Legal Aspects of the Commercial Dealings of Slaves During the Roman Imperial Period

Roma İmparatorluk Döneminde Kölelerin Ticari Faaliyetlerinin Hukuki Boyutları

B. Yiğit SAYIN

As a result of the expansion of her borders and the development of the Roman state’s administrative structure, the position of the Roman slaves had also been transformed and Rome became increasingly dependent on slaves. On the other hand, this dependency in question had a very complex structure excluding the possibility of the consideration of the type of dependency in which only the manpower or the labor of the slaves were the center of gravity. Eventually slaves did become one of the most important actors of Roman commercial life, especially with the development of the Roman economy. This study aims to make sense of the slave’s role in the Roman commerce during the imperial period and explore the reasons behind the intensive use of slaves by their masters while also laying down the legal framework which governed their dealings. For that purpose, a general survey of the slave population will be presented followed by a consideration of the legal status of the Roman slave. An exploration of the slave’s role in commerce as a proxy for his master as well his prospects for autonomy will also be undertaken in order to shed light to the connection between the legal environment adapted to fit the commercial activities of slaves and the reasons behind the masters use of them.

Slavery, Roman Law of Slavery, Agency, Legal Capacity, Capacity to Act, Natural Obligation, Limited Liability, Peculium, Actiones Adiecticiae Qualitatis.

Roma’nın bir imparatorluk haline gelmesi sonucunda sınırlarının genişlemesi ve idari yapısının gelişimi kölelerin konumlarını da değiştirmiş ve Roma giderek kölelere bağımlı hale gelmiştir. Buna karşın söz konusu bağımlılık oldukça karmaşık bir yapıdadır ve bu bağlamda sadece kölelerin iş gücünün ya da emeklerinin sıklet merkezini teşkil ettiği bir bağımlılıktan bahsedilemez; sonuçta köleler özellikle Roma ekonomisinin gelişmesi ile birlikte Roma ticaret hayatının en mühim aktörlerinden biri haline gelmişlerdir. Bu çalışma, bir yandan imparatorluk dönemi itibarıyla kölenin Roma ticaretindeki rolünü anlamlandırmayı ve kölelerin efendileri tarafından yoğun bir şekilde kullanılmasının arkasındaki nedenleri araştırmayı amaçlar iken öte yandan da kölelerin faaliyetlerini düzenleyen yasal çerçeveyi ortaya koymayı öngörmektedir. Bu amaçla, öncelikle köle nüfusuna ilişkin genel bir bilgi sunulacak ve ardından Roma kölesinin yasal statüsü ele alınacaktır. Son olarak, kölenin ticarette efendisinin temsilcisi olarak rolüne ve de genel olarak kölelerin özerklikleri ve de özgürlük beklentilerine ilişkin bir analiz yapılacaktır. Söz konusu analiz ile kölelerin ticari faaliyetleri ile uyumlu olarak belirlenmiş yasal düzen ve efendilerin kölelerini kullanmaları ardındaki nedenler arasındaki bağlantıya ışık tutmak amaçlanmaktadır.

Kölelik, Roma Kölelik Hukuku, Temsil, Hak Ehliyeti, Fiil Ehliyeti, Tabii Borç, Sınırlı Sorumluluk, Peculium, Actiones Adiecticiae Qualitatis.

Introduction

Roman law textbooks consider the issue of the legal status of the Roman slaves for explaining the modern law of persons as well as for underlining the institutions of legal personality, capacity to act, liability etc. In that regard: the Roman slave’s lack of status libertatis, his legal status of rightlessness, his “being not a subject but an object of rights”¹ are frequently brought up.² However the reality was indeed different; the slaves’ transactions were not ‘null and void’ since their acts had legal consequences and although the slave was called a ‘res’, he also possessed a ‘persona’ that was distinctive than his master’s. Under various arrangements and within a diverse set of cases the slaves of Rome were endowed with entitlements, were given privileges; and in terms of the ‘‘lex vitae’ (law of life)’,³ the slaves actually enjoyed rights although the ‘enforceability’ aspect would always be lacking in ius civile. Still, the imperfections in the slave’s legal status did not prevent him to be a part of the Roman daily life and the law that lived within.

During the imperial period, the rise in the urbanization served as a catalyst for the economic growth of Rome and the -urban- slaves stood out as one of the most dynamic elements of the new order since “in the age of classical lawyers, the Roman commerce was mainly in their hands”.⁴ Many slaves were more than mere tools and as time goes by, the fact the slaves were important players in the developing commerce of Roman empire is becoming more and more apparent.⁵

A recently discovered tablet from the 1st century CE, during excavations at Poultry 1 in the city of London makes a strong contribution to the claim of slaves being an indispensable element of the Roman commercial life: The tablet documents a sale agreement including a warranty against defects and eviction, accompanied by a personal security. Vegetus, the buyer, is a slave of Montanus, who is also a slave of the Emperor, and the property first sold and then delivered by mancipatio is a young slave girl, called Fortunata.⁶ The slaves of Rome play the roles of the vendors, of customers and of the middlemen with their persona masks on while at the same time being subjected to be the objects of daily transactions.

