regium servili ingenio exercuit), Tac. Hist. 5.9.3. Tacitus also refers to the freedman with the servile character performing the king’s right through the use of a particularly military term: exercere, to practice or train. The word can mean to work or put to use, but it is most often used for the military. 115 slaves. He considers a slave’s ingenium, a term which signifies something intrinsic and innate, and comes from the verb gignere (and the Greek word γίγνομαι, to be born). 28 The ingenium seems here to have governance over the animus; the ingenium being cast as servile affects the formation and ability of a person’s animus. Columella considers it as something within the animus of a person. 29 The ingenium as formative to the animus is seen in other authors as well. 30 To discuss an ingenium as being servile recalls Aristotle’s natural slavery and not the Roman 28 See Ernout-Meillet s.v. ingenium 483: "caractère inné, naturel (cf. ind-olēs) ingeniis; nature; en particulier 'dispositions naturelles de l'espirit, génie' (dans les deux sens du mot français), cf. Pl. Cap. 165. Also 42, ingenium is described as "nature intime." Discussing auctoritas, Hellegouarc'h 298: "la seule trace de la valeur primitive paraît être le caractère héréditaire de l'auctoritas et le fait qu'elle se transmet plus ou moins directement à l'ensemble de la familia. Ce n'est plus alors que la supériorité sociale ou personnelle qui est exprimée par le mot auctoritas, comme cela nous est indiqué par Cicéron qui en énumère le éléments dans les Topiques (§ 73): la virtus d'abord, à laquelle s'ajoutent un certain nombre d'éléments secondaires: ingenium, opes, aetas, fortuna, ars, usus, necessitas etc. Nous voyons ainsi qu'elle se fonde sur la capacité personnelle (virtus, ars, ingenium), l'âge et l'expérience (aetas, usus), la puissance matérielle (opes, fortuna)." 29 Columella refers to the ingenium animi again when he is discussing buying oxen and notes that oxen get their ingenium animi as well as their size and hair color from their original region and climate, RR, 6.1. 30 Seneca the Elder Contro. 7.1 has a brother discussing the different "temperaments" (animi) of two brothers, the one explains that nature has handed him down a different character (ingenium) from his brother: mitioris natura pectoris sum, mollioris animi. Non idem omnibus mortalibus natura tribuit ingenium: animus <huius> durior est, illius clementior, “I am, by nature, too gentle-hearted, too soft in temperament. Nature has not given every man the same character (ingenium). One man’s temperament is harsher, another’s kinder.” The animus (temperament) is what comes from the nature-given ingenium (character). In the opening of the Consolatio ad Marciam (1.3), Seneca the Younger discusses the vir Romanus, before the times of corrupt empire (he references Sejanus), and tells Marcia that by putting forward the writings of her father, A Cremutus Cordus, a historian who was accused of treason under Tiberius, Marcia has provided a model of a homo liber, who is free in ingenium, then animus, and then manus: quid sit vir Romanus, quid subactis iam cervicibus omnium et ad Saianianum iugum adactis indomitus, quid sit homo ingenio, animo, manu liber, “what it is to be a Roman hero, what it is to be unconquered when all necks are bowed and forced to bear the yoke of a Sejanus, what it is to be free in thought, in purpose, and in act.” Aulus Gellius (NA 7.2) tells of Chrysippus’ claim that we were subject to fate but still had control over our own decisions. Gellius discusses how Chrysippus’ skeptics argued that if fate was in control then bad men could not be subject to the law, as they were not in control (here the phrase ingenium mentium is used). In his discussion of Chrysippus, Gellius uses the terminology of the ingenium having governance of the animus. Chrysippus gives the famous description of the rock rolling down the hill: Huius deinde fere rei exemplo non hercle nimis alieno neque inlepido utitur. “Sicut,” inquit, “lapidem cylindrum si per spatia terrae prona atque derupta iacias, causam quidem ei et initium praecipitantiae feceris, 2 mox tamen ille praeceps volvitur, non quia tu id etiam facis, sed quoniam ita sese modus eius et formae volubilitas habet; sic ordo et ratio et necessitas fati genera ipsa et principia causarum movet, impetus vero consiliorum mentiumque nostrarum actionesque ipsas voluntas cuiusque propria et animorum ingenia moderantur. “For instance,” he says, “if you roll a cylindrical stone over a sloping, steep piece of ground, you do indeed furnish the beginning and cause of its rapid descent, yet soon it speeds onward, not because you make it do so, but because of its peculiar form and natural tendency to roll; just so the order, the law, and the 116 model of slavery as a status imposed on others. As with Seneca's descriptor ingenium libertini for Sabinus, ingenium here suggests something unchangeable. 31 Columella balances his need for a competent and managerial vilicus with his understanding of slave nature. The animus of a slave can have certain desired qualities but these are hindered by the ingenium servile. The ingenium servile is an interesting term in its ambiguity: Columella could be discussing the servile nature of that particular slave, or more likely in this case he could be discussing the nature or innate qualities that are part and parcel of slavery. The virtutes animi are stunted by the ingenium servile. Columella navigates between his inherent prejudice that slaves cannot have a full set of virtues and his need for a slave with some level of temperance, judgement, and authority. 32 Columella's navigation is not an uncommon one. If it was just the servile talents or character of a particular vilicus, then another better slave could surely be obtained. The question is, whether the ingenium becomes this way because he is a slave or is he a slave because of his ingenium? The typical read on Roman slavery would have us believe that the Romans did not adhere to a concept of natural slavery, seen in the opening of the Digest and in the fact that Roman manumission practice made former slaves into free Roman citizens. Columella, however, inevitable quality of fate set in motion the various classes of things and the beginnings of causes, but the carrying out of our designs and thoughts, and even our actions, are regulated by each individual's own will and the characteristics of his mind.” Livy seems to use animus ingenium in tandem to mean some innate skill, see 9.17.10, 22.29.9, 29.31.1. Cicero uses them as separate descriptors of character in Phil. 5.23, De Orat. 3.5, Off. 1.22, Re Pub. 1.8, 6.12; however in the De inventione Cicero refers specifically to the ingenium animi when referring to a person of weak character, 1.45 (the same example is given in the Rhetorica ad Herennium). Velleius Paterculus (HR 2.13.1) also uses ingenium and animus as separate descriptors of the qualities of M. Livius Drusus. 31 Tacitus, too, considers the ingenium unchangeable in the sense that he describes the ingenia of freedmen (liberti) as servilia, Tac. Ann. 2.12.3. Tacitus again describes the servilia ingenia of freedmen in the Histories, 2.92.3. As noted above, he discusses Claudius' freedman Antonius Felix (Hist. 5.9.3) as having an ingenium servile. The language of the ingenium servile is used by Livy 35.49.8 when discussing the Syrians, who were considered a better fit as slaves than soldiers because of their servilia ingenia. 32 Schumacher 2010: 31 argues that slave status was necessary to carry out roles of vilicus, actor, or dispensator. 117 acknowledges the limitations of a slave because of something intrinsic, which being born out of nature, could not be shaken off by manumission. There certainly was a social prejudice against freedmen among the freeborn and Tacitus refers to the ingenia servilia of freedmen on several occasions. Tacitus' use of ingenia servilia could be rhetorical, but his language choice nevertheless shows that the ingenia of slaves and therefore former slaves was under consideration and it could be potentially damning for an up and coming libertus. Indeed, it is Seneca, who writes of the ingenium libertini, which is a sort of character that must have been born out of slavery. Columella and the other authors have conceptions to varying degrees that the status of a slave would permeate his mind; these authors must reflect on to what degree these slaves were “servile” when deciding whether they could perform high-level tasks and be trusted. 2a. Remedies on the peculium "One consequence of the fact that a paterfamilias had power over his slaves and children was that any property and any rights acquired by them immediately vested in him. They served merely as channels by which contractual entitlements flowed to and vested in the paterfamilias." 33 "In the period of the classical Roman law, commerce was to a great extent in the hands of the slaves…slaves were psychologically best suited to serve as managers and agents for the following reasons:…employers preferred to utilize the services of men whose character they knew and on whose obedience the could rely; slaves could be chastised if they disobeyed instructions; and slaves had formed the habit of executing their masters’ orders." 34 In this section, I examine how the remedies on the peculium take the mental autonomy and qualities of slaves into account in order to protect the master in financial transactions. Roman private law did not recognize indirect agency; a third party could 33 Johnston 1999: 100. 34 Kirschenbaum 1987: 31-32. 118 not make a formal contract that would bind the principal. 35 Acquisition of property or possession was a different matter if the acting agent was a dependent of the paterfamilias. The paterfamilias had absolute authority and right over his children and slaves. Whatever profit the child or slave made went to the father or master. The peculium of a slave was money or property (including potentially livestock, other slaves, or land) the master handed over to a slave to manage. Legally, a slave cannot own property and the peculium officially remained the master's property; however it was understood to be under the slave's control. 36 The peculium, which existed already in the time of Plautus, allowed for some autonomy for the slave as it was a discrete account or set of property from the rest of the master's property. 37 It was through the peculium that a slave could behave as manager for a particular business of the master and run it with the master not being too involved in the day-to-day affairs. The peculium gave slaves the ability to buy and sell and manage affairs without having to consult their masters. However, the peculium did not take away the fact that slaves had no legal standing and it would be risky for a third party to enter into a contract with someone who had no legal personality. 35 See G. 2.95, D. 45.126.2 Paul, Questions, book 3 on the Roman inability to take possession or ownership through another free person. For exceptions see Aubert 1994: 42. On the lack of direct agency see Gordon 1983: 341-49; Aubert 1994: 40-41; Johnston 1999: 99-101. 36 Sons under the potestas of their father also had peculia, but I focus here on slaves' peculia. On the autonomy the slave had in the management of the peculium see D.41.2.49.1 Papinian, D.41.1.10pr-1 Gaius, and Gaius 2.86-7. Aubert 1994: 66. 37 On the Plautine reference see Costa 104-8. There is some discussion on the peculium being referenced in the Twelve Tables see Kirschenbaum 33n11. On the origins of the peculium more generally see Kirschenbaum 33-35, Diósdi 19-30. Ulpian gives us (quoting Celsus citing Tubero - 2 nd c. BCE) the oldest juristic reference to the peculium, D. 15.1.5.4 Ulpian, Edict, book 29, “Peculium autem Tubero quidem sic definit, ut Celsus libro sexto digestorum refert, quod servus domini permissu separatum a rationibus dominicis habet, deducto inde si quid domino debetur,” “Tubero, however, defines peculium to be (as Celsus states in the Sixth Book of the Digest) what the slave has separate and apart from his master's accounts with the permission of the latter, after deducting therefrom anything which may be due to his master.” 119 The advent of legal remedies based on the peculium provided protection against this risk. These legal remedies are the actio exercitoria, actio institoria, actio tributioria, actio de peculio, actio de in rem verso and actio quod iussu, at times collectively referred to as the actiones adiecticiae qualitates. 38 This representational aspect of the master-slave relationship, where the slave stands in for the master, was somewhat in violation of the Roman law of obligations that found its force in binding the two people together. 39 The actio de peculio (action on the peculium) and the actio tributoria (action for distribution) created a situation where an outside party could bring a suit against the paterfamilias for his dealings with the business agent (a slave in charge of a peculium). The difference between the two remedies was whether or not the principal (the slave's master) had knowledge of what the slave was doing with his peculium. The knowledge made him more liable. 40 The jurists provide plenty of examples of masters not being aware of what the slave is doing and the master was more protected from financial risk if he was ignorant of his slaves' actions. The remedies were set up in such a way to encourage the master's hands-off approach. 41 It has 38 Aubert 1994: 70-84 on the history of the development of actiones adiecticiae qualitatis and the actio tributoria (not, strictly speaking a part of the actiones adiecticiae qualitatis) and on the scholarly debates about these actiones and on the remedies on the peculium more generally see 40-117. Watson 1965: 185 suggests that the actiones must have developed in the mid-Republican period, but there is not a firm date before the mid 1 st c. BCE. Lenel suggests the order in the perpetual edict as actio exercitoria, actio institoria, actio tributioria, actio de peculio, actio de in rem verso and actio quod iussu, Lenel 1927. Valiño 1967: 339-436. Kirschenbaum 1987: 47-71. 39 See D. 15.1.41 Ulpian, Sabinus, book 43 and D. 15.1.44 Ulpian, Edict, book 63. Johnston 1999: 99, Aubert 1994: 70. 40 Johnston 1999: 100. See D.14.1.6, Paul, Short Notes, book 6:pr. “si servus non voluntate domini navem exercuerit, si sciente eo, quasi tributoria, si ignorante, de peculio actio dabitur,” "A master who did not consent to his slave's management of a ship will be liable to an action for distribution if he was aware of it, and to an action on the peculium if he was not. If a slave owned in common manages a ship with the consent of his maters, each of them may be sued in full." 41 Aubert 1998: 77 speculates that the actio institoria comes from the 2 nd c. BCE praetor and jurist M. Iunius Brutus, who owned several agricultural estates and a bath house; one of the few mentions of his legal opinions (Cic. Fin. 1.4.12) regards estate management. 120 also been suggested for elite, well-off Romans, the idea of engaging in the day-to-day of business appeared unseemly and this "laissez-faire" approach appealed to them. 42 The actio de peculio and the actio tributoria hinge on knowledge. The responsibility of anything gone awry in the business a slave is running ultimately would fall to the master; however, if the master were tacitly consenting but unaware, he would be less liable. Roman ownership is conceived in such a manner that anything the slave acquires belongs to the master. And while in the world beyond commerce, this acquisition potentially extends to dreams and literature memorized by the slave, here instead the master's liability for an enterprise is limited depending on his own knowledge of the slave's actions. He is encouraged and able to be ignarus of his slave's plans and transactions. In commercial relations, economic liability concerns outweigh the desire for a master to have the complete access and control over his slaves’ minds found in some literary exempla. The peculium of a slave could have other slaves in it (servi vicarii). This came into particular use to protect the master from being too aware of what was going on in the businesses some of his slaves were running. When discussing another of the remedies based on the peculium, Ulpian gives a presentation of the different levels of management and responsibility. The actio excertoria, the action on shipping allowed a third party to sue the principal (the ship owner or exercitor) because of the actions of the ship's captain (a slave in this case). “Si tamen servus peculiaris volente filio familias in cuius peculio erat, vel servo vicarius eius navem exercuit, pater dominusve, qui voluntatem non accommodavit, dumtaxat de peculio tenebitur, sed filius ipse in solidum. Plane si voluntate domini vel patris exerceant, in solidum tenebuntur et 42 Kirschenbaum 1987: 31, 31n2. 121 praeterea et filius, si et ipse voluntatem accommodavit, in solidum erit obligatus,” 43 "If a ship is managed by a slave with the consent of a son-in-power (or by an underslave with the consent of the slave) to whose peculium he belongs, the son will be liable in full, but the father or master, unless he consented, will be liable only up to the amount of the peculium. Of course, if the father or master did consent to the ship's being so managed, he will be liable in full, as will the son if he also consented." The passage highlights the levels of responsibility and knowledge. The ship is run by a slave who is first called a servus peculiaris, a slave that is part of a peculium of either a slave or a son, and then a servus vicarius, again a slave in a peculium, but this refers specifically to a slave of a slave. The slave in charge of the peculium is called a servus ordinarius. If the servus vicarius is following orders and not running off, he is following the voluntas, the will, of the servus ordinarius. If this is so, then the master will be liable (as the servus ordinarius has no legal standing) to the extent of the sevus ordinarius' peculium. However, if the servus vicarius was following an order from the master (voluntas), then the master will be liable to the full extent of damages (even if that exceeds the peculium). Two developments in this passage have bearing upon our question of ownership and the mind of the slave. The first is the knowledge the master has of this slave's actions 43 D.14.1.1.22, Ulpian, Edict, book 23. On this passage see Di Porto 1984: 304, "Dunque anche rispetto all'exercitio della negotatio da parte del servus vicarius le fonti ripresentano l'intera gradazione de posizioni soggettive: si va dall'ignorantia alla scientia, alla voluntas." Di Porto goes on to note that this was "the fundamental organizational structure for limited responsibility in a collective enterprise.” D.14.4.3pr Ulpian, Edict, book 29: “Sed si servus communis sit et ambo sciant domini, in utrumlibet ex illis dabitur actio: at si alter scit, alter ignoravit, in eum qui scit dabitur actio, deducetur tamen solidum quod ei qui ignoravit debetur. Quod si ipsum quis ignorantem convenerit, quoniam de peculio convenitur, deducetur etiam id quod scienti debetur et quidem in solidum: nam et si ipse de peculio conventus esset, solidum quod ei deberetur deduceretur, et ita Iulianus libro duodecimo digestorum scripsit,” "If a slave has two owners and both of them know that he is trading, the action lies against each of them. If one of them knows and the other does not, the action lies against the one who knows, subject to a deduction of all that is owed to the master with knowledge, just as it would be if he himself had been sued on the peculium. This is in line with what Julian says in the twelfth book of his Digest." See also, D. 14.1.4.2 Ulpian, Edict, book 29, D. 14.1.6.1 Paul, Short Notes, book 6. 122 (for voluntas, will, implies knowing). The relative ignorance or knowledge of the master is built into the law. The second point of note is that not only is the voluntas of the servus ordinarius legally taken into accunt, but that the voluntas is one that the master would generally find in accordance with his own, even if he did not know precisely what it was. While these actions on the peculium were in place for when problems arose this business model must have been largely successful otherwise it would not have been tenable. A master must have confidence in his reading of a slave’s character and ability, specifically that a slave will use his independence in a way that will benefit the master. Part of the slave's compliance must have come from the potential for manumission (even if never realized) or the potential to make some money for themselves on the side. 44 Legally speaking, a master always retained rights to any profit the slave made and could take back the peculium (ademptio peculii); however, the loss of the peculium would certainly not foster any kindly feelings or determination on the slave's part to perform his duties for his master well. 45 These motivational factors clearly aided in the confidence a master had in order to put a slave in charge of his business, farm, or finances. In certain circumstances, this method of fostering good will did not create a larger business problem for the master. If the master had appointed a slave as an institor the changed status of slave (now a freedman) did not affect the business relationship. The actio institoria protected the master 44 Kirschenbaum 1987: 34 on how slaves made extra money including tips, gifts, and hiring himself out when he was not working for his master. On slaves purchasing their freedom see D. 33.8.8.5 Ulpian, Sabinus, book 25. 45 Kirschenbaum 1987: 36-7. Kirschenbaum 1987: 34-5 notes that some farm slaves were allowed some land and animals to make their own profit. 123 regardless if his manager (institor) was a slave, a family member in his potestas, or an outside free person. 46 These slaves in financial and managerial positions clearly did not make up the vast majority of the slaves in the Roman Empire; however, considering this structuralized gradation of knowledge and responsibility, an owner of a larger business (or several businesses) would find himself in a position to need several of these slaves with a particular mental acuity, good business sense, and trustworthiness. The grades of knowledge and administration between a master and his slave can be seen in the following passage of Ulpian, which discusses the actio tributoria and de peculio. Si vicarius servi mei negotietur, si quidem me sciente, tributoria tenebor, si me ignorante, ordinario sciente, de peculio eius actionem dandam Pomponius libro sexagensimo scripsit, nec deducendum ex vicarii peculio, quod ordinario debetur, cum id quod mihi debetur deducatur. Sed si uterque scierimus, et tributoriam et de peculio actionem competere ait, tributoriam vicarii nomine, de peculio vero ordinarii: eligere tamen debere agentem, qua potius actione experiatur, sic tamen, ut utrumque tribuatur et quod mihi et quod servo debetur, cum, si servus ordinarius ignorasset, deduceretur integrum, quod ei a vicario debetur. 47 I am liable to an action for distribution if I know that an underslave of mine is engaged in trade. If I do not know, but my slave does, I am liable to an action on the peculium of the underslave, as Pomponius says in his sixtieth book; I may deduct from the peculium of the underslave what is owed to me, but not what is owed to the slave. If we both knew, he says, I shall be liable not only to an action for distribution but also to an action on the peculium, the former in respect of the underslave, the latter in respect to the peculium of the slave, and the plaintiff will have to choose which of these actions to bring. Debts due to me and debts due to my slave will both qualify for proportional deduction 'in respect of the stock' is proper; for, otherwise, every transaction with the slave might give rise to an action for distribution. There are three levels here: the master, the servus ordinarius, and the servus vicarius, who also has a peculium (which might contain even more slaves). It is not simply that the master 46 D. 14.3.19.1 Papinian, Replies, book 3, "Si dominus, qui servum institorem apud mensam pecuniis accipiendis habuit, post libertatem quoque datam idem per libertum negotium exercuit, varietate status non mutabitur periculi causa," "If a master frees a slave whom he has appointed to manage a bank and then continues the business through him as a freedman, the change of status does not alter the incidence of risk." For similar situations see D. 26.7.37.1 Papinian, Questions, book 11 and D. 26. 7.58pr Scaevola, Digest, book 11. 47 D.14.4.5.1, Ulpian, Edict, book 29. See Di Porto 1984: 306 where he notes that this passage stresses the importance of the ignorantia, scientia, and voluntas of not only the dominus but also the servus ordinarius. 124 should not know the day-to-day affairs of the business, but generally if the master knew that a servus vicarius of his was "conducting business" (negotio) he would be more liable. If a middleman (the servus ordinarius) is introduced into the equation, then the master is more protected because he is one grade removed from the business of the servus vicarius. Sound business sense would indicate that anyone who could afford to run their businesses in this fashion would be smart to, and in this vein, a master would need several high-level competent slaves that he felt could make financial decisions without consulting him. What we might begin to see for a successful business outcome is the necessary relationship between the dominium of a master (the main point of the peculium is for the master himself to make a profit) and the internal freedom that these high-level slaves experienced in order to successfully manage their masters' affairs. The actions on the peculium are set up in such a manner that the mental autonomy of the slave is exploited for the benefit of the master. While Columella fixates on the limitations of the ingenium servile, here the jurists depict these high-level slaves in a manner closer to Epictetus and Seneca in the sense that the intention (voluntas) of the slave is taken into account. 2b. Actio Servi Corrupti A slave who had performed his allotted task well could be rewarded, even manumitted, and a slave who had performed poorly punished. Roman Law goes further and provides a remedy if it was believed that this bad behavior was the result of a third party actor. The actio servi corrupti is useful to examine because generally if a slave misbehaves it falls to their master to punish or sell them. In this case, the jurists consider what constitutes a decrease in the value of the slave and give the master of a degraded 125 slave the right to sue the person responsible. The determinations of what makes a slave worse illustrate the qualities of a slave that Roman masters were most concerned about. In this section, I examine the ways in which the mind of the slave may be corrupted by another person and the ramifications of this corruption. In the previous section we saw how Roman Law made use of the spaces of autonomy in the mind of the slave to financially benefit the master. In that situation, the mental autonomy of slaves was functioning as the Roman masters wanted it to—in their service. In this section, I look at when this autonomy in the service of the master is threatened. We will see that the mental autonomy of slaves in itself did not threaten the ownership of the master; rather a master’s ownership is under threat when another person attempts to take control of the slave’s mind. The actio servi corrupti, largely discussed in the 11 th book of the Digest, is concerned with an outside party interfering in a way that will make a slave bad or worse. Scholars have studied the actio servi corrupti together with other actions (Albanese 1959, Longo 1966, Bonfiglio 1998) 48 or in order to form a better understanding of delicts (Reduzzi Merola 2011). Barbara Bonfiglio (1998) also focused her attention on the language used in the actio servi corrupti. The commentary of the jurists is based on a clause of the Edict of the Praetor. 49 There are seventeen passages from five jurists on this clause of the Edict. Our earliest commentary of the clause, probably created at the end of the Roman Republic, is by the 1 st century BCE jurist Alfenus Varus. The other sixteen passages are from four jurists; passages from the works of the 2 nd -3 rd century CE jurists Ulpian and Paul 48 Including the actio iniuriarum (the praetorian action against defamation of a Roman citizen, D.47.10), the actio doli (the praetorian action against fraud, D.4.3.1.1), and the actio furti (on thefts, D.47.2; 5; 13.1). 49 The Edict was published at the beginning of the term of a praetor (the chief legal magistrate of Rome) and introduced new legal actions not covered by Rome’s civil law (ius civile). The Edict of the Praetor became standardized after a time, and was codified in the reign of Hadrian (117-138 CE). 126 predominate. Mention of the actio servi corrupti is found in the Codex of Justinian. 50 I focus particularly on the commentary work of the late 1 st to early 3 rd century because we find corresponding evidence in the contemporary literature. The Edict of the Praetor The juristic literature stems from the Praetor’s Edict, which Ulpian quotes, “Ait praetor: 'Qui servum servam alienum alienam recepisse persuasisseve quid ei dicetur dolo malo, quo eum eam deteriorem faceret, in eum quanti ea res erit in duplum iudicium dabo,'” "the praetor says: ‘If a man is alleged to have harbored another man’s male or female slave or to have fraudulently persuaded him or her to do anything in order to make him or her worse, I shall give an action against him for double the sum therein involved’.” 51 The edict states that if someone assists in the escape and subterfuge of a slave, he is liable. The damage of the first part of the edict is tied to the physical: the removal of another's slave from his possession. The second aspect of the edict lies in the realm of the mental. One can be liable for persuasion (persuadere), but only persuasion with a deceitful intent (dolo malo). The action is not concerned with the deed the deceitfully-swayed slave performed, but with the fact that the deed makes the slave himself (or herself) worse (deteriorem facere). As we will see in their discussions of the corruptions of slaves, the jurists come to an exploration of the will and morality of the slave typically encapsulated by the word animus. The juristic literature questions what makes a slave worse and in doing so considers what physical, intellectual, or moral characteristics make a slave worth what he 50 CJ.6.2 de furtis et de servo corrupto (concerning theft and the corruption of a slave). For a larger discussion of the actio servi corrupti in the Justinianic period see Bonfiglio 1998: 191-206 and on other actions which discuss the actio servi corrupti see Bonfiglio 1998: 147-190. 51 D.11.3.1.pr Ulpian Edict, book 23. Longo 1966 argues that the only true part of the Edict is the persuadere part, and argues that the harboring slaves part was added later. 127 is worth. 52 The jurist Paul writes that the action revolves around the estimation of utility (aestimatio utilitatis) before the slave was damaged or worsened. 53 And while the aestimatio of a slave is irrevocably tied to price, it is also necessarily tied to a more basic or intrinsic value, the utility and goodness of an individual slave. 54 The legal language of the sources revolves around corrumpere, to break, damage, or corrupt. 55 The action is held for the corruption of both mind (animus) and body (corpus). 56 In the language of the edict, the liable man has persuaded the slave, or changed his mind, and so the slave makes himself worse. And while this could be physical—a freeman could persuade a slave to jump off a roof or to run away, thus physically injuring himself 57 —the majority of the casuistic examples that the jurists explore fall in the mental realm; their preoccupation is with the mind and character of the slaves. 52 Discussing the damage of slaves in terms of the lex Aquilia (D. 9.2), du Plessis 2013: 158 argues that the slaves who are mentioned and therefore whose value must be determined were all “high-level slaves” because they had “freedom of movement” which “low-level slaves” would not have. I believe the same holds true for the slaves mentioned in the actio servi corrupti. 53 D.11.3.6 Paul Edict, book 19, “praeteritae enim utilitatis aestimatio in hoc iudicum versatur,” “for this action is concerned with the assessment of the value of the slave in the past.” All passages from the Digest from Watson translation with slight modifications unless otherwise noted. On aestimatio in this passage see Bonfiglio 1998: 121-146 54 Du Plessis 2013: 165, "A skilled slave had an intellect, which set him apart from other pieces of movable property and which played an important role, through the acquisition of skills, in assessing its value. As such, the 'value' of the slave, especially ['high-level' slaves], did not lie in their intrinsic financial worth (for that would as a rule diminish with time), but in an externalized form of value to their owners or third parties with an interest in them." See also du Plessis 2010: 57-59 on a discussion on the value (pretium) of slaves. 55 See Ernout-Meillet 1027 on corrumpo, s.v. rumpo on the moral meaning to worsen, spoil or corrupt. 56 D.11.3.9.2-10 Ulpian, Edict, book 23, “Sed quaestionis est, aestimatio utrum eius dumtaxat fieri debeat, quod servus in corpore vel in animo damni senserit, hoc est quanto vilior servus factus sit, an vero et ceterorum,” “But there is a question, whether the evaluation of the slave ought to be made to this extent: what damage the slave is subjected to either in body or in mind, that is, only by how much the slave is made lesser, or truly including other things as well.” The passage is interesting because the slave, servus, is in the nominative; and it seems he perceives (sentire) the damage. However, sentire can also mean to be subjected to, which is perhaps the best understanding of the word here. Vilior: the term has a moral component ("dirt cheap"); the servus is made cheaper, less worthy, it is not his price that has gone down, but his own worth. Ernout-Meillet 1301 define vilis as a "bon marché; qui est à vil prix, et par conséquent de peu de valeur (sens propre et figuré)." 57 On legal remedies for this sort of thing see: D.11.3.1.4 Ulpian, Edict book 23, D. 47.2.36pr-3 Ulpian, Sabinus, book 41. Bonfiglio 1998: 176, following the Index Interpolationum, considers the passage as a whole potentially interpolated; however, she notes it is not clear whether the jurists Ulpian is citing are interpolated. 128 Persuasion The actio servi corrupti hinges on the question of persuasion, which Ulpian defines as “more than suggesting; for to persuade is more than to be compelled and to be forced to obey” (plus quam compelli atque cogi sibi parere). Ulpian adds that persuasion is “a neutral concept” (sed persuadere τῶν μέσων ἐστίν) as one can persuade (here the simplex suadere) someone by giving good advice as well as bad. 58 The issue is not persuasion itself, but to be persuaded into doing something negative and self-destructive. To persuade here takes on a very forceful meaning; both compelli (to be compelled) and cogi (to be forced) are words suggestive of violence. 59 The action is not concerned solely with a physical act, but anyone, “who incited a slave to do or to contemplate something wrong,” (qui igitur servum sollicitat ad aliquid vel faciendum vel cogitandum improbe). 60 Here again the verb used to describe the act of persuasion is a very active one, sollicitare (to incite). Bonfiglio suggests that sollicitare is used not to avoid repetition, but with a particular purpose, that is “to indicate an activity stemming from psychological pressure.” 61 As these were generally skilled or high-level slaves, these slaves would have been expected to make use of some sense of 58 D. 11.3.1.3 Ulpian, Edict, book 23, "Persuadere autem est plus quam compelli atque cogi sibi parere. Sed persuadere τῶν μέσων ἐστίν, nam et bonum consilium quis dando potest suadere et malum." The idea of persuasion as a form of corruption is seen also in D.11.3.1.5 Ulpian, Edict, book 23 (discussed below), D. 47.2.36pr-2 Ulpian, Sabinus, book 41 (see previous note), D. 47.10.26 Paul, Edict, book 19, where he who persuades a slave is doing so with malicious intent towards the master (discussed below), C. 6.2.4 imp. Alex. a 222, and C. 9.20.2. 59 Compelli: Ernout-Meillet 874-5 s.v. pello. Pello of course has a very physical meaning, to push, urge, beat, with the military meaning of to rout. Compello has the sense, in particular in classical prose of to address with a sense of blame, accost, and is used to accuse people of crimes in a judicial sphere. Cogi: see Ernout-Meillet 31 s.v. ago, as in ius coegendi coercendi or the phrase invitus et coactus. 60 D.11.3.1.3 Ulpian Edict, book 23, “et ideo praetor adiecit ‘dolo malo, quo eum deteriorem faceret’: neque enim delinquit, nisi qui tale aliquid servo persuadet, ex quo eum faciat deteriorem. qui igitur servum sollicitat ad aliquid vel faciendum vel cogitandum improbe, hic videtur hoc edicto notari,” “therefore, the praetor adds: ‘fraudulently, in order to make him worse.’ For no offense is committed unless the slave is persuaded to do the sort of thing which will make him worse. So it appears that this edict condemns anyone who incited a slave to do or to contemplate something wrong.” 