The Digest of Roman Law (530-533 CE).

The Digest was a text compiled under the reign of the emperor

Justinian and meant to provide an organized summary of previous authoritative judicial precedents as well as to

provide definitive solutions where those major legal authorities conflicted. Doctors appear in these laws both

as defendants and plaintiffs in matters ranging from inheritance disputes to botched surgeries. The laws are not

written specifically to govern medical practice, but rather each jurist here quoted applies general laws to the

specific needs of the doctor and his or her community.

Each entry here is labeled by the book, chapter, and subsections of The Digest in which the quotation

appears with the jurist who is being cited in parentheses.

I. The Doctor in Tort Law: The Lex Aquilia or Aquilian Law is the law that allows a property owner to sue for

compensation (but not punitive damages) if his or her property is damaged or destroyed by another person's

negligence. This law is only in force if property, human property included, is damaged. This is why the injured

patient in question is a slave; a free person's body has no monetary value and therefore damage to it cannot be

treated as a loss in value.

1. Digest 9.1.3 (Gaius and Ulpian).

The first chapter of the lex Aquilia decrees, “If anyone kills someone else's male or female slave or a

four-footed animal or livestock unlawfully1, let him be condemned to pay the owner the maximum amount that

the property was worth in the preceding year:” and later it also decrees against the defendant who denies guilt

the fine should be doubled.

The second chapter of this law has fallen into disuse. In its third chapter the lex Aquilia says: ”In the

case of all other things apart from a human or cattle that have been killed, if anyone has inflicted damages2 on

1
“iniuria” in Latin.
2
The Latin damnum encompasses financial loss, physical damage, and legal fines. It gives us the English

legal term “damages.”

 another by unlawfully burning, breaking, or spoiling his property, let him be condemned to pay to the owner

whatever the damaged item would have been worth in the next thirty days if it had not been damaged.”

There is now no doubt that under this law an action can be brought even in the name of free persons, if, for

example, an animal wounds a head of a household or a son-in-power, but that is not to say that disfigurement can

be taken into account, because the body of a free person is not susceptible of valuation. Nevertheless, account

can be taken of the expenses of medical treatment and the loss of employment and of the opportunity of taking a

job which were caused by the party being disabled.

2. Digest 9.2.7.6 (Celsus).

Celsus says it matters a great deal whether one kills directly or provides the cause of death, because a

person who provides an indirect cause of death is not liable for an Aquilian action, but for an equivalent action.3

For this reason he refers to the case of a man who administered poison instead of medicine, and he says that the

man in that case had provided a cause of death, similar to one who provides a sword to a madman; and such a

man is not liable under the lex Aquilia, but is liable to an equivalent action.

3. Digest 9.2.7.8 (Proculus and Gaius).

Proculus said that if a doctor has operated ineptly on a slave, there can be a lawsuit either under the

contract4 for services or under the Lex Aquilia. Gaius in the seventh book on provincial edict: “And the law is

just the same if a drug has been administered incorrectly, or if a doctor who has operated well subsequently

neglected post-operative care; the defendant will not be immune, but is understood to be on trial for

negligence.5

3
Equivalent action is “actio in factum” in Latin. This technical term refers to a situation in which the law
does not directly apply to the case, but the case is similar enough that the logic behind the law can be used to
pass judgment fairly. The decision to prosecute with an actio in factum was left up to the presiding judge; in
this scenario, the judge could either continue the case as if it were covered by the Lex Aquilia or throw the
case out of court, using his own personal judgment. This was meant to allow cases that involved wrongdoing
but weren't technically illegal to still be prosecuted before a judge.
4
This 'contract' can incorporate the assumed understanding that if money changes hands, the person providing
services promises to do the work well, or not take payment.
5
“reus culpae” in Latin.
4. Digest 9.2.9 (Labeo).

Labeo likewise makes a distinction if an obstetrix6 has given a drug from which the woman subsequently

died: If she had administered it with her own hands, it would appear that she has killed: but if she gave it to the

woman for the patient to take herself, an equivalent action7 must be granted. This opinion is correct; for she

provided a cause of death rather than killed outright. If someone administers a drug to anyone by force or

persuasion, either by mouth or by enema or by using a poisonous ointment, he is liable under the Lex Aquilia in

the same way as the obstetrix administering poison is liable.