Along with privately held slaves, categories of “public/state/treasury and imperial slaves” also emerged after the fall of the Republic and gradually came to play a significant role within the bureaucracy. The economic structure, and especially trade, was likewise largely in the hands of slaves. Slaves, who did business on behalf of their masters or for themselves, constituted one of the most dynamic elements of the Roman market. The Roman slave was a figure which could be located in every conceivable sector ranging from agriculture, industry, arts, and entertainment, to public works, public service, etc. Being at the center as a dynamic element, the slave also contributed to the dynamism of the system and this study aims to make sense of this unique situation by providing a legal framework to the slave’s commercial dealings in relation to this master’s position and arrive at the answer of the question of the master’s dependency to slaves.

I. Slavery in the Roman Empire

There had been many studies on the number of slaves in Rome -and their ratio to the general population-,⁷ and it is seen that the claims made and the conclusions arrived differ with the passing of time.⁸ For the sake of convenience, the demographical theories concerning the population of Rome and the ratio of the slaves to the free population may roughly be gathered under three broad headings as high - medium and low population ratio theories.

The ‘high ratio of slave to free population’ theories mostly belong to the period between the 18th-19th centuries and seem to mainly follow Gibbon’s claims.⁹ Those theories, which envision a high population count for Roman Empire, claim the number of slaves to be equaling -or even exceeding- the number of the free population.¹⁰ The origin of the ‘medium ratio of slave to free population’ theories, on the other hand, might be attributed to Karl Julius Beloch who envisioned a total population of 52 million during the Augustan period.¹¹ Beloch claimed the population of the city of Rome to be 6 million, the one third of which were to be slaves.¹² As for the ‘low ratio of slave to free population’ theories, it must first be stress that compared to ‘classical’ theories they are all relatively modern while also standing out as more probable and reliable in their predictions and interferences owing to the utilizations of new archaeological findings and the increasing use of epigraphy, bio-archaeology, statistical sciences and computer simulations. The modern studies do agree on the claim that the slave population did not constitute a serious portion of the general population with the estimates of a total number lying somewhere between 4 million to 9 million.¹³

Another number concerning the Roman population which is of significance to our study is the proportion of the ‘unfree’ amongst the ‘free’ people within the Roman border during the Empire. The estimates of the percentage of the slaves within the general populace tended to be very high; a trait that can be observed as being an indispensable element of ‘classical population theories’. The ‘classical approach’ was based on the claim of “more than half of the population being slaves” whereas modern theories appear to be much stingier in their predictions of the ‘slave ratio’. It is also important here to note that no records were kept that can help reveal the number of slaves in mainland Italy or the provinces, and this scarcity of written sources at our disposal precludes any firm conclusions on this matter causing most academic claims of the demographics of the slaves to remain speculative. Therefore, studies on slave demographics try to find the number of slaves by proportioning them to the total population. It is obvious that to solve this problem there is a dire need for a fresh, holistic approach which will demand more precise figures and models. Thus, issues such as: the average life expectancy of a slave, the fertility rates of enslaved women, the prevalence of birth control and abortion among slaves and the number of child deaths and child abandonments, etc shall be considered in terms of a quantitative analysis rather than relying on predictive models of speculative nature.¹⁴

Furthermore, the data available to us is geographically limited to the regions of Italy and Egypt (and historically limited to the post-Republican periods) making the task to arrive at an encompassing demographic model much harder. The greater information we have on the slave demography in Egypt, we owe it to the number of slaves included among the census figures recorded in the ‘Oxyrhynchus papyri’.¹⁵

Notwithstanding the fact that studies on Roman demography have become quite widespread in the last decades accompanied with the sophistication of the utilized methods and techniques, the results obtained cannot be taken as objective facts and thus are open to falsification rather than verification. The different ratios of slave to free population given by the modern studies do resemble each other to a point where, for the sake of drawing a rough demographic sketch, there can be done some generalizations: As mentioned above, the modern studies do give a much lower ratio of the slave to free population with the figures ranging between the ‘slaves constituting a third of the free population’ to the ‘slave to free ratio’ being estimated as something between ten and twenty per cents. Thus, the modern predictions do provide an account of Imperial Rome where -more or less- every 1 person out of 5 or 6 would had been a slave; a figure which is vastly different from classical theories.

