Slaves doing business: the role of Roman law in the economy of a Roman household

Abstract

A Roman slave could hold property which, despite the fact that it belonged to his master, he was allowed to use as if it were his own. All acquisitions based on such a peculium were automatically credited to the master. His liability, however, never exceeded the peculium's value. This article tries to reconstruct economic relationships between masters and slaves or slaves and slaves within a household using the discussions of the Roman jurists about legal questions regarding slaves' peculia. The legal texts show that legal rules were widely applied to regulate economic and non-economic relationships in a big Roman household. The legal regime of peculium was also influenced by the fact that often some – if not all – the assets of a peculium had not been provided by the master but had been acquired by a slave on his own initiative.

Keywords:

• Roman Law
• peculium
• slaves
• economic activities of slaves

Notes

 1. Plin. Ep. 8.16: … alterum quod permitto servis quoque quasi testamenta facere, eaque ut legitima custodio. … Dividunt donant relinquunt, dumtaxat intra domum… (… I allow even those who remain slaves to make a sort of will which I treat as legally binding…. They can distribute their possessions and make any gifts and bequests they like, within the limits of the household. – translation B. Radice). On the quasi testamenta see Tellegen, Law of Succession, 143–50. Cf. also Petron. Sat. 53 and the commentary by Smith, Cena Trimalchionis, 144; Andreau, “Freedmen”, 122 regards this passage as fiticious.

 2. Plin. Ep. 8.16: … nam servis res publica quaedam et quasi civitas domus est (… for the house provides a slave with a country and a sort of a citizenship. – translation B. Radice). A similar view is expressed in Sen. Ep. 47.14.

 3. Only slaves owned by the state enjoyed the legal privilege to make testaments over half of their peculium (Ulp.epit. 20.16).

 4. D. 41.1.10.1 (Gai. 2 inst.) … sive quid stipulentur vel ex qualibet alia causa adquirunt, id nobis adquiritur: ipse enim, qui in potestate alterius est, nihil suum habere potest (… anything which they acquire, whether on a stipulation or any on other ground, is acquired by us; for a person in the power of another can hold nothing for himself). All Digest translations follow The Digest of Justinian (translation edited by Alan Watson). Philadelphia: University of Pennsylvania Press. Revised English language edition, 1998.

 5. Literally “little property”. On the etymology see D. 15.1.5.3 (Ulp. 29 ed.) and Isid. Etym. 5.25.

 6. Pliny calls this a token of his humanitas. The stabilising effects of slave relationships in a domus are emphasised in Tert. Ad ux. 2.8.1. On masters' self-interest in steady social relations of their slaves see Bradley, Slaves, 63.

 7. Manumission was probably less frequent than it is often assumed. See Scheidel, “Quantifying the Sources of Slaves”, 156–69.

 8. Gifts to outsiders were not allowed on a regular basis; Kirschenbaum, Sons, 43 and Wacke, “Libera administratio”, 302–3. The lavish dispensator in Petron. Sat. 30 who gives away a vicarius as a gift can be a satirical exaggeration; some slaves' competences, however, may also have gone beyond the average.

 9. Knoch, Sklavenfürsorge, 180.

10. On family relationships of slaves see Flory, “Family”, 78–95 and infra note 91. Unfortunately legal writers rarely mention such aspects. However, they discuss a quasi-dowry given by a female slave and a slave “husband” receiving a “dowry” from his free “father in law” (D 23.3.39 pr., Ulp. 33 ed.; D. 16.3.27, Paul. 7 resp.). On these cases see Wacke, “Peculium”, 87–9 and Pfeifer, “Depositum”, 309–14.

11. Sources in note 46. Slaves were also sold with their peculia and allowed to keep them after manumission; see e.g. Crook, Law, 189; Wacke, “Peculium”, 81–4; Zwalve, “Callistus” Case', 123.