5. Digest 9.4.2 preface (Ulpian).

If a slave kills with his master’s knowledge, he obligates the master in full, for the master himself is

considered to have killed. But if the slave acts without his master's knowledge, there is a noxal8 action, since he

should not be liable for more than noxal surrender (of the slave) due to his slave’s wrongdoing.9

II. The Doctor in Criminal Law

1. Digest 48.8.1 (Marcian).

Under the lex Cornelia on murderers and poisoners, someone is liable who kills any man, or by whose

malicious intent a fire is set, or who goes about with a weapon for the purpose of homicide or theft, or who,

being a magistrate or presiding over a criminal trial, has arranged for someone to give false evidence so that an

innocent man may be entrapped and condemned. Also is liable is one who manufactures and administers poison

for the purpose of killing a man, or who with malicious intent gives false evidence, or who takes a bribe so that

the accused may be found guilty under criminal law. Whoever kills a man is punished without distinction as to

6
Female medical practitioner specializing in obstetrics and gynecology, but also giving general medical care
to female patients and enjoying similar rights under the law as male physicians and specialists. It is not the
same thing as a modern midwife, though it is often translated “midwife.”
7
actio in factum.
8
That is, the slave at fault would be surrendered as payment for the crime, or the master could choose to keep
his slave by paying the slave's fine. Freeing the slave to avoid paying the fine was not allowed; both slave
and master continued to share liability. See Blume's Annotated Justinian Code, Book 3, Title XLI.
9
This law is included because many of the doctors practicing in the Roman Empire were slaves, and there is
some evidence that they were called on to act as assassins for their masters on occasion (See Suetonius, Nero
37.2)
the status of the man he killed. The deified Hadrian wrote in a rescript that he who did not directly murder a

man, but wounded him with the result that the victim died, still should be condemned for murder. And the

rationale for this is that if someone draws his sword or strikes with a weapon, he undoubtedly did so with the

intention of causing death; but if he struck someone with a key or a saucepan in the course of a brawl, even

thought he struck the blow with iron, it was not done with the intention of killing. Therefore, for someone who

has killed a person in a brawl by accident rather than design, the punishment should be lighter. Again, the

deified Hadrian wrote in a rescript that if the defendant has killed someone who was in the process of using

force to sexually assault the defendant or a member of his family, the defendant should not be charged. The

deified Pius wrote that a lighter penalty should be imposed on him who killed his wife caught in adultery, and

ordered that a person of low rank should be exiled permanently, but that one of any standing should be exiled

only for a set period.

2. Digest 48.8.3.2-3 (Marcian).

Under chapter five of the same lex Cornelia on murderers and poisoners10, one who makes, sells, or

possesses poison for the purpose of homicide is held liable. Also liable under the law is the person who sells

toxic11 medications to the public or possesses them for the purpose of homicide. Furthermore, the addition of

the phrase “toxic drugs12” indicates that there are certain drugs which are not toxic. The term is therefore

neutral, covering as much a drug prepared for the purpose of healing as one for the purpose of killing, and also

covering the class of drugs called “aphrodisiac13.” That said, only the kind of drug made for the purpose of

killing a person is named in that law.

It is, however, ordered by a decree of the senate that a woman who, not admittedly maliciously but

10
The all-inclusive murder law passed by Sulla in 81 BCE.
11
Mala medicamenta (not venena).
12
Veneni mali. D. 50.16.236 further stipulates that any mention of ‘venenum’ must specify ‘malum an bonum

(good or bad)’ in recognition of the fact that not all toxic substances are intended to kill.
13
Amatorium.
inadvisedly, has administered a fertility drug from which the recipient dies shall be sent into temporary exile. It

is laid down by another decree of the senate that dealers in cosmetics are liable to the penalty of this law if they

recklessly hand over to anyone hemlock, salamander, monkshood, pinegrubs, or a venomous beetle,

mandragora, or, except for the purpose of purification, cantharis beetles.14

Likewise liable is the man whose household (with his knowledge) has taken up arms for the sake of gaining

or reclaiming property. Likewise the leader of sedition is liable, and he who arranged for a shipwreck, and who

has confessed to having given false testimony or having arranged to have someone else give it so some innocent

person could be framed, and he who has castrated a person for the sake of lust or financial gain, by decree of the

senate these men are to be punished with the penalty of the Lex Cornelia.

The penalty of the Lex Cornelia for murderers and poisoners is deportation to an island and the

confiscation of all property. But these days, they are usually put to death, unless they are in a high enough place

in society to bear the expense of the legal punishment. Those of lower status are usually thrown to the beasts, but

those of higher status are deported to an island. It is allowed to kill fugitives wherever they are found, just as one

would kill enemy combatants.15

3. Digest 48.19.38.5 (Paulus).

Those who administer an abortifacient or aphrodisiac drink, even if they do not do so with guilty

intention, are still condemned, because the deed sets a bad example. Defendants of of lower rank should be

condemned to the mines, and those of higher status should be temporarily exiled to an island with the forfeiture

of part of their property. But if for that reason a man or woman dies, the defendant should suffer the death

penalty.

