A Few Remarks on Slaves and Criminal Law : Deliberations Based on D . 48 , 2 , 12 , 4

The purpose of the article is to present the legal situation of a slave under Roman criminal law. The analysis conducted proves that the approach towards slaves changed along with the transformation of the government system of ancient Rome. In the Period of the Republic, criminal liability of slaves evolved in two directions. The dominica potestas was exercised by owners, as well as the collegial body – tresviri capitales. From the Principate period, Roman jurists were convinced that the legal status of a slave and a free person was identical under criminal law. The difference between these offenders was non-exercise of leges criminales with a penalty that would be inadequate for their legal status, or ruling and exercising of more severe penalties against slaves.

The legal status of slaves in ius civile was obvious to the ancient Romans.
A servus 1 was perceived as a speaking tool (instrumentum vocale) and belonged to the category of res mancipi 2 . As an object of property rights, from the economic point of view, slaves played a significant role in Roman trade in goods. On the other hand, slaves contributed to increase in wealth of their master (dominus), Possibly, this mode of dealing with servi at the beginning of the Republic was the only one available 12 .
It is worth noting that the procedure of iudicium populi 13 , a trial before an assembly of the people, was not applicable to servi. Slaves were also unable to take advantage of the provocatio ad populum 14 , applicable to Roman citizens, who questioned the rulings of iudicia populi 15 . Therefore, it is worth asking whether a slave could also be a party of a criminal procedure conducted before the quaestiones perpetuae 16 , and in this context, it is necessary to quote a fragment by Cicero: Cic. pro Clu.: 54,148: …'Qui eorum': quorum? videlicet,qui supra scripti sunt. Quid interest utro modo scriptum sit? Etsi est apertum, ipsa tamen lex nos docet. Ubi enim omnes mortales adligat ita loquitur, "qui venenum malum fecit", fecerit". Omnes viri, mulieres, liberi, servi in iudicium vocantur… In his deliberations on lex Cornelia de sicariis et veneficis 17 , Cicero stated clearly that this regulation applied to all inhabitants of Rome, including slaves. Would this mean that it was possible 18 to subject servi to quaestio de sicariis? It 12 Cf. O. Robinson, The Criminal Law of Ancient Rome, Baltimore 1995, p. 15. 13 Eadem, Slaves…, p. 214. 14 The institution of provocatio ad populum has been subject to extensive research. For example, see E. Tassi Sulli, Białystok 2012, pp. 29-66. 15 The functioning, role and organization of iudicia populi have been examined thoroughly in the literature on the subject. Numerous works dedicated to the subject include exempli gratia: B. Santalucia, Alle origini del processo penale romano, " Iura" 1984, vol. 35, pp. 47-72 (= Altri studi di diritto romano, Padova 2009 18 There is also a source, which seems to prove the thesis of possible liability of a slave before quaestio perpetua -Val. Max. 8, 4, 2: Contra P. Atinii servus Alexander, cum in hanc suspicionem C. Flavii equitis Romani occisi venisset, sexies tortus pernegavit ei se culpae adfinem fuisse, sed perinde atque confessus esset, a iudicibus damnatus et a L. Calpurnio triumviro in crucem actus est. Although the text mentions a slave accused of killing an eques and convicted to death on the cross, concerns with regard to credibility of the Valerius Maximus -in particular, with regard to in-Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 29/01/2021 09:40:41 U M C S seems rather that Cicero wanted to indicate that a slave could also commit a crime categorized in this legal act, which did not necessarily mean he would stand before the standing court. It is known that offenders were not always treated in the same manner, and only some of them were tried by the quaestio, while the criteria for choice of the procedure are not known 19 . We should also keep in mind that every standing court (quaestio perpetua) issued rulings only to determine whether the defendant is guilty, while the criminal sanction was defined in the proper lex (sometimes passed in the form of a plebiscitum) 20 , which established the specific quaestio perpetua. It is also of significance that the standing court could not inflict the death penalty 21 on the convict, as this criminal sanction was not provided for in these acts (or plebiscita) 22 . Typical punishments of the Period of the Republic, inflicted upon convicts by the standing court 23 , included exile (exilium) 24 , infamy, interdictum aquae et ignis or pecuniary sanctions, among which practically none could be applied to a slave.
Therefore, it seems that in the Period of the Republic, servi were not subject to quaestiones perpetuae. Obviously, the following question arises: Was there any other body competent to judge and inflict punishment upon this group of offenders? formation on the criminal procedure -make it impossible to assume without a shadow of doubt that a standing court (quaestio perpetua) was the competent authority to inflict punishment upon slaves. Sf. O. Robinson,Slaves…,p. 216. 19 Cf.
In the first place, it is necessary to mention here the tresviri capitales 25 (also known as tresviri nocturni), a collegial office established in the early 3 rd century B.C., which, among other things, cared for peace and order during the night (thus the common name tresviri nocturni), who also had the jurisdiction over servi 26 . However, this was not a typical iudicatio, but rather a criminal-administrative mandate (cöercitio) 27 , enabling the magistrate to respond to cases of violation of public order. It was probably used mainly to dispense justice for crimes committed by slaves.
In the period of the Empire, Roman jurists had no doubts as to the scope of criminal liability of servi. The starting point for further analysis will be the following source fragment: D. 48, 2, 12, 3 (Venuleius Saturninus libro secundo de iudiciis publicis): Si servus reus postulabitur, eadem observanda sunt, quae si liber esset, ex senatus consulto Cotta et Messala consulibus.
The author of this text -Venuleius Saturninus -was a very mysterious jurist, who lived in the mid-2 nd century A.D. We know little about his life or political activity 28 . Nevertheless, he was probably a good jurist