61 Bonfiglio 1998: 26- 27. See Ernout-Meillet 214 s.v. cieo. 129 intelligence or decision-making capacity. Nevertheless, there is a concern about the susceptibility of the slave’s character to persuasion. The passage explicitly removes the action from the slave—both the legal action and the act of making up one’s mind are in another man’s hands—even if that is not the specific intention of the edict. The main focus of the juristic literature is not on the action of the slave (the actio servi corrupti speaks only indirectly about the actions of the slave), but on the actions of the third party: what he did to make the slave worse. Persuasion and compulsion should be things only a master can impose on his slave. The acknowledgement of a slave’s ability to be compelled and to act in a way different than ordered suggests a threat to the master’s dominion. In the edict, the parameters of persuadere, to persuade, are defined as whatever makes a slave worse; this underscores the idea that a slave can be considered worse if he has been moved to not only do but to contemplate something untoward (cogito improbe). Ulpian reasons that a slave is damaged if his thought or state of mind has been altered. The actio servi corrupti implicitly denies the decision to remain loyal or to betray from the slave. We see a similar concern about mental or moral corruption in D. 47.10 de iniuriis et famosis libellis when the actio servi corrupti is mentioned in the context of the persuasion of a slave causing the master to experience iniuria. 62 "Si quis servum meum vel filium ludibrio habeat licet consentientem, tamen ego iniuriam videor accipere: veluti si in popinam duxerit illum, si alea luserit. Sed hoc utcumque tunc locum habere potest, quotiens ille qui suadet animum iniuriae faciendae habet. atquin potest malum consilium dare et qui dominum ignoret: et ideo incipit servi corrupti actio 62 On iniuria see Schulz 1951: 593-9. 130 necessaria esse," 63 "If someone makes a mockery of my slave or son, even with his consent, I am regarded as being insulted, as when he takes him into a tavern or plays dice with him. But this is so only where the person has the intention of perpetrating an affront. For one can give evil counsel without giving a thought to the master; hence, the need for the action for making a slave worse." The master is caused iniuria if the slave is made to seem a fool, even if the slave agrees to the action. The possibilities Paul mentions reflect some of the potential deterioration that is mentioned in the actio servi corrupti (gambling, and one that is not mentioned, going to a tavern). Paul concedes though that this is only an affront, or a cause of iniuria, if the person who changed the mind (suadet animum) of the slave had the plan to cause iniuria. However, the difference that Paul mentions hinges on whether or not the instigator is giving a care as to what will happen to the master (qui dominum ignoret). If someone persuades a slave to behave badly because he wants to shame or bring injury upon the master it is a case of iniuria. If the person is acting to corrupt the slave for other reasons, it is a case for the actio servi corrupti 64 —the attention does not have to be on the master's self or honor. Here the examples Paul shows involve a moral degradation of the slave. The language of persuasion is more fully explored in D. 11.3 when considering a slave previously thought to be good and slaves already deemed bad before the intrusion of a third party. Sed utrum ita demum tenetur, si bonae frugi servum perpulit ad delinquendum, an vero et si malum hortatus est vel malo monstravit, quemadmodum faceret? et est verius etiam si malo 63 D. 47.10.26 Paul, Edict, book 19. This passage is generally thought to be, in terms of substance, genuine, except perhaps for the inclusion of the filius which does not seem to be from the classical period for discussion see Bonfiglio 1998: 34n78, 35n79. Bonfiglio 1998: 158 argues that D. 47.10.26 is tied palingenetically to D. 11.3.14 where Paul denies the applicability of the actio servi corrupti in the case of corrupted children. 64 On the applicability of different actions see D. 47.1.2pr-6 Ulpian, Sabinus, book 43. 131 monstravit, in quem modum delinqueret, teneri eum. immo et si erat servus omnimodo fugiturus vel furtum facturus, hic vero laudator huius propositi extitit, tenetur: non enim oportet laudando augeri malitiam. sive ergo bonum servum fecerit malum sive malum fecerit deteriorem, corrupisse videbitur. 65 But is the person liable only if he has driven an honest slave to wrongdoing, or is he also liable if he has given a bad slave encouragement or shown him how he could commit an offense? The better view is that he is also liable if he has shown a bad slave how he could commit an offense. Indeed, even if the slave would have run away or committed the theft anyway, if the person gave his approval to the slave’s intention, he is liable; for wickedness ought not to be increased by the approval of others. So whether one makes a good slave bad or a bad slave more so, one is held to have made him worse. There are three forms of action in this passage of the jurist Ulpian: to urge a good slave to delinquency, to encourage a bad slave, or to show an already bad slave how to do a bad act. The corrupter pushes (perpellere), exhorts (hortari), and demonstrates (monstrare) bad behavior. The jurist creates a distinction between an honest slave (bonae frugi servus) and a bad slave (malus servus) and uses the most violent language on the good slave (perpellere: to push violently, to enforce). 66 Presumably a slave deemed honest would need more incentive or compulsion to turn to delinquency. The good slave is not the only concern for the jurists, Ulpian reasons that a corrupter who teaches a bad slave new ways to do wrong is liable. The exposure to new ideas (monstrare) is dangerous as well because it again highlights a change in mindset and an act (showing, teaching) that should only be in the purview of the master. It also brings us to the Roman idea that knowledge can be dangerous to minds that are not meant to be developed. 67 The phrasing of the action puts the would-be corrupter in the role of judgement. He is meant to see the bad actions of the slave and, as a good Roman, put a stop to them, but instead at first encourages (hortari) and then becomes a praiser (laudator) of the slave’s 65 D. 11.3.1.4 Ulpian, Edict, book 23. 66 Bonfiglio 1998: 60 on the meaning of perpellere here. See, for example, Tac. Ann. 6.33. 67 See below, Columella Rust. 1.8.6-7 refers to the rudes animos of slaves. 132 intended act. Laudator is a strong word for the morality of the situation working against the corrupting free person, described as praising a person of lower status. 68 The edict and the juristic literature concerning it are meant to protect one freeman’s property from the malicious meddling of another. However, the language of persuasion used is one of psychological tampering and at times verges on the militaristic. It is not the sly suggestion that Ulpian considers, but words of mental pressure and stress that drive a change in a slave’s character. The emphasis of the language of persuasion as forced takes the decision to betray the master out of the slave’s hands. It takes the reasoning faculties away from the slave; the actio servi corrupti sets up a seeming theft of the intellect and ethics of the slave from the master, and also the slave himself. The cases This section discusses the different situations in which we see the potential deterioration or corruption of slaves. The concern with third parties influencing slaves is not limited to the jurists. Columella provides a list of provisions for masters to use in order to protect their slaves from any harmful outside agents. His ideas about the susceptibility of slaves to persuasion at the hands of a third party highlight the concerns about the persuasion of slaves found in the juristic discussion of the actio servi corrupti. Columella 68 There is a relative consensus, however, that this sentence (immo…malitiam) is interpolated both because of the sudden mention of fugere and furtum facere and because the moralizing seems better fitted to the of the Justinianic period, see Albanese 1959: 19n25; Longo 1956: 151, 1961: 202; Bonfiglio 1998: 58-60. Bonfiglio 1998: 58, "Quindi corrompe non solo chi spinge a delinquere un servo buono, ma anche chi esorta all adelinquenza un servus malus o gli indica la strada per realizzare un illecito." 133 himself advocated the manipulation of one’s own slaves into working more diligently. 69 Here, it is the animus of the slave that Columella is particularly focused on. Haruspices sagasque quae utraque genera vana superstitione rudes animos ad impensas ac deinceps ad flagitia compellunt, ne admiserit, neque urbem neque ullas nundinas noverit, nisi emendae vendendaeve pertinentis ad se rei causa. Vilicus enim, quod ait Cato, ambulator esse non debet; nec egredi terminos, nisi ut addiscat aliquam culturam, et hoc si ita in vicino est, ut remeare possit. Semitas novosque limites in agro fieri ne patiatur, neve hospitem, nisi amicum familiaremque domini necessarium, receperit. 70 The foreman should not grant audience to diviners and witches, both sorts of people who compel undeveloped minds with their empty superstition to waste money and then in turn to shameful acts. And the foreman should not know the city or any market, except for the purpose of making purchases or sales specifically pertaining to his own affairs. Cato says the foreman ought not be a dawdler. He should also not leave the limits of the farm, unless it is to learn something new about cultivation, and only if it is in the neighborhood so that he can return. And he should not allow footpaths and new passages to be made in the land. Nor should he receive a guest except a close friend or family member of the master. Columella shares the language of Ulpian; diviners and witches compel (compellere) the minds of slaves. 71 The subject of Columella's concern is the animi of his slaves; the minds of his slaves are rudes animos, undeveloped minds, and the remainder of the passage pertains to controlling information and access to those minds. A diviner or other trickster might swindle money from his slave, but Columella is more preoccupied with any shameful behavior (flagitia) the slave might acquire as a result of his encounter. Columella’s countryman belief that city life was corrupting is seen in his desire to keep his 69 Columella, who spends a substantial portion of his On Agriculture discussing slave management, advises that masters spend time getting to know their slave-hands. Rust. 1.8.15-16, “Iam illud saepe facio, ut quasi cum peritioribus de aliquibus operibus novis deliberem, et per hoc cognoscam cuiusque ingenium, quale quamque sit prudens. Tum etiam libentius eos id opus aggredi video, de quo secum deliberatum et consilium ipsorum susceptum putant,” “Nowadays I make it a practice to call them into consultation on any new work, as if they were more experienced, and to discover by this means what sort of ability is possessed by each of them and how intelligent he is. Furthermore, I observe that they are more willing to set about a piece of work on which they think that their opinions have been asked and their advice followed." Loeb translation. For Columella, the question of responsibility and trust is answered by observation and manipulation of the slave’s ingenium. 70 Columella Rust. 1.8.6-7. 71 See above compelli D. 11.3.1.3, Ulpian, Edict, book 23. 134 foreman at home. His dilemma, to protect the slave by keeping him indoors or to make use of him but risk his becoming corrupt, highlights why discussion regarding the mind of slaves was so prevalent in Rome. The agronomist must balance, on the one hand, his need for his slave to conduct his business—bringing him into contact with the marketplace and many other people— with, on the other hand, the conception that slaves did not have the strength of mind to see through or withstand trickery or corrupting influences. As a result, Columella uses the language of resisting influence: the slave must not know (noscere) the city or the marketplace, except on the master’s business, and he must not acquire any new knowledge (addiscere) on anything but cultivation. For Columella, fear about his slave’s corruption manifests as his acquisition of new and unsanctioned knowledge that an outside character could expose a slave to—the monstrare of Ulpian’s description of persuasion. We see in these two different sources a shared concern about the illicit influence on slaves; in Ulpian, the corruption of a slave because of another’s demonstration of bad behavior, and in Columella, its prevention. Columella proposes a number of ways to prevent the slave from learning anything new. Some of the provisions are about physically keeping the slave away from external influences: no wandering, no new pathways to make leaving the estate easier. Other provisions regard people, the slave can only fraternize with someone who has the master’s best interest at heart. Columella’s prescriptions also allow us to see the life of the foreman of a farm. Certain slaves had the license to leave their masters’ farms and interact with various people outside the sphere of their masters’ influence, leaving them open to corruption. The animi servorum are of concern here; it is their deterioration that is at stake 135 for Columella as it is when Ulpian is reflecting on the value of the slave in relation to the damage done. 72 In the concern about the influences over the mind, we see a similarity to Epictetus in the very fact that the mind of the slave is presented as free. The mind is free to be influenced, persuaded, or corrupted regardless of the status of the person. In Columella’s fears about external influences we see the mental autonomy of the slave; it is up to the slave to allow his mind to be swayed or corrupted. In the juristic literature of the actio servi corrupti, Ulpian includes a list of crimes that are actionable. They bear similarities to Columella’s concerns: Is quoque deteriorem facit, qui servo persuadet, ut iniuriam faceret vel furtum vel fugeret vel alienum servum ut sollicitaret vel ut peculium intricaret, aut amator existeret vel erro vel malis artibus esset deditus vel in spectaculis nimius vel seditiosus: vel si actori suasit verbis sive pretio, ut rationes dominicas intercideret adulteraret vel etiam ut rationem sibi commissam turbaret. 73 One also makes a slave worse if one persuades him to commit an injury or theft, to run away, to incite another man’s slave, to mismanage his peculium, to become a lover, to play truant, to practice evil arts, to spend too much time at public entertainments, or to become seditious; or if, by argument or bribe, one persuades a slave-agent to falsify or adulterate his master’s accounts, or to confuse accounts entrusted to him. Paul adds following this, “or if one makes a slave extravagant or defiant; or persuades him to be debauched.” 74 Some of these actions are crimes that if the slave was caught, the master would have to pay a penalty and some actions would fiscally damage the master and others involved. The language of tampering with accounts is one of moral wrongdoing. Intercidere means to cut through or falsify. 75 However, while adulterare can 72 D.11.3.9.2-10 Ulpian, Edict, book 23, “Sed quaestionis est, aestimatio utrum eius dumtaxat fieri debeat, quod servus in corpore vel in animo damni senserit, hoc est quanto vilior servus factus sit, an vero et ceterorum." Also it is the animus that is persuaded (suadere) in D. 47.10.26 Paul, Edict, book 19. 73 D.11.3.1.5 Ulpian, Edict, book 23. Watson translation slightly modified. 74 D.11.3.1.2 Paul Edict, book 19, “vel luxuriosum vel contumacem fecit: quive ut stuprum pateretur persuadet.” 75 Pliny the Younger also uses the verb to describe the corrupted actions of a slave (intercidere commentarios, Ep. 6.22.4, discussed below). 136 have the meaning to falsify, its primary meaning is to commit adultery, to take and corrupt another’s wife. 76 The association is an act that strikes at the very center of a Roman’s house; the master has been cuckolded via his accounts. The use of a term for infidelity rather than a technical term brings the morality of the act to the fore. Similarly, turbare, to confuse, relates to the noun turba, the term used for the urban crowd of Rome. The use of turbare can be seen as a reflection by an elite Roman on the effect a slave has on his master’s accounts, it is not an orderly mind that has contaminated the accounts, but quite literally, a mob mentality. Turbare also emphasizes that the slave’s actions are not technical and precise, but stirred up and disordered. 77 Other charges, such as taking up evil arts, being seditious, and inciting another slave could be dangerous for the master. 78 Still others, such as spending too much time at the games, being someone’s lover, and allowing oneself to become debauched or luxurious, speak more to the slave’s character, and its potential alteration that would leave the slave less suitable for a life of Persuading slaves to tamper with accounts and sale documents is also seen in D. 47.2.52.23-4 Ulpian, Edict, book 37, "Si quis servo meo persuaserit, ut nomen suum ex instrumento puta emptionis tolleret, et Mela scripsit et ego puto furti agendum. Sed si servo persuasum sit, ut tabulas meas describeret, puto, si quidem servo persuasum sit, servi corrupti agendum, si ipse fecit, de dolo actionem dandam," "If someone persuaded my slave to remove his name from, say, a document of purchase, Mela wrote, and I think, that I can proceed against him for theft. But if the slave were persuaded to transcribe my document, then, if the slave be suborned into doing so, the action for making a slave worse would lie; if the inciter himself made the copy, the action would be that for fraud." Schiller discusses this passage in his famous article on the use of the actio servi corrupti to protect trade secrets, 1930: 823. For a counter argument see Watson 1996. 76 Ernout-Meillet 39-40 s.v. alter. D. 48.5 focuses on adultery (in the traditional sense), for our purposes, D. 48.5.6pr Papinian, Adulterers, book 1 discusses the adultery (adulterium) among free people and the use of the lex Julia, and for a female slave the lex Aquilia, the charge of iniuria, or the actio servi corrupti. On adultery or the sexual corruption of slaves see: D. 1.18.21 where the sexual corruption of slaves is bad for the household, D. 47.1.2.5, which mentions the actio servi corrupti, D. 47.10.9.4, and D. 47.10.25. 77 For a definition of turba see D. 47.8.4 Labeo turbam multitudinis hominum esse turbationem et coetum. E-M 1250 s.v. turba. Hellegouarc'h 1963: 515 discussing the terminology for plebs, "Turba qui, au sens propre, signifie 'le désordre', exprime aussi dans un sense plus concret la notion d'une foule désordonnée et en révolte [Sall. Cat., XXXVII, 3]; il s'applique aux Catiliniens chez Cicéron [Mur., 49], à la factio forensis d'Ap. Claudius chez Tite-Live [Liv., IX, 46, 14]." 78 D. 47.11.5 Ulpian, On the Duties of Proconsul, book 5 on bringing infamia to your master. 137 servitude and secondly, would be a challenge or embarrassment to the master. 79 Many of these charges echo Columella’s concerns—running away or wandering off (what Columella describes as an ambulator)—or fall under the rubric of what Columella refers to as shameful acts (flagitia)—evil arts, becoming a lover, watching too many games, or becoming debauched. Elsewhere Columella even prescribes giving a slave-woman to a foreman to help prevent him from becoming wayward. 80 Bonfiglio describes the examples from Ulpian as highlighting a “moral deterioration.” 81 The morality of slaves can be seen as a priority for a master, who would certainly hold loyalty to him and his house as a part of a good slave. Indeed, referencing his Republican predecessor Cato the Elder, Columella suggests that slaves not be allowed guests who were not intimates of the master (and perhaps would not gain from a slave tampering with accounts). Ulpian and the 2 nd c. jurist Gaius hold the corruption of the slave to be a loss of loyalty to the master. Gaius goes as far as to say that the mind of the slave “is made worse if he is persuaded to disrespect his master (corrumpitur animus servi et si persuadeatur ei, ut dominum contemneret). 82 The mind of the slave (animus servi) is made worse, considered deteriorated, because his opinion and feelings toward his master have 79 Du Plessis 2013: 165 discusses the actio servi corrupti in terms of the removal of the slave in body and mind from the potestas of the master, "This curious remedy seems to have been linked to the Roman understanding of 'character'." 80 Columella Rust. 1.8.5, “Sed qualicumque vilico contubernalis mulier adsignanda est, quae et contineat eum et in quibusdam rebus tamen adiuvet; eidemque actori praecipiendum est, ne convictum cum domestico multoque minus cum extero habeat. Non numquam tamen eum, quem assidue sedulum et fortem in operibus administrandis congnoverit, honoris causa mensae suae die festo dignetur adhibere,” “But be the foreman what he may, he should be given a woman companion to keep him within bounds and yet in certain matters to be a help to him; and this same foreman should be warned not to become intimate with a member of the household, and much less with an outsider, yet at times he may consider it fitting, as a mark of distinction, to invite to his table on a holiday one whom he has found to be constantly busy and vigorous in the performance of his tasks.” Loeb translation. 81 Bonfiglio 1998: 25. 82 D.11.3.15 Gaius, Provincial Edict, Book 6. My translation. The passage is generally thought to be classical (Bonfiglio 1998: 32; Albanese 1959: 111; Schiller 1930: 840). 138 changed. Contemnere is a significant word: it can mean to defy or despise, but it indicates a loss in value, to hold a person as lesser and not to fear him. 83 If a third party can persuade a slave to disrespect (contemnere) his master, he succeeds in throwing the master-slave relationship off balance. This suggests that the morality and internal considerations of a slave have a role in his value, changes in which the actio servi corrupti served to remedy. As seen, the actio servi corrupti also functioned to situate moral judgement outside the slave; the guilt placed on the third party actor removes the reasoning faculties and will from the slave. In this sense, the double nature of the slaves, as human beings and as property, is firstly recognized and then denied. Both Columella and the jurists go to lengths to disarm the slave; Columella describes the ingenium servile as limited. The jurists echo that in the case of the actio servi corrupti; when the mental autonomy of the slave is no longer in the service of the master, the intellect and the capacity to reason is removed from the slave’s control. 83 Bonfiglio 1998: 33 on contemnere "Inoltre è da rilevare che la radice del verbo contemnere è contem, e cioè la stessa radice della parola contumax [G. Devoto, Dizionario etimologico, 2a ed., Firenze 1968, s.v. contennendo, p. 99 e s.v. contumace, p. 101], espressamente utilizzata da Paolo (D. 11.3.2) per indicare una ipotesi di corruzione morale." Cf. D. 1.12.1.10 Ulpian, Duties on the Prefect of the City, sole book, “Cum paronus contemni se a liberto dixerit vel contumelioum sibi libertum queratur vel convicium se ab eo passum liberosque suos vel uxorem vel quid huic simile obicit: praefectus urbi adiri solet et pro modo querellae corrigere eum. Aut comminari aut fustibus castigare aut ulterius procedere in poena eius solet: nam et puniendi plerumque sunt liberti. Certe si se delatum a liberto vel conspirasse eum contra se sum inimicis doceat, etian metalli poena in eum statui debet,” "When a patron alleges that his freedman has committed an act of contempt toward him or complains that his freedman is contemptuous in attitude or avers that he or his wife or children have suffered outrageous insult at the freedman's hands or anything of this sort, an approach is normally made to the prefect of the city, and his practice is to subject the freedman to correction according to the seriousness of the complaint, whether issuing a reprimand or ordering a flogging or going further in the way of punishment. For, indeed, freedmen often have to be punished. To be sure, if a patron can show that a charge was laid against him by his freedman or a conspiracy got up with his enemies, the punishment of of being sent to the metal mines ought to be imposed on the freedman." 139 2c. Account Management Certain slaves served as business agents (actores) for their masters and were placed in charge of rationes, accounts. Accounts could be from agricultural estates or city businesses; the job of the slave was to transact and record the amount taken in and owed on the master’s business. Slaves in charge of accounts had varying levels of access to their master’s money. Rationes reddere, typically translated as “to render accounts,” refers to when a slave hands over the money he has made on behalf of his master while in charge of the account. These slaves played an important role in their master’s financial welfare and the Roman economy. The fear of slave corruption was largely focused on those slaves who had particular skills and access to sensitive material. This fear manifests in the attention paid to slaves who managed the accounts of their master. An account manager who betrayed his master caused not only a financial loss, but also one on a personal and potentially social level. 84 The slave in charge of accounts was likely to be one of the most trusted and closest to the master, making the betrayal all the more damaging. 85 In this section, I focus on three passages discussing account management that illustrate the level of autonomy of certain slave business agents. One method of attempting to ensure that accounts were rendered properly was to promise manumission to the slave assigned to manage the accounts. We have records of these manumission orders in the wills of masters. The language of the wills manumitting 84 Watson 1987: 102-114 on the social effects of a slave on his master through acquisitions. 85 The actio servi corrupti says that a case is actionable when the master can prove he lost money on account of his worsened slave so long as the master was not involved in the illicit activity. D.11.3.14.1 Paul Edict, book 19, “servi corrupti constituta actio est, qui in patrimonio nostro esset, et pauperiorem se factum esse dominus probare potest dignitate et fama domus integra manente,” “The action has been established specifically to deal with making worse a slave who is part of one’s estate (in which case the owner can prove that he is financially worse off, although the dignity and reputation of the house remains unimpaired).” This line of thinking is also seen when discussing the actio institoria, and the limited liability a master had if he was unaware of his slave's actions, see Johnston 1999: 102-104. 140 account managers was rather standard; however, the cases are recorded because of the different circumstances which arise. Sextus Caecilius Africanus, a jurist of the 2 nd century CE, discusses how to interpret the manumission of a slave on the grounds of rendering accounts: Quamvis rationes reddere nihil aliud sit quam reliqua solvere, tamen si et statuliberi et heredis culpa, sine fraude tamen servi minus solutum sit et bona fide redditas esse rationes existimatum fuerit, liberum fore: et nisi ita observetur, neminem, qui sub condicione ita manumissus esset, umquam ad libertatem perventurum, si per imprudentiam minus solutum esset. Haec ita accipienda ait, si quando is, qui rationes reddere iussus sit, per aliquem errorem sine dolo malo ita rationes ediderit, ut dominus quoque circa computationem erraret. Rendering accounts is nothing more than discharging balances; still if through the fault of both statuliber 86 and heir, but without bad faith on the slave’s part, less be paid than is due, and the accounts be deemed rendered in good faith, the slave will be free. Did we observe differently, no one conditionally manumitted would ever achieve liberty, if an underpayment were made through oversight. [Julian] says that this is accepted if, when a slave is directed to render accounts, he so renders accounts through error but without guile that the master is also in error over the computation. 87 Africanus defines rendering accounts as the simple matter of returning the money due to the master or heir. The jurist discusses potential complications and weighs his decision whether the slave should be freed along the lines of actions or intentions. Africanus reasons the slave will still be freed if he returns an inadequate sum not through trickery, but error. In terms of the manumission in question, the honest actions (bona fides) are more important than the total sum of the account. The master is of course primarily interested in sorting out his accounts and getting the right amount of money; however, the law allows us to see that independent of the financial issue, the honesty of slaves was highly valued and important. The intent of the slave is seen as a priority; he must act without deceit (sine fraude, sine dolo malo). Africanus rules in such a way that he does not create a 86 A statuliber is a slave who will be free on the condition he complete an allotted task. Here, to render the accounts. 87 D.35.1.32 Africanus Questions, book 9. On this discussion see also D.40.7.21 Pomponius, On Plautius, book 7 and D. 35.1.111 Pomponius, Epistles, book 11. 141 situation in which conditional manumission would not stand because of a mistake. The accounts of a master are important, but rewarding a slave with good intentions and behaving honestly takes precedence. The liberation of a good slave, although one who made mistakes, helps promote the Roman idea of manumission as a means of slave control. 88 The language of the manumissions hinging on the rendering of accounts reveals to us that masters' prized the honesty of their slaves over their accuracy. Africanus’ focus on the intention of the slave rather than his accidental mistake underscores that this slave chose to act in his master’s best interest. The opposite scenario can be seen in the following case, where a slave had no intention of rendering the accounts properly. The more important and trusted the slave and the more lackadaisical the master, the more harmful the betrayal would be both in terms of finance and familia. The 2 nd century CE jurist Quintus Cervidius Scaevola relates a case regarding a directive in a will to an heir to transfer property (fideicommissary freedom). The slave in question was found to have mismanaged his accounts, Sticho libertas data est: “ab heredibus meis peto fideique eorum committo, ut rationibus redditis Stichum manumittant.” quaesitum est, cum ampla pecunia exacta post mortem testatoris sibi commissa reliquetur et quasdam summas a colonis exactis rationibus non intulerit hereditatemque spoliaverit apertis clam horreis sublatisque supellectili et veste et apothecis exhaustis: an non prius ei fideicommissa libertas debeatur, quam ea, quae mala ratione reliquatus est quae furatus est, reposuerit. respondit non prius ei fideicommissam libertatem praestandam, quam et reliqua et omnia, quae per eum abessent, restituisset. 89 Freedom was given to Stichus thus: “I ask my heirs, and commit it to their good faith, to manumit Stichus after he has rendered accounts.” A large sum was due from the chest entrusted to the man after the testator’s death; he has not entered in the accounts certain moneys collected from the tenants; he had despoiled the inheritance by secretly opening the barns, removing furniture and clothing, and emptying the stores. Would fideicommissary freedom be due to him only when he had restored the sums he had embezzled and all the things he had stolen? He 88 See Bradley 1987: 81-112 on this practice. For discussion on this see Roth 2010: 91-120 on carrot-stick relationship between business and manumission. 89 D.40.7.40pr Scaevola Digest, book 24. 142 replied that he should not be given fideicommissary freedom before he had made good the arrears and the losses for which he was responsible. Once all the losses caused by the slave’s deceit and thievery have been restored, the slave will be freed. The Latin does not say for certain that the slave was a business agent (actor), but it does highlight the amount of access certain slaves had into the depths of their masters’ finances. 90 The slave’s offenses here are not limited to rendering the accounts improperly; he also owed money, was embezzling, and he plundered the inheritance by stealing goods (spoliare). Spoliare is to rob and can have reference to the pillaging that takes place after a military campaign, but also to piracy. 91 The language puts the master in the position of the victim, being robbed right out from under him. 92 The slave has put not only his master at financial risk, but by disrupting the inheritance, the heir as well. The passage of Scaevola highlights the amount of latitude and responsibility a particular slave could have. Following the death of his master, a single slave was entrusted with a large sum of money in addition to his duties with respect to the accounts. The slave also had access to barns containing valuables, and the autonomy and capability to find methods to remove the stolen goods from his master’s property. The slave's knowledge and ability to store and sell the wares are no doubt those skills that the master prized when they were in his interest. We saw that Columella attempts to balance his need for a slave (vilicus) who can have judgement and a level of authority over other slaves with his belief that the ingenium servile is limited and should not be given too much license. This scenario is perhaps Columella’s fears realized. 90 On the fact that a former actor would not be required to render accounts following manumission D. 40.5.19 Scaevola, Digest, book 24. See Aubert 1994: 193-6. 91 Columella too imbued his slave with militaristic terminology: imperare, Columella Rust. 1.8.10. Ernout- Meillet s.v. spolium 1135. See Sall. C. 11.6, Quint. 6.1.3, Cic. Verr. 1.5.14. 92 What is notable is that because the will is upheld upon restitution, the disloyalty of the slave is not accounted for; he still becomes free. The master's desire holds despite the actions of the slave. 143 The reasoning of Columella’s principle of not allowing the slave too much liberty is evident and in Stichus' offenses, we find justification for Columella’s desire to keep his foreman at home and limit the number of access points to his farms. Roman jurists attempted to maintain the intent of wills to the best of their ability, but here the force of the will is truly seen. The slave would be freed after he returned the stolen goods and money. The issues here are very different than in the actio servi corrupti; there is no evidence of tampering, there is no free Roman to hold accountable for the behavior of a trusted slave. It seems unlikely, given the amount of case material left behind regarding slaves betraying their masters and the cautioning writings of Columella that this case was a sole exception. It seems to be rather an almost inevitable outcome; this master had failed to ensure that the slave in whom he had placed so much trust and power was working in his interest. By leaving Stichus in a position to plot and carry out theft and plunder, we see the level of autonomy a slave could have and the difficulties that arise in attempting to control that autonomy. As shown above in the earlier discussion on the remedies based on the peculium, it was in the master's financial interest to keep his hands off his slave's management of affairs. These rules were not necessarily applicable to the running of a rural estate, yet Columella finds it necessary to counsel vigilance and attentiveness. In contrast to the last case where the slave had a great deal of license, Columella advises that an owner ought to be an active presence on his farm and that if he must be away from his land, he ought to put free farmers (liberi coloni) in charge rather than slave foremen (vilici servi) as they are more reliable. The agronomist goes as far as to say that if a landowner does not yield as much from his land as his tenants it is due to the greatest negligence or greed on the part of the slave-hands. In his discussion, Columella highlights the difference between leaving 144 one’s land in the charge of free farmers in contrast to slaves: while it is tolerable to leave free farmers in charge of grain-producing land (though not vineyards or orchards), slave foremen will wreck even grain land. He attributes this to slaves’ general greed (e.g. renting out oxen that the labor cannot spare and skimming off the top), laziness (e.g., ploughing nec industrie), and their desire to scheme against their master. The scheming comes in a number of forms: mismanaging the daily records either by deceit or negligence (vel fraude vel neglegentia), theft or not being vigilant guardians against others, computing the accounts of the stored grains incorrectly (nec conditum cum fide rationibus inferunt), and perhaps worst of all, business agent (actor) and slave-hands (familia) plotting against the master. 93 Columella attempts to prevent this sort of deception by controlling the amount a slave can understand from the accounts: “Potest etiam inlitteratus, dum modo tenacissimae memoriae, rem satis commode administrare. Eius modi vilicum Cornelius Celsus ait, saepius nummos domino quam librum adferre, quia nescius litterarum vel ipse minus possit rationes confingere vel per alium propter conscientiam fraudis timeat,” “Even the illiterate slave is able to manage matters 93 Columella Rust. 1.7.5-7, “In longinquis tamen fundis, in quos non est facilis excursus patris familiae, cum omne genus agri tolerabilius sit sub liberis colonis quam sub vilicis servis habere, tum praecipue frumentarium, quem et minime, sicut vineas aut arbustum, colonus evertere potest et maxime vexant servi, qui boves elocant eosdemque et cetera pecora male pascunt nec industrie terram vertunt longeque plus imputant seminis iacti, quam quod severint, sed nec quod terrae mandaverunt sic adiuvant, ut recte proveniat, idque cum in aream contulerunt, per trituram cotidie minuunt vel fraude vel neglegentia. Nam et ipsi diripiunt et ab aliis furibus non custodiunt, sed nec conditum cum fide rationibus inferunt. Ita fit, ut et actor et familia peccent et ager saepius infametur. Quare talis generis praedium, si, ut dixi, domini praesentia cariturum est, censeo locandum,” “On far distant estates, however, which it is not easy for the owner to visit, it is better for every kind of land to be under free farmers than under slave foremen, but this is particularly true of grain land. To such land a tenant farmer can do no great harm, as he can to plantations of vines and trees, while slaves do it tremendous damage: they let out oxen for hire, and keep them and other animals poorly fed; they do not plough the ground carefully, and they charge up the sowing of far more seed than they have actually sown; what they have committed to the earth they do no so foster that it will make the proper growth; and when they have brought it to the threshing-floor, every day during the threshing they less the amount either by trickery or by carelessness. For they themselves steal it and do not guard it against the thieving of others, and even when it is stored away they do not enter it honestly in their accounts. The result is that both agent and hands are offenders, and that the land pretty often gets a bad name. Therefore my opinion is that an estate of this sort should be leased if, as I have said, it cannot have the presence of the owner.” Loeb translation. 