12. Kirschenbaum, Sons, 38–9; Knoch, Sklavenfürsorge, 176–83 (with further references).

13. The main discussions are in Digest 15.1 De peculio and 33.8 De peculio legato. On the legal status of peculia see Buckland, Law of Slavery, 187–206; Kirschenbaum, Sons, 31–88 and Wacke, “Libera administratio”, 252–4 (with further references to which add Pesaresi, Ricerche).

14. Bürge, Römisches Privatrecht, 192.

15. For the various assets see e.g. D. 15.1.7.4 ss. (Ulp. 29 ed.); Crook, Law, 189; Kirschenbaum, Sons, 33 and Zwalve, “Callistus” Case’, 122.

16. Kirschenbaum, Sons, 7–11; Watson, Slave Law, 104–8.

17. See infra after note 25.

18. This was, according to de Ligt, “Legal History”, 214–15, the reason for the introduction of the actio de peculio as well.

19. Papinian, Questions, book 23: “The question was asked why possession is acquired for those who know nothing of it through a slave in respect of his peculium. I said that for reasons of convenience, the rule was adopted as an exception so that owners would not be obliged to find out at any given time the forms and titles of peculia. This does not mean, however, that the owner acquires possession by intent alone; for if something is acquired other than through the peculium, the owner's intention is indeed necessary; but possession is acquired physically through the slave.”

20. On the consequences of transactions that the master did not approve see infra after note 52.

21. D. 41.2.1.14 (Paul. 54 ed.) … possessionem autem per eum adquiri, sicut per eos, quos in provincia habemus, Cassii et Iuliani sententia est (… On the other hand, it is the view of Cassius and Julian that we can acquire possession through the runaway, just as we would through slaves whom we have in a province).

22. In the case of flight, the slave lost the capacity to alienate but acquisitions were still credited to the master. See D. 41.2.1.14 (Paul. 54 ed.) supra note 21 and Klingenberg, Servus fugitivus, 5.

23. On this aspect see Zwalve, “Callistus” Case', 116–27.

24. See e.g. D. 15.1.3.3 (Ulp. 29 ed.).

25. Otherwise the other party could sue neither the master who was not partner to the contract nor the slave who could not stand trial. The so-called actiones adiecticiae qualitatis were procedural devices to overcome this problem. See Watson, Slave Law, 90–1 and de Ligt, “Legal History”, 205–26.

26. Kirschenbaum, Sons, 47–66.

27. D. 15.1.21 pr. (Ulp. 29 ed.); Kirschenbaum, Sons, 51–2.

28. As a rule, a slave's creditors received payment in the order of the filing of their claims. The master's privileged position rested on the assumption that he would always be the first to seek fulfilment (D. 15.1.9.2, Ulp. 29 ed.).

29. Ulpian, Sabinus, book 43: “A slave can not really owe or be owed anything, but we use the word loosely to indicate the facts rather than with reference to obligations at civil law….”

30. Pomponius, Quintus Mucius, book 4: “Before a slave can be treated as his master's debtor or vice versa, there must be a legal basis for the debt; thus, the master does not become a debtor by a mere entry in his book that he owes the slave some money when in fact he never borrowed it or became indebted in any other way.”

31. See also D. 15.1.4.1 (Pomp. 7 Sab.).

32. On the relevance of the account books in a trial see Bürge, Römisches Privatrecht, 186–7.

33. In the reverse case, if a peculium was already bankrupt due to debts to the master it continued to exist so long as property remained in the slave's hands (D. 15.1.4.5, Pomp. 7 Sab.).

34. Kirschenbaum, Sons, 33; Knoch, Sklavenfürsorge, 177–8.

35. Paul, Sabinus, book 4: “Property of the master is not ipso facto transferred to the peculium just because the master wishes this to happen; it must be handed over or, if it is already in the slave's control, be treated as handed over; for things need an actual transfer. On the other hand, a peculium ceases to be peculium just as soon as the master so wishes.”

