The Ancient Library

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if the cruelty of the master was intolerable, he might be compelled to sell the slave ; and the slave was empowered to make his complaint to the proper authority. (Senec. de Benef. iii. 22.) A Constitution of Claudius enacted that if a man exposed his slaves, who were infirm, they should become free ; and the Constitution also declared that if they were put to death, the act should be murder. (Sueton. Claud. 25.) It was also enacted (Cod. 3. tit. 38. s. 11) that in sales or division of property, slaves^ such as husband and wife, parents and children^ brothers and sisters, should not be separated.

A slave could not contract a marriage. His cohabitation with a woman was Contubernium ; and no legal relation between him and his children was recognized. Still nearness of blood was con­sidered an impediment to marriage after manumis­sion : thus a manumitted slave could not marry his manumitted sister. (Dig. 23. tit. 2. s. 14k) , A slave could have no property. He was not incapable of acquiring property, but his acquisi­tions belonged to his master ; which Gaius consi­ders to be a rule of the Jus Gentium (i. 52). A slave could acquire for his master by Mancipatio, Traditio, Stipulatio, or in any other way. In this capacity of the slave to take, though he could not keep, his condition was assimilated to that of a filiusfamilias, and he was regarded as a person. If one person had a Nuduni Jus Quiritium in a slave, and he was another's In bonis, his acquisitions be­longed to the person whose he was In bonis. If a man bona fide possessed another man's slave or a free person., he only acquired through the slave in two cases: he was entitled to all that the slave acquired out of or by means of the property of the possessor (ex re ejus] ; and he was entitled to all that the slave acquired by his own labour (ex operis suis) ; the law was the same with respect to a slave of whom a man had the Ususfructus only. All other acquisitions of such slaves or free persons belonged to their owner or to themselves, according as they were slaves or free men. (Ulp. Frag. tit. 10.) If a slave was appointed heres, he could only accept the hereditas with the consent of his master, and he acquired the hereditas for his master : in the same way, the slave acquired a legacy for his master. (Gaius, ii. 87, &c>)

A master could also acquire Possessio through his slave, and thus have a commencement of Usu-capion (Gains, ii. 89) ; but the owner must have the possession of the slave in order that he might acquire possession through him, and consequently a man could not acquire possession by means of a pignorated slave. [PiGNUS.] A bonae ficlei pos­sessor, that is, one who believed the slave to be his own, could acquire possession through him in such cases as he could acquire property ; conse­quently a pledgee could not acquire possession through a pignorated slave, though he had the possession of him bona fide, for this bona fides was not that which is meant in the phrase bonae ficlei possessor. The Usufructuarius acquired pos­session through the slave in the same cases in which the bonae fidei possessor acquired it. (Sa-vigny, Das Recht des Besitzes, p. 314, ed. 5.)

Slaves were not only employed in the usual do­mestic offices and in the labours of the field, but also as factors or agents for their masters in the management of business [!nstitoria actio, &Ci], and as mechanics, artisans, and in every



branch of industry. It may easily be conceived that under these circumstances, especially as they were often intrusted with property to a large amount, there must have arisen a practice of al­lowing the slave to consider part of his gains as his own: this was his> a term also ap­plicable to such acquisitions of a filiusfamilias as his father allowed him to consider as his own. [patria potestas.] According to strict law, the Peculium was the property of the master, but according to usage it was considered to be the property of the slave. Sometimes it was agreed between master and slave, that the slave should purchase his freedom with his Peculium when it amounted to a certain sum. (Tacit. Ann. xiv. 42, and the note of Lipsius,) If a slave was manu­mitted by the owner in his lifetime, the Peculium was considered to be given together with Libertas, unless it was expressly retained. (Dig. 15. tit. 1. s. 53j de Peculio.} Transactions of borrowing and lending could take place between the master and slave with respect to the Peculium, though no right of action arose on either side out of such dealings, conformably to a general principle of Roman Law. (Gains, iv. 78.) If after the slave's manumission, the master paid him a debt which had arisen in the manner above mentioned, he could not recover it. (Dig. 12. tit. 6. s. 64.) In case of the claim of creditors on the slave's Pecu­lium, the debt of the slave to the master was first taken into the account, and deducted from the Pe­culium. So far was the law modified, that in the case of naturales obligationes, as the Romans called them;, between master and slave, a fidejussor could be bound for a slave ; and he could also be bound, if the creditor was an extraneus.

A naturalis obligatio might result from the deal­ings of a slave with other persons than his mas­ter ; but the master was riot at all affected by such dealings. The master was only bound by the acts and dealings of the slave, when the slave was employed as his agent or instrument, in which case the master might be liable to an Actio exer-citoria or institoria. (Gains, iv. 71.) There was of course an actio against the master, when the slave acted by his orders. [Jussu, quod, &c.j If a slave or filiusfamilias traded with his peculium with the knowledge of the dominus or father, the peculium and all that was produced by it were di­visible among the creditors and master or father in due proportions (pro rata portione\ and if any of the creditors complained of getting less than his share, he had a tributoria actio against the master or father, to whom the law gave the power of dis­tribution among the creditors. (Gaius, iv. 72, &c.) The master was not liable for anything beyond the amount of the peculium, and his own demand was payable first. (Dig. 14. tit. 4. de Tributoria, A'Ctione.) Sometimes a slave would have another slave under him., who had a peculium with respect to the first slave, just as the first slave had a pecu­lium with respect to his master. On this practice was founded the distinction between Servi Ordi-narii and Vicarii. (Dig. 15. tit. 1. s. 17.) These subordinate peculia were however legally considered as included in the principal peculium. In the case of a slave dying, being sold or manumitted, the Edict required that any action in respect of the Peculium must be brought within a year. (Dig. 15. tit. 2. s. 1, which contains the words of the Edict.) If a slave or filiusfamilias had carried on dealings

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