personality could conclude only a natural obligation (naturalis obligatio), but he was not liable for the losses. To protect third parties, however, and to give the necessary legal credit to this useful agency, the praetor gradually established a series of quasi-liabilities for the master, which were really in his interest; for without them slave-agency would have become impossible. Thus, if the master had countenanced the slave's contract, he was liable (actio quod jussu); if the slave had embarked his peculium in trade with the master's knowledge, this property, though in strict law not his own, could be claimed by the creditors, after the slave's debts to the master had been deducted (actio tributoria). Finally, any liability incurred by the peculium could be recovered by creditors, the master's right of deducting his own claims against it being preserved (actio de peculio), and any material advantage derived by the master from the contract of a slave was taken into consideration and the property of the dominus made liable to that extent (actio de in rem verso).[1] The slave, in fact, as having no personality of his own, is the best of agents, and the theory of agency, which the law of Rome has bequeathed to us, is one of the most perfect and permanent results of her system of slavery.
Apart from these relations to his master the slave was still ignored by law. He could not give evidence in court except under torture.[2] In case wrongs were done him, it was not he but his master that demanded reparation;[3] while his lord himself was the judge of the delicts which he had committed against himself or the household.[4] That for crimes against others the slave was tried by the ordinary process of criminal law was a concession to society rather than to the wrongdoer, and the sense of insecurity of the free population amidst their far more numerous dependants was expressed in the atrocious law that the murder of a Roman in his own house should be avenged by the death of the whole familia that were sleeping beneath the roof at the moment of the commission of the crime.[5]
- ↑ Gaius iv. 69-74; Justin. nst. iv. 7.
- ↑ Cic. Part. Orat. 34, 118; pro Cluent. 63, etc. As, however, the master's consent had to be obtained, the evidence and torture of slaves in the public courts were rare. In domestic jurisdiction the inquisition on slaves was held before a family consilium.
- ↑ Gaius iii. 210, 217, 222, 223.
- ↑ Cato R.R. 5; Dionys. vii. 69.
- ↑ Cic. ad Fam. iv. 12; Tac. Ann. xiv. 42.