As can be seen, earlier studies tend to accept both the total number and the ratio of the slave to free much higher than modern studies causing a serious doctrinal gap between their predictions. It would indeed present a very different vision of the Roman society in which almost one in every two or three people was a slave then a vision of a society in which roughly one out of every ten people was unfree.

Another question that presents itself here would be the percentage of slave owning amongst the free Roman populace; or to raise this question in other words: how many of those free Romans did own slaves? As mentioned above there is not much direct evidence, especially for the city of Rome, as to what percentage of Roman citizens had owned slaves during the early imperial period. The main exception seems to be Roman-Egypt where, according to the preserved census lists from the 1st century CE, it can be concluded that approximately fifteen percentage of the local families owned any slaves.¹⁶ However; it is also necessary to consider that both this estimated ‘ratio of the slave population to the free population’ and the ‘distribution of the slave population to city and rural areas’ will show proportional differences between Italy, Egypt and the provinces. All in all, since approximately 80% of the population lived in the provinces during the Imperial period.¹⁷ It is possible for the conclusions or predictions about Italy and Egypt to be valid for the whole of Rome only if the situation in the provinces is also a part of these conclusions or inferences.

In conclusion, owning a slave was not a widespread practice during the imperial period; it was a blessing for the lucky few. The “few” in this regard would account for the 10-15% of the free citizens while approximately half of the slaves were owned by the %1 (ultra-elite) of the free population.¹⁸ Thus, it can be stated that during the imperial period a majority of the free population did not own any slaves and amongst the ones who did only a very small fraction did own more than one. The slaves of the imperial period did seem to be evenly distributed between the urban and rural areas while in respect with the Italian insula the proportion of urban slaves might even had been higher.¹⁹

It is not an easy task to determine the position of the slave within the Roman society and the task gets even more difficult when we focus on the imperial period. The Roman slave who, in ancient times, had a religious, linguistic, cultural and ethnical proximity to the familia he belonged to, had assumed a cosmopolitan character with the expansion of the Roman borders and the transition from the Republic to the Empire.²⁰ As the geographies of the slaves’ origins had diversified, the social standings of the slaves also appear to have varied. In that regard, one important fact concerning the Roman institution of slavery must be underlined: It is indeed impossible to observe a static social standing for the whole of the slave population throughout all the periods of Roman history.²¹ There were many distinctions between slaves, and although it is not easy to argue that these categorizations have technical and legal differences, it seems that at least some of the terms belonging to these categorizations had found their ways to legal texts and regulations.²² In this respect, differences between the social positions f.e. of a rustic slave and a public slave belonging to the familia Caesaris, or of an urban slave doing business for his merchant master and a miner slave, are obvious. Notwithstanding the fact that these differences were mainly of ‘de facto’ character stemming from the practicalities of daily life, some legal privileges and entitlements may also be mentioned.²³

One of the categorical dichotomies mentioned before was the distinction between ‘urban’ and ‘rustic’ slaves. This distinction is important as the Roman slave who operated within the Roman commercial sphere would, in most cases, be an urban slave (servus urbanus) rather than a rustic one (servus rustica).²⁴ However, it must also be mentioned that the distinction between urban slaves and rustic slaves is not that straightforward as the criterion by which a slave was judged to be rustica (rustic) or urbana (urban) was not specifically about the place where he/she worked, but more about the function that was performed. For example, if a slave who was a ‘servus urbanus’ accompanied his master on the journey from his home to the countryside villa, that would not make him a servus rustica as his ‘urban’ function was not altered.²⁵

Urban slaves assisted their masters and family with household chores while many of them also functioned as an active part of their master’s trading activities. In this context, the rustic slaves do not seem to have commercial functions.²⁶ The source of the urban slaves could be numerous, even after the end of the age of conquests. During the republic, the main source of slaves was ‘captivity’, however with the ‘pax Romana’ the way of conquest and yoke seemed to be waning out being overtaken by other traditional means such as ‘child exposure’ or ‘purchase from the slave market’.²⁷ An urban slave could had been bought at a very young age or be born in to the household where in both cases, a certain investment to this vernea (household) slave,²⁸ either in the form of education or training, would had been considered.²⁹

The slaves were owned mostly by private persons although public persons such as municipalities, treasury or the Ceasar himself could also hold their own slaves. There were many different terms³⁰ for ‘public slaves’ in Rome and these terminological differences were indeed important to highlight certain functional distinctions which also had legal implications.

Thus, the situation of all slaves before the law was not the same, but the difference was not due to the dynamics that were about the subjective characteristics of the slaves. On the contrary, it could be related to factors such as the personal characteristics of those who had dominance over them³¹ or the type/content of that dominating authority or the effects of the particular entitlement of the slave.³²