4. Digest 48.8.4-5 (Ulpian and Paulus).

Likewise the divine Hadrian stated in a rescript: “It has indeed been decided that, in order to prevent the

14
Cantharis beetles excrete a substance that causes blisters, and they were widely used to treat skin diseases
and growths. They were also used in aphrodisiacs, though most medical authors stated (rightly) that such
treatments were likely to kill the patient before any sexual activity could be enjoyed.
15
The “hostes” mentioned here are specifically enemies in war. Latin differentiates between them and personal
enemies (inamici). While Roman citizens (and also allied non-Romans) had certain rights that must be
protected before they could be put to death, enemy combatants could be killed at will with no reprisal.
existence of eunuchs, that those, who plead guilty to that crime, be held under the punishment of the Lex

Cornelia and their property for good reason ought to be turned over to my treasury, but also with reference to

slaves, who have made eunuchs, they must be turned over to capital punishment: also, as for any persons who

are guilty of this crime, but do not appear in court, they also must be sentenced in absentia as if they were held

under the Lex Cornelia. Clearly if they themselves, who have suffered this iniuria16, should declare it, the

governor of the province ought to hear their case, since they have lost their manhood: for nobody should

castrate a free person or a slave, either willing or unwilling, and nobody should offer himself up willingly to be

castrated. But if anyone will have acted against my edict, it will be a capital crime even for the physician who

excised [the testicles], and likewise those who have offered themselves willingly for excision.”

5. Digest 5.48.9.1-2 (Marcian and Scaevola)

In the Pompeian law on parricides17 anyone who kills his father, mother, grandfather, grandmother,

brother, sister, first cousin on the father’s side, first cousin on the mother’s side, paternal or maternal uncle,

paternal or maternal aunt, first cousin (male of female) by mother’s sister, stepson, stepdaughter, patron or

patroness, or deliberately and maliciously causes their death to occur, shall be liable to the same penalty as that

of the Lex Cornelia on murderers. And a mother who kills her son or daughter suffers the penalty of the same

statue, as does a grandfather who kills a grandson; and in addition, a person who has bought poison to give to

his father, even though he was unable to administer it. The brother of a parricide, who had knowledge of the

plan and did not warn his father, was relegated, and the doctor18 was put to death.

16
Iniuria is a complicated legal term precise meaning of which was debated among ancient jurists as well as
modern scholars. At its base, it refers to the perpetrator's culpability and includes both negligent culpability
and willful harm. It stems in part from the notion that the perpetrator is worthy of blame and censure for the
sequence of events leading up to the crime. Finally, it may refer to the personal consequences of the crime to
the victim's subsequent life. Involuntary castration certainly is the sort of crime that would leave its victim
permanently changed both physically and socially, and its presence in murder law is very interesting indeed
since its victim is not meant to die. Its inclusion as a kind of murder speaks to the stigma against eunuchs
held by the Roman lawmakers and the society whose norms they reflected and guarded.
17
A law concerned with murder of family members, either by blood or marriage.
18
Presumably the doctor who sold/ administered the poison.
III: Miscellaneous Laws Concerning Doctors

1. Digest 1.18.6.7.

Just as a doctor is not to be held at fault merely on the occurrence of death, but an unskillfully executed

operation is imputable to him…

2. Digest 4.6.33.2.

Military doctors, since the duty they perform is both in the public interest and should not expose them to

fraud, are able to plead for the aid of restoration.19

3. Digest 13.7.8 (Sabinus).

If I incur necessary expenses on a slave or estate given to me as a pignus,20 I will not only have the right

to keep the property, but also the to sue for the loss in value of the pignus. Suppose, for instance, that I no

longer have the thing I might have retained, if for instance I were to spend money on doctors when the slave is

ill and then he dies, or I prop up or repair the building and then it burns down.

4. Digest 27.1.6.1-2 (Modestinus).

Grammarians, teachers of rhetoric, and doctors who are known as general practitioners are exempt from

tutelage and curatorship just as from other public duties. Further, there are in every city a fixed number who are

exempt from public duties, the selection of which is limited by law. This is articulated in a letter of Antoninus

Pius written to the province of Asia, but is universally applicable, and its main provision is as follows: “Lesser

cities can name five doctors immune from public duties, three teachers, and the same number of grammarians.

Larger cities can name seven medical men and four of both types of teacher. The largest cities can name ten

doctors, five rhetoricians and the same number of grammarians. Beyond this number even the greatest city is

not granted immunity.” Probably the largest class should be interpreted as being the capitals of provinces,21 the

second class refers to cities with law courts, and the third refers to the rest.