145 properly enough, as long as he has a most tenacious memory. A foreman of this sort, Cornelius Celsus says, brings money to the master more often than he does his book, because, being ignorant about his letters, he himself would be less able to fabricate the accounts and he would be afraid to orchestrate it through another as then his accomplice would be privy to his deceit.” 94 Columella’s suggestion of an unlearned man in charge of his master’s accounts seems unsound and perhaps impossible for anything outside of a very small production; however, his concern for the potential betrayal overshadows his desire for an effective foreman. 95 Just as he prevented his foreman from knowing anything (noscere) outside of cultivation, here he suggests the foreman be nescius, ignorant in order to prevent deception and collusion among his slaves. In a case of manumission we see how clearly literate, skilled, and independent a slave can be. A business agent (actor) had been managing his master’s accounts entirely on his own after the master’s death (rationes, quas egit per multos annos sine subscriptione testatoris). The will of the master stated that the slave was to be free with the provision that he render a full account of his transactions to the heir’s satisfaction. The master, who was seriously ill, was not in a position to supervise the slave’s transactions. Scaevola reasons that the slave should be freed provided he rendered the accounts and gave back faithfully 94 Columella Rust. 1.8.4. See also Columella Rust. 1.8.12-14, “Neve negotietur sibi, pecuniamve domini aut animalibus aut rebus aliis promercalibus occupet. Haec enim negotiatio curam vilici avocat, nec umquam patitur eum cum rationibus domini paria facere; sed ubi numeratio exigetur, rem pro nummis ostendit.” “He shall carry on no business on his own account, nor invest his master’s funds in livestock and other goods for purchase and sale; for such trafficking will divert the attention of the foreman and will never allow him to balance his accounts with his master, but, when an accounting is demanded, he has goods to show instead of cash.” Loeb translation. 95 Cato, Agr. 2.1-5 seems to indicate that at this earlier period record keeping was a part of the vilicus' job. Varro, though, (Rust 2.10.10) wanted even the magister pecoris to be literate. Aubert 1994: 178 expresses skepticism that this was consistently possible. Apul. Apol. 87.7 The likelihood of the vilicus being illiterate goes up if the estate also had a procurator, who was expected to keep the written records, see Aubert 1994: 183-4. On the literacy of actores see Aubert 1994: 195n285. Hopkins 1991: 142-44, Harris 1989: 197-206 more generally on the literacy of slaves, Harris 1989 discusses literate slaves in terms of management: 255- 9. 146 (ex fide) all that was owed, regardless that his master was not able to sign off on the slave’s work. 96 The management of the accounts in this case presents the opportunity for the slave to behave independently and in a trustworthy manner. This is the representation of the ideal good slave, autonomous yet obedient, the slave has been running his master’s accounts honestly and proficiently without oversight for a number of years while the master himself was too sick to work. This case might be seen to represent the ideal of ownership as well; the slave obeys without any supervision from the master. Here we see the confrontation between the Roman economy’s dependence on competent slaves and the reality that those slaves existed and functioned beyond the watchful eye of their master. The focus of these cases regarding the rendering of accounts is on slave behavior and choice. This is different from the slave in the actio servi corrupti where choice is almost entirely removed from the slave because of the third party actor and the strength of the 96 D.40.7.40.3 Scaevola, Digest, book 24, “servus testamento ita manumissus est: ‘Stichus servus meus actor si rationem omnem actus sui heredi meo reddiderit quoque nomine satisfecerit, liber esto eique, cum liber erit, dari volo viginti et peculium suum’. quaesitum est, an, si rationes, quas egit per multos annos sine subscriptione testatoris, heredi reddere paratus sit, liber ex testamento fiat, cum propter gravem valetudinem testator non potuerit rationibus subscribere, testamento tamen subscripserit. respondit, si ex fide ratio redderetur reliquaque inferantur, liberum fore,” “A slave was manumitted by will in these terms: ‘Let my slave and steward Stichus be free if he has rendered a complete account to my heir of his administration and given satisfaction for it, and I wish him, when he is free, to be given twenty and his peculium.’ If he is ready to render to the heir accounts of which he was in charge for many years without a signature by the testator [certifying that they were correct,] would he be free under the will, considering that because of ill health the testator was unable to sign the accounts, though he did sign the will? He replied that if the accounts were rendered honestly and any sums due paid in, he would be free.” See also D. 10.2.8pr, Ulpian, Edict, book 19, “Pomponius scribit, si uni ex heredibus praelegatae fuerint rationes, non prius ei tradendas, quam coheredes descripserint. Nam et si servus actor, inquit, fuerit legatus, non alias eum tradendum, quam rationes reddiderit. Nos videbimus, numquid et cautio sit interponenda, ut, quotiens desideratae fuerint rationes vel actor praelegatus, copia eorum fiat? Plerumque enim authenticae rationes sunt necessariae actori ad instruenda ea, quae postea emergunt ad notitiam eius spectantia. Et necessarium est cautionem ab eo super hoc coheredibus praestari,” “Pomponius writes that if accounts are left to one of the heirs as a praelegatum, they should not be handed over to him until his co-heirs have copied them. Also he says, if a business agent (actor) is left as a legacy, he should not be handed over until he has surrendered the accounts. We must consider whether, in addition, a cautio should be given to the effect that whenever required, access will be granted to the accounts or to the business agent left as a praelegatum. For often the original accounts are necessary, or the business agent is needed to deal with matters subsequently coming to light which relate to what he knows. In fact, it is necessary for the heir in question to give such a cautio to his co-heirs.” 147 term persuadere. The cases also draw attention to the role of the master in slave management. Columella argues for the master to be hyper-vigilant with the vilicus. The juristic literature surrounding these cases of manumission, however, demonstrates that masters did allow slaves to take the reins on any number of enterprises and were often truly unaware of their business. And while on the one hand, this attitude allows us to see the very active role slaves had in the Roman economy, it poses but leaves unanswered the question of the role of the master. After the master has empowered the slave with the instruments to do him great financial and social harm or benefit, the master retains a very tenuous mastery over the slave. While to protect himself from outside suit the master must remain ignorant of his slave’s actions, it can be a blow to the dominium he has over the slave. There is a tension between the need to control slaves and the need for slaves to have enough autonomy to conduct their business. In commercial relations, masters' ownership of their slaves, and specifically the minds of those slaves, manifests in their accruement of property through the decisions and skills the slave uses; however, the masters do not know what the slave is specifically thinking and willing. The mental autonomy that these high-level slaves experienced is built into the law. In the actions on the peculium the master benefitted from his ignorance. In the actio servi corrupti, the jurists discuss this freedom gone awry and place the burden on the third party corrupter. And in the juristic discussion on the management of accounts, we see slaves could benefit from their own choice to serve their masters well. 148 3. The role of freemen Guilty masters? By way of a conclusion, I would like to briefly consider the role of the master and other free people in relation to the slave. 97 The issue of understanding the capabilities of slaves and their capacity for change (for better or worse) was, as we have seen, approached differently. In the previous chapter we saw the evaluative process Roman masters engaged in to attempt to know the character and qualities of slaves. The jurist Ulpian, in discussing the actio servi corrupti, notes that bad slaves were at times freed. He writes, “nam et mali servi forsitan consequuntur libertatem et posterior causa interdum tribuit manumissionis iustam rationem,” “for even bad slaves may gain their liberty, and sometimes subsequent events provide good reason for manumission.” 98 Ulpian’s statement recognizes the potential for change in a slave from bad to worthy of manumission. However the language can be seen as more skeptical, they are still bad slaves (mali servi) and only sometimes (interdum) does a later reason present itself as a just reason for manumission. The juristic literature on the actions on the peculium, the actio servi corrupti, and account mismanagement highlights some masters’ hands-off approach and others’ inability to control their slaves. Here, the statement forms a critique of a master that rewards a bad slave. The master has failed to show his dominance over his slave’s wayward character. Too many wayward slaves brought on financial and social detriment; having control of one's slaves was a part of being a good Roman and a respected paterfamilias. Columella takes a strict approach to prevent losses on account of too much trust in slaves. 97 See Bradley 1987 on the role of the paterfamilias and control. 98 D. 11.3.7, Ulpian, Edict, book 23. Bonfiglio 1998: 121 holds this as genuine contra Albanese 1959: 43-44. 149 Discussing farming, he reasons that so long as the land is good, the master’s care should allow for good harvest. As noted above, Columella reasons that it is better left out of the hands of a foreman because of the chance that great negligence or greed will seize the slave. Columella explains that, “Quae utraque peccata plerumque vitio domini vel committi vel foveri nihil dubium est; cum liceat aut cavere, ne talis praeficiatur negotio, aut iam praepositus ut submoveatur curare,” “there is no doubt that both these offenses are either committed or fostered through the fault of the master, inasmuch as he has the authority to prevent such a person from being placed in charge of his affairs, or to see to it that he is removed if so placed.” 99 This is where the master has failed; as Columella reasons, the master should have been able to prevent the negligence or greed of the foreman because he has the power and duty to remove such a person. His failure to do so not only ensures the mismanagement of his farm, it fosters it. Columella uses the language of cultivation and care (foveri, curare) to describe a master’s failure. The master should have been tending the health (salubritas) of his farm, but instead by his own fault or defect (vitium) he has brought about its ruin. Columella’s harsh criticism falls to the master, not the negligent or greedy slave. It is a failure of his mastery because he did not ensure that the vilicus was working well. Here too, as in the actio servi corrupti, the free Roman, in this case the master, takes on the blame rather than the slave. Columella assigns responsibility to the master, as he is meant to have ownership over his slaves. In the removal of the blame from the slave, Columella cements the idea that the slave’s internal choice to act is a part of the master’s property. 99 Columella, Rust. 1.7.5-7, “ceterum cum mediocris adest et salubritas et terrae bonitas, numquam non ex agro plus sua cuique cura reddidit quam coloni; nonnumquam etiam vilici, nisi si maxima vel neglegentia servi vel rapacitas intervenit,” “but when the climate is moderately healthful and the soil moderately good, a man’s personal supervision never fails to yield a larger return from his land than does that of a tenant—never than that of even an foremen, unless the greatest carelessness or greed on the part of the slave stands in the way.” 150 The guilty third party and corrupting slaves In the actio servi corrupti, the other free person involved is the third party actor who persuades the slave to make himself worse. The freeman is in the role of corruptor, 100 and his actions towards the slave define him. The language attached to the corrupter is negative, which is not unexpected, and holds a tone of morality. Pliny the Younger describes the corrupter of a slave: Atticinus was charged with the corruption of the slave of a secretary, he had intercepted and tampered with documents (corrupto enim scribae servo interceperat commentarios intercideratque, ac per summum nefas utebatur adversus amicum crimine suo). 101 Pliny writes that Atticinus attempted to defend himself from charges, but he proved himself disgraceful while he defended himself (dum defenditur turpis) and depraved while he accused others (dum accusat sceleratus). Pliny uses the same language as the jurists to describe the corruption of a slave (servus corruptus, intercidere). 102 The actions of Atticinus were illegal, but the language describing the corruptors of slaves has a morality that speaks to the fact that these corruptions were intrusions into the very house of another Roman citizen. The emphasis on the corrupter and his moral character serves to take those features away from the slave, diminishing the consideration of a slave’s capacity for moral judgement. There is a second possibility for the moralizing tone of the jurists and literary writers: the corrupting influence a slave can have on a freeman. We have seen that a slave can corrupt a fellow slave (alienum servum ut sollicitaret). Both Quintilian, the rhetorician of the 1 st century CE, and Seneca warn of the danger of those closest to us. In discussing the 100 corruptor used as descriptor in D.11.3.9.3. 101 Pliny Ep. 6.22.4. The corrupter is called at one point a laudator, a praiser, which as mentioned, would be an insult, the man of higher status praising a misbehaving slave. 102 See D. 11.3.1.5 Ulpian, Edict, book 23, “ut rationes dominicas intercideret,” “to falsify his master’s accounts.” Discussed above. 151 eduction of boys, Quintilian notes that there is just as much danger of corruption of character at home as at school (corrumpi mores in scholis putant; nam et corrumpuntur interim sed domi quoque). He reasons that the teacher at home (a slave) might be disgraceful (potest turpis esse domesticus ille praeceptor) and that bad slaves are just as capable of being a bad influence as are well-born people of few scruples (nec tutior inter servos malos quam ingenuos parum modestos conversatio est). 103 Again the corrupter is turpis, disgraceful. The corrupting slave teacher and corrupting Atticinus are on equal moral footing and both capable of making another person worse. Seneca takes on a more global tone, describing corruption as a disease, Non licet, inquam, ire recta via. Trahunt in pravum parentes, trahunt servi. Nemo errat uni sibi, sed dementiam spargit in proximos accipitque invicem. Et ideo in singulis vitia populorum sunt, quia illa populus dedit. Dum facit quisque peiorem, factus est; didicit deteriora, deinde docuit, effectaque est ingens illa nequitia congesto in unum quod cuique pessimum scitur. It is not permitted, I say, to travel a straight path. Our parents drag us down a wrong path, or our slaves do. No one errs by himself, but spreads madness to those nearest him and receives it from them in turn. For that reason, there are the defects of nations in individuals, because the nation gave it to them. While one man makes another worse, he is made worse. He learned a worse way of life and then he taught it. The effect is a great vileness, because the worst in every person is brought into our collective. 104 Seneca envisions a worldview where slaves are just as likely as parents to make you worse. Slaves and parents, both seemingly odd choices as would-be corrupters, are placed in the same role. The first, slaves, are not necessarily in a position to influence, and the second, parents, are supposed to be a nurturing influence. Seneca stresses that anyone can corrupt. The corrupter, free or slave, first learns (discere) and then teaches (docere) degradation; as Ulpian held in the passage of the actio servi corrupti, a slave is corrupted if he is taught (monstrare) to do a bad act, here, instead, it is the slave doing the teaching. In 103 Quint. Inst. Orat. 1.2.4. 104 Sen. Ep. 94.54. 152 these passages, Pliny, Quintilian, and Seneca emphasize the ability of slaves to be bad influences. For Pliny it is more indirect; by corrupting the slave of the secretary, Atticinus debases himself. Quintilian and Seneca specifically compare the corruption a slave is able to do with that of a free person (well-borns and slave teachers, parents and slaves, respectively). They concede here that slaves are able to morally alter free people, as a free corrupter is able to morally alter the slave. These literary authors speak to the ability of slaves to hold influence over their free counterparts more than the juristic literature. However, we can see that the literary and juristic sources, though differing in approaches and intents, are considering the relationship between the slave as mentally autonomous and as owned and unfree. 153 Manumission and the Makings of the Good Citizen “Manumission is not a transfer of dominium but the creation of a civis.” W. W. Buckland 1 1. Introduction In this chapter, I study the question of whether a slave, bound in servitude, has the capacity to behave as a good potential citizen. Roman jurists show a preoccupation with a slave’s actions and character when determining reasons to manumit, while literary texts weigh the ability of slaves to behave in a manner becoming of a free citizen with their status as unfree people. These writers measure the character of a good slave (to be worthy of manumission) against what the Romans considered to be a good Roman. Manumission practice does not tell us what it takes to be a good slave; an examination of reasons for manumission brings us closer to understanding the desired traits and qualities of a Roman citizen. As has been widely noted, Roman society was different than other slave-holding societies; manumission was practiced more frequently and manumitted slaves became freedman Roman citizens. The Roman story of manumission tells that us that slaves, at least those who had some contact with their masters, were aware of this possibility of manumission. I consider whether these slaves, in a state where the potential for freedom and citizenship existed, could do anything or act in a certain way that would help secure the likelihood of their freedom. I focus on manumission because it was a state-regulated practice and at times a good reason (iusta causa) was needed for manumission. In the decision to manumit his slave, the master is performing his final act of mastery; he alters 1 Buckland 1908: 715. 154 his slave’s relationship with him and the community at large. The master and slave become freedman and patron, and the city gets a new citizen. Scholars have discussed the potentiality for freedom that existed due to manumission as a form of social control to discourage slave flight or misbehavior. 2 A slave unhappy with his lot was still encouraged to behave rather than run away or instigate a riot because he might someday be manumitted. In literary exempla, we see examples of masters manumitting their slaves as early as Plautus. 3 In other literary sources, we see that masters would go so far as to tell their slaves they were planning on manumitting them, which surely would encourage their good behavior so the master did not change his mind. 4 The master could revoke a promise of manumission; Tacitus tells the story of Pedanius Secundus, prefect of the city, who was killed by his slave when he went back on a manumission for which the price had already been set. 5 Cicero, discussing the fall of the Republic and the loss of freedom under Marc Antony, notes that honest and hardworking slaves could expect to be freed after six years. The number of years is a reference to the years the Republic was “enslaved,” but the metaphor would not hold if the possibility of manumission were not an expected reality. 6 Instead of examining manumission as a form of social control, I look at the relationship of the master and slave in the moment of manumission because at this breaking point—the transformation from slave to citizen—much can be revealed about 2 On manumission and social control see most importantly Bradley 1984; also Duff 1928: 12; Treggiari 1969; Watson 1987; Scheidel 2010; Perry 2013. 3 Plaut. Cas. 283f; 291ff; Merc. 152; Poen. 134. 4 Petr. Satr. 71.1-3; Plin. Ep. 8.18.5, 5.5.2; Tac. Ann. 15.54.2. 5 Tac. Ann. 14.42-45. As was custom, all of the slaves of the house (400 in number) were executed. Tacitus records that the plebs did not want the execution of so many, but Nero ordered it in an edict. The jurist C. Cassius Longinus gave a speech (according to Tacitus) arguing that the slaves must be executed because they failed to protect their master and were likely complicit. See Bradley 1984: 99-100 for discussion. 6 Cic. Phil. 8.32. Duff 1928:12n1 thinks this is likely accurate for slaves in the master’s house. Bradley 1984: 85 expresses his skepticism about the length of time (6 years). 155 the qualities desired in a Roman citizen. This chapter speaks to my larger project of studying the Roman preoccupation with understanding the mind of the slave because, in the cases I examine, the reasons for manumission are based on particular qualities, which while generally shown through action, originate in the realm of feeling and character. I use manumission as a starting point to access the different virtues and cultural practices of free Roman society which we see slaves engaging in prior to manumission. This chapter will proceed in the following sections: (2) forms of manumission, (3) regulations of manumission, (4) reasons for manumission, (5) reasons for not granting manumission, (6) the performance of liberty and citizenship. 2. Forms of manumission A master could free his slave by one of several methods. The primary distinction is between formal manumission (manumissio iusta) and informal manumission (manumissio minus iusta). There were different forms of informal manumission. Manumissio inter amicos, or manumission between friends, is generally understood as a master proclaiming a particular slave free among a group of friends who would serve as witnesses. 7 Alternatively, it has been suggested that there were not friends present, but that it was an act truly between friends, that is, the master and slave. If there were no others present, then it is likely that the informal manumission was written down. 8 It is believed this was the most frequent form of informal manumission. 9 Manumissio per epistulam, or by letter, 7 Watson 1987: 30. Examples of this form of manumission as early as Plautus and Terrance: Plaut. Epid. 730; Men. 1029, 1093. Terrance Ad. 970. 8 Treggiari: 1969: 29. 9 Duff 1928: 21. 156 was a letter the master wrote which granted freedom. 10 There is mention of manumissio per mensam and in covivio, both of which seem to involve the master inviting a slave to sit at table with him or manumission at a banquet. Watson notes that this may have been an alternate form of manumission inter amicos. 11 Manumissio minus iusta granted the slave freedom without citizenship and any property he had accrued during his lifetime would revert to his master upon death. There are several reasons why a master might informally manumit his slave including the acquisition of property, avoidance of the tax due when a slave was manumitted (vicesima libertatis), or not being able to find a magistrate to properly liberate the slave. Slaves manumitted informally were called Junian Latins. 12 Manumissio iusta was performed in one of three ways: manumission by census, by staff (vindicta), or by testament. Manumission by census (manumissio censu) was practiced predominantly, if not almost exclusively, in the Republic. 13 Even when the census was occurring quinquennially in the Republic, it was the most infrequent form of manumission simply because it could only occur when the censors were taking the census. 10 Watson 1987: 30. 11 On manumissio per mensam see Duff 1928: 21 where he notes that the others present at table would serve as witnesses. On manumissio in convivio see Watson 1987: 30. 12 G. 3.56 “Quae pars iuris ut manifestior fiat, admonendi sumus, id quod alio loco diximus, eos, qui nunc Latini Juniani dicuntur olim ex iure Quiritium servos fuisse, sed auxilio praetoris in libertatis forma servari solitos, unde etiam res eorum peculii iure ad patronos pertinere solita est. Postea vero per legem Juniam eos omnes, quos praetor in libertate tuebatur, liberos esse coepisse et appellatos esse Latinos Junianos: Latinos ideo, quia lex eos liberos proinde esse voluit, atque si essent cives Romani ingenui, qui ex urbe Roma in Latinas colonias deducti Latini coloniarii esse coeperunt; Iunianos ideo, quia per legem Iuniam liberi facti sunt, etiamsi non essent cives Romani, ” “And to make this area of the law easier to grasp, we must remember what was said elsewhere, that the people who are now called Junian Latins at one time were slaves by Roman civil law, although they were normally kept in a state of liberty with the praetor’s assistance; and so their property also normally went to their patrons as being a slave’s peculium. Subsequently, however, as a result of the Junian Act, all those whose liberty the praetor protected came to be free and were called Junian Latins: Latins, because the Act intended them to have their freedom exactly as if they were freeborn Roman citizens who came to be colonial Latins through emigrations from the City of Rome to Latin colonies; Junian, because they were made free by the Junian Act, even though they were not to be Roman citizens.” Translation by W.M. Gordon and O.F. Robinson with slight modification. See Weaver 1990: 275-305 on Junian Latins. 13 Ulp. 1.8 mentions the census as no longer an active form of manumission; however, Gaius includes manumission by census in several discussions of the laws regulating manumission, G. 1.17,44,138,140. Cicero discusses manumission by census (along with the other two forms), Top. 10. 157 The act was a legal fiction; 14 a slave would present himself to the censor as a citizen, the master would agree that the slave was a citizen, and the censor would add his name to the list of citizens. 15 It has been suggested that at one time this was the only form of manumission that conferred citizenship because of the founding story of manumission by census. The Greek historian of the Augustan period, Dionysius of Halicarnassus, gives the account that when the Roman King Servius Tullius (578-535 BCE) began taking the census of citizens he allowed freed slaves who wished to stay in Rome to put their names down. 16 The account of Dionysius of Halicarnassus also suggests that there were already non-citizen freedmen at the time when Servius Tullius allowed them to become citizens through enrollment in the census. 17 Manumission vindicta was also a legal fiction. It took the form of a trial in front of a magistrate under the rubric of causa liberalis, the trial performed when a man in servitude claimed he was actually a freeman or a man enjoying freedom is accused of actually being a slave. 18 In this case, a third party (an adsertor libertatis) would claim the man was free and the master would make no argument. The magistrate would declare the man free and touch the claimant with his staff (vindicta). 19 Manumissio vindicta could take place any day 14 On legal fictions see Fuller 1967. Buckland 1908: 15 Buckland 1908: 439-441. Cicero ponders whether a slave enrolled in the census becomes free at that moment or after the lustrum is finished, Cic. De or. 1.183. Mommsen 1887 2: 374 first suggested that manumission by census like vindicta was a fiction. Watson 1987: 24, “What is not clear for this form of manumission, and is disputed, is whether the censor openly declared he was giving citizenship to the (now ex-) slave or whether he operated under the fiction that the enrolled citizen had always been a citizen.” 16 Daube 1946: 173 on the suggestion that manumission by census was the first to grant citizenship. Treggiari 1969: 25. 17 Dion. Hal. Ant. Rom. 4.22. For the historical sources of Dionysius of Halicarnassus see Gabba 1961: 114- 121 where he suggests that Dionysius takes the account from an aristocratic history of the late 2 nd c.- early 1 st c. BCE. 18 The causa liberalis will be discussed below. 19 Buckland 1908: 441-442; Treggiari 1969: 21-25 158 (except dies nefasti) and be performed by a dictator, consul, interrex, or praetor, and later proconsuls and propraetors, and provincial governors. 20 The Roman historian Livy places the first manumission vindicta in the founding year of the Republic (509 BCE). 21 He tells the story of the slave Vindicius who reported to the consuls a plot to return Rome to a monarchy. As a reward for his bravery and loyalty to the fledgling Republic instead of his master and his co-conspirators, the consul gave the slave his freedom, citizenship, and money from the treasury. Scholars have argued however that manumission vindicta may be older than the foundation of the Republic. 22 Plautus mentions manumissio vindicta: Mil. 961, Curc. 212. Cic. Att. 7.2.8 on revoking a manumissio vindicta because the freedmen failed to perform the sworn upon operae freedmen owed their former masters. For an alternative interpretation of the process of manumissio vindicta in which the master simply declared his slave free and a magistrate approved it without the idea of the legal fiction and trial see Lévy-Bruhl 1934: 56. 20 Livy, 41.9.10-11 “ad legem et edictum consulis senatus consultum adiectum est, ut dictator, consul, interrex censor, praetor, qui nunc esset quive postea futurus esset, apud eorum quem qui manu mitteretur, in libertatem vindiaretur, ut ius iurandum daret, qui eum manu mitteret, civitatis mutandae causa manu non mittere,” “To this law and proclamation of the consul a decree of the senate was added, that a dictator, consul, interrex, censor, or praetor, who was at the time in office or should henceforth be in office, before any one of whom a slave was brought for manumission and for the assertion of his claim to freedom, 7 should require that an oath be given that the person who was manumitting the slave was not manumitting him for the purpose of changing his citizenship; in any case in which this oath was not taken, they decreed that the manumission should not take place.” Loeb translation. The law in question is the senatusconsultum Claudium of 177 BCE. 21 Livy 2.5.9-10 “secundum poenam nocentium, ut in utramque partem arcendis sceleribus exemplum nobile esset, praemium indici pecunia ex aerario, libertas et civitas data. ille primum dicitur vindicta liberatus. quidam vindictae quoque nomen tractum ab illo putant; Vindicio ipsi nomen fuisse. post illum observatum ut qui ita liberati essent in civitatem accepti viderentur,” “When the guilty had suffered, that the example might be in both respects a notable deterrent from crime, the informer was rewarded with money from the treasury, emancipation, and citizenship. He is said to have been the first to be freed by the vindicta. Some think that even the word vindicta was derived from his name, which they suppose to have been Vindicius. From his time onwards it was customary to regard those who had been freed by this form as admitted to citizenship.” See also Dion. 5.13.1 and Plut. Popl. 7.5 who relate the tale, but do not expressly refer to the manumission as vindicta. On the tale of Vindicius see Daube 1946: 74f and Kleijwegt 2009: 319-330. Treggiari 1969: 25n1 notes, “The nomen ‘Vindicius’ itself is strange. It appears to be cognate with ‘Publicius’, the name usually given to slaves freed by the state, and may be genuinely ancient, connected with ‘vindex’, ‘vindico’, rather than with ‘vindicta’.” Watson 1987: 25 calls the tale “apocryphal” but nevertheless important because it explains why an act between master and slave (manumission) has public consequences (citizenship). 22 Watson 1987: 24 believes manumissio vindicta must be older than censu because in order for Servius Tullius to give former slaves citizenship through the census a prior method of manumission must have existed. Treggiari 1969: 24 suggests that manumissio vindicta was the first kind of manumission. 159 The final form of manumission is that by testament (manumissio testamento), which is generally regarded as the most common form of manumission. 23 The language of the will was important in a testamentary manumission; the owner must express an order or command (iussum) not simply a desire (volo) to manumit the slave. 24 Testamentary manumission could be conditional; the slave would be free provided he had done a certain task or met a certain qualification. 25 This form of manumission was popular because it allowed the master to free his slave, but the tax and loss of work would fall to the heir, not the master himself. Additionally, the new freedmen would attend the master’s funeral, which would show affection between the master and former slaves. 26 Manumission by testament is discussed in the Twelve Tables (451-450 BCE) and is likely older. 27 23 On testamentary manumission being the most common form of manumission see Buckland 1908: 442- 44, Watson 1967: 194. Treggiari 1969: 26-7 argues that the rise in manumissions in the late Republic came from impoverished masters who wished to rid themselves of the burden of feeding and housing slaves and therefore testamentary manumission would not solve their problems. Atkinson 1966: 368 also expresses skepticism that testamentary manumission was the most popular of the forms arguing that the testator would not necessarily wish to put the financial burden on the heir. 24 Treggiari 1969: 29; Schulz 1936: 220ff. By the imperial period, if the will was unclear the jurists would uphold the manumission through the principle of favor libertatis (“favoring liberty”). 25 Watson 1987: 25. The conditions of testamentary manumission will be discussed below. 26 Dion. Hal. Ant. Rom. 4.24.6. Treggiari 1969: 27. Atkinson 1966: 368 is skeptical of this, and argues against “the assumption of sentimentality, both on the part of owners and on the part of ex-slaves, which seems out of keeping with what we know of the social life of the period.” 27 Ulp. 2.4; D. 40.7.25.29.1 Modestinus, Differences, book 9. Buckland 1908: 443 suggests that it is older than the Twelve Tables and while deferring on the question of which form of manumission was the oldest, he notes that manumission by testament was the only form not based on a legal fiction and was thus likely the newest form of manumission. Treggiari 1969: 28 agrees that manumissio testamento is likely older than the Twelve Tables, but only after the other forms of manumission which were available to a master during his lifetime. 160 3. Regulations on manumission Manumission was an archaic institution; however, at the beginning of the Empire, Augustus introduced laws to limit the number and kind of slaves masters could manumit. Augustus was not the first to consider regulations on manumission. As noted above, Dionysius of Halicarnassus told of Servius Tullius’ innovation of granting freedmen citizenship. Dionysius gives the rationale behind the Roman king’s decision to manumit and give citizenship; Servius decided freed slaves should have Roman citizenship because in the royal period Rome needed a larger population of citizens for military engagement and economic benefit. 