36. D. 15.1.4.1 (Pomp. 7 Sab.)… re enim, non verbis peculium augendum est (… any increase to the peculium must be effected by acts, not words). Zwalve, “Callistus” Case', 123 points out parallels to modern trust-law.

37. D. 15.1.32 pr. (Ulp. 2 disp.)… nam qui cum servo contrahit, universum peculium eius quod ubicumque est veluti patrimonium intuetur (… For people who deal with a slave have an eye to the whole of his peculium, wherever it is, just as they would look to all the assets of a free man). See also Gai. Inst. 4.74. Practically speaking, the actio de peculio was an indirect way for a creditor to get hold of the peculium (Bürge, Römisches Privatrecht, 183–4).

38. Kirschenbaum, Sons, 36–7 and 71–2; Knoch, Sklavenfürsorge, 179–80 and 182 (with further references).

39. Ulpian, Edict, book 29: According to Celsus in the sixth book of his Digest, Tubero defines a peculium as the property which the slave, with his master's permission, keeps in a separate account of his own, less anything owed to the master.

40. Florentinus, Institutes, book 11: “A peculium is made up of anything a slave has been able to save by his own economies or has been given by a third party in return for meritorious services or has been allowed by his master to keep as his own.” On the augmentation of a peculium by gifts see also D. 15.1.57.2 (Tryph. 8 disp.)

41. The original context concerned the bequest of a peculium. The provenance served as a criterion in order to decide whether an item had been part of the original peculium during the master's lifetime.

42. For example, Buti, Capacità patrimoniale, 15; Kirschenbaum, Sons, 33–4; Knoch, Sklavenfürsorge, 178; Wacke, “Libera administratio”, 254; Zwalve, “Callistus” Case', 121.

43. Sen. Ben. 7.4.4; Apul. Met. 10.4. See Bradley, Slaves, 110 and Buti, Capacità patrimoniale, 16 note 7 for further examples.

44. D. 15.1.7.1 (Ulp. 29 ed.) … non esse opus concedi peculium a domino servum habere, sed non adimi, ut habeat (… in order for a slave to have a peculium, it is not necessary that it should have been granted by the master, though it must not have been taken away); in the same sense D. 15.1.3.4 (Ulp. 29 ed.). Although both texts discuss the limited powers of guardians with regard to peculia the principle was surely not restricted to that situation.

45. Kirschenbaum, Sons, 45.

46. D. 15.1.47.6 (Paul. 4 Plaut.)… quasi patrimonium liberi hominis peculium servi intellegitur, ubicumque esset (… the peculium of a slave, regardless of its location, is treated like the estate of a free man). See also D. 15.1.32 pr. (Ulp. 2 disp.); D. 50.16.182 (Ulp. 27 ed.); Isid. Etym. 5.25.5; CIL 9.4112. On the slave's de facto “ownership” see Buti, Capacità patrimoniale, 13–70 and Knoch, Sklavenfürsorge, 178 with further references.

47. On the reliability of the representation of social and economic facts in the Satyricon see Andreau, “Freedmen” and Verboven, “A Funny Thing Happened”; on the role of slavery see Bravo García, “El Satiricon”.

48. The mere tolerance of a peculium did not give the slave full powers; for that purpose a special grant of libera administratio was necessary. See Wacke, “Libera administratio”, 269–76.

49. Kirschenbaum, Sons, 34–5.

50. Knoch, Sklavenfürsorge, 86. See also Artem. 3.41. D. 33.7.19.1 (Paul. 13 resp.) mentions a slave who had to pay an annual fee to his master.

51. Minors were able to act on behalf of a peculium or as business managers (institores) (D. 15.1.1.4, Ulp. 29 ed.; D. 14.3.7.2 Ulp. 28 ed.). According to Gaius, the use of underage pueri and puellae as managers was quite common (D. 14.3.8, Gai. 9 ed. provinc.); on which see see Aubert, “Business Managers”, 56 and 155. A funeral inscription commemorates a slave tavern keeper who died at the age of 16 (CIL 3.14206,21); on the legal background see Bürge, “Rechtsgeschäfte”, 204–8. Trimalchio owed his rise to his master's dispensator not only to their sexual relationship but also to the economic talent he had shown at an early age (Petron. Sat. 29).

