II slavery
The modern literature on slavery is so massive that here only the briefest account will be given.
i.
SlavesRoman law enshrines a great contradiction: on the one hand slaves were property, just like a book or a dog; on the other, they were also human, and to make full use of them required that their human characteristics - their intellect and the opportunities it offered - be recognized. These two strands of thought conflict but each can be identified throughout the law.
Slaves were property. They were bought and sold like other goods. Slave dealers had a bad reputation: the seller of a slave was required to warrant that the slave was free of defects; eventually this warranty was implied in the contract of sale (more of this in chapter 5). Much the same regime applied to cattle. Nothing could make it clearer that the slave was property than the elaborate discussions of the jurists about whether an ailment, disease or impairment amounted to a defect in the goods and so a breach of contract (D. 21.1).
Since a slave was property, the basic notion was that the owner could do what he liked with it. Yet slaves were not purely labourers but performed much skilled work, for instance as teachers, doctors, and commercial agents. Equally, they were an extremely valuable economic resource, so that one should not get carried away with the idea that they were constantly maltreated: ill treatment of them for its own sake was self-inflicted economic harm. None the less there is every reason to think that some slaves were maltreated or inhumanely overworked.
There were, however, gradual humanitarian developments: the prohibition of excessive harshness; the requirement introduced by Hadrian that an owner should obtain the approval of a state magistrate before killing his slave who had committed crimes.
Under Antoninus Pius an owner who killed his own slave was made as much amenable to justice as one who killed someone else's. On the whole, these relaxations of the original stern regime do not alter the fact that slaves are property; they are simply restrictions on the use of property, much as we find nowadays in planning legislation. A more drastic innovation, also of Antoninus Pius, was that owners whose slaves sought refuge because they were being treated excessively harshly could be forced to sell them (Ulpian, D. 1.6.2). This was the first time it had been possible for a slave to influence his own fate: he could bring about the expropriation of his owner, admittedly against compensation. This is indeed a recognition that the slave was a person.There was also more direct recognition of this fact. For example, slaves were able to have quasi-marital relationships (contubernium). Recognition was granted to these in law; so, for example, if you bought a ‘married' pair of slaves but wanted to return one as defective goods, you must return both (D. 21.1.35). At least this is a start. But the main catalyst for recognition of slaves as persons was provided by the self-interest of owners: to make full use of a slave involved recognizing that he or she was a person who could do things.
Here the law came up against a number of difficulties. Slaves were not people (pro nullis habentur) and so could neither sue nor themselves be sued. They could own nothing and anything they acquired, whether a piece of property or the benefit of an obligation, they acquired for their owners. They could not make the position of their owners worse: so they could not alienate property which belonged to their owners; nor could they bring their owners under any obligation. Accordingly, their owners could not be sued on account of their dealings either.
These difficulties are similar to those discussed earlier in this chapter in connexion with children without legal capacity and minors.
So long as it was possible to sue neither the slave nor the slave-owner, nobody will willingly have done business with a slave. But that deprived slaves of a huge part of their potential utility. For that reason, the praetor intervened, to create a range of actions which could be brought against a slave-owner arising out of the dealings of his slave. These are discussed in chapter 5.2. Freedmen (liberti)
Slaves could be freed by their owners and, if freed in due form by Roman citizens, with their freedom they also obtained Roman citizenship. After the lex Aelia Sentia of ad 4, however, only slaves over the age of thirty could be freed and this must be done in proper form; those ‘freed' in breach of this statute became only ‘Junian Latins', a lesser status which meant in particular that they had no right to dispose of their property on death. If freedmen were already second-class citizens, Junian Latins were third-class. While the size of this class is not clear, it may have been very substantial (Weaver 1997).
Freedmen were, although free, subject to a number of piecemeal and not very interesting restrictions: from the time of Augustus they could not, for example, marry members of the senatorial class. More important for present purposes is that they owed obligations to their former owners (or ‘patrons'). In particular, the freedman or freedwoman was under a duty to show respect (obsequium) to the patron, which had some practical effects, such as the fact that he or she could summon the patron to court only with the praetor's permission; the freedman or freedwoman also had to provide services (operae) to the patron, the extent of which in days per year would normally be agreed at the time the slave was freed. In addition, if the freed slave died intestate the patron had certain rights of succession in his or her estate.