28 Dionysius is a historian of the Augustan period, and while there is evidence to suggest it was Servius who first gave ex-slaves citizenship, the text must be taken to reflect the concerns and criticisms of the historian’s day. 29 Servius addresses the patricians unhappy with the freed slaves being given citizenship and outlined the first regulations on manumission. ἀχθομένων δὲ τῶν πατρικίων ἐπὶ τῷ πράγματι καὶ δυσανασχετούντων συγκαλέσας τὸ πλῆθος εἰς ἐκκλησίαν Πρῶτον μὲν θαυμάζειν, ἔφη, τῶν ἀγανακτούντων, εἰ τῇ φύσει τὸ ἐλεύθερον οἴονται τοῦ δούλου διαφέρειν, ἀλλ᾽ οὐ τῇ τύχῃ: ἔπειτ᾽ εἰ μὴ τοῖς ἤθεσι καὶ τοῖς τρόποις ἐξετάζουσι τοὺς ἀξίους τῶν καλῶν, ἀλλὰ ταῖς συντυχίαις, ὁρῶντες ὡς ἀστάθμητόν ἐστι πρᾶγμα εὐτυχία καὶ ἀγχίστροφον, καὶ οὐδενὶ ῥᾴδιον εἰπεῖν οὐδὲ τῶν πάνυ μακαρίων μέχρι τίνος αὐτῷ παρέσται χρόνου. ἠξίου τ᾽ αὐτοὺς σκοπεῖν, ὅσαι μὲν ἤδη πόλεις ἐκ δουλείας μετέβαλον εἰς ἐλευθερίαν βάρβαροί τε καὶ Ἑλληνίδες, ὅσαι δ᾽ εἰς δουλείαν ἐξ ἐλευθερίας: εὐήθειάν τε πολλὴν αὐτῶν κατεγίνωσκεν, εἰ τῆς ἐλευθερίας τοῖς ἀξίοις τῶν θεραπόντων μεταδιδόντες, τῆς πολιτείας φθονοῦσι: συνεβούλευέ τ᾽ αὐτοῖς, εἰ μὲν πονηροὺς νομίζουσι, μὴ ποιεῖν ἐλευθέρους, εἰ δὲ χρηστούς, μὴ περιορᾶν ὄντας ἀλλοτρίους: ἄτοπόν τε πρᾶγμα ποιεῖν αὐτοὺς ἔφη καὶ ἀμαθὲς ἅπασι τοῖς ξένοις ἐπιτρέποντας τῆς πόλεως μετέχειν καὶ μὴ διακρίνοντας αὐτῶν τὰς τύχας μηδ᾽ εἴ τινες ἐκ δούλων ἐγένοντο ἐλεύθεροι πολυπραγμονοῦντας, τοὺς δὲ παρὰ σφίσι δεδουλευκότας ἀναξίους ἡγεῖσθαι ταύτης τῆς χάριτος: φρονήσει τε διαφέρειν οἰομένους τῶν ἄλλων οὐδὲ τὰ ἐν ποσὶ καὶ κοινότατα ὁρᾶν ἔφασκεν, ἃ καὶ τοῖς φαυλοτάτοις εἶναι πρόδηλα, ὅτι τοῖς μὲν δεσπόταις πολλὴ φροντὶς ἔσται τοῦ μὴ προχείρως τινὰς ἐλευθεροῦν, ὡς τὰ μέγιστα τῶν ἐν ἀνθρώποις ἀγαθῶν 28 Dion. Hal. Ant. Rom. 4.23.4, 4.24.4-8 29 Bradley 1984: 89 suggests that Dionysius is against manumission for ignoble or dishonest reasons rather than all together. Bradley holds Dionysius’ text as reflective of the author’s concern about moral decay in the Rome of his day in contrast to the more virtuous past. 161 οἷς ἔτυχε δωρησομένοις: τοῖς δὲ δούλοις ἔτι μείζων ὑπάρξει προθυμία χρηστοῖς εἶναι περὶ τοὺς δεσπότας, ἐὰν μάθωσιν, ὅτι τῆς ἐλευθερίας ἄξιοι κριθέντες εὐδαίμονος εὐθέως καὶ μεγάλης ἔσονται πολῖται πόλεως, καὶ ταῦθ᾽ ἕξουσιν ἀμφότερα παρὰ τῶν δεσποτῶν τἀγαθά. The patricians being displeased and indignant at this, he called an assembly of the people and told them that he wondered at those who were displeased at his course, first, for thinking that free men differed from slaves by their very nature rather than by their condition, and, second, for not determining by men’s habits and character, rather than by the accidents of their fortune, those who were worthy of honours, particularly when they saw how unstable a thing good fortune is and how subject to sudden change, and how difficult it is for anyone, even of the most fortunate, to say how long it will remain with him. He asked them also to consider how many states, both barbarian and Greek, had passed from slavery to freedom and how many from freedom to slavery. He called it great folly on their part if, after they had granted liberty to such of their slaves as deserved it, they envied them the rights of citizens; and he advised them, if they thought them bad men, not to make them free, and if good men, not to ignore them because they were foreigners. He declared that they were doing an absurd and stupid thing, if, while permitting all strangers to share the rights of citizenship without distinguishing their condition or inquiring closely whether any of them had been manumitted or not, they regarded such as had been slaves among themselves as unworthy of this favour. And he said that, though they thought themselves wiser than other people, they did not even see what lay at their very feet and was to be observed every day and what was clear to the most ordinary men, namely, that not only the masters would take great care not to manumit any of their slaves rashly, for fear of granting the greatest of human blessings indiscriminately, but the slaves too would be more zealous to observe their masters faithfully when they knew that if they were thought worthy of liberty they should presently become citizens of a great and flourishing state and receive both these blessings from their masters. 30 Servius communicates to the skeptical patricians the way that Roman masters should decide whether to manumit their slaves and convert them into citizens. He underscores the particularly Roman tenet of slavery not being an inherent nature but a condition set upon them by circumstance (εἰ τῇ φύσει τὸ ἐλεύθερον οἴονται τοῦ δούλου διαφέρειν, ἀλλ᾽ οὐ τῇ τύχῃ) and highlights the fact that many states have fluctuated from slavery to freedom at different points in history. Servius sets forth a rubric by which the patricians ought to evaluate (ἐξετάζω) their slaves for citizenship: by their habits and character (τοῖς ἤθεσι καὶ τοῖς τρόποις). If a slave is good enough to be manumitted he should be ready to 30 Dion. Hal. RH. 4.23.1-4 Loeb translation. On this passage see Daube 1946: 173. Treggiari 1969: 25 162 become a citizen, if he is not worthy of citizenship then he is not worthy of manumission. Servius places the responsibility of choosing good candidates for citizenship on the masters; if they were manumitting those unworthy of citizenship they were making a mistake. In particular, Servius emphasizes that if they were willing to grant citizenship to foreigners, who may at one point have been slaves themselves, they surely ought to allow their own slaves, who had lived in Rome and presumably had some understanding of Roman society and culture, to be citizens. The king adds that the masters would be scrupulous in their manumission practice and slaves would be more obedient and loyal knowing that they had a chance to not only become free, but become Roman. Taken as a text relating the actions of the penultimate king of Rome, we will see the methods and reasons for conferring citizenship on former slaves holds a great deal of currency with the manumission practice in the late Republic and early Empire. In this time of political upheaval and instability, manumission became much more frequent than before. There were different reasons for this shift: people seeking power would manumit slaves to have them support their political aspirations 31 and masters, who in the time of this political turmoil were no longer as successful, could no longer afford to house and look after as many slaves and through manumission they gained freedmen who owed them operae. 32 It is in this climate that Augustus introduced his legislation on manumission. Augustus introduced the lex Fufia Caninia in 2 BCE. 33 The lex Fufia Caninia pertained to testamentary manumission, which was the only form of manumission that 31 Bradley 1984: 84. 32 Treggiari 1969: 26-7. 33 G. 1.42-6; Paulus Sent. 4.14.4; Ulp 1.4 or 1.24; In.1.7. See Duff 31; Bradley 1984: 87; Buckland 1908: 547-551; Atkinson 1966: 368-370 discusses regulations to curtail fraud. 163 did not take place before a magistrate and was therefore the least regulated. It was also, as noted above, seemingly the most common form of manumission. 34 The statute stipulated a ratio system; a master could only manumit a certain portion of his slaves. An owner of two slaves could free both, an owner of between two and ten slaves could free half his slaves; from 10 to 30 slaves, a third; from 30 to 100, a fourth; and from 100 to 500 slaves, up to a fifth of his slaves, but no more than 100 slaves in total. 35 For clarity’s sake, the slave had to be either identified in the will by name or another distinguishing feature such as profession. The lex Aelia Sentia followed in 4 CE. Unlike the lex Fufia Caninia, this law was not concerned with the quantity of slaves manumitted, but about the particular master and slave. The law had several provisions including age restrictions for both the master that wished to manumit a slave and the slave in question, the nullification of manumissions to defraud creditors or patrons, and that slaves, who had been chained, tortured for wrongdoing, or forced to fight beasts, would become dediticii upon manumission. 36 The law is concerned with the qualities and character of the slave being released from his slavehood. 34 Watson 1987: 29, “Finally, the provision betrays anxiety about the numbers of freedmen at Rome, yet the limitations are not obviously ungenerous. The provision does not limit manumissions by reference to racial origin or to the qualifications of the slaves. To prevent fraud, the lex Fufia Caninia also provided that slaves to be manumitted had to be expressly named.” 35 Notably, runaway slaves were included in the count of slaves for testamentary manumission, see Paulus Sent. 4.14.3, Buckland 1908: 547. 36 On fraud see Buckland 1908: 544. On dediticii: Buckland 1908: 544. G. 1.13; Ulp. 1.11. The manumitted slaves became in numero dediticiorum no matter the kind of manumission or how valid it was. Dediticii were a pre-existing class of conquered peoples who were subjects of the Roman Empire but did not have any citizen or Latin rights. Notably, dediticii were excluded from the universal grant of citizenship under the Edict of Caracalla in 212 CE. Watson 1987: 30 notes that the guilt or innocence of the slave chained, tortured for wrongdoing, or forced to fight beasts was not taken into account. It was the master’s actions that prevented the manumitted slave from acquiring citizenship. 164 A master under twenty was deemed not necessarily old enough to make a good judgement regarding manumission. 37 If a master were manumitting a slave for the purposes of fraud, he was not making the decision to manumit based on an assessment that the slave deserved to be free. Similarly, a slave punished in the above stated manner did not make a good candidate for citizenship. If the master were under twenty or the slave under thirty, the master would have to seek permission to manumit, stating a particular reason (a causa) that would be approved by a counsel (consilium). A slave under thirty manumitted without a causa and the subsequent approval of the consilium did not become a citizen. 38 Buckland has shown that the reason for the age restriction on slaves was because before thirty it could not be sure that the (former) slave could bear the duties of citizenship. 39 According to Ulpian, the causae for manumission had to be “honestae” “honorable” and for “iustae affectiones” “legally just feelings.” 40 The jurists give several causae that are acceptable including blood relations, past services (such as protecting a master), future services (such as becoming a procurator), and marriage. 41 The remaining statutory change in manumission laws of the Early Empire was the lex Junia. The dating of this law is in question; most scholars place this law before the lex 37 Buckland 1908: 538. 38 Buckland 1908: 542. 39 Buckland 1908: 543. 40 D. 40.2.16pr Ulpian, lex Aelia Sentia, book 2. The full passage will be discussed below. 41 On the particular causae see, G. 1.13-32, 36-41, 65-70; Ulp.1.13; D. 40.2.9, 11-15.1. G. 1.19; D. 40.2.25 Gaius, Manumissions, book 1 on being manumitted to become a procurator, but not a tutor because someone who needs a tutor is not of age to manumit. See Buckland 1908: 539-40. D. 40.2.19 Celsus, Digest, book 29 and D. 40.20.2 Ulpian, Duties of Consul, book 2 on manumission for the purposes of marrying a slave. G. 1.18; D. 40.2.14.1 Marcian, Rules, book 4 on the fact that women could not use the causa matrimonii unless the woman was a freedwoman herself. D. 40.2.15pr Paul, lex Aelia Sentia, book 1 on slaves being freed if a young master had to free a slave as conditions for him to become an heir. D. 40.1.20pr Papinian, Replies, book 10 and D. 40.2.20.1 Ulpian, Duties of Consul, book 2 on manumission if a slave was given to a young master for the express purpose of manumission. D. 40.2.9.1 Marcian, Institutes, book 13 on once the causa is approved it is held even if it is wrong. 165 Fufia Caninia and the lex Aelia Sentia. It has been suggested that it was passed in either 25 or 17 BCE. The date of 19 CE has been suggested because the consuls of the year 19 CE were called Iunius and Norbanus and the law is referred to as the lex Iunia Norbana in a passage of the Institutes. 42 However, the lex Aelia Sentia seems to presuppose slaves manumitted before the age of thirty as Junian Latins, and thus most have dismissed the Tiberian date. 43 The law redefined as Latini Juniani slaves who had been manumitted by their bonitary (rather than legal) owner, were manumitted via informal manumission, and slaves manumitted under thirty. 44 The lex dealt with testamentary manumission and perhaps manumission vindicta when discussing bonitary owners granting manumission. The law also protected slaves informally manumitted from being re-enslaved. 45 Some have suggested that the category of Junian Latin, while not conferring full citizenship, should be understood as semi-equivalent to the status of Latin that certain Italian towns had enjoyed; the Junian Latins perhaps had the right of conubium and were able to serve in the military. 46 42 In. 1.5.3 43 For a discussion on the dating of the lex Junia see: Buckland 1908: 534; Duff 1928: 210ff; Last 1934: 888ff. Atkinson 1966: 351-367 where she suggests 25 BCE as a method to deal with the need for military recruitment; Watson 1987: 28 holds it as an Augustan law; and de Domenicis 1966: 5ff says it was passed either in 25 or 17 BCE, and certainly before the lex Aelia Sentia of 4 CE, which implies that Junian Latins already existed. 44 G. 3.56. For a detailed discussion of the lex Junia see Buckland 1908: 533-538,Treggiari: 1969: 29. Duff, 1928: 210ff; Robleda 1976: 135ff. Tacitus mentions the lex Junia (Ann. 13.27), quos vindicta patronus non liberavit, velut vinclo servitutis retinere. 45 Ulp. 1.23; 22.8; G. 2.56. Buckland 1908: 533; Atkinson 1966: 361 on the fact that the praetor generally did this already. 46 Atkinson 1966: 362-363; Sherwin-White 1973: 93 on the military question and 103ff on the marriage question; Buckland 1925: 101. See G. 1.29 “Statim enim ex lege Aelia Sentia uxores duxerint vel cives Romanas vel Latinas coloniarias vel eiusdem condicionis, cuius et ipsi essent, idque testati fuerint adhibitis non minus quam septem testibus vivicus Romanis puberibus et filium procreaverint, cum is filius anniculus esse coeperit, datur eis vinciis praesidem provinciae et adprobare se ex lege Aelia Sentia uxorem duxisse et ex ea filium anniculum habere: es si is, apud quem causa probata est, id ita esse pronuntiaverit, tunc et ipse Latinus et uxor eius, si et ipsa eiusdem condicionis sit, et filius eius, si et ipse eiusdem condicionis sit, cives Romani esse iubentur,” “To begin with, under the lex Aelia Sentia, slaves who are manumitted under thirty and have become Latins, if they take wives who are Roman citizens or colonial Latins or of his own status, and this is attested by not less than seven witnesses who are Roman citizens above puberty, and they beget a son, when this son becomes one year old, the power is given to them to go before the praetor 166 Several theories exist for why Augustus implemented these regulations. The historian Suetonius (c. 69 CE – c. 122 CE) offers an explanation for Augustus’ new laws in his “Life of Augustus.” Magni praeterea existimans sincerum atque ab omni colluvione peregrini ac servilis sanguinis incorruptum servare populum, et civitates Romanas parcissime dedit et manumittendi modum terminavit. Tiberio pro cliente Graeco petenti rescripsit, non aliter se daturum, quam si praesens sibi persuasisset, quam iustas petendi causas haberet; et Liviae pro quodam tributario Gallo roganti civitatem negavit, immunitatem optulit affirmans facilius se passurum fisco detrahi aliquid, quam civitatis Romanae vulgari honorem. Servos non contentus multis difficultatibus a libertate et multo pluribus a libertate iusta removisse, cum et de numero et de condicione ac differentia eorum, qui manumitterentur, curiose cavisset, hoc quoque adiecit, ne vinctus umquam tortusve quis ullo libertatis genere civitatem adipisceretur. 47 Augustus thought it most important not to let the native Roman stock be tainted with foreign or servile blood, and was therefore unwilling to create new Roman citizens, or to permit the manumission of more than a limited number of slaves. Once, when Tiberius requested that a Greek dependent of his should be granted the citizenship, Augustus wrote back that he could not assent unless the man put in a personal appearance and convinced him that he was worthy of the honour. When Livia made the same request for a Gaul from a tributary province, Augustus turned it down, saying that he would do no more than exempt the fellow from tribute — ‘I would far rather forfeit whatever he may owe the Privy Purse than cheapen the value of the Roman citizenship.’ Not only did he make it extremely difficult for slaves to be freed, and still more difficult for them to attain full independence, by strictly regulating the number, condition, and status of freedmen; but he ruled that no slave who had ever been in irons or subjected to torture could become a citizen, even after the most honourable form of manumission. Suetonius places Augustus’ reasoning in complete contrast to the reasons for which Servius first opened the citizenship to freedmen; he gives the Augustan manumission laws or, in a province, before the governor and prove that he married a wife under the lex Aelia Sentia and from her has a one-year-old son. And if the magistrate before whom the case is proved so pronounces, then both the Latin himself and his wife if she too be of the same status, and also the son if he be of the same condition, are ordered by the statute to be Roman citizens.” Watson 1987: 31 notes that the fact that the text rewarded those Latins who had children. The lex Viselia 23 CE allowed Latins who served as vigiles for 6 years to become citizens, see G. 1.32c. Watson 1987: 31on other methods of turning Latin status into full Roman citizenship. 47 Suet. Aug. 40.3. Translation from Graves Penguin edition 1957. 167 a racial explanation. Most scholars have disagreed with Suetonius’ reading or have suggested it was meant in a cultural rather than biological sense. 48 The cases that Suetonius provides following his explanation fit with this cultural explanation. Tiberius’ Greek client would only be granted citizenship if he proved he had good reasons for seeking citizenship. Suetonius uses the legal language for granting exceptions to manumission laws to explain Augustus’ reasoning; if the Greek client had iustas causas for seeking citizenship then he would receive it. Augustus’ fervent denial, according to Suetonius, of citizenship for the Gaul exposes some of the undertones of cultural knowledge in the manumission laws. Two possible factors may be at play in the different treatment of the Gaul and the Greek. While both are outsiders in terms of their origin, Tiberius’ Greek is described as his client; he was already aware of and participating in Roman social and economic relations. Secondly, Greeks and Greek culture were far more accepted and embedded in Roman society than the Gauls. Suetonius’ rendering of the lex Aelia Sentia’s regulation that those slaves punished in chains 48 Bradley 1984: 87-88 discusses this passage in terms of a “moral responsibility” present in slaves prior to manumission and rejects the racial quality Suetonius gives Augustus’ legislation. Brunt 1958: 164 argues that this was meant in terms of a “cultural absorption” rather than a blood connection because Augustus encouraged freedmen to have children. Atkinson is skeptical 1966: 358 “Are we then actually to believe that [Augustus] lent himself to the heresy of ‘pure blood’ as the basis of all privilege, or that he was inept a legislator that he inaugurated a series of laws on which had the very reverse effect to those which he intended?” At 359 Atkinson argues that part of Suetonius’ language is due to the bias of Suetonius himself and his circle against newcomers in high positions. She is reacting contra Duff 1928: 30, 31; Buckland 1921: 79; Domenicis 1966:17 who accept Suetonius’ view, and Last 1934, in particular who focuses on the racial quality of Augustan slavery legislation. Cassius Dio also discusses Augustan manumission laws, 55.13.7, “πολλῶν τε πολλοὺς ἀκρίτως ἐλευθερούντων, διέταξε τήν τε ἡλικίαν ἣν τόν τε ἐλευθερώσοντά τινα καὶ τὸν ἀφεθησόμενον ὑπ’ αὐτοῦ ἔχειν δεήσοι, καὶ τὰ δικαιώματα οἷς οἵ τε ἄλλοι πρὸς τοὺς ἐλευθερουμένους καὶ αὐτοὶ οἱ δεσπόται σφῶν γενόμενοι χρήσοιντο,” “Since also many were freeing their slaves indiscriminately, he fixed the age which the manumitter and also the slave to be freed by him must have reached and likewise the legal principles which should govern the relations of both citizens in general and the former masters toward slaves who were set free.” Loeb translation. On this passage Bradley 1984: 89 argues that what was at stake here was the “moral fibre of the slave” in question. 168 or torture could not get citizenship emphasizes Augustus’ desire to give citizenship only to those that would make good citizens. Scholars have suggested several other reasons for the manumission laws. The laws could be seen as a way to get new citizens who would be fruitful additions to the citizen body. 49 One of the strongest points to counter the idea that Augustus was attempting to curb the freedman population is brought to light when considering the manumission laws in relationship to his marriage laws (lex Iulia de maritandis ordinibus of 18 BCE and lex Papia Poppaea of 9 CE). These laws strongly encouraged marriage (with penalties) and gave rewards for married couples with children. The laws included freedmen and women. 50 Atkinson has suggested that the lex Papia Poppaea of 9 CE was instated to help rebuild the army following the loss of 12,000 troops under Varus. The law allowed Junian Latin men who had three children to become full citizens and women to be independent from their patron after four children. 51 It has been suggested that Augustus was trying to build a standing army, a civil service, and police force, and was using the manumission (and marriage laws) as a means of recruitment. 52 Other scholars have argued that the elites were worried about the infiltration of freedmen into Roman society and the laws were in 49 Atkinson 1966: 371 on one of the goals of the laws of manumission and marriage being to encourage Latin freedmen to get full citizenship. 50 Atkinson 1966: 356-7. Only the senatorial class was not able to marry freedman class. 51 G. 3.44. On this passage see Atkinson 1966: 357 where she notes freedwomen were hindered by the same law to divorce from her patron without his permission, she would continue having citizen children. 52 Atkinson 1966: 358 on what Augustus was trying to achieve with his (overall) legislation. At 363-5, Atkinson ties the name of these freedmen (Latins) to the need for military forces; she is arguing that this is why they are called Latins. She shows the need for troops, recruitment for the Praetorian Guard, and for the new urban cohorts, then the vigiles. Claudius reduced the time a Junian Latin had to serve in the vigiles from 6 to 3 years to get the full citizenship, G. 1.33. Tac. Ann. 4.2 talks about the need for troops in Tiberian period. 169 fact to ease their concerns. 53 Lastly, reasons of social control have been suggested. Bradley suggests that the lex Fufia Caninia gave “testamentary emancipation something of the character of a competition.” 54 The laws were meant to instruct both masters and slaves on what was necessary for manumission to be a possibility. 55 Augustus used statutory law to regulate manumission; later emperors, in particular those of the early 2 nd century, would pass edicts and senatusconsulta to amend and modify manumission laws. 56 The jurists, in turn, wrote commentaries on these laws; while it is Augustus that first introduced statutes about manumission for a particular reason (a causa), we find in the writings of the jurists a series of interpretations of what these causae might be. The Hadrianic or Antonine jurists were the first to begin to incorporate the concept of humanitas into their arguments. 57 Palma discusses the shift in this period to a “less rigid” interpretation of the cases under the justification of being more compassionate (humanior) or more kindly (benignior) and by the time of the Severans, the idea of humanitas was entirely embedded into the work of the jurists. 58 The idea of humanitas serves as a bridge between the strict legal structure of the ius civile to a more comprehensive interpretation of law, which intertwined social etiquette 53 Watson 1987: 29; Atkinson 1966: 367; Bradley 1984: 90-92 on Augustus wanting to curb bad manumission practices not manumission itself, which included defrauding creditors, or the freeing of undeserving slaves. 54 Bradley 1984: 91-92, “a principle of selectivity.” Bradley describes this competition, “the rules for which had to be compliant behavior, loyalty and obedience.” He notes the lex Fufia Caninia creates known criteria for manumission and these criteria are elaborated on by the lex Aelia Sentia. 55 Jolowicz and Nicholas 1972: 345, Sherwin-White 1973: 327-330; Bradley 1984: 93. Bradley 1984: 94 on marriage and citizenship from Latin status. 56 On the legislation and jurists of the 2 nd c. see Corbett 1926: 753-766; Casavola 1980; Palma 1992. 57 Palma 1992: 23. 58 Palma 1992: 42-47. See for example, D. 40.5.41.10, Scaevola, Respones, book 4. 170 and morality with the older legal system. 59 The term humanitas gained currency in the Late Republic, and was used by Cicero to discuss relationships among Romans themselves and between Romans and foreigners. 60 Riccobono describes humanitas as “il sentimento di pietà umana.” 61 Humanitas gathered around itself a number of extolled Roman virtues including pietas, aequitas, clementia, and benignitas. It is often related to the Greek words philanthropia and paideia. 62 Humanitas was a unifying Roman cultural paradigm that served as a marker for distinguishing someone’s ability to participate in Roman imperial society. It should not however be viewed as entirely benign when applied to people outside of elite Roman male culture, since intentionally or not, it served as a form of social control as well as a pathway into Roman society. Greg Woolf discusses the system of humanitas as a control on foreigners entering into Roman society; viewing humanitas as the gatekeeper into Roman civic life applies well to situation of slaves. 63 The ability of slaves to understand and 59 Riccobono 1965: 583-614; Maschi 1948: 263-362; Casavola 1976: 132-175 (in particular 157-160); Crifò 1993: 79-91. On humanitas in Roman culture see Schadewaldt 1973: 43-62; Woolf 1998; Veyne 1993: 342- 369. Veyne offers a definition at 342, “Humanitas means literary culture, the virtue of humanity, and the state of civilization.” See Plin. Ep. 8.24.2. 60 Cic. Att. 1.1.24-25, 27-29, 4.6.1, Cael. 11.26. See Veyne 1993: 343, 352, 363-3, at 343, “Humanitas was thus a merit rather than a universal trait. When it was the merit of an individual it added a certain gentleness to common justice or tempered its rigor.” 61 Riccobono 1965: 590, “Ognuno di questi sistemi [i.e., il ius honorarium, il ius gentium, e il diritto imperiale] ha costituito un superamento e un progresso rispetto alle forme viete del passato. Resta salda e forte la tradizione antica, ma la rivoluzione avviene internamente con l’evolversi dei tempi. Vi è un contrasto perenne tra la logica giuridica del diritto antico e il principio di equità ed umanità, che premono come esigenza prepotente del nuovo diritto.” 62 Aulus Gellius debates the meaning of humanitas and it’s relationship with philanthropia and paideia (NA. 13.17, see also NA 19.14.1). On other terminology related to humanitas see Woolf 1998: 54-5 where he offers: benevolentia, observantia, mansuetudo, facilitas, severitas, dignitas, and gravitas, among others. 63 Woolf 1998: 54-5, “Humanitas…stood for and organized a whole complex of ideas, some descriptive, others prescriptive and all contributing to a definition of self… the idea of humanitas underwrote and was sustained by a particular configuration of power, and it reflected and understanding of the world and of history that was inextricably linked to the fact of Roman imperialism… [it] is an ideological naturalization, the representation of a sectional and contingent value system as a set of beliefs with universal validity grounded in the very nature of man.” 171 assimilate into Roman culture is important for understanding Roman manumission practice in the Empire. The emperors of the 2 nd century and the jurists often discussed questions of manumission under this umbrella of humanitas; this was not an evolution away from the idea of manumission as social control or release valve, it was a different approach. The causae of manumission I examine are fruitful to my study because they reveal the master-slave relationship under the scrutiny of the state. These cases of manumission are all situations that were regulated by the laws of manumission outlined above and interpreted by the jurists. Through the lens of manumission we see slaves behaving and acting with the virtues of a citizen (such as fides or virtus) and engaging in particularly Roman practices (such as the giving of beneficia or the honor system) before they are manumitted. 4. Reasons for manumission 4a. kin relations Family ties between master and slave only existed for slaves that were in contact with their masters. The kind of relationship masters and slaves may have is commented upon in Seneca’s De Ira (On Anger). Seneca discusses the various reasons for kindly treatment of others. He begins with a discussion of a slave that shows his insolence and disobedience with his responses and looks. Seneca counsels not to beat or chain the slave, but rather to pardon the behavior. He reasons that children should be excused for their bad behavior because of their age (aetas), women because of their sex (sexus), strangers because they are free (libertas), and slaves because they are members of the household 172 (familiaritas). 64 The others are pardoned because of something inherent in their status; the slave is pardoned because of his relationship with his master. Familiaritas is of course etymologically tied to familia and is the concept of being intimate or having a familial sort of relationship with others. 65 It guides Seneca’s lenient punishment of slaves—one makes excuses for one’s family—and Seneca here includes the domestic slaves. According to the ius civile, slaves have no family ties; they are not legally recognized as father and mother, husband and wife, or brother and sister. However, we see that the Roman jurists did have some sort of conception of both relationships between slaves and between master and slave. Discussing causae for exceptional manumission in accord with the lex Aelia Sentia we see the familial relationship between master and slave taken into account. Ulpian underlines why such a manumission might be granted, “si minor annis viginti manumittit, huiusmodi solent causae manumissionis recipi: si filius filiave frater sororve naturalis sit,” “if a man is under twenty, these manumissions are usually accepted: that the slave is his son or daughter, brother or sister by birth,” or “vel si sanguine eum contingit, habetur enim ratio cognationis,” “that there is a connection by blood for account is taken of kinship.” 66 Ulpian added to this allowance of manumission foster brothers, fathers, schoolmasters, nurses, the sons or daughters of any of the above, foster children, 64 Sen Ira. 3.24.2-3, “Quid est quare ego servi mei clarius responsum et contumaciorem vultum et non pervenientem usque ad me murmurationem flagellis et compediubus expiem? Quis sum, cuius aures laedi nefas sit? Ignoverunt multi hostibus: ego non ignoscam pigris neglegentibus garrulis? Puerum aetas excuset, feminam sexus, extraneum libertas, domesticum familiaritas,” “‘Why should I treat an answer that is too loud of a look that is too rebellious on the part of my slave or his muttering things that I cannot quite hear, as something to be punished with whips and manacles? Who am I that it should be a sacrilege to offend my ears? Many have pardoned their enemies— am I not to pardon the lazy, the careless, the talkative?’ A child can be excused by his age, a woman by her sex, anyone outside the household by his rights as a freeman, anyone inside it by being part of the family.” Loeb translation. 65 Hellegouarc’h 1963: 68-71 connects familiaritas with amicitia. While at times equivalent with amicitia, familiaritas is often tied to intimus (Nep. Att. 19.4; Cic. Fin. 1.69). Festus Gloss. Lat. “familiares: ex eadem familia.” 66 D. 40.2.11 Ulpian, Duties of Proconsul, book 6 and D. 40.2.12 Ulpian, lex Aelia Sentia, book 2. 173 slaves whose duty it was to carry a child's books, virgins, and women generally for the purposes of marriage. 67 In the first group, Ulpian stresses the natural (naturalis) family relation. In his commentary on the lex Aelia Sentia, Ulpian notes that there must be some connection of blood and explains that the ratio cognationis, or the rationale of similar birth or kinship, is a iusta causa for young masters to manumit. 68 The slaves listed by Ulpian have a familial relationship with their master. They are either related by blood or adoption, will be related by marriage, or were caretakers for their masters in their childhood. These slave are not granted exceptional manumission solely because of the kindly feelings on the part of their master (though that may have been what instigated it); these slaves are being manumitted because they have a predetermined role in a Roman family. We see this concern in the fact that a master that manumitted a female slave for the purposes of marriage had six months to marry the slave otherwise the manumission would be nullified. 69 The master may have children were enslaved if he had a child with one of his slaves, or alternatively, the master may very well be a freedman himself and was freed 67 D.40.2.13 Ulpian, Duties of the Proconsul, book 6, “Si collactaneus, si educator, si paedagogus ipsius, si nutrix, vel filius filiaeve cuius eorum, vel alumnus, vel capsarius, (id est qui portat libros), vel si in hoc manumittatur, ut procurator sit, dummodo non minor annis decem et octo sit. praeterea et illud exigitur, ut non utique unum servum habeat, qui manumittit. item si matrimonii causa virgo vel mulier manumittatur, exacto prius iureiurando, ut intra sex menses uxorem eam duci oporteat: ita enim senatus censuit,” “That the slave is his foster brother or foster father or schoolmaster or nurse or son or daughter to any of these or his foster child or capsarius, that is, one who carries books, or that he is manumitted for the purpose of being his procurator provided that such a person is not under eighteen. A virgin or a woman may also be manumitted for marriage, provided that the master must first wear an oath to take her as his wife within six months; this was resolved by the senate.” D. 40.2.14 Marcian, Rules, book 4, “Alumnos magis mulieribus conveniens est manumittere: sed et in viris receptum est satisque est permitti eum manumitti, in quo nurtiendo propensiorem animum fecerint,” “It is more suitable for women to manumit foster children; but it is also sufficiently accepted for men that the manumission of a slave is permitted in whose rearing they have taken a special interest.” 68 That following this Ulpian adds these other relations can not be surprising in the Roman conception of the family as encompassing the household, that is both free and slave. See for example, Fitzgerald 2000: 4, “The Roman concepts of the domus and the familia, both of which may include relations and slaves, indicate that on some level slaves and free living under the same roof formed a unit.” 69 D. 40.2.13 Ulpian, Duties of Proconsul, book 6. D. 40.2.14 Marcian, Rules, book 4 on female masters only being able to manumit slaves for the purposes of marriage if they themselves were freedwomen. 174 while his son, brother, or potential spouse was not. This example of the exceptional manumission shows the importance of blood and family relations and underscores the reality of relationships between masters and slaves. This discussion can be complimented by another scenario of manumission vindicta following Ulpian’s description of family ties. “Illud in causis probandis meminisse iudices oportet, ut non ex luxuria, sed ex affectu descendentes causas probent: neque enim deliciis, sed iustis affectionibus dedisse iustam libertatem legem Aeliam Sentiam credendum,” “It is to be borne in mind by judges when approving grounds for manumission that they are to approve grounds that arise not from luxury but from true feeling; for it must be supposed that the lex Aelia Sentia granted freedom not for self-indulgence, but for affections recognized by law.” 70 Luxury, personal enhancement, and pleasure (luxuria, delicia) are not to guide motivations for manumission, but rather manumission is to be guided by affection or emotion (affectio, affectus). These are iustae affectiones, just affections, or affections that are legally sanctioned. These legitimate ties fit with Seneca’s assertion that the familiaritas between slaves and master was enough to prevent harsh penalty. 71 Plutarch told the story that Cato had his wife nurse their son alongside infants of slaves so that “they might come to cherish a familial affection (συντροφία) for her son.” 72 Plutarch is speaking of slaves born in the household (vernae) as Seneca does. The master sought manumission because of the affection he had for the slave; the state granted the 70 D. 40.2.16pr Ulpian, lex Aelia Sentia, book 2. 71 See also Sen. Ep. 47.13, “Vive cum servo clementer, comiter quoque, et in sermonem illum admitte et in consilium et in convictum,” “Treat your slave with compassion, even with courtesy; admit him to your conversation, your planning, your society.” Convictus has a similar connotation of living or conversing intimately with another person. Notably, in the passage of Columella cited above (Rust. 1.8.5), Columella counsels that a vilicus not keep company with other people in the household (domestici), but especially not with outsiders (externi). 72 Plut. Cat. Mai. 20.3, “αὐτὴ γὰρ ἔτρεφεν ἰδίῳ γάλακτι: πολλάκις δὲ καὶ τὰ τῶν δούλων παιδάρια τῷ μαστῷ προσιεμένη κατεσκεύαζεν εὔνοιαν ἐκ τῆς συντροφίας πρός τὸν υἱόν,” “For the mother nursed it herself, and often gave suck also to the infants of her slaves, that so they might come to cherish a familial affection for her son.” Loeb translation slightly modified. 