52. Petron. Sat. 53: … “Eodem die: incendium factum est in hortis Pompeianis, ortum ex aedibus Nastae vilici.” “Quid,” inquit Trimalchio, “quando mihi Pompeiani horti empti sunt?” “Anno priore,” inquit actuarius, “et ideo in rationem nondum venerunt.” Excanduit Trimalchio et: “Quicunque, inquit, mihi fundi empti fuerint, nisi intra sextum mensem sciero, in rationes meas inferri vetuo (“On the same date: a fire broke out on the estate at Pompeii beginning at the house of Nasta the bailiff.” “What!” said Trimalchio. “When was an estate bought for me at Pompeii?” “Last year,” said the accountant, “so it hasn't yet come on the books.” Trimalchio flared up: “If any land is bought for me and I don't hear of it within six months, I refuse to have it entered on the books.” – Translation: J.P. Sullivan).

53. Smith, Cena Trimalchionis, 142; Courtney, Petronius, 101 and Verboven, “A Funny Thing Happened”, 136–8.

54. Smith, Cena Trimalchionis, 144 and Courtney, Petronius, 102 express scepticism as to the realism of the scene; Bradley, Slaves, 75 sees a certainly “realistic substratum”. For the comic effect of Petronius' exaggerations a realistic background seems to be indispensable.

55. The master could not avoid liability to outside creditors by taking things out of the peculium without compensation. If a thing was transferred from the peculium to the master's account without paying an equivalent a creditor could bring an actio de in rem verso in case the peculium no longer covered his claims.

56. On the central role of the master's own decision see D. 15.1.49 pr. (Pomp. 4 Q. Muc.) and D. 15.1.4 pr. (Pomp. 7 Sab.).

57. Marcian, Rules, book 5: “A peculium is born, grows, wastes away, and dies. So it was quite elegant of Papirius Fronto to liken the peculium to the slave. 1.… it grows by being increased, it wastes away when underslaves die or property gets lost, and it dies when it is taken away.”

58. Petron. Sat. 75 and 76. Cf. also D. 36.1.17 pr. (Ulp. 4 fideic.) and D. 50.16.182 (Ulp. 27 ed.). The testator who refers to his estate as paupertas (poverty) in D 36.1.80.12 (Scaev. 21 dig.) may also have been a freedman.

59. Further examples of freedmen using slave speech in Courtney, Petronius, 78 and Flory, “Family”, 87.

60. On which see Veyne, “Vie de Trimalcion”, 213–47.

61. Petron. Sat. 76:… Quid multa? coheredem me Caesari fecit, et accepi patrimonium laticlavium. Nemini tamen nihil satis est. Concupivi negotiari. Ne multis vos morer, quinque naves aedificavi, oneravi vinum — et tunc erat contra aurum — misi Romam. Putares me hoc iussisse: omnes naves naufragarunt. Factum, non fabula. Uno die Neptunus trecenties sestertium devoravit. Putatis me defecisse? Non mehercules mi haec iactura gusti fuit, tanquam nihil facti. Alteras feci maiores et meliores et feliciores, ut nemo non me virum fortem diceret. Scis, magna navis magnam fortitudinem habet. Oneravi rursus vinum, lardum, fabam, seplasium, mancipia. Hoc loco Fortunata rem piam fecit: omne enim aurum suum, omnia vestimenta vendidit et mi centum aureos in manu posuit. Hoc fuit peculii mei fermentum (…That's about it – he made me co-heir with the Emperor and I got a senator” s fortune. But nobody gets enough, never. I wanted to go into business. Not to make a long story of it, I built five ships, I loaded them with wine – it was absolute gold at the time – and I sent them to Rome. You'd have thought I ordered it – every single ship was wrecked. That's fact, not fable! In one single day Neptune swallowed up thirty million. Do you think I gave up? This loss, I swear, just whetted my appetite – it was as if nothing happened. I built more boats, bigger and better and luckier, so nobody could say I wasn't a man of courage. You know, the greater the ship, the greater the confidence. I loaded them again – with wine, bacon, beans, perfumes and slaves. At this point Fortunata did the decent thing, because she sold off all her gold trinkets, all her clothes, and put ten thousand in gold pieces in my hand. This was the yeast my fortune needed to rise. – Translation: J.P. Sullivan).

