SLAVERY IN ANCIENT ROME

In the golden days of Ancient Rome, slavery was considered to be the

fundamental cornerstone of the Empire’s economy. However, such a
phenomenon did not begin to flourish immediately. In the early days of the
aristocratic society of the old Latium, slavery was a lesser popular activity as
opposed to the system of the clientes1, which was still predominant. When
Rome evolved itself into a dynamic city-state, the first limited contingents of
slaves began to appear, partially owing to the overwhelming Etruscan influence
on the economy of Rome.2 Historically speaking, the propagation of slavery
commenced in the second half of the 4th century B.C, at a time where the wars
of conquest on the one hand resulted in the inrush of a considerable number of
slaves, and on the other [they] set into existence large estates which inevitably
demanded a servile manpower.3 The first ever great demonstration of the
existence of slavery came to the fore with the Roman-Carthaginian Treaty of
306 B.C which prohibited the sale of Carthaginian slaves in Roman ports.
Furthermore, it was in the age of the Samnite Wars (343 B.C-295 B.C) and
especially in the aftermath of the Punic Wars, that Rome became a slave state.
This accentuated the conflict between the free (liberi) and the slaves (servi). In
order to avoid ambivalence, the notion of causa liberalis had to be
institutionalized. This translated itself into a trial in which the question of a free
or a slave man was involved4. The status5 of ‘free’ was consented to the children
in order to distinguish them from slaves, who were also subjected to the
potestas (authority) of the pater familias6.

The dramatic scene from the 1959 epic historical film ‘Ben-Hur’ set in a Roman
galley ship is heightened with the memorable address of Consul Quintus Arrius’
address towards the ill-fated slaves, confined to their oars. Such a line,
notwithstanding its cinematographic brevity, aptly encapsulates the
1
A class of subordinate citizens whose economically disadvantaged position in society compelled them to
resort to the tutelage of the patronus or gens
2
Gennaro Franciosi, Le Origini del Processo di Libertà, p.3 : The author sustains his thesis by citing Émile
Benveniste, who in turn empirically claims the Etruscan etymology behind the word ‘servus’, accompanied by
the economical influx exercised by the Etruscans, significantly helped shape Roman servitude.
3
Theodor Mommsen, History of Rome, p. 275: Mommsen draws a connection between the large estate and the
servile body of economy
4
Adolf Berger, Encyclopedic Dictionary of Roman Law, p.383, Volume 43.
5
R.W. Lee, Elements of Roman Law, p.46, BOOK I, The Law of Persons: “Three things are ours”, says
Paulus, “freedom, citizenship, family.”
6
R.W. Lee, Elements of Roman Law, p. 46, BOOK I, The Law of Persons: “The general rule of the jus
gentium was that children followed the status which the mother had at the time of birth, contrary to the rule of
the civil law that where the parties had conubium and were lawfully married the issue followed the status of the
father at the time of conception. In principles, therefore children born of a slave mother were slaves.”

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fundamental, introductory aspect of Roman slavery: “You are all condemned
men. We keep you alive to serve this ship. So row well, and live.” This is
equally underlined in Justinian’s “The Institutes”: “Freedom, from which we get
the description of men as free, is a man’s natural capacity of doing what he
pleases unless he is prevented by force or law. Slavery is an institution of the jus
gentium by which one man is made the property of another contrary to nature.
Slaves (servi) are so-called because military commanders order their captives
to be sold, and so are used to preserve them alive (servire) instead of killing
them.”7 The enemy, at the moment of his defeat, ceased to be a “subject” in
order to solely become an “object”. The Roman citizen, who would have made
him a prisoner, considered him to be his own form of property: if he were to be
insubordinate or discontent, the Roman proprietor had to power to kill him. If,
however, the potential slave was in good spirits, he would have had to follow
the imperatives of his own master and his life would have been thus spared8.