175 manumission because the slaves were already in practice a part of a Roman household and this legitimated the tie in the eyes of the law. Manumission serves as a form of social birth; the former slave would gain not only a free legal status, but a social status within a Roman family. In a different section of the Digest we see the jurists explicitly taking slave families into account (D. 21.1). When discussing the return of a group of slaves sold together (as a unit) on account of one being ill or defective, Ulpian notes, “Plerumque propter morbosa mancipia etiam non morbosa redhibentur, si separari non possint sine magno incommodo vel ad pietatis rationem offensam. quidenim, si filio retento parentes redhibere malverint vel contra? Quod et in fratribus et in personas contubernio sibi coniunctas observari oportet,” “Healthy slaves are generally returned on account of those who are diseased when they cannot be separated without great inconvenience or affront to family ties. Suppose that I wish to return the parents but keep their son or vice versa. The same is true in respect of brothers and those linked in a servile quasi-matrimonial relationship.” Paul seconds this opinion for brothers. 73 Roman Law, in the sense of the ius civile, does not make allowances for this sort of consideration, slaves were legally not allowed to marry, but here Ulpian respects “persons joined together in a slave dwelling,” (personae contubernio sibi coniunctae). Contubernium is used to refer to slave marriages in opposition to legal Roman marriage (conubium). 74 In Ulpian’s concession to the slave family, we can see the divergence from the ius civile in the jurist’s reasoning. 73 D. 21.1.35, Ulpian, Curule Aediles’ Edict, book 1. D. 21.1.39 Paul, Curule Aediles’ Edict, book 1. On when one of a set of animals is returnable, both must be returned: D. 21.1.38.14, Ulpian, Curule Aediles’ Edict, book 2, “Haec et in hominibus dicemus pluribus uno pretio distractis, nisi si separari non possint, ut puta si tragoedi vel mimi,” "We say the same of a batch of slaves sold at a single price, unless they cannot be split up, for example, serious or mimic actors," and D.21.1.39, Paul, Curule Aediles’ Edict, book 1, “vel fratres,” “or brothers.” At other times masters would free slaves in their wills and give them dowries, see Watson 1987: 34. 74 On the use of contubernium as an indication of the “slave marriage” and as distinct from legal marriage (conubium) see D.40.4.59, Tac. Hist. 1.43, Cic. Verr. 2.5.40. 176 Persona, too, is suggestive. Persona can simply mean person; however, the original meaning of persona is that of the theater mask, that is something one puts on and can remove. It comes to mean character, both in the sense of a part someone plays and the moral and mental qualities that make up a particular person. 75 Ulpian’s language, using persona and contubernium to describe a slave marriage, preserves the statute of the ius civile that slaves could not marry while making room in the laws of the empire for the actuality that slaves had families. Ulpian states this all as plerumque, “generally, commonly,” his words in no way obliging a master to act in such a fashion, but stating an ideal that reflects reality. This is carried through in oportet, “it is fitting” that is, it is not compulsory, but it is right. Ulpian does not grant that slaves could marry (conubium) or in anyway diverge from the strictures of the ius civile; he interprets and works around so the ius civile is upheld, but nonetheless carves out a space for contemporary sentiments. Ulpian gives his reasoning for not separating slave families, stating that it is a great disadvantage (magnum incommodum) and that it offends the reason of pietas (ad pietatis rationem offensam). Pietas fits into the generalized idea of humanitas as a group of particularly Roman ideals that are highly valued and became part and parcel of the functioning of elite Roman society. What is unexpected here is that it is used in the description of a slave family. The concept of humanitas reigns throughout this discussion; it is from this idea that the notion of keeping slave families together comes about. While selling brothers and unofficial slave family units together was in one way indeed kindly, it can easily be seen as 75 Mantovani 2010: 37, “La fecondità semantica nasce dall’uso teatrale della maschera, forse già iniziato a Roman nel III secolo con la Personata di Nevio (Fest. p. 238 L.). L’uso delle maschere in teatro da parte degli attori innesca (o favorisce) un’evoluzione semantica per metonimia, così che persona inizia in latino a designare il personaggio, l’essere vivente sia pur definito dalla parte che gli compete, dal ruolo recitato in scena (o nella vita).” While slaves were considered both res and persona, Ulpian referring to slaves as personae highlights the transiency of whatever role, or in this case, status, someone is currently in, which reflects the Roman construction of slavery as a changeable status. 177 a form of appeasement as well. This kindliness cannot be seen as entirely as a product of the evolving standards of decency in Roman society. Columella too concerns himself with the slave family unit, but with an eye to controlling his slaves. He counsels that a foreman (vilicus) should be given a slave woman to live with (contubernalis) so that she may help keep him under control and help him with his duties. 76 Humanitas does its double duty in the passage from the Edict of the Aediles. The jurist both recognizes the slave family unit and the fact that like a Roman family this is a relationship governed by pietas, and at the same time allows the jurist to hold the slaves outside of Roman society. The attempt at preservation of slave kin relations in both cases, during a return on sale and as a justification for early manumission, shows that the Roman jurists certainly had a conception of the slave family unit. We see in the Augustan marriage laws that the family was a part of the construction of his ideal Roman citizen. The familiaritas that arose between master and household slaves and the concessions made to the slave family by the jurists are important because the family was the primary social unit in Roman society. Seneca excuses his slaves faults on account of this familiaritas, however, he is not unaware of the pragmatic benefit that will befall the master on account of this: the loyalty of the slave. 77 Cato too 76 Columella Rust. 1.8.5, “Sed qualicumque vilico contubernalis mulier adsignanda est, quae et contineat eum et in quibusdam rebus tamen adiuvet; eidemque actori praecipiendum est, ne convictum cum domestico multoque minus cum externo habeat,” “But be the overseer what he may, he should be given a woman companion to keep him within bounds and yet in certain matters to be a help to him within bounds and yet in certain matters to be a help to him; and this same overseer should be warned not to become intimate with a member of the household, and much less with an outsider.” Loeb translation. See also, for example, Columella Rust. 1.6.3, 1.6.19-20, 12.3.7 77 Sen. Ep. 47.4, “Sic fit ut isti de domino loquantur quibus coram domino loqui non licet. At illi quibus non tantum coram dominis sed cum ipsis erat sermo, quorum os non consuebatur, parati erant pro domino porrigere cervicem, periculum imminens in caput suum avertere; in conviviis loquebantur, sed in tormentis tacebant. Deinde eiusdem arrogantiae proverbium iactatur, totidem hostes esse quot servos: non habemus illos hostes sed facimus,” “The result of it all is that these slaves, who may not talk in their master's presence, talk about their master. But the slaves of former days, who were permitted to converse not only in their master's presence, but actually with him, whose mouths were not stitched up tight, were ready to bare their necks for their master, to bring upon their own heads any danger 178 protects his own son by gaining the affection and loyalty of his slaves from his birth. Columella gives his foreman a woman to share a house with because he fears that otherwise the foreman will seek companionship from an outsider beyond his master’s control. In each of these situations, when Seneca invites his slaves to speak freely at table, Cato rears slaves alongside his son, and Columella allows his foreman to have a slave- wife, the masters are promoting good slave behavior and simultaneously exposing their slaves to the Roman family and its customs. 78 2b. Manumission due to the character of the slave In a discussion on manumission by fideicommissa that largely pertains to slaves who were in charge of accounts, questions of trust and faith in slaves come out. “ ‘Stichus et Damas servi mei, si rationes reddideritis, liberi estote;’ quaesitum est, an non solum rationes, verum si qua alia consilio et fraude eorum amota sunt, praestari ab his debeant, ut ad libertatem perveniant. Respondit rationum reddendarum condicioni contineri omne, quod quoquo genere servi actum fidemque respiceret,” “‘Let my slaves Stichus and Damas be free, if they render accounts’; the question was asked whether not only accounts but making good of anything removed by their fraud or design be due from them for them to attain their liberty; the reply was that there is inherent in the condition of accounts everything in anyway pertaining to the conduct and that threatened him; they spoke at the feast, but kept silence during torture. Finally, the saying, in allusion to this same high-handed treatment, becomes current: ‘As many enemies as you have slave.’ They are not enemies when we acquire them; we make them enemies.” Loeb translation. 78 We see this practice of Roman acculturation in Columella’s advice to allow a foreman to invite other slaves to his table. Columella Rust. 1.8.5, “Non numquam tamen sum, quem assidue sedulum et fortem in operibus administrandis cognoverit, honoris causa mensae suae die festo dignetur adhibere. Sacrificia, nisi ex praecepto domini, ne fecerit,” “Yet at times the foreman may consider it fitting, as a mark of distinction, to invite to his table on a holiday one whom he has found to be constantly busy and vigorous in the performance of his tasks. He shall offer no sacrifice except by direction of the master.” Loeb translation slightly modified. 179 [good] faith of the slave.” 79 The slaves here were educated enough to handle accounts. This is not a form of manumission that would require appealing to a consilium, but the slaves’ past behavior is taken into account nevertheless. In his interpretation of the will, Scaevola takes the balance of the accounts into consideration, but holds equally important the earnestness (fides) with which the accounts were managed (actum servi). Fides is an important financial concept in Roman society; Hellegouarc’h ties it to the patron-client relationship. 80 Fides was instrumental to Roman contracts and, in the jurist’s reasoning, we see that a slave that exhibited fides to his master was ready to engage in the free Roman economy. 81 The slaves are not freed solely because of the money they have made or successfully managed for their master, but for their earnestness, which is shown through their behavior. The conditional nature of the manumission highlights the importance of this—if Stichus and Damas have rendered the accounts in such a way that reveals positive action and faith on their part, they will be free. The slaves are to be freed because of their skills and character. The demonstration of fides on the part of the slaves shows that the slaves have an understanding of not only economic relations in Rome, but social ones as fides highlights the idea of loyalty and trust in both business relations and those between friends. The virtues displayed by these slaves are not simply virtues of a good slave, but of a good citizen. In contrast to the corrupted slaves of the actio servi corrupti, the following slaves are rewarded with manumission because they proved themselves to be rather exceptional in 79 D. 40.5.41.11 Scaevola, Responses, book 4 80 Hellegouarc’h 1963: 23-35, fides is the connection between two parties and the foundation of amicitia. On fides and loyalty 30. Hellegouarc’h also discusses the idea of fides between Romans and non-Romans. Specifically on fides and the patron-client relationship see 28-35. 81 Hellegouarc’h 1963: 25 on fides and legal warranty. See also the discussion of bona fides in chapter 1. Also see discussion of rationes reddere in chapter 2. 180 some way. The jurist Paul, discussing manumissions vindicta with regard to the lex Aelia Sentia, gives a list of past circumstances that are reasons enough to make manumission an honorable act. Ex praeterito tempore plures causae esse possunt, veluti quod dominum in proelio adiuvaverit, contra latrones tuitus sit, quod aegrum sanaverit, quod insidias detexerit. et longum est, si exequi volverimus, quia multa merita incidere possunt, quibus honestum sit libertatem cum decreto praestare: quas aestimare debebit is, apud quem de ea re agatur. 82 Past events can provide several grounds for manumission; thus, the slave may have aided the master in battle, protected him against brigands, healed him in sickness, uncovered a plot. And it is a long business, should we wish to make a list, since many services can occur for which it is honorable to grant freedom by a formal decision; the person before whom the procedure takes place will have to evaluate them. A slave carries out one of these tasks—to help his master in a battle, keep him safe against thieves, cure him when he is ill, or detect plots, among other things—and it becomes honorable (honestum) to manumit the slave. The action itself is honorable; it is expressly right to manumit the slave who has done these actions and, as such, an exception in the law may be made by a formal decision (consilium). These circumstances do not lead to action only on the part of the master that is grateful, but the magistrate who grants the decree. It is the representative of the state that will judge the slave’s actions and consider whether it is honorable to allow the slave to become a citizen. The examples that Paul lists are noteworthy. While there is evidence that slaves did fight in the army, the law and rhetoric of the Romans was one that expressly forbid slaves in the military. Being a soldier was the prerogative of a free person. It is not likely that Paul is referring to the standard service that a slave could offer a master at camp, but specifies that the slave assisted in battle, performing some extraordinary feat—conduct 82 D. 40.2.15.1 Paul, lex Aelia Sentia, book 1. See also, D. 40.8.5 Marcian, Rules, book 5, “Qui ob necem detectam domini praemium libertatis consquitur, fit Orcinus libertus,” “Where a slave has obtained his freedom as a reward for detecting the murderer of his master, he will become the freedman of the deceased.” 181 abnormal for a slave. The slave that assists the master in battle behaves as a soldier; in that moment he exhibits a basic level of virtus. A slave noticing his master’s household being robbed or his master being mugged in the street could feign ignorance, be afraid, or worse, use the moment to his advantage, for theft or flight. Keeping his master safe from thieves reveals aspects of character; perhaps risking his life, the slave shows his honesty and loyalty, again a form of fides. Caring for his master when he is ill could show his love and concern for his master’s life, which highlights the affectio and familiaritas that existed in some master-slave relationships. As we saw earlier, Ulpian considered the affection between master and slave a just reason for exceptional manumission. 83 The care of a sick master could also suggest that the slave was a doctor. 84 And lastly, detecting plots of course shows intelligence but perhaps more importantly, again the loyalty of the slave. A slave, hearing in the marketplace of a plot against his master could easily allow the information to go neglected or even offer to help. Detecting a plot to overthrow the new Republic was how, as Livy tells it, the first slave was given his freedom and Roman citizenship. 85 Valerius Maximus relates that he is inclined to comment on a slave’s loyalty because of its rarity. 86 Paul’s list of examples is not just a collection of the virtues of a good slave otherwise they would not be the exceptional reasons that allow a master to free a slave and grant him citizenship. In this sense then, Paul lists actions not of a good slave—these 83 As cited above, D. 40.2.16pr Ulpian, lex Aelia Sentia, book 2. On familiaritas recall that this is the reason Seneca gives for excusing a slave’s bad behavior (Ira. 3.24.2-3). 84 For slave doctors being manumitted, see D. 40.5.41.6 Scaevola, Replies, book 4. 85 As cited above, Livy 2.5.9-10. 86 Valerius Maximus, 6.8.praef. “restat ut servum etiam erga dominos quo minos expectatam hoc laudabiliorem fidem referamus,” “It remains for me to relate the loyalty of slaves to masters, which is all the more deserving of praise because least expected.” On the loyalty of slaves see Vogt 1975 and Parker 1998. 182 are not actions that are fitting for a slave—but for a citizen. Scaevola and Paul provide their conception of a good citizen through their criteria for manumission. These manumissions show a confidence in the (former) slave as a citizen with all the rights and duties citizenship brings. The speeches of declamation are an important bridge between the legal, philosophical, and literary writers because they reflect the common sort of education the Roman elites of the early empire received. The tension of slaves becoming citizens is seen in Seneca the Elder’s Controversiae, a tyrant is said to have granted slaves the privilege of killing their masters and raping their mistresses. When one slave refrains from raping his master’s daughter, the master manumits him and then gives him his daughter to marry. The master’s son thinks he is insane (dementia, insanus) for manumitting the slave and making him his sister’s husband-to-be and sues his father. 87 The case reflects the fact that the manumission of even an honorable slave and the acceptance of him as a Roman citizen was not always agreed upon. While it is the master’s prerogative to manumit his slave, he can experience such a backlash in particular if he is so ready to forget his former slave’s status. Following the reasons for manumission, Paul includes the manner in which the slave’s actions will be evaluated and whether or not they are grounds for manumission and citizenship. The second sentence of the passage provides the discussion of how to judge the slave, that is, if his actions merit (aestimare) his manumission. 88 First, the master 87 Sen. Controv. 7.6pr, “tyrannus permisit ervis dominis interemptis dominas suas rapere… cum omnes servi dominas suas vitiassent, servos eius virginem servavit. Occiso tyranno… ille manu misit et filiam conlocavit. Accusatur a filio dementiae,” “A tyrant gave permission to slaves to kill their masters and rape their mistresses… Though all the other slaves raped their mistresses, this man’s slave kept the girl inviolate. When the tyrant had been killed… this man manumitted his slave, and gave him his daughter in marriage. The son accuses him of insanity.” 88 As above D. 40.2.15.1 Paul, lex Aelia Sentia, book 1, “et longum est, si exequi volverimus, quia multa merita incidere possunt, quibus honestum sit libertatem cum decreto praestare: quas aestimare debebit is, apud quem de ea re agatur,” “And it is a long business, should we wish to make a list, since many services can occur for which it is honorable to 183 will have to evaluate the action of the slave versus the financial and personal value of the slave. 89 Then, the person who grants the formal decision to allow this exceptional manumission evaluates the slave with the concerns of the state in mind. The slave is no longer being evaluated financially, but by the character and qualities that make up his person. 90 The following case of exceptional manumission allows us to see a slave engaging in the Roman social practice of conferring a beneficium and allows us to consider the relations between honor and slaves. In Book 40 of the Digest, the jurist Marcian presents a cause for manumission that pertains to a slave’s relationship with his master’s life and honor. “Iusta causa manumissionis est, si periculo vitae infamiave dominum servus liberaverit,” “It is a rightful ground of manumission if a slave has freed his master from the danger of death or infamia.” 91 In describing a good reason for an exceptional manumission vindicta, Marcian grant freedom by a formal decision; the person before whom the procedure takes place will have to evaluate them.” 89 In the empire, we have uses of aestimo for both monetary values and moral ones. For example, Tac. Ann. 1.73, “Cassium histrionem solitum inter alios eiusdem artis interesse ludis, quos mater sua in memoriam Augusti sarasset; nec contra religions fieri quod effigies eius, ut alia numinum simulacra, venditionibus hortorum et domum accedant. Ius iurandum perinde aestimandum quam si Iovem fefellisset: deorum iniurias dis curae,” “Cassius, the actor, with men of the same profession, used to take part in the games which had been consecrated by his mother to the memory of Augustus. Nor was it contrary to the religion of the State for the emperor’s image, like those of other deities, to be added to a sale of gardens and houses. As to the oath, the thing ought to be considered as if the man had deceived Jupiter. Wrongs done to the gods were the gods’ concern.” Tac. Ann 1.17 “Enimvero militiam ipsam gravem, infructuosam: denis in diem assibus animam et corpus aestimari: hinc vestem arma tentoria, hinc saevitiam centurionum et vacationes munerum redimi,” “Assuredly, military service itself is burdensome and unprofitable; ten ases a day is the value set on life and limb; out of this, clothing, arms, tents, as well as the mercy of centurions and exemptions from duty have to be purchased.” 90 Patterson 1982: 10 derives his conception of value from Thomas Hobbes, who ties value to honor and dishonor. A man valued highly is honored, a man valued little is dishonored. 91 D.40.2.9 Marcian, Institutes, Book 13. Continues, “Sciendum est, qualiscumque causa probata sit et recepta, libertatem tribuere oportere: nam divus Pius resccripsit causas probatas revocari non oportere, dum ne alienum servum possit quis manumittere: nam causae probationi contradicendum, non etiam causa iam probata retractanda est,” “It should be known that any grounds that have been approved and accepted should bestow freedom; in fact, the deified Pius declared in a rescript that grounds once approved should not be called in question later, provided that no one may manumit someone else’s slave; for it is the approval of the grounds that should be challenged, but once they have been approved, manumission is not to be reviewed later.” The rescript in question, Cod. 7.1.1, “Imperator Antoninus. Eorum, qui apud consilium manumittuntur, post causam ab iudicibus probatam et manumissionem secutam non solet status in dubium vocari, si dicantur falsa demonstratione liberati,” “The Emperor 184 gives two scenarios, both governed by the same verb (libero); a slave that frees his master from danger of death or from dishonor (infamia) creates a iusta causa for his manumission. The language is quite strong; the slave must liberate his master. Both the saving of his master’s life and honor are beyond the ministerium of a slave; it cannot be part of the slave’s job, let alone expected, for a slave to free his master from anything. The ministeria of a slave were the tasks assigned to him by his master, these tasks are not left to his own choice. Here we see that slaves were not manumitted for their ministeria done well, but for voluntary actions beyond the ministerium. The action of saving his master’s life or from infamia is something a slave does of his own free will, over and above his ministerium to his master. What, then, are these voluntary actions of the slave to be considered? According to Cicero, giving a beneficium is something that is under a person’s own power (in nostra potestate). 92 The manumission of this slave is granted because he has done a service for his master beyond what was called for in his ministerium. The slave is rewarded for these actions with the beneficium (benefit) of manumission. 93 However in this situation, before the beneficium of liberation by the master, it is the slave that is doing the first act of liberation. Antoninus to Tertius. The condition of those who are manumitted in the Council, after the ground for it has been approved by the court, and the manumission has taken place, is not usually called in question, even when it is alleged that enfranchisement was obtained by false representations.” 92 Cic. Off. 1.48 “Nam cum duo genera liberalitatis sint, unum dandi beneficii, alterum reddendi, demus necne in nostra potestate est, non reddere viro bono non licet, modo id facere possit sine iniuria,” “For generosity is of two kinds: doing a kindness and requiting one. Whether we do the kindness or not is optional; but to fail to requite one is not allowable to a good man, provided he can make the requital without violating the rights of others. 93 Manumission is discussed as a beneficium both in legal and literary sources. Tacitus tells us that manumission is a beneficium following the officium of slaves, Tac. Ann. 13.26.4-5, “nec grave manu missis per idem obsequium retinendi libertatem, per quod adsecuti sint: at criminum manifestos merito ad servitutem retrahi, ut metu coerceantur, quos beneficia non mutavissent,” “It would be no great burden to a manumitted slave to keep his freedom by the same obedience which had earned it: on the other hand, notorious offenders deserved to be brought back to their bondage, so that fear might coerce those whom kindness had not reformed.” Loeb translation. On the legal sources discussing manumission as a beneficium, see for example, D. 1.1.4 Ulpian, Institutes, book 1. Griffin 2013: 37 and Saller 1982: 17-20 on the uses of and interchange between officium and beneficium. See Sen. Ep. 81.6. 185 Can these actions of the slave that bring about the beneficium of manumission be themselves considered beneficia? Understanding who can confer beneficia is often discussed in relationship to officium and ministerium. According to Seneca the Elder, an officium is something that someone ought to do. 94 In the de Beneficiis, Seneca the Younger discusses the power and status relationships inherent in the distinction between ministerium, officium, and beneficium. Sunt enim, qui ita distinguant, quaedam beneficia esse, quaedam officia, quaedam ministeria; beneficium esse, quod alienus det (alienus est, qui potuit sini reprehensione cessare); offficium esse filii, uxoris, earum personarum, quas necessitudo suscitat et ferre opem iubet; ministerium esse servi, quem condicio sua eo loco posuit, ut nihil eorum, quae praestat, imputet superiori. For there are those who distinguish some acts as benefits (beneficia), some as duties (officia), some as services (ministeria), saying that a benefit is something that is given by a stranger (a stranger is who, without incurring censure, might have done nothing); that a duty is performed by a son, or a wife, or by persons that are stirred by the ties of kinship, which impels them to bear aid; that a service is contributed by a slave, whose condition has placed him in such a position that nothing that he can bestow gives him a claim upon his superior. 95 Seneca’s discussion of ministeria, officia, and beneficia revolves around the choices people have depending on their relationship to the person for whom they are doing an action. A stranger (alienus) has no responsibility to the person for whom he does benefits (beneficia); he will lose nothing if he does not do it. Family members (filii, uxores, ea personae) have duties (officia) to one another out of necessity (necessitudo). 96 Slaves do services (ministeria) because his status as a slave does not allow him to seek any sort of reciprocity from his 94 Sen. Controv. 2.5.13, “Non est beneficium sed officium facere quod debeas,” “It is no benefit but a duty to do what you ought to do.” Griffin 2013:36-37 on the differences between beneficia and officia. 95 Sen. Ben. 3.18.1. On Seneca’s question of whether slaves could confer beneficia in the de Beneficiis, see Griffin 2013: 217-223. 96 Seneca the Elder (Controv. 2.5.13) says similarly about officia, as he said (cited above) it is not a benefit to do what one is supposed to, otherwise, “sic filius patri se dicat beneficium dare,” “on this basis, a son might say he conferred a benefit on a father.” 186 master (superior). However, Seneca presents these distinctions between ministeria, officia, and beneficia as an understanding of other people (sunt enim, qui ita distinguant). As we will see, Seneca argues that when a slave has finished his ministerium, he has the capacity to choose how he will spend his remaining time and what sort of character and qualities he will exhibit. The slave has the choice to do a beneficium. To give a beneficium is understood as an action of a freeman, and to understand the practice of giving beneficia exhibits an understanding of Roman cultural practice. Seneca is not turning the common understanding of the relationship between status and ministerium, officium, and beneficium on its head, rather he is examining a space within the slave where he may be free to engage in beneficia. 97 Seneca discusses the idea of slaves saving their master’s life under the rubric of doing a beneficium. Seneca argues that slaves can give beneficia to others. The discussion challenges the standard conception of a slave’s role and grants a space of freedom within the slave where can decide how to act. Seneca begins his discussion with a seemingly casual remark to close an argument on being gracious while receiving beneficia; one should not consider where a beneficia comes from, but what he received (that is, is it moral and right? Not: is it below my station?). 98 He then introduces the question directly, considering whether a slave can give a beneficium to his master. 99 Seneca presents an argument for the idea. He reasons that a slave can be just (iustus), strong (fortis), 97 Sen. Ben. 3.18.2, “Praeterea servum qui negat dare aliquando domino beneficium, ignarus est iuris humani; refert enim, cuius animi sit, qui praestat, non cuius status,” “Moreover, he who denies that a slave can sometimes give a benefit to his master is ignorant of the rights of man; for, not the status, but the intention, of the one who bestows is what counts.” 98 Sen. Ben. 3.17.4, “Nam etiam si a servo suo beneficium accepit, aestimat, non a quo, sed quid acceperit,” “For, even if he has received a benefit from his slave, he considers, not from whom it came, but what he received.” 99 Sen. Ben. 3.18.1, “Quamquam quaeritur a quibusdam, sicut ab Hecatone, an beneficium dare servus domino possit,” “And yet some raise the question, for example Hecaton, whether it is possible for a slave to give a benefit to his master.” 187 magnanimous (magnus animus), and virtuous (virtus) and therefore a slave can give a beneficia because beneficia are a part of virtue. 100 Seneca’s argument for slaves being able to give beneficia is in two parts. The first is that not everything a slave does is a part of his ministerium, and when he goes over and above that, the slave is performing a beneficium. The second related point is that the slave is only a slave in body; his mind is free (mens quidem sui iuris), his will is not controlled by his master and cannot be sold (interior illa pars mancipio dari non potest). 101 Seneca explains that in the space where the law has not interfered, there are the necessary component parts for a slave to construct a beneficium. 102 The slave constructs the beneficium from the space where he is free from his master and the restrictions of the law (leges nec iubent nec vetant facere). That Seneca is challenging the legal idea that a slave is entirely owned and under the power of his master can be seen in his very use of legal language (e.g., sui iuris, mancipium, and lex) to carve out an internal freedom for slaves. In order to answer his own question about whether slaves can do beneficia for their masters, Seneca addresses the nature of slavery. He holds that slavery is 100 Sen. Ben. 3.18.2-4, “Nulli praeclusa virtus est; omnibus patet, omnes admittit, omnes invitat, et ingenuos et libertinos et servos et reges et exules…Potest iustus esse, potest fortis, potest magni animi; ergo et beneficium dare potest, nam et hoc virtutis est,” “Virtues closes the door to no man; it is open to all, invites all, the freeborn and the freedman the slave and the king, and the exile…It is possible for a slave to be just, it is possible for him to be brave, it is possible for him to give a benefit, for this also is one part of virtue.” 101 See Sen. Ben. 3.19-21, “Errat, si quis existimat servitutem in totum hominem descendere. Pars melior eius excepta est. Corpora obnoxia sunt et adscripta dominis; mens quidem sui iuris, quae adeo libera et vaga est, ut ne ab hoc quidem carcere, cui inclusa est, teneri quaet, quominus impetu suo utatur et ingentia agat et in infinitum comes caelestibus exeat. Corpus itaque est, quod domino fortuna tradidit; hoc emit, hoc vendit; interior illa pars mancipio dari non potest,” “It is a mistake for anyone to believe that the condition of slavery penetrates into the whole being of a man. The better part of him is exempt. Only the body is at the mercy and disposition of a master; but the mind is its own master, and is so free and unshackled that not even this prison of the body, in which it is confined, can restrain it from using its own powers, following mighty aims, and escaping into the infinite to keep company with the stars. It is, therefore, the body that Fortune hands over to a master; it is this that he buys, it is this that he sells; that inner part cannot be delivered into bondage.” 102 Sen. Ben. 3.21.1, “Quaedam sunt, quae leges nec iubent nec vetant facere; in iis servus materiam beneficii habet,” “There are certain acts that the law neither enjoins nor forbids; it is in these that a slave finds opportunity to perform a benefit.” 188 not something that permeates into the entirety of a person. The interior, or mind, is not affected in Seneca’s anti-essentialist view of slavery. The idea of a slave giving a beneficium is interesting for a number of reasons. Seneca is questioning the general conception of the nature of beneficia and its tie to elite Roman society by arguing that slaves can give beneficia. Beneficia are also important to our study because they come from someone’s own volition (a beneficium cannot be forced, otherwise it is not a beneficium) and because of the role that beneficia play in the honor system. Giving beneficia can help one accrue honor and esteem among friends and society at large and withholding beneficia can do the opposite. In his list of masters being saved by their slaves, Seneca relates a story of two slaves who deserted during the siege of Grumentum so that while the victors (their new allegiance) were pillaging, they could sneak back to their old mistress’s house and rescue her. Seneca contrasts the virtuous behavior of the slaves with the destruction of the victors. 103 He describes the slaves as protecting their mistress with the greatest care (summa cura) while in their pillaging, the Roman soldiers had taken leave of appropriate behavior until satisfied (satiatus miles cito ad Romanos mores rediit). Equally important is that after the danger had passed and the slaves had kept their mistress safe, they returned to her service as her slaves (dominam sibi ipsos dedisse). In the post-battle confusion these slaves could have fled, but even after they protect their mistress, they return to their servitude. The slaves were not seeking to challenge their status as slaves with their actions, and they willingly take up their slavehood again. In this tale, Seneca shows how a slave can give his master 103 Sen. Ben. 3.23.2 “Eductam deinde extra muros summa cura celasse, donec hostilis ira consideret; deinde, ut satiatus miles cito ad Romanos mores rediit, illos quoque ad suos redisse et dominam sibi ipsos dedisse,” “But that afterwards, when they had brought her outside the walls, they concealed her with the utmost care until the fury of the enemy subsided, and later, when the soldiers, quickly glutted, returned to the normal conduct of Romans, that they, too, returned to theirs, and of their own accord gave themselves into the power of their mistress.” 189 (or mistress) a beneficium without the action being a threat to his status; the beneficium does not exempt a slave from his ministerium. The slaves risked a great deal to save her and were promptly freed, Seneca writes, “Manu misit utrumque e vestigio illa nec indignata est ab his se vitam accepisse, in quos vitae necisque potestatem habuisset. Potuit sibi hoc vel magis gratulari; aliter enim servata munus notae et vulgaris clementiae habuisset, sic servata nobilis fabula et exemplum duarum urbium fuit,” “she manumitted both on the spot, and did not think it beneath her to have received her life at the hands of those over whom she had once had the power of life and death. Instead, she might even have congratulated herself upon this fact; for, if she had been saved by other hands, she would have had the mere gift of well-known and common mercy, but, as it was, she became famous in story, and an example to two cities.” 104 Seneca counters the question of whether a master should be ashamed to have his slave save his life. He juxtaposes the saving of the mistress with the fact that she that she has the power of life and death over the slaves; however, here it is the slaves that have this power in their choice to save her. Seneca’s emphasis on the fact that masters and other free people should not look down on receiving beneficia from slaves suggests that many people indeed did. He relates this story emphasizing that it is all the more noble and good to be saved by one’s own slaves than just anyone because it indicates good will on the part of the slaves for their master and that this is something to be esteemed. 105 Following the retelling of virtuous slaves saving their masters’ lives, Seneca discusses the honor in beneficium, “Quare potius 104 Sen. Ben. 3.23.1-3. 