62. Veyne, “Vie de Trimalcion”, 232; see also the discussion in Andreau, “Freedmen”, 115–16.

63. Cf. the laments of a slave in Plaut. Rud. 915–919: … lucrum praeposivi sopori et quieti: … paupertatem eri qui et meam servitutem tolerarem, opera haud fui parcus mea (… I put profit ahead of sleep and rest, I did…. I was set on trying to make things easier for poor master – also for his slave – and I didn't spare myself a bit. – Translation M. Nixon). Cf. also Mart. 2.68.

64. On the sometimes exorbitant sums that specialised slaves had to pay see Schumacher, Sklaverei, 269–70.

65. Bürge, Römisches Privatrecht, 192. The reliability of legal sources for such matters is discussed at the end of this paper.

66. CIL 6.5197. For further epigraphical evidence see Schumacher, Sklaverei, 270–4.

67. On the question of separate accounting see D. 15.1.4.6 (Pomp. 7 Sab.).

68. Ulpian, Edict, book 29: “If a slave of mine has underslaves, can I deduct from his peculium what they owe me? One must first ask whether the peculia of underslaves are reckoned in the peculium of the principal slave; according to Proculus and Atilicinus, the peculia of underslaves must form part of his peculium as they themselves do. Thus, debts due to me from their master, the principal slave, may be deducted from their peculia as well as from his; debts due from the underslaves themselves may be deducted from their peculia alone; debts from them to the principal slave rather than to me may be deducted from their peculia, like debts due to a fellow slave; but debts due to them from the principal slave will not, according to Servius, be deductible from his peculium, since his peculium includes theirs, although in my view their peculium will be increased just as happens when a master owes something to his slave.”

69. On this point see also D 15.1.6 (Cels. 6 dig.).

70. Petron. Sat. 30. In Petron. Sat. 53 Trimalchio is notified of the execution of one of his slaves without his prior authorisation. On the powers of vilici see Columella Rust. 1.8.16.

71. Reduzzi Merola, Servo parere, 158.

72. Africanus, Questions, book 5: Stichus has Pamphilus in his peculium. Their owner defended Pamphilus in a noxal action, lost, and paid the amount assessed. Then he manumitted Stichus in his will and legated his peculium to him. It was asked whether what had been paid out on Pamphilus' account was to be deducted from the peculium of Pamphilus himself or from that of Stichus. He replied that the full amount should certainly be deducted from the peculium of Pamphilus, that is, even if it would have been expedient to surrender him noxally; for whatever is paid out on behalf of a slave, he becomes his owner's debtor in that amount. But if the peculium of Pamphilus did not suffice, then no more than the value of Pamphilus should be deducted from the peculium of Stichus. 1. It was asked, if Pamphilus had owed money to his owner on some other ground and it could not be kept back from his peculium, whether it could be deducted up to his value from the peculium of Stichus. He said: “No”; for this was not like the previous case. For there the value of the vicarius was to be deducted because Stichus became his owner's debtor in that amount on account of the defence of his vicarius, but in the present case nothing should be deducted from Stichus's peculium, because he owed nothing; only the peculium of Pamphilus should be diminished, and he can surely not be understood to be part of his own peculium.

