Relations Between Slave and Master
(1) The Slave’s Capacity
The basic position was that, as far as private law was concerned,[445] the slave had no legal capacity whatsoever. A slave could not marry, although favoured slaves might as a privilege be allowed by their masters to cohabit as if married.[446] A slave could neither sue nor be sued, although they were competent witnesses in legal proceedings.[447] They could not own property, and anything they acquired became the property of the master, not of the slave.
Equally, they could not make contracts in their own name, and any contract that a slave made on the master's behalf could be enforced by the master but could not be enforced against him. The basic idea was that, while the slave could improve the master's position, the slave could not worsen it.In practice, though, it must always have been common for a slave to be put in a position of managing the master's money or property, even if only in a minor way, such as being sent to market to buy goods for use in the household. Indeed, from early times, it was common for a slave to be given a fund of money or propÂerty (possibly even including other slaves) to manage. This might, for example, be money for the slave's personal use, or a business intended to make a profit to benefit the master. Such a fund was called apeculium, and to a great extent it was treated socially as if it belonged to the slave. Indeed, so much was this the case
that it was common for the slave to be allowed to buy freedom with the peculium. The master accepted payment from the peculium even though, in law, it already belonged to the master.
Clearly, slave-owners saw it as being in their interests to allow slaves a peculium. A slave who was successful in business would obviously benefit the master. However, it is fairly obvious that a slave who cannot make enforceable conÂtracts and who cannot transact with property is unlikely to have much success in business.
This problem must have become apparent as soon as slaves began to manage substantialpeculia (the plural of peculium). In the late Republic, therefore, the praetor intervened to allow the master to be sued, in certain circumstances, over matters arising from transactions entered into by the slave. The same issue arose with those of the free population who were subject to the authority of a paterfamilias, who had similar restrictions on their capacity, so fuller details of how this worked will be left until Chapter 9. However, in simple terms, the position from the classical period onwards was that the master could be held liable under transactions entered into by the slave up to the value of the peculium, and beyond the value of the peculium for transactions authorised by the master.[448](2) Treatment of the Slave
In principle, as a slave was property, he or she was completely subject to the will of his or her owner. The basic position was that the owner had the power of life and death over the slave.[449] That does not mean that slaves were often killed by their owners. After all, even a slave with no special skills, used only for unskilled manual labour, was a valuable piece of property. Even without humanitarian concerns, which were rare in early times anyway, it would be a waste of resources to kill a slave without cause. The more valuable the slave, the more this was the case, and as we have seen, many slaves had highly sought-after skills and could only be purchased at a high price. A skilled and trusted slave in a wealthy owner's household could well enjoy a more comfortable life than much of the free popuÂlation, especially if furnished with an extensivepeculium. There is, though, no getÂting away from the fact that some slave-owners treated their slaves brutally, and even if death was not the intention, either it or the maiming of the slave could easily be the consequence of excessive punishment.
So was there any protection for a slave against mistreatment? Originally, no, except for the possibility that the mistreatment might incur the disapproval of the censor, with resulting legal disgrace.[450] It seems unlikely, though, that this was much of an impediment to maltreatment of slaves.
For one thing, the censors were not permanently in office. For another, even when the censors were in office, there is no reason to think that they were taking any particular care to monitor owners' treatment of their slaves. Furthermore, both the existence of slavery and the physical punishment of slaves were taken for granted by the Romans, so only truly exceptional abuses would be likely to occasion much adverse comment.As time went on, limitations on the master's powers were introduced. For example, in the first century AD, masters were prohibited by a lex Petronia from sending their slaves to fight wild animals in the arena, unless a magistrate had first given consent. Under Domitian,[451] castration of slaves was prohibited. Hadrian,[452] in fact, provided that the penalty for murder was to apply to those who made a eunuch.[453] Hadrian also prohibited the killing of one's own slave without the approval of a magistrate.
Under Antoninus Pius,[454] it was considered to be homicide to kill one's own slave just as much as it was to kill someone else's slave.[455] In addition, under this emperor, for the first time slaves could initiate a procedure to protect themselves. He provided that, where a slave sought refuge from the master's treatment at a temple or a statue of the emperor, the matter was to be investigated. If the owner was found to be excessively harsh in his or her treatment of the slave, there was to be a forced sale of the slave.[456]
Given that, in the early days of the Church, St Paul had said that among Christians there was ‘neither slave nor free',[457] the conversion to Christianity might have been expected to have a significant impact on the law of slavery. There was, though, no radical change, and certainly no obvious push for the abolition of slavery. There was, however, continuation of the existing trend, and by the time of Justinian the master was restricted to reasonable chastisement of slaves only.
Even so, though, the humanitarian aspect of these developments should not be overstated. All in all, they perhaps should make us think more of modern animal protection legislation than of any kind of real questioning of the idea that human beings could properly be considered capable of being owned.
D.