19
Reimbursement for items and, perhaps, business lost while absent with the legions.
20
Pignus is a type of collateral.
21
Literally “The mother-cities of nations/ groups of people.”
5. Digest 33.3.1.10.3 (Ulpian).

[The will reads] “I want my freedmen to be given what I gave them during my lifetime”; the right of

habitation will also be provided, but expenses for beasts of burden, which the mistress was accustomed to pay

to her agent for her own convenience, will not be owed.22 Therefore, a freedman doctor cannot rightly claim

the purchase price of medicines, which he received in order to treat his patroness and her family.

6. Digest 38.1.26 (Alfenus Verus).

A freedman who was a doctor, because he thought he would have far more patients calling for his

services if his own freedmen were not practicing medicine, demanded that they accompanied him on house

calls but did no work. Does he have a right to do so or not? Alfenus responded that it was legal, provided that

he [the doctor] was demanding work appropriate to free men; that is, he must let them rest at noon and allow

them time to pay attention to their health and hygiene.

7. Digest 40.5.41.6 (Scaevola).

Lucius Titius made the following provision in his will: “I entrust to you the doctors ‘A’ and ‘B’; it will

be for you to judge whether you will keep them as your own good freedmen and doctors. I was afraid that if I

had given them freedom they would have acted as the slave doctors of my dearest sister did after she had

manumitted them, leaving her once they had been paid in full.” Are the slaves named entitled to the freedom

intended for them by the author of the will? He replied that, on the facts stated, the heirs had no binding

obligation, but were given discretion.

22
That is to say, if the mistress used to pay for a freedman's cart so he could give her rides, once the mistress is
dead, the rides no longer need to be paid for and the freedman loses the fringe benefit of free transportation
when the mistress did not need him to drive.
8. Digest 50.4.14 (Callistratus).

Both the deified Vespasian and the deified Hadrian issued rescripts to the effect that teachers who are

released from civic duties23 and grammarians and orators and doctors and philosophers had been granted

courteous immunity by the emperors from housing guests.24

9. Digest 50.6.7 (Tarruntenus Peternus).

In some cases a person's status grants a certain exemption from the more burdensome civic duties. For

instance, those who measure out the grain dole, the assistants in a hospital, doctors … veterinary surgeons

…undertakers….25 Therefore all these people are listed among those exempt.

10. Digest 50.9.1 (Ulpian,).

The decision on the doctors to be included within the number allowed to each city is not entrusted to the

governor of a province but to the citizens and the landholders of each community, so that they who are certain

about a candidate's uprightness and skill may themselves choose the people entrusted with the care of

themselves and their children when ill.

11. Digest 50. 13.1.1-3 (Ulpian).

The governor of a province is supposed to lay down the law on salaries, but only for the teachers of the

liberal pursuits. We regard as liberal pursuits those which the Greeks call eleutheria.26 Rhetors will be

included, grammarians, geometricians. The claim of doctors is the same as that of teachers, perhaps even better,

since they take care of men’s health, and teachers take care of their studies. And as a result in their case also

judicial hearings must take place outside the regular system. And let governors also hear cases involving

23
The Latin is munera. Often prominent citizens would be required to serve in public offices or committees, or
to pay for certain operating expenses. Because doctors were prominent, but had time-consuming occupations
that served the community, they could apply for exemptions.
24
A common duty of prominent citizens was to host visiting officials in their own homes, providing food and
entertainment for as long as the city required. A busy doctor would in all likelihood lack the time to provide
the gracious hosting such duties required.
25
The list of exempt occupations is quite lengthy and includes, alongside medical professionals, agricultural
supervisors of various sorts, financial professionals, craftsmen of military equipment, textile manufactures,
and the like. The professions named share two qualities; they are time consuming and necessary for the core
support of a city and its environs.
26
“Free,” i.e. arts appropriate for study by free men.
obstetrices, who seem to practice medicine. Some will perhaps regard as doctors those also who offer a cure for

a particular part of the body or a particular ill, as, for instance, an ear doctor, a throat doctor, or a dentist. But

one must not include people who make incantations or imprecations or, to use the common expression of

impostors, exorcisms. For these are not branches of medicine, even though people exist who strongly argue that

such people have helped them.

12. Digest 50.13.3 (Ulpian).

If someone who was suffering from bad eyes entrusted their treatment to a doctor who, contrary to good

faith, increased the danger of that man losing his sight by using the wrong medication, thus forcing the patient

while sick to sell his possessions: the governor of the province is to stop the malicious27 practice and order the

doctor to make restitution.

27
The Latin term is incivile.