105 On people’s general hatred of overly cruel masters: Sen. Clem. 1.18, “Servis imperare moderate laus est… Quis non Vedium Pollionem peius oderat quam servi sui, quod muraenas sanguine humano saginabat et eos, qui se aliquid offenderant, in vivarium, quid aliud quam serpentium, abici iubebat… Quemadmodum domini crudeles tota civitate commonstrantur invisique et detestabiles sunt,” “To exercise moderation in ruling slaves is praiseworthy… People hated Vedius Pollio even more than his slaves did; he fattened lampreys on human blood, and ordered trivial offenders thrown into his fishpond, which was nothing better than a snake pit… Cruel masters have fingers pointed at them through the city and everyone hates and detests them,” 190 persona rem minuat, quam personam res ipsa cohonestet?” “Why should a man’s condition lessen the value of a service, and the very value of the service not exalt the man’s condition?” 106 The very action of a beneficium gives one honor. 107 Seneca reasons that the giving of beneficia elevates a person. In the Marcian passage of the Digest we see that the beneficia of delivering a master from the danger of death or infamia elevates a slave out of his slavehood. Seneca’s conviction that slaves can perform beneficia parallels the jurists’ reasoning that slaves are able to do unexpected acts which are worthy of manumission. To return to our Digest passage, 108 libero has two tasks, freeing the master from his danger of death or infamia and then freeing the slave himself. In the action of liberation, the slave succeeds in the first step to his own liberty. In this moment, when the slave is freeing his master from danger of death or from dishonor, does he cease to behave like a slave? A slave can behave in a non-slave like manner. When he does so, he can behave like a freeman and more importantly in terms of manumission, like a Roman. The slave has an active role in his own quest for liberty. The slave that prevents the dishonor of the master has in that moment a control on his master’s honor. The slave could choose not to save his master—it is not a part of his ministerium, it is a beneficium that he chooses to do. While it is easy to imagine scenarios where a slave saves a master from the danger of death — getting trundled by a chariot or an angry mob are favorite examples—infamia is very different. Both actions can show courage or bravery, worthy Roman virtues; however, while all humans are subject to mortality, infamia is not a part of the human condition, but the Roman one. 106 Sen. Ben. 3.28.1 107 Hellegouarc’h 1963: 386, “l’honos est la conséquence et, plus précisément, la récompense de la virtus.” 108 As cited above, D.40. 2.9 Marcian, Institutes, Book 13, “Iusta causa manumissionis est, si periculo vitae infamiave dominum servus liberaverit,” “It is a rightful ground of manumission if a slave has freed his master from the danger of death or infamia.” 191 A slave that saves his master from death shows himself to be loyal and brave, but a slave that saves his master from infamia, dishonor, shows himself to have an understanding of Roman social and legal relations. A.H.J. Greenidge, in his monograph on the subject, defined infamia: Amongst the kinds of moral unfitness which produced disability in this given case, that known as the infamia holds the first place… It is the subject of the special disqualifications based on an injury to reputation (laesa existimatio). The questions to which it gives rise are partly moral, partly juristic: since the institution itself depended on the theory that a moral taint involved a civic disability. It was this civic disability, conceived consciously as based on a moral imperfection, that was generally spoken of by the Romans as infamia. 109 Infamia affects one’s honor; honor is tied with public office in the sense that the honors one has are the duties one bears. However, in the Roman context, honor has a variety of meanings. Hellegouarc’h notes that honor is connected to action more so than related honor words such as existimatio, fama, and laus. 110 This is important for the question of a slave’s relationship with honor because it is from his actions that he might influence his master’s or his own honor. Marcian’s understanding that saving a master from dishonor is a iusta causa for manumission invites a discussion on slaves’ relationship with honor. The idea of slaves either affecting the honor of a freeman or the slave himself having honor allows us to examine how the Romans conceived of an unfree person understanding and participating both within and along the periphery of this critical aspect of their society. 109 Greenidge 1894: 13. Berger defines infamia as “evil reputation, the quality of being infamous (infamis). Infamia was not only connected with a diminution of the estimation of a person among his fellow citizens but produced also certain legal disabilities which differed according to the grounds for the infamy… Bankruptcy, a dishonest discharge from military service, misbehavior in family life, simultaneous betrothal with two persons, and many other wrongdoings made a person infamis.” 110 Hellegouarc’h 1963: 383, “Comme existimatio, fama, et laus, il a avant tout une valeur active: c’est « le fait d’avoir de la considération pour », mais il se distingue des autres mots en ce qu’il implique un « acte effectif »; c’est l’expression concrète de la considération que l’on a pour quelqu’un, l’acte qui manifeste que sa supériorité ou ses bienfaits sont reconnus.” 192 One complication in considering honor is that it has a number of forms and emphases. For our purposes, there is the honor system of Roman elites; honor among others (foreigners, women); and honor within the familia (a microcosmic sort of honor). What makes a woman honorable is not the same as what makes a man honorable, yet a woman is still able to be honorable. The question of honor among foreigners is really twofold; a foreigner can be considered honorable in his own society without it having a bearing on his honor status in Roman society. Honor is society specific. Within the Roman equation, a foreigner can be honorable, but only once he has understood what exactly the Roman parameters of honor entail. 111 The relationship between slaves and honor is doubly complicated because they are both within and outside of Roman society. Slaves are outsiders by nature. They are not citizens, they are often not even Latin speaking. This has caused some scholars to reject the idea of the honorable slave. However, some slaves, in particular domestic slaves, and especially those born in the master’s house (vernae), are essentially Roman slaves and a significant part of the household unit. The idea of slavehood and honor expands our understanding of what it means to be a Roman slave. In order for a slave to behave honorably he must understand Roman honor and the concepts that held ramifications for honor, such as iniuria and infamia. The slave must be assimilated into Roman culture enough to understand Roman constructions of honor. The Roman slave is able to navigate and understand the honor system of the society; it is when the slave actively engages in the honor system (such as preserving his master’s honor) that it becomes grounds for manumission. In the following pages, I explore the relationship between honor and slaves. 111 Woolf 1993: 63 makes this point about humanitas. 193 Lendon, in his work, Empire of Honour, briefly discusses the possibility of slaves who can be considered honorable. He focuses on the microcosmic honor system of the familia; the slave foreman, for example, can have honor in relation to his underling slaves. 112 This slave has the trust of his master and presumably the respect of his fellow slaves. He is more valued than his peers. A complication in the relationship between honor and slaves and whether slaves can act honorably is how inherently public the Romans conceptualized honor to be. If honor requires praise or positive evaluation from those outside the familia, it becomes much more difficult to consider a slave honorable. However, if the evaluation of honor is not tied up in an inherently public atmosphere, the question of slave honor is allowed a great deal more space. Can something be honorable without it being praised or even known by others? It seems that there is room in the concept of honor for acts that are honorable, and therefore people behaving honorably, that are not necessarily lauded openly or at all. In the de Officiis, Cicero describes the idea of honor in this light, “Quibus ex rebus conflatur et efficitur id, quod quaerimus, honestum, quod etiamsi nobilitatum non si, tamen honestum sit, quodque vere dicimus, etiamse a nullo laudetur, natura 112 Lendon 2005: 97 writes about Columella, “An agricultural writer suggested that the estate manager ‘should conduct festal days by rewarding each who is strongest and most frugal [of the field-hands] with gifts, sometimes even admitting them to his own table and being willing to grant them prestige with other honours’. Here the slave bailiff of an estate is to use honorific dinners to get better work out of his labourers, slaves as well. If this is to be practical they must hanker after the honours he has to bestow. The slaves of farm or household thus constitute their own community of honour, although at a vast social distance from the community of the aristocracy above. And aristocratic authors, even if they grant slaves no honour in artistocratic eyes, realize that slaves grant each other slavish honour in slavish eyes.” Columella, Rust. 11.1.19, “nonnumquam etiam mensae suae adhibeat, et velis aliis quoque honoribus dignari.” See also Sen. Ep. 47.14, “Ne illud quidem videtis, quam omnem invidiam maiores nostri dominis, omnem contumeliam servis detraxerint? Dominum patrem familiae appellaverunt, servos, quod etiam in mimis adhuc durat, familiares. Instituerunt diem festum, non quo solo cum servis domini vescerentur, sed quo utique; honores illis in domo gerere, ius dicere permiserunt et domum pusillam rem publicam esse iudicaverunt,” “Do you not see even this, how our ancestors removed from masters everything invidious, and from slaves everything insulting? They called the master ‘father of the household,’ and the slaves ‘members of the household,’ a custom which still holds in the mime shows. They established a holiday on which masters and slaves should eat together, - not as the only day for this custom, but as obligatory on that day in any case. They allowed the slaves to attain honours in the household and to pronounce judgment; they held that a household was a miniature commonwealth.” 194 esse laudabile,” “The honourableness that we seek is created from and accomplished by these things. Even if it is not accorded acclaim, it is still honourable, and, as we truly claim, even if no one praises it, it is by nature worthy of praising.” Cicero paints the honorable (id honestum) in a manner that does not make it dependent on social acknowledgement; honor can exist on its own. 113 Another way to look at the relationship between slaves and honor is to look at what a slave can do or have done to them which might bring dishonor upon his master or himself. Discussing a case of iniuria, we see a consideration of a slave’s honor not within the microcosm of the house or farm, but in Roman society. 114 In Book 47 of the Digest, Ulpian examines the praetor’s edict about iniuria and slaves. Praetor ait: ‘Qui servum alienum adversus bonos mores verberavisse deve eo iniussu domini quaestionem habuisse dicetur, in eum iudicium dabo.’ Si quis sic fecit iniuriam servo, ut domino faceret, video dominum iniuriarum agere posse suo nomine: si vero non ad sugillationem domini id fecit, ipsi servo facta iniuria inulta a praetore relinqui non debuit, maxime si verberibus vel quaestione fieret: hanc enim et servum sentire palam est…Adicitur ‘adversus bonos mores’, ut non omnis omnino qui verberavit, sed qui adversus bonos mores verberavit, teneatur: ceterum si quis corrigendi animo aut si quis emendandi, non tenetur. Unde quaerit Labeo, si magistratus municipalis servum meum loris ruperit, an possim cum eo experiri, quasi adversus bonos mores verberaverit. et ait iudicem debere inquirere, quid facientem servum meum verberaverit: nam si honorem ornamentaque petulanter adtemptantem ceciderit, absolvendum eum… Praetor ait: ‘Si quid aliud factum esse dicetur, causa cognita iudicium dabo’. Proinde si quidem verberatus sit servus vel tormentis de eo quaestio habita est, sine causae cognitione iudicium in eum competit, si vero aliam iniuriam passus sit, non aliter competit quam causa cognita. Itaque praetor non ex omni causa iniuriarum iudicium servi nomine promittit: nam si leviter percussus sit vel maledictum ei leviter, non dabit actionem: at si infamatus sit vel facto aliquo vel carmine scripto. Puto causae cognitionem praetoris porrigendam et ad servi qualitatem: etenim multum interest, qualis servus sit, bonae frugi, ordinarius, dispensator, an vero vulgaris vel mediastinus an qualisqualis. Et quid si compeditus vel male notus vel notae extremae? Habebit igitur praetor rationem tam iniuriae, quae admissa dicitur, quam personae servi, in quem admissa dicitur, et sic aut permittet aut denegabit actionem. 113 Cic. Off. 1.14. Loeb translation. Discussion from USC Classics seminar on Honor and Shame, November 2011. On this passage see Dyck 1996: 97, “The honestum, too, can be said to be praiseworthy per se…even though it is drawn, not from the aesthetic realm, but from the sphere of public recognition (‘worthy of honos’).” See Long 1995: 218. 114 On the tie to of iniuria to honor see Lendon 2005: 96 and Greenidge 1894: 26. 195 The praetor says: “Where a man shall be said to have thrashed another’s slave or to have submitted him to torture, contrary to sound morals, without the owner’s consent, I will give an action. Equally, if it be said that something else be done, I will, having heard the circumstances, give an action.” If someone so inflict an outrage upon a slave that it be done to his master, in my view the master can bring the action for insult in his own right; but if the beating was not directed to his master, the outrage perpetrated upon the slave as such should not be left unavenged by the praetor, especially if it occurred through a thrashing or through torture; for it is obvious that the slave himself feels such things… The words “contrary to sound morals” are inserted because not everyone thrashes, but he who trashes contrary to sound morals, is liable. One who does so by way of correction or reform is not liable. Hence, Labeo raises the question: If a municipal magistrate whips my slave, can I have the action against him as having done so contrary to sound morals? And he says that the judge must investigate what my slave was doing for him to thrash him: if he beat him for an audacious attempt upon his office and insignia, the magistrate must be absolved…The praetor says: “If anything else be done, I will, having looked into the matter, grant an action.” If, indeed, a slave be thrashed or put to the question with torture, an action will be granted against the wrongdoer without more; but if the slave suffer some other affront, an action will not issue without the praetor’s looking into the matter. Thus, the praetor does not promise an action for every affront in respect of a slave; if the slave be lightly struck or mildly abused, the praetor will not give an action; but if he be put to shame by some act or lampoon. I think that the praetor’s investigation into the matter should take into account the standing of the slave; for it is highly relevant what sort of slave he is, whether he be honest, regular, and responsible, a steward or only a common slave, a drudge or whatever. And what if he be in fetters, branded, and of the deepest notoriety? The praetor, therefore, will take into account both the alleged affront and the person of the slave said to have suffered it and will grant or refuse the action accordingly. 115 There may be a good reason to beat another man’s slave. Labeo, for example, suggests that it is justified to beat a slave if he has made an insolent attempt upon someone’s office and insignia (honor ornamentaque). This is an acknowledgement that a slave can have the ability to threaten a magistrate’s duty and honor. If a slave is beaten or tortured without a good reason (or against “good morals,” adversus bonos mores) and without the master’s consent it could be for one of two purposes. The first is to do an injury (iniuria) to the master of the slave. In both these cases, when the slave is beaten to do an injury to his master and when the slave is beaten because of his insolence against a magistrate, the 115 D. 47.10.15.34-45, Ulpian, Edict, book 77. 196 slave has an effect on a freeman’s honor. In the first example the slave is passive, it is what is done to him that brings dishonor to the master, in the second example, the slave takes an active role in dishonoring the magistrate. The praetor and the jurists then move onto consider the possibility that the slave has suffered an injury in his own right. The first sort of injury for which Ulpian argues the praetor should grant an action is physical. This is not particularly surprising as the jurists tended to place the value of the slave on the body; however, the examples of physical abuse noted are significant. The praetor should investigate the cause of the abuse especially (maxime) if the slave was whipped (verberatus) or tortured (tormentis de eo quaestio). These iniuriae were similar to the physical punishments that the lex Aelia Sentia deemed would make a slave a dediticus upon manumission. This would not happen to this injured slave if he was eventually manumitted, but the acts must be read as particularly shameful because of the link to the dediticii. According to Ulpian, the praetor should grant an action on iniuria to the slave especially for these particular abuses because “it is obvious that the slave himself feels such things,” (hanc enim et servum sentire palam est). Other abuses could cause the praetor to look into the offense and potentially give an action on iniuria. In particular, if the slave was dishonored (infamatus sit) by some deed or slander (vel facto aliquot vel carmine scripto—perhaps a graffito), he would grant an action. An injury against a slave is not inherently physical; Ulpian holds that a slave can be dishonored because of an attack on his character. Ulpian gives his opinion (puto) that the character and status of the slave should be taken into account when determining if the abuse was great enough to grant an action on iniuria. Ulpian discusses the character and status of the slave as “the quality or state of the 197 slave” (qualitas servi), as “what sort of slave” (qualis servus), and finally as the “person or character of the slave” (persona servi). These classifications of the slave speak to both their occupation and their virtues or vices. The persona servi matters; Ulpian conceptualizes slaves as different, a slave of a different nature or character has a different amount of honor. A slave that is able to be infamatus is a slave with something to lose. An ordinarius or dispensator shamed by mockery may not be able to carry out his duties effectively. The attention that Ulpian draws to the ordinarius, a slave in charge of peculium, and a dispensator, a steward in charge of finances, highlights the economic importance of not allowing certain slaves to be dishonored. A mediastinus, vulgaris, or qualisqualis slave, a common or general slave, has, in the jurist’s eyes, less honor to lose. By distinguishing slaves by their title, Ulpian measures the slave’s honor in direct relationship with his position in his master’s house. In terms of character, Ulpian distinguishes the bonae frugi slave, an honest or virtuous slave, against fettered (compeditus), branded (mala notus), or the most notorious (notae extremae) slave. The jurist has drawn three levels of slave quality: the good slave (ordinarius, dispensator, bonae frugi), the average slave (mediastinus, vulgaris, qualisqualis), and the bad slave (compeditus, mala notus, notae extremae). Ulpian advises that the praetor should allow for these levels of quality and character to be taken into account when determining if a slave has lost standing and been dishonored by the actions or mockery of another. Marcian’s assertion that a slave can affect infamia, a concept clearly woven into Roman private and public life, is revealing. A master had to place his trust in both his slave’s character and his understanding of honor and dishonor, in particular if the slave was in charge of finances. How is a slave to know what constitutes an injury to reputation (laesa existimatio)? Infamia, or dishonor, in the sense of being deprived of one’s civic positions, affects not just the social reputation of a man, but his very status in society. 198 Infamia is not just social humiliation, but could render a man unfit for public offices. A slave must be familiar with what will cause infamia and be able to navigate through the workings of Roman society to make an attempt to stop it and ensure that his master remains honorable. Marcian’s description of the slave protecting his master’s honor shows a slave that controls an aspect of his master’s honor and dishonor. Slaves can bring honor to their masters; even in the most conservative estimation and inactive sense, a slave can bring honor to his master by simply being alongside his master, let alone being a well- behaved or life-saving slave. 116 A slave, like women and sons, can certainly negatively affect his or her master’s honor by his own choices and behavior. The slave that understood the stakes of honor in Rome saved his master from dishonor and showed himself not only worthy of manumission but as having the necessary qualities and understandings to be a good Roman citizen. 3. Reasons slaves should not be manumitted On the other side of the spectrum, the reasons provided for not manumitting slaves highlight the qualities undesired of citizens. Similarly to the case that made the testamentary manumission explicitly conditional, 117 the will of a centurion asks that his slaves not be sold, but freed, if they deserved it. Testamento centurio servos suos venire prohibuit ac petit, prout quisque meruisset, eos manumitti. Libertates utiliter datas respondit, cum, si nemo servorum offenderit, omnes ad libertatem pervenire possunt: quibus autem per offensam exclusis residui in libertatem perveniunt. Cum ita testamento adscriptum esset: “Servi, qui sine offensa fuerunt, liberi sunto”, condicionem adscriptam videri placuit, cuius interpretationem talem faciendam, ut de his in libertate danda 116 Fitzgerald 2000: 5 provides the anecdote of Petronius’ Eumolpus, who, after an imagined shipwreck concerns himself with the loss of his property, but that unattended he is unable to recognize his own dignity (sed destitutum ministerio non agnoscere dignitatem suam, 117). 117 Stichus and Damas case. 199 cogitasse non videatur, quos poena coercuit aut ab honore ministrandi vel administrandae rei negotio removit. In his will, a centurion forbade the sale of his slaves and requested their manumission in accordance with their several deserts. He replied that the grants of freedom were efficacious, since, if none of the slaves has committed an offense, all can attain freedom; if some of them are excluded for an offense, the remainder can attain freedom. In regard to a testamentary provision, ‘let the slaves who have committed no offense be free,’ it was approved that a condition was evidently attached, which was to be construed to mean that he should be deemed not to have contemplated the grant of freedom to those whom he had punished or removed from honorific service or from the duty of managing his affairs. 118 The centurion wishes to manumit as many slaves as merit freedom (prout quisque meruisset). He first postulates that all can be free, if none of the slaves have committed any offense. He then grants that any of his slaves that have not committed an offense would be free. The jurists synthesize this into: let the slaves who are without offense be free. “Offense” (offensa, offendo) is a judgement that will not allow the slave to be manumitted. Offense against the master can be tied to iniuria and subsequently infamia. 119 The understanding of those who deserve liberty is drawn from a negative; those who had neither been punished nor removed from the office of their duty nor from the administration of the master’s commercial business (ab honore ministrandi vel administrandae rei negotio removit) would be freed. A slave given a poena (penalty) might have misbehaved or run away. The slave who was in charge of accounts or a business was a slave the master had trusted with his finances. A slave removed from an administrative position may have been incompetent or was cheating his master. In his failure to show fides, the slave is removed from these esteemed positions, which could serve as grounds for manumission. In the most literal sense, the slave is dishonored; he has lost his honor, which will have social and potentially legal status ramifications. In terms of the social, we are reminded 118 D. 40.4.51, Papinian, Responses, book 14. 119 Berger ties an offense against the master to "unlawfulness" (iniuria), 607. 200 that honor existed within the familia for those slaves in elevated positions—the microcosmic sense of honor. In terms of legal status, the slave has lost the potentiality of his freedom. There are many reasons and provisions for not manumitting a slave. This case nullifies the manumission of a slave who compels his master through violence to manumit him. Marcian writes in the chapter about restrictions to manumission and the lex Aelia Sentia that the slave who terrifies his master into freedom through violence will not be free; regardless that his manumission has been written out it is not valid. “Ille servus liber non erit, qui vi coegerit, ut eum dominus manumittat, et ille perterritus scripsit liberum eum esse,” “A man will not be free who has used violence to compel his owner to manumit him, even if under terror he has given him freedom in his will.” 120 If we consider our previous line of thought, that the reasoning and discernment behind manumission is more than the characteristics of a good slave but rather the makings of a good citizen, violence and terror do not fit. The master does not have control of his slaves. This case is the inverse of the master-slave relationship; the slave compels an action (through violence) and the master acts. Fear of slaves was a constant topic in Roman literature. In De Clementia (On Clemency), Seneca comments on the fear of slaves because of the sheer quantity of them. 121 Seneca’s contemporary, Columella writing of agricultural slavery describes in great detail the pains to be taken to assure that penal slaves (those in an ergastulum) were locked up at night, specifying a concern that the foreman (vilicus) has removed the shackles of any of these workhouse slaves and concludes that the slaves should not be 120 D. 40.9.9 Marcian, Institutes, book 1. 121 Sen. Clem. 1.24.1“Dicta est aliquando a senatu sentential, ut servos a liberis cultus distingueret; deinde apparvit, quantum periculum immineret, si servi nostri numerare nos coepissent,” “A motion was once made in the senate to distinguish slaves from free men by dress; but then it was discovered how dangerous it might be if our slaves began to count us.” 201 wanting in clothes or allowance because “et rursus saevitia atque avaritia laesi magis timendi sunt,” “when smarting under cruelty and greed, they are to be feared more.” 122 In a similar case, Paul notes that Marcus Aurelius nullified manumissions that were done at the compulsion of the people (populus) or if the master lies to avoid a penalty and says the slave is free even though he has no intention of manumitting him. 123 Manumission was a beneficium, it is an act that inherently cannot be compelled or be contrary to the master’s intention. On the societal level, it is likely that Marcus Aurelius was not only protecting a master’s rights over his property, but additionally, a master that is compelled by the populus to manumit a slave is not manumitting a slave according to his own desires. Lastly, the populus does not have the same relationship with a slave as his master does, they are not in a position to evaluate if a slave should become a citizen. In the same vein, a cheating master looking to escape a penalty was not making manumission decisions with the best intention or with the character and qualities of the slave in mind. 122 Colum. RR. 1.8.16-17. Miriam Griffin notes, “the number of references to masters being murdered by their slaves is remarkable, and some make it hard to believe that servile plots were as rare occurrence as we are usually assured they were.” 123 D. 40.9.17pr-1 Paul, On Liberty, sole book, “Si privatus coactus a populo manumiserit, quamvis voluntatem accommodaverit, tamen non erit liber: nam et divus Marcus prohibuit ex adclamtione populi manumittere. Item non fit liber, si mentitus dominus, ne a magistratibus castigaretur, dixit esse liberum, si non fuit voluntatis manumittendi,” “If a private individual, being compelled by the people, should manumit a slave, the latter will, nevertheless, not be free even though his owner may have given his consent; for the Divine Marcus forbade the manumission of slaves caused by the clamor of the populace. Likewise, a slave is not emancipated if his master states falsely that he was free, in order to avoid punishment by the magistrates, if he has no intention of manumitting him.” Other prohibitions on manumission: D. 40.1.4.9 Ulpian, Disputations, book 6, D. 40.1.9 Paul, Rules, sole book. 202 4. Performing liberty, performing citizenship The cases and situations in this chapter have highlighted particular qualities or characteristics (such as fides, virtus, or the giving of beneficia) that are desired by the jurists before manumission was granted. All of these qualities were a part of and originated in free Roman society. There was not a guarantee when purchasing a slave that he would have fides or participate in honor culture. The slave that chose to adopt these Roman virtues and display them was enhancing the likelihood of his manumission through this performance of citizen virtues. It is the behavior and actions of the slave that are seen to be indicators of his virtues and from which he is judged. Ulpian relates a case of fideicommissary manumission where a man who was a slave of enemies of the state (servus hostium) was meant to be freed. There is a debate whether the slave was unworthy (indignus) of Roman citizenship, but Ulpian argues that if the slave has “begun to be one of ours” (noster esse incipit) the manumission stands. 124 The manumission is contingent on the slave becoming Roman (noster); the virtues of Roman citizenship could be taught and adopted. The attention to the behavior of a person as an indicator of status becomes apparent in texts that discuss the question of whether someone is a freeman or a slave. 124 D. 40.5.24.2 Ulpian, Fideicommissary Manumission, book 5. “Hostium servo si fideicommissaria libertas fuerit adscripta, potest tractari, an non sit inefficax. Et fortassis quis dixerit indignum esse civem Romanum fieri hostium servum: sed si in casum relinquatur, in quem noster esse incipit, quid prohibet dicere libertatem valere?” “If provision has been made for fideicommissary freedom for a slave owned by enemies of the state, one can debate whether it is not ineffective. It might perhaps have been said that the slave of enemies is unworthy to be a Roman citizen; but if the bequest is made for the contingency in which he comes to be one of ours, what stops us from saying that his freedom is valid?” In terms of behaving like a Roman citizen, the Antonine jurist Marcellus, D. 40.7.24 Marcellus, Digest, book 16, gives a case where a slave who is a statuliber will be freed once he has sworn to pay or work for the heir. What is notable in this case is the slave, while still a slave, makes a promise with the verb spondeo. Sponsio, an oral contract of stipulation made by using the verb spondeo was the oldest form of obligation. Traditionally, it had been restricted to Roman citizens. 203 This section largely focuses on the freedom trial as discussed by the jurists (causa liberalis) 125 and the interrogation of a man accused of being a slave in Dio Chrysostom 15. 126 I will focus on a particular moment in Dio’s discourse and the juristic interpretation of the causa liberalis where we can see that Dio and the jurists were considering what the determinants of status were. In Dio and in the legal literature about the freedom trial, the determinants of slave status were largely performative, meaning that status could be revealed through actions and behaviors. Dio, a second sophistic author and a friend of the Emperor Trajan, wrote the 15th discourse during or after his exile, which was imposed by Domitian and lifted by Nerva. Discourse 15 is a debate before an audience at the home of one of the speakers. 127 The discourse picks up when one speaker accuses his interlocutor of being a slave. The accused asks how the other man can know who is a slave and who is free. 128 The debate takes up the whole of the text. The first part has the accuser provide different methods of determining status and the accused parrying them in turn. The second part moves more generally onto who is a slave. The conclusion in the end is a very internal sort of slavery that is tied up in having a servile nature rather than a freeman’s spirit. My interest in this debate is not based on the conclusion, which strays from legal status of free and slave, but with the path to this conclusion, as it takes up a number of particularly Roman facets of 125 On the causa liberalis generally see Buckland 1908: 652-675; Nicolau 1933; Franciosi 1961; Sciortino 2010. 126 On Dio see Armin 1898; Harris 1991; Swain 1996: 187-241 and 2000. On Dio and slavery: Cretia 1961, Gallinari 1978. On Dio and philosophy: Brunt 1973, Berry 1983. 127 Dio Chrys. Or. 15pr notes that the debate on slavery and freedom does not take place where one would expect— at the marketplace or court, but at home, (οὐκ ἐπὶ δικαστῶν οὐδ᾽ ἐν τῇ ἀγορᾷ, οὑτωσὶ δὲ κατ᾽ οἰκίαν). 128 Dio Chrys. Or. 15.2, A: “ἐστιν, ὦ ἄριστε, εἰδέναι ὅστις δοῦλος ἢ ὅστις ἐλεύθερος;” A. “Is it possible, my good friend, to know who is a slave, or who is free?” Loeb translation. 204 the institution of slavery, particularly given that the two men are meant to be Athenians. The text has some specific allusions to both Athenian and Roman institutions and laws. 129 The first attempt by the accuser to show that the accused is a slave is done along the lines of kinship, that is that the accused’s father was a slave. However, the accused counters that it is impossible to know people’s lineage back along the generations, and as such, slavery by birth is not a good determinant of status. 130 The accused then asks what it is that he does or endures that makes the accuser so confident that he knows he (the accused) is a slave. The question ties status to knowledge and to the particular actions of a person, that is, to a performance of slavehood. The question is important because it ties the ability to know and understand who is a slave to the things they do and allow to be done to them. This passage highlights the relationship between knowledge, performance, and status and leads into a discussion surrounding particular Roman laws. A. “τί δὲ καὶ ποιοῦντά με ἐπίστασαι πρὸς θεῶν ἢ τί πάσχοντα, ὅτι με φῂς ἐπίστασθαι δουλεύοντα;” B. “Τρεφόμενον ἔγωγε ὑπὸ τοῦ δεσπότου καὶ ἀκολουθοῦντα ἐκείνῳ καὶ ποιοῦντα ὅ τι ποτ’ ἐκεῖνος προστάττοι· εἰ δὲ μή, παιόμενον. A. “Οὕτως μέν, ἔφη, καὶ τοὺς υἱοὺς ἀποφαίνεις δούλους τῶν πατέρων. καὶ γὰρ ἀκολουθοῦσι πολλοῖς τῶν πενήτων καὶ εἰς γυμνάσιον βαδίζουσι καὶ ἐπὶδεῖπνον, καὶ τρέφονται πάντες ὑπὸ τῶν πατέρων καὶ παίονται πολλάκις ὑπ’ αὐτῶν, καὶ πείθονται ὅ,τι ἂν ἐκεῖνοι προστάττωσιν αὐτοῖς.” A. “In heaven’s name, I ask you, what is it that I do of which you have knowledge, or what is it that is done to me, which justifies your saying that you know that I am in a state of slavery?” Β. “I know that you are being kept by your master, dance attendance upon him, and do whatever he commands; or else you take a beating.” 129 Dio. Chrys. Or. 15.3 mentions both the father of the accuser as an Athenian and the Cynosarges. The Roman institutions will be discussed below. 130 Dio Chrys. Or. 15.3-18. At 15.3 on people being ignorant (ἀγνοέω) or knowing (ἐπίσταμαι) the status of their sexual partners, “ἢ οὐ πολλαὶ ἀσταὶ γυναῖκες δι᾽ ἐρημίαν τε καὶ ἀπορίαν αἱ μὲν ἐκ ξένων ἐκύησαν, αἱ δὲ ἐκ δούλων, τινὲς μὲν ἀγνοοῦσαι τοῦτο, τινὲς δὲ καὶ ἐπιστάμεναι;” “Have not many women who are citizens, embarrassed by the scarcity of eligible men, been got with child either by foreigners or by slaves, sometimes not knowing the fact, but sometimes also with full knowledge of it?” 205 Α. “According to that,” said the first man, “you can make out that sons also are the slaves of their fathers; for they dance attendance upon their fathers, often, if they are poor, walking with them to the gymnasium or to dinner; and they without exception are supported by their fathers and frequently are beaten by them, and they obey any orders their fathers give them.” 131 The language of the first part of the passage emphasizes the idea that one can know (ἐπίσταμαι), or gain the skill of recognizing, a slave by his actions. The question of the determinants of status (if someone is a freeman or a slave) has moved from blood to behavior or performance, as it is the actions the would-be slave performs for his master that cements in the mind of the accuser his certain slavehood. The accused counters this by pointing out that sons often behave much in the same way to their fathers. The examples turn from general tasks of a slave to the specific discussion of a father’s power over the life of his son. Both the Roman jurists and modern scholars have noted that there is little legal distinction between the master-slave relationship and a paterfamilias and his son. 132 It is not my intention to dwell upon this phenomenon other than to point out that it is a particularly Roman phenomenon, and that Dio refers to it a number of times. 