73. In an action for a slave's delict (actio noxalis) the master had the choice to pay the damages (litis aestimatio) or to surrender the slave to the injured party (noxae deditio). The reason was risk control: A slave should not be able to inflict a loss to his master exceeding his own pecuniary value (D. 9.4.2 pr., Ulp. 18 ed.). On the principle of noxal liability see Gai. Inst. 4.75 and Buckland, Law of Slavery, 98–130.

74. D. 19.1.11.12 (Ulp. 32 ed.).

75. D. 15.1.9.1 (Ulp. 29 ed.) Plane si conservus dedit damnum vel subripuit, in peculium videtur haberi, et ita Pomponius libro undecimo scribit: nam et si quid dominus ab eo qui rem peculiarem subripuit vel consecutus est vel consequi potest, in peculium esse ei imputandum Neratius libro secundo responsorum scribit (For damage caused or theft committed by a fellow slave the peculium would of course receive a credit, as Pomponius said in his eleventh book; for, according to Neratius in the second book of his Replies, the peculium gets credit for anything the master obtains or can obtain from a person who has stolen from the peculium).

76. The master, however, did not become liable in this way to a slave (D. 15.1.9, Ulp. 29 ed.).

77. Petron. Sat. 53. Smith, Cena Trimalchionis, 144 thinks of “law-courts” within Trimalchio's household, whereas Andreau, “Freedmen”, 122 regards this detail as a mere invention.

78. In addition to the actio de peculio a master became liable to his slaves' creditors for his enrichment in an actio de in rem verso.

79. In this way the master did not suffer personal losses even though he could not exclude his liability de peculio by an explicit prohibition of conducting business with a slave (D. 15.1.29.1., Gai. 9 ed. provinc.; D. 15.1.47 pr.; Paul. 4 Plaut.).

80. It was thought that slaves were better motivated if they were allowed to make their own decisions (Columella Rust. 1.8.15).

81. The Roman ideal is summed up by Gaius in D. 50.17.133 (Gai. 8 ed. provinc.) Melior condicio nostra per servos fieri potest, deterior fieri non potest (Our condition can be improved but not worsened by our slaves).

82. On the effect of slaves's compliance as seen from the perspective of a former slave see Publilius Syrus 596 (Q44) Qui docte servit partem dominatus tenet and 616 (Q64) Qui invitus servit fit miser, servit tamen.

83. If a master became aware of mismanagement he was well advised to revoke the peculium. Toleration of maladministration made him liable to the slave's creditors if the peculium was exhausted (D. 15.1.21 pr., Ulp. 29 ed.).

84. Knoch, Sklavenfürsorge, 180.

85. The sometimes large size of a peculium can be gathered from the fact that it could include land (D. 15.1.7.4, Ulp. 29 ed.) and be situated in different places (D. 15.1.32 pr., Ulp. 2 disp.; D. 15.1.47.6, Paul. 4. Plaut.).

86. On the rupture of slaves' social relations, especially family relations, in the comparable case of a sale, see Bradley, Slaves, 51–3.

87. Bürge, Römisches Privatrecht, 195–6.

88. Bradley, Slaves, 98–100; Kirschenbaum, Sons, 36–7.

89. D 42., Paul. 54 ed.

90. A guardian could not grant a peculium (D 15.1.3.3, Ulp. 29 ed.). For some legal historians this creates a mystery (Watson, Slave Law, 98). However, the rule may be motivated by the fact that a guardian was not familiar with the slaves and was in a bad position to judge their trustworthiness.

91. See also note 10. ILS 7981a and 7981b document a slave “family” consisting of a servus, his vicaria and their son; the vicaria Aucta buried her ordinarius Pancarpus and the common daughter (CIL 6.7371). For examples of slaves financing dedications with their peculia see Schumacher, Sklaverei, 269 and Bradley, Slaves, 109–10.

92. Bürge, Römisches Privatrecht, 187–8.

93. Supra at note 29.

94. Petron. Sat. 28.