There are different strata within the hierarchy of freedom. The nexus was a man
who completely conserved his quality of a free citizen notwithstanding the state
of subjection which binds him to the creditor.9 The addictus, however, was not a
slave but an entity enjoying the status of a free man. The Laws of the Twelve
Tables acknowledged his whole, juridical capacity in preserving the patronage
he is entitled to.10 French Historian Mathieu Nicolau argues that in Roman law
there existed a profound correlation between the libertas and the civitas as they
laid the foundation for the formation of a full legal personality 11. Being free on
its own would not have sufficed lest a particular civitas (citizenship) was
invoked. The foreigner who stood on Roman soil, though attempting to prove
his status of liberty, still could not forbid any comer in passing to take
possession of him if at the same time he was unable to invoke the right to
citizenship. The foreigner could not have professed himself to be free given that
just as he stood in the landmass of Rome, he was declared a slave. In the
adsertio in libertatem12, the individual, whose status is in subject, is free and a
citizen of Rome. The individual is thus declared free in acquiring Roman
citizenship from the binding of slavery rather than from the belonging to any
other community.13
7
Justinian, The Institutes, Book I, TITLE III – OF THE LAW OF PERSONS.
8
Indro Montanelli, Storia di Roma, p.35.
9
Gennaro Franciosi, Le Origini del Processo di Libertà, p.10 : The author quotes Roman scholar Varro:
“Liber qui suas operas in servitutem pro pecunia quam [debebat] <debet dat?>, dum solveret, nexus
vocatur...”
10
Table 3.4: “si volet suo vivito”
11
S. Edgar Shumway, Freedom and Slavery in Roman Law, The American Law Register (1898-1907),
p.636.
12
Adolf Berger, Encyclopedic Dictionary of Roman Law, p.351, Volume 43: “An adsertio acquired particular
importance when the personal status of a person was contested. Hence, adsertor libertatis was he who, in a trial
about the status of an alleged slave, asserted and defended his liberty.”
13
Gennaro Franciosi, Le Origini del Processo di Libertà, p. 49.

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The slave in Ancient Rome was deprived from any form of innate rights,
privileges or duties. Thus, a slave was reputed to be a thing not a person. The
right to a legal matrimony was not consented to the slave, who could not raise a
family. He was not entitled to property and by default he could not be a creditor
or a debtor, nor could he have an heir. The slave’s inability to appear in court
meant the accountability of his own master in matters of injury inflicted on the
slave, which had the same gravity of damage done to property. More
significantly, the slave was an object of property and possession, able to be
transferred to any new ownership. The slave also played the role of an
“instrument of juristic act” in that he could represent the personality of his
master in order to consolidate the profitable impression of his master as a
proprietor and a creditor.14 With the passing of time, the Praetorian Law
consented masters to grant the formalities of a debtor to the slave 15. In relation
to this, the institution peculium16 stipulated that it was customarily for the
Roman proprietors to leave to the free administration of trusted slaves. 17 The
element of trust is fundamental in this regard. The slave could lend himself to
respond to the master’s liberality in granting limited concessions with misuse.
Indeed, the slave could render himself as a fugitivus for some time, and thus
place the burden of the proof on the dominus. In order to avoid similar
occurrences, it was requested that the individual lived as free sine dolo malo18,
putting emphasis on the “non-malicious which does not create a ground for
punishing the slave in order to annoy or injure the fractuary, but inflicting a
punishment bona fide.”19

In Ancient Rome, there was a widespread diffusion of moderately privileged

slaves. A man who was not a slave was either termed as born free (ingenuus) or
else made free (libertinus). A free-born was one born of free parents, i.e. free
14
S. Edgar Shumway, Freedom and Slavery in Roman Law, The American Law Register (1898-1907),
p.637.
15
S. Edgar Shumway, Freedom and Slavery in Roman Law, The American Law Register (1898-1907),
p.638 : “Praetorian Law ruled that the slave could bind his master when he acted with that master’s
consent”.
16
Adolf Berger, Encyclopedic Dictionary of Roman Law, p.624, Volume 43: “A sum of money, a commercial
or industrial business, or a small separate property granted by a master to his slave for the slave’s use, free
disposal and fructification through commercial or other transactions”
17
S. Edgar Shumway, Freedom and Slavery in Roman Law, The American Law Register (1898-1907),
p.639.
18
Digesto. 40.12.10: The Roman jurisprudence analytically determines the cases in which the individual can
profess himself to be in liberty a sine dolo malo: “Quod autem diximus " in libertate fuisse" sic est accipiendum
non ut se liberum doceat is, qui liberale iudicium patitur, sed in possessione libertatis sine dolo malo fuisse.
quid sit autem " sine dolo malo fuisse", videamus. nam iulianus ait omnes, qui se liberos putant, sine dolo malo
in libertate fuisse, si modo se pro liberis gerant, quamvis servi sint. varus autem scribit eum, qui se liberum
sciat, dum in fuga sit, non videri sine dolo malo in libertate esse: sed simul atque desierit quasi fugitivus se
celare et pro libero agere, tunc incipere sine dolo malo in libertate esse: etenim ait eum, qui scit se liberum,
deinde pro fugitivo agit, hoc ipso, quod in fuga sit, pro servo agere”