133 Dio’s references to Roman Law encourages us to examine the passage in a different light. For the amount that has been written about Dio’s take on slavery and its relationship with 131 Dio Chrysostom, 15.16-18. 132 See for example Jolowicz and Nicholas 1972: 118-120, 238-9, 471, at 118, “The complete power of the Roman father over his children has become proverbial, and the Romans knew that it was an institution particular to themselves.” For different cases regarding the power of the paterfamilias see Frier and McGinn 2004: 193-239. 133 Explicitly, Dio Chrys. Or. 15.20, A. “Ἴσως γὰρ οὐκ οἶσθα ὅτι παρὰ πολλοῖς καὶ σφόδρα εὐνομουμένοις ταῦτα ἃ λέγεις ἔξεστι τοῖς πατράσι περὶ τοὺς υἱέας, καὶ δὴ καί, ἐὰν βούλωνται, καὶ ἀποδίδοσθαι, καὶ τὸ ἔτι τούτων χαλεπώτερον· ἐφεῖται γὰρ αὐτοῖς ἀποκτεῖναι μήτε κρίναντας μήτε ὅλως αἰτιασαμένους· ἀλλ’ ὅμως οὐδὲν ἧττον οὐ δοῦλοί εἰσι τῶν πατέρων, ἀλλὰ υἱεῖς,” A. “Yes, but perhaps you do not know that in many states which have exceedingly good laws fathers have all these powers which you mention in regard to their sons, and what is more, if they wish to do so, they may even imprison or sell them; and they have a power even more terrible than [a schoolmaster or a trainer]; for they actually are allowed to put their sons to death without trial and even without bringing any accusation at all against them; but still none the less they are not their fathers’ slaves but their sons.” 206 Aristotelian natural slavery and Dio’s use of Stoic and Cynic philosophy, here Dio is explaining and examining Rome’s rather particular version of slavery, which is the manifestation of the institution in his lifetime. In the speakers’ difficulty with properly reading the performance of status, we will see Dio is mirroring the issues that the jurists discussing the freedom trial face. The causa liberalis is a trial that takes place when someone challenged their own status or that of another person. The person whose status was in question would be represented by an adsertor libertatis as a slave could not stand in a suit. 134 A person that is enslaved could claim he was actually a freeman or another person could claim that a person in a state of liberty was actually a slave. The burden of proof rested on which type of proceeding would take place, either on the claimant in a trial ex servitute in libertatem (from slavery to liberty) or on the defendant in a trial ex libertate in servitutem (from liberty to slavery). 135 In order to determine what type of trial was to proceed, the jurists considered whether the person in question was “in a state of liberty,” “in libertate fuisse.” D.40.12.10, Ulpian: Quod autem diximus “in libertate fuisse” sic est accipiendum non ut se liberum doceat is, qui liberale iudicium patitur, sed in possessione libertatis sine dolo malo fuisse. Quid sit autem “sine dolo malo fuisse”, videamus. Nam Iulianus ait omnes, qui se liberos putant, sine dolo malo in libertate fuisse, si modo se pro liberis gerant, quamvis servi sint. Varus autem scribit eum, qui se liberum sciat, dum in fuga sit, non videri sine dolo malo in libertate esse: sed simul atque desierit quasi fugitivus se celare et pro libero agere, tunc incipere sine dolo malo in libertate esse: etenim ait eum, qui scit se liberum, deinde pro fugitivo agit, hoc ipso, quod in fuga sit, pro servo agere, D. 40.12.11, Gaius: Licet fugae tempore pro libero se gesserit: dicemus enim eum in eadem causa esse. D. 40.12.12, Ulpian: Igitur sciendum est et liberum posse dolo malo in libertate esse et servum posse sine dolo malo in libertate esse. D.40.12.10, Ulpian: Our expression “in enjoyment of freedom” should not be taken to mean that the man subject to a trial for freedom is not to show that he is free, but only that he was in enjoyment of freedom without fraud. But let us consider what “without fraud” means. For Julian says that all who think 134 Buckland 1908: 655. 135 Buckland 1908: 660; Moatti 2013: 14. 207 themselves free have been in enjoyment of freedom without fraud, provided that they behave as freemen, even though they are slaves, but Varus writes that a man who knows himself to be free is, while a fugitive, not deemed to be in enjoyment of freedom without fraud but that, as soon as he has ceased to hide like a fugitive and to act as a freeman, he begins from that moment to be in enjoyment of freedom without fraud; in fact he says that the man who knows himself to be free but acts as a fugitive is acting as a slave simply by being in flight, D. 40.12.11, Gaius: Although in the period of flight he conducted himself as a freeman; for we shall say that he is in the same case. D. 40.12.12, Ulpian: It should then be known that a free man can be in fraudulent enjoyment of freedom and a slave can be in nonfraudulent enjoyment of freedom. 136 Ulpian, the jurist of the turn of the 3 rd century, cites two earlier jurists in his discussion of freedom trials. Both Julian, working at the end of Dio’s time, and Alfenus Varus, a jurist of the 1 st c. BCE, hold that (in slight variation) the key to a successful suit for freedom is to conduct oneself as a free person and to do it in good faith (sine dolo malo). The jurists weigh whether a person behaved like a slave (pro servo agere) or a free person (pro libero agere) and whether the performance was genuine or duplicitous. The objective status (liber, servus) was not what was at stake in the determination of if someone was in a state of liberty (in libertate esse). 137 For Julian someone is in a state of liberty if he thinks (puto) he is free and behaves (gero) as such. 138 There is no certainty in Julian’s idea of status. The intention of the man is again revealed by his action. 139 Instead, Alfenus Varus speaks about someone certain (scio) 136 D. 40.12.10 Ulpian, Edict, book 55, D. 40.12.11 Gaius, Urban Praetor’s Edict, Chapter on Suits for Freedom, D. 40.12.12 Ulpian, Edict, book 55. 137 “in possessione libertatis” has been shown to be a later interpolation, see Moatti 2013: 16, 16n74. 138 This same language is used in the discussion of whether a slave can be infamatus. The jurist Mela argues that the target of the infamia is not the master if the slave was behaving like a freeman, D. 47.10.15.45, Ulpian, Edict, book 77. “Interdum iniuria servo facta ad dominum redundat, interdum non: nam si pro libero se gerentem aut cum eum alterius potius quam meum existimat quis, non caesurus eum, si meum scisset, non posse eum, quasi mihi iniuriam fecerit, sic conveniri Mela scribit,” “An affront to a slave sometimes affects the master also, sometimes not; for if the slave is posing as a freeman or if the person who beats him thinks that he belongs to someone else and would not have done it if he knew the slave was mine, Mela writes that the striker cannot be sued as having affronted me.” 139 Moatti 2013: 7, 19 on intention (voluntas) being explicitly tied to action. 208 of his status. His determination of if someone is in a state of liberty rests on behavior: a freeman in flight (in fuga) appears to be in a state of liberty fraudulently until he ceases to behave like a runaway (pro fugitivo). Gaius, a near contemporary of Dio, updates Varus’ firmer view of status. He softens the determination, allowing that a freeman could behave as a freeman even while he is in flight. If this was the case, Gaius says that the man in question is a freeman. The shift to a more benevolent or sympathetic ruling, that a freeman could still behave as a freeman in flight and therefore be a freeman, is likely due to the concept of “favoring liberty” (favor libertatis) which came to prominence in the 2 nd c. CE. 140 The case reveals what the jurists consider it means “to be in the state of liberty.” Varus’ passage is notable because it highlights an understanding of slave behavior. Running away, hiding from one’s status, and neglecting duties and responsibilities is not the behavior of freemen, but slaves. Varus’ language suggests that a freeman may not engage in the performance of slavehood. The freeman regardless of his concern for his status may not cower and hide from the truth, he is only in a state of freedom when he ceases to hide and flee. These passages highlight the importance of performance as a means to understand if someone is in slavery or in freedom. Additionally, the passages acknowledge 140 See for example D. 40.12.30 Julian, From Minicus, book 5, “Duobus petentibus hominem in servitutem pro parte dimidia separatim, si uno iudicio liber, altero servus iudicatus est, commodissimum est eo usque cogi iudices, donec consentiant: si id non continget, Sabinum refertur existimasse duci servum debere ab eo qui vicisset: cuius sententiae Cassius quoque est et ego sum. Et sane ridiculum est arbitrari eum pro parte dimidia duci, pro parte libertatem eius tueri. Commodius autem est favore libertatis liberum quidem eum esse, compelli autem pretii sui partem viri boni arbitratu victori suo praestare,” “If two persons in separate suits claim a man [who purports to be free] as a slave, each as to a half-share, and he is adjudged free in one trial and a slave in the other, it is most convenient that pressure should be brought on the judges until they agree; if this does not happen, Sabinus is reported to have thought that the successful claimant should lead him away as a slave; Cassius too and I are of the same opinion. And it is perfectly absurd to suppose that he is half a slave and half free. However, it is more convenient under the principle favoring freedom that he should be free and yet be compelled to pay half his value to the successful claimant, as assessed by a good man.” 209 the possibility of duplicity on this front; a situation made manifest by the case of the fugitive slave, which Varus and Gaius both discuss. The question of a person’s freedom lies in the realm of the mind, his behavior shows his belief in his status as a freeman. This is contrasted with a person who knows he is a slave, but is behaving like a free person in bad faith. The focus is on if the man in question carries himself as a slave or a free man, and again, knowledge of his own status; knowing that you are free despite the fact that you are in flight or in servitude. The matter first circles around the issue of if the person in question bears himself or acts like a slave, just as Dio’s accuser explains his knowledge that his interlocutor is a slave because he is “kept by his master, dances attendance upon him and does whatever he commands or risks being beaten.” The question is then, is he doing or enduring slavish things or those of a freeman? While the passage from Dio we looked at underscored the uncertainty of judging status by actions because of the difficulties of distinguishing the power a master holds over his slave with that of a father over a son, the jurists here are more concerned with an internal knowledge that is a particular person knowing that he is free and not behaving as a freeman deceptively. The concern with deception is also seen in Dio, when his would-be slave relates a story of a man who passes himself off as a dead freeman. The story begins when the man accused of being a slave asks his accuser if he had considered that not all men in a state of slavery were slaves, “‘Τί δέ;’ εἶπε, ‘δοκοῦσί σοι πάντες οἱ δουλεύοντες δοῦλοι εἶναι;’” “‘What,’ said the first man, ‘do you think that all those who are in a state of servitude are slaves?’” 141 Dio’s account highlights the errors and fraud that arise in the determination of status; a freeman can find himself in servitude, a slave in freedom. 142 In 141 Dio Chrys. Or. 15.13 142 Moatti 2013 discusses errors of status in detail. 210 a tale that twists the confusion between sons and slaves, Dio relates the story of Callias’ groom, and while the story takes place in Athens of the past, the reasoning for telling the story is fitting with the evolving meaning of slave status in Dio’s time. ὁπότε καὶ ὁ Καλλίου υἱὸς ἔδοξε δουλεῦσαι πολὺν χρόνον ἐπὶ Θρᾴκης μετὰ τὴν μάχην, ἣν Ἀθηναῖοι περὶ Ἄκανθον ἡττήθησαν· ὥστε καὶ ὕστερον διαφυγὼν καὶ ἀφικόμενος ἠμφισβήτει τοῦ κλήρου τοῦ Καλλίου καὶ πολλὰ πράγματα παρεῖχε τοῖς ξυγγενέσιν, ἐκεῖνος μὲν οἶμαι ψευδόμενος ἦν γὰρ οὐχ υἱός, ἀλλ’ ἱπποκόμος Καλλίου, τὴν δὲ ὄψιν ὅμοιος τῷ τοῦ Καλλίου μειρακίῳ, ὃ ἔτυχεν ἐν τῇ μάχῃ τελευτῆσαν· ἔτι δὲ ἡλλήνιζεν ἀκριβῶς καὶ γράμματα ἠπίστατο, ἀλλὰ ἕτεροί γε μυρίοι τοῦτο πεπόνθασιν· When, even the son of Callias was thought to have been in servitude a long time in Thrace after the battle in which the Athenians suffered a defeat at Acanthus, so that when he escaped afterwards and reached home he laid claim to the estate left by Callias and caused a great deal of trouble for Callias’ kinsmen, on the one hand because, I think, that man was lying, for he was not the son, but the groom of Callias. But, on the other hand, he was similar in appearance to Callias’ son, who did die in the battle, and also he spoke Greek accurately and could read and write. —But there have been innumerable others who have suffered this fate. 143 Dio’s accused slave explains first of all one method as to how these cases of suits for freedom would come up: following a free person’s escape from capture and enslavement as a result of a war. Callias’ son is a freeman who is in a state of slavery (δουλεύω). Callias’ groom, the impostor, however, takes advantage of this. The groom fraudulently impersonates a free person; along with the added benefit of looking like Callias’ son, the groom could speak Greek accurately and could read and write. While of course some slaves could speak, read, and write the language of their masters it was perhaps more unusual for a groom. These skills are, while certainly not exclusive to the free population, suggestive markers in this particular performance of freedom. The groom is able to use these skills to pull off his performance as Callias’ son, that is, to bear or conduct himself as a free person fraudulently. 143 Dio Chrys. Or. 15.15-16, Loeb translation slightly modified. 211 The jurists are primarily occupied with a particular form of fraudulent liberty, the runaway slave. The jurists, as we saw before, consider flight inherently servile and beyond the realm of an honest free person. Recalling a different passage of the Digest taken from the juristic commentary on the Edict of the Aediles, the 1 st century jurist Caelius (quoted by Ulpian) gives another reason for the constant concern about runaway slaves, “Idem recte ait liberatis cuiusdam speciem esse fugisse, hoc est potestate dominica in praesenti liberatum esse,” “Likewise, rightly [Caelius] says flight is an appearance of a kind of liberty, since he is freed from the power of his master in that present moment.” 144 There is a very pragmatic financial concern with slaves running away, but there are other underlying concerns of slaves engaging in free behavior. The fugitive slave is a challenge to the Roman status hierarchy. For a slave to be a successful fugitive, he must convince others that indeed he is not a fugitive, or a slave without his master, but a free person. The anecdote about Callias’ groom is the jurists’ fears about the appearance of liberty (species libertatis) realized. The lack of definitive determinants of status increases the possibility of someone fraudulently passing as free. The runaway slave being in the appearance of liberty is almost a warning if we think about Callias’ groom’s ability to pass as free because of his appearance and behavior. In situations where the status of a person was called into question, their behavior helped legally determine their status. In this last section, I focus on the causae liberalis and the Dio 15 because the texts exhibit how status is read in the legal and social realm. These texts speak about status explicitly and show that a person’s behavior affected what status others understood them to be. In the preceding sections, through a study of manumission practices, I examined 144 D. 21.1.17.10, Ulpian, Curule Aediles’ Edict, book 1. 212 particular qualities of character that are markers of (good) citizens. In the cases that we have looked at, the jurists consider manumission in the terms of whether or not a slave was worthy of citizenship. The virtues of a good slave are potentially different than the virtues of a good citizen, but the virtues that bring about manumission are the virtues the state desired in a Roman citizen. Slaves, in these cases, are manumitted because through their actions they display Roman virtues and understandings of particularly Roman social institutions. A slave who showed a particular aptitude for being Roman and chose to exhibit those virtues shows himself to be a good potential citizen. This performance of citizenship however further troubles the boundaries of status at Rome. For a slave to perform citizenship he must perform a form of liberty first. The difference then between the fugitive slave in the species cuiusdam libertatis and the slave performing liberty appears at first sight not so different. The question of the performance of status returns us to the central theme of this project: the mind of the slave. The distinction between the fugitive slave and the slave performing citizenship lies in the realm of volition. 213 Conclusion This dissertation examines how the Romans constructed and conceived of the mind of the slave. Through a study of evaluative moments in the lives of slaves in both legal and literary texts, it becomes apparent that there was an interest in knowing the character and intention behind slaves’ actions. In the on-going Roman conversation about how this understanding of the mind might come about we see that there were acknowledged spaces of autonomy from the ownership of the master in the mind of the slave. The Roman jurists and other thinkers not only acknowledged these spaces of autonomy, but also sought to use and control them to benefit Roman masters. These spaces of autonomy were a necessary reality in the Roman institution of slavery where slaves could play a critical financial role. The acknowledgment of this autonomy did not give slaves license to conduct themselves as they wished; both societal norms and the strictures of the law served to give the master mechanisms for dealing with a slave who did not exhibit the proper and expected behavior of his status. At its core this dissertation looks at the nature of dominium, its limits, and how these limits were conceived and understood. Studies of the power relationship between master and slave and ownership have typically examined the body as the focus of the domination of the master over his slave. And similarly, our understanding of ownership as absolute has focused on the power that the master had over the body of the slave (as manifested most typically, for example, in the idea of the power over life and death). Instead of concentrating on the mastery of the body, I looked at the legal sources discussing the 214 mind of the slave because it is in those sources that we might understand the limits of the ownership, or dominium, that the master has over his slave. The discussions of the freedom of the mind allow us to explore ownership in Rome, and in particular the limits of ownership in a new way. The chapters of this dissertation represent three different stages in the master’s ownership of the slave: the beginning at purchase, his placement or removal from a particular position (e.g. vilicus), and the end of ownership with manumission. In each of these evaluative moments, we see the jurists taking the mental autonomy of the slave into account. By reading the legal texts with these questions of mental freedom in mind rather than to reconstruct the economics of Ancient Rome, we can access the relationship between master and slave more fully and understand that it is not a simple binary between the absolute ownership of the master and the mental autonomy of the slave. The master’s dominium may be understood as absolute in the sense that a master may do what he wishes with his slave: he can educate him, beat him, chain him, or free him. This represents the owner’s physical mastery and the slave’s physical subjection. However, the master’s inability to know what the slave thinks and feels, that is, to know with certainty that the slave will do what his master wishes and have the master’s best interest in mind, reveals a more tenuous form of mastery. The master must continuously assess and reassess the slave’s mind without the surety that exists in the corporeal relationship between master and slave. The first chapter examines the purchase of slaves and the beginning of ownership of the master over his slave. We see this not only in the literary examples where Romans deliberate on which slaves are good and how to evaluate slaves’ character and nature, but also in the legal sources where new slaves who are unable to be mastered are able to be restituted. The scholarly focus on the Edict of the Aediles has largely been to parse out 215 economic consequences such as when precisely a defective slave was able to be restituted, or to understand the differences between the sale of slaves and the Roman law of sale more generally. Instead, this chapter studies how the Romans understood mental defect in slaves and what ramifications that held for the master-slave relationship in terms of slavehood and ownership rather than economics. I study how the Romans evaluated weaknesses, talents (with a particular emphasis on mental qualities), and character and the subsequent ramifications and legal categorization that occurred if a slave did not meet expectations. Looking at this evaluative proves underscores that the value of the slave was in his utility, and part of this utility is the master’s ability to have a level of control on the mind of the slave. In the examined cases, the slave’s behavior was wayward enough that he was deemed mentally defective. Behavior determined whether the slave was good (and therefore mentally healthy) as behavior revealed or led to an understanding of a slave’s character and intention. The slave that is deemed to have a mental defect is exhibiting a mentality that is not beneficial to the master. The mentally defective slave then is a slave whose will and character are not in the service of the master. Examining which mental ailments allow restitution enables us to see what defects rendered a slave unable to be owned by the master. We see this explicitly in the cases of the servus furiosus and fugitivus. As the furiosus is deemed not to have voluntas by the jurists and to have a blinded reasoning faculty by Cicero, the master cannot hope to exhibit his ownership over the slave’s mind to ensure that he acts according to the master’s desires. The fugitivus in contrast has all of his faculties but the slave himself takes his mind (and usually, though not always, his person) away from his master’s dominium. The fugitivus is mentally defective because he has left the 216 mastery of his owner and could appear to be a free person—behavior that challenges the understandings of status. The furiosus and fugitivus show us a limit of ownership: these slaves are restituted because the mastery over their minds has failed. These mental defects are so severe they make the mind impermeable to the master (and in the case of the furiosus, the slave as well). The second chapter studies the role of high-level slaves in business and management positions. Roman commercial law was crafted in such a manner that allowed the slave, as an extension of the master, to act in his place in business relations. It went further, providing particular financial protections for masters that were explicitly tied to his level of awareness of his business manager’s actions. The master’s lack of knowledge of how his slave was conducting his business lessened his liability if something went wrong. These high-level slaves who turned their attention and efforts to managing their masters’ businesses well show how the autonomy and agency of slaves was an intrinsic part of the Roman economy. Roman commercial law incorporated the mental autonomy of slaves to financially benefit and protect the master. The mental autonomy of the slave did not challenge the ownership of the master over his slave; it was built into the Roman understanding of having mastery over the slave. It did not mean however that this mastery was impermeable; there was an anxiety about the betrayal of slaves. By privileging the language of persuasion rather than studying the actio servi corrupti in connection to other praetorian actions or delicts as most scholars have done, the juristic commentary of the actio reveals the relationship between the mental autonomy of slaves and the dominium of masters under strain. We see that the jurists did not conceive of the mental autonomy of the slave as posing a threat to the ownership of the master in itself, but rather the awareness that the ownership did not 217 extend far enough to protect this mental autonomy from corruption or influence from others. The master who was betrayed by his slave has lost his control over his slave and there could be severe financial repercussions for placing trust and responsibility in the wrong slave. The license of these high-level slaves, which they used to make business decisions and manage their masters’ accounts, did not threaten the mastery of the owner; the mastery of the owner was at risk because this license could be corrupted and come under the influence of another. By focusing on the language of persuasion and force and examining how mastery was threatened and reinstated, the jurists can be seen to be discussing the limits of ownership. The third chapter examines manumission specifically as a practice by the master and sanctioned by the state. I focus on these manumissions in order to understand the qualities of citizenship desired in a slave before manumission could be granted and whether the slave could perform particular citizen virtues while still a slave. The actions of a slave outside the ministerium of the master in particular reveal qualities of character. In these cases of manumission for extraordinary acts, the slave has a choice; he was not under the compulsion of his servitude to act. In the scenarios where the slave decided to save his master’s life or do some other good and unexpected deed, we see that the slave uses his autonomy, his choice and his understanding of what was right, to his master’s advantage. The master here as well does not have full control over his slave’s autonomy as this action was beyond the slave’s duties to his master, but it was nevertheless a benefit to his master. In this sense, manumission is rightly viewed as a reward for particularly good behavior; however, in these cases, it can also be viewed as a method of removing an overly autonomous slave from the slave population. The manumission of a slave serves as 218 a method of exerting mastery over a slave; the manumission of a good slave who has done an act worthy of a citizen restores the mastery of the owner over the slave for a last time. The spaces of autonomy in the mind of the slave are entirely subject to the interpretation of the master. The slave who used his autonomy to help his master beyond his servitude could be freed in particular if the action displayed qualities desired in a citizen, while the slave who used his autonomy to behave in a way that obstructed his ability to carry out his duties was considered defective. This is the difference between the fugitive slave who makes the conscious choice to escape his servitude and the slave who tries to escape his servitude by making the conscious choice to exhibit virtues that were desired in a citizen. The legal construction of slavery was not guided by determinism; the boundaries of status were permeable. The jurists give a great deal of attention to the mind of the slave precisely because there was not a legal understanding of the nature of the slave as essentially servile. The nature of ownership reflects this; the mastery of an owner over his slave is not founded on having a constant certainty of what a slave was doing and thinking instead it was based on a master’s ability to read a slave’s actions in order to know the slave’s mind. While my study was one that was predominantly of the legal sources, the shift of the locus of study of the master-slave relationship of dominium to the mind necessitates a look at other sources that discuss the mind. This study of other, particularly philosophical, sources is helpful to understand how the jurists discuss the mind and specifically the autonomy of the mind because the sources share a common vocabulary. Seneca’s discussion of mental autonomy in the de Beneficiis is particularly relevant to understanding the mind of the slave because he casts the question of the liberty of the mind of the slave 219 and the dominium of the master not only in legal language, but within the parameters of the law. Similarly, Epictetus discusses volition (prohairesis) in terms of ownership and possession; the language of liberty and autonomy we find in Seneca and Epictetus is firstly a legal language. In this project I predominantly looked at Stoic conceptions of the mind. In the future manifestation of this project I would like to develop the comparisons of legal literature with other literature more fully. Beyond Stoicism, Epicurean and other philosophical schools may help inform the legal treatment of the mind. Outside of the legal works, the question of the nature of slaves and the relationship between the master and slave is not solely taken up in pragmatic literary texts that openly and expressly reflect on ownership and slave management. We see discussions on the qualities that make a good slave, anxieties about how to determine if a slave has those qualities, and concerns about purchasing bad slaves in letters between friends and poetry. The philosophical texts concern themselves with the nature of slavery and freedom in order to understand human nature and liberty in the imperial period. In almost every literary genre, we find accounts of slaves who behaved in a particularly good or bad manner or in a way unsuitable for his status and the ramifications for the relationship between master and slave. These literary sources discussing slaves influenced one another and contributed to an understanding of the expected behavior and mentality of someone in the status of slavery. The authors of these works are writing for expressly different reasons; however, we find that they share similar preoccupations and questions as the jurists despite these disparate goals. This cultural interaction between the literary and legal works can be seen in their common language. Particularly in the philosophical texts the language of understanding human nature was a medical language. The morally good man was 220 healthy, the morally dubious unhealthy. The jurists adopt this language to discuss the nature of slaves. The slave that behaved inappropriately was not simply morally bad he was unhealthy. And while the authors are working on these topics for different reasons, their shared preoccupation with the mind and mental defect can help nuance the juristic interpretation of the mind and nature of the slave. Further development is needed in the relationship between the use of medical language in the philosophical sources to understand human nature and its use in the juristic sources to understand the nature of slaves. Additionally, the medical sources such as Galen and Celsus would greatly assist the juristic understanding of madness and mental defects more generally. This aspect of the project could contribute to the study of the philosophy of mind because it examines the terminology of the mind in a context of slavery and in a legal framework. This idea of a cultural unity between the literary and legal texts is important because it allows us to not only put these texts into conversation with one another, but also to gain a better understanding of the precise questions that were guiding considerations of slavery, ownership, and freedom. From more general scenarios depicting desired characteristics of slaves and methods of evaluation to specific discussions on meanings of terms that have bearing upon slaves such as morbus and vitium in different literary and legal works, it is clear that these authors were participating in an on-going cultural debate on the nature of slavehood and ownership. Keeping the different reasons and impetuses for the various understandings on slavery in mind allows us to examine where the sources diverge, which offers a path into the questions at the core of understanding the nature of the slave. Understanding these questions is important because these texts were a part of a conversation about what the nature of the slave looked like. It is a method also to understand the similarities or differences between free 221 and slave in particular cases such as mental ailments like the melancholicus or reading the distinctive behaviors expected of different statuses. The understanding of behaviors and expected characteristics that accompanied status was incredibly important in the Roman manifestation of slavery where the determinants of status were not as plainly visible as status based on blood or race. As we have seen, the boundaries of status could become confused or blurred and the determination of that status was based on a particular performance of status. Together these texts contributed to an understanding of the specific characteristics and qualities of a person that would allow them to be “read” as a free citizen or slave or foreigner. Understanding how far the mastery of the owner extends into the slave lets us explore the question of liberty and the relationship between status and the performance of a state (freedom, slavery). The question of status and liberty can be pushed further by looking at manumission not only as a method to control the slave population or simply as a reward for good service, but for exhibiting the qualities of citizenship. A slave who chooses to behave as a citizen confuses the lines of status. This confusion can be seen most plainly by looking at the slave who sues for freedom and the runaway slave. Both are considered to be in kind of “state of freedom.” The jurists determine the difference between these two cases by looking at the intention of the slave. The methods for determining the difference—the intention of the slave—show the importance of the mind to understanding the institution of slavery at Rome. Looking at the mind of the slave allows us to explore the ideas of liberty in a different light. This is particularly important because of the understanding of Rome as a society based around status. Looking at the considerations of the mind of the slave present in the writings of the jurists complicates our understanding of Rome as a status society 222 because this focus on the mind blurs the boundaries of status. In a future version of this project these questions on the nature of slavery and ownership could benefit from an examination of the role of humanitas in understanding the status of the slave and to what extent a slave could engage with and participate in Roman imperial culture. Scholars have devoted much study to the topic of humanitas, a term which the ancients themselves devoted a good deal of discussion. The term is one that inspires so much debate because of its broad reaching cultural significance and its evolving nature. 1 It can be studied within the bounds of Stoicism, law, political rhetoric, or history. A great deal of the scholarship on humanitas and the law has focused on when the concept of humanitas was first employed in legal interpretation as it was already seen to be a part of Roman culture as early as the Scipionic circle. 2 I would like to study humanitas instead as cultural ideology and its relationship to the performance of status, which would further our understanding of the nature of slavery. The development and permeation of humanitas into Roman culture was a response to the sophistication of Greek art, philosophy, and culture. 3 Humanitas gathered around itself a series of Roman virtues and ideas that were both “descriptive” and “prescriptive” 4 and served as a method to determine access and exclusion from participation in Roman society. Humanitas was viewed as a set of Roman ideals and served to promote and enclose a sense of Roman identity in the empire. There has been some work done on the 1 Schadewaldt 1973: 43-62. 2 Riccobono 1965. 3 Woolf 2000: 58; Riccobono 1965. 4 Woolf 2000:54-5, “Humanitas…stood for and organized a whole complex of ideas, some descriptive, others prescriptive and all contributing to a definition of self… the idea of humanitas underwrote and was sustained by a particular configuration of power, and it reflected and understanding of the world and of history that was inextricably linked to the fact of Roman imperialism… [it] is an ideological naturalization, the representation of a sectional and contingent value system as a set of beliefs with universal validity grounded in the very nature of man.” 223 relationship between humanitas and foreigners. 5 The focus on humanitas serving as a barrier for foreigners into Roman society because of its very Roman nature is a useful framework for the study of the role that humanitas plays when considering slaves’ places in Roman society. I would like to examine how, then, the idea of humanitas affected the reading of status. The relationship between the jurists’ use of the idea of humanitas in allowing manumission and the slave’s participation in citizen culture needs to be explored further. This could contribute to the current scholarship on Rome as a status-based society and would further our understanding of the limits of reading Rome as structured around status. Another avenue of development to be pursued further is the relationship between master and slave as a means to understand the nature of citizenship and the relationship between citizen and emperor. The interest in the mind of the slave can be seen to serve as a mechanism or metaphor to answer elite anxieties and concerns about their own situation as citizen-subjects under empire. 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Abstract (if available)

Abstract This dissertation seeks to further our understanding of the dominium (ownership) of the master over his slave in the 1st-3rd c. CE. The institution of slavery at Rome was somewhat idiosyncratic both in the sense that slaves were viewed as both things (res) and persons (persona) and that emancipated slaves became freedmen Roman citizens. This project explores moments of evaluation and exchange in the master-slave relationship, specifically a master’s attempts to know the mind of the slave—the character and the intention behind his or her actions. I argue it was in these moments, in the realm of the unknowable interior of the slave, that the absolute ownership of the master was most challenged. ❧ The first two chapters take the juristic commentary of two different magisterial edicts as their starting point: discussing (1) the return of a defective or diseased slave (Digest 21.1) and (2) when an owner has the right to sue if his slave has been made worse by another man (the actio servi corrupti, Digest 11.3). The first chapter examines the process of appraisal and evaluation at the slave market and by the master to ascertain weaknesses, talents, and character. I argue that while the physical ability of slaves was important, there was a particular emphasis given to the internal qualities of slaves. The empirical nature of this evaluation process highlights the tension between the unknowable mind of the slave and the ownership of the master. The second chapter looks at the negotiation between a slave’s status as property and his faculties as a human being for independent thought and action. I argue that the juristic commentary about the actio servi corrupti removes these faculties from the slave and underscores the force a would-be corrupter must use to persuade a slave to betray his master. This chapter studies the anxiety, found in both juristic and literary sources, between the need for highly talented slaves and the concern about betrayal. ❧ The third chapter studies the question of whether the status of the slave precluded the slave from exhibiting qualities and virtues of a good Roman citizen. In On Benefits, Seneca attempts to reconcile the capacity of slaves for natural goodness with their servile status

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Creator Giannella, Nicole Julia (author)

Core Title The mind of the slave: the limits of knowledge and power in Roman law and society

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Classics

Publication Date 08/29/2016

Defense Date 05/14/2014

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag master-slave relations,OAI-PMH Harvest,ownership,Roman law,Roman slavery

Format application/pdf (imt)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Moatti, Claudia (committee chair), Boyle, Anthony J. (committee member), Gross, Ariela J. (committee member), Lape, Susan (committee member)

Creator Email giannell@usc.edu,ngiannella@gmail.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c3-467924

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Legacy Identifier etd-GiannellaN-2863.pdf

Dmrecord 467924

Document Type Dissertation

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Rights Giannella, Nicole Julia

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Repository Name University of Southern California Digital Library

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