19
Henry John Roby, An Introduction to the Study of Justinian’s Digest, 1886, pg.130.

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born or free made, or of a free mother. He never legally ceased to be free. A
free-made person was one who had been manumitted 20 from civil law slavery.21
The master could have freed his slave by having his name enrolled on the
census which contained the list of citizens. The law had ruled that the citizen’s
evasion of the census was punishable by slavery. The form of the Vindicta was
materialized only when the praetor’s court sat. This collusive process at law
allowed the slave’s master, the only person who could contest the imaginary
claim of the slave’s freedom, to concede the claim of the asserter of liberty in
court.22 Thus, the court formally actualized the emancipation of the former
slave, and ensured that such liberation was carried out in res iudicata. The
freedman’s relation to his patron is summarised up in the concepts of
obsequium, operae, bona i.e. respect, services and property. In the obsequium
the freedman was humanly committed to his master, and thus he had to keep at
heart the traits of respect and reciprocity: he would only put forth an action
against him at the discretion of the magistrate. The operae stated that the
manumitted individual was obliged to render services to his patron stipulated
beforehand in an oath. The third principle of the Bona asserted that by the Law
of the Twelve Tables, the patron succeeded to the libertus should the latter
depart and in precedence fail to make a will which would leave a suus heres
23
and subsequently the right or obligation of protection24.

The whole of Roman society soon came to be based on slavery, and this
gradually weakened the Roman Empire for the simple reason that unwilling
workers are always uneconomical once the possibility of replacing them
cheaply no longer exists25. The Justinian juridical reform, if on the one hand
appeared to counter the favor libertatis, as it rendered the definitive sentence as
unfavorable to the alleged slave, on the other hand the fact that the latter would
have been present for trial on his own, averted any difficulties which had sprung
from the lack of an adsertor liberalis26. The formal condemnation of slavery on
the level of morality, solemnly proclaimed by the Emperor (who followed a
Hellenic-Christian line of reasoning), did not only lead to the abolition of such
an institute but also created a juridical hostility towards it. This indicated the
20
Digesto, 44.7.14: The passage of Ulpian states: “States are bound by delict and remain bound after
manumission. By contract they are not bound by civil law, but by natural law they are bound themselves and
bind others to them”.
21
R.W. Lee, Elements of Roman Law, p.50.
22
S. Edgar Shumway, Freedom and Slavery in Roman Law, The American Law Register (1898-1907),
p.648.
23
Adolf Berger, Encyclopedic Dictionary of Roman Law, p.487, Volume 43: “Heres suus is an heir who at
the death of a person was under his paternal power (patria potestas). This term should be distinguished from
suus heres (= his heir), which refers to the heir of a specific person”.
24
R.W. Lee, Elements of Roman Law, p.52.
25
Laura E. Salt and Robert Sinclair, Oxford Junior Encyclopedia, X LAW AND SOCIETY, p.412
26
Adolf Berger, Encyclopedic Dictionary of Roman Law, p.351, Volume 43: “In the form of an
enfranchisement called MANUMISSIO VINDICTA, the intervention of an adsertor libertatis was necessary. He
claimed the liberty of the slave involved, and the manumittor then failed to deny this assertion.”

4
profound metamorphosis within the Roman society, which was guided by feats
and confronted with inevitable questions, which were to be partially resolved in
the successive age of feudalism.27

27
Gennaro Franciosi, Il Processo di Libertà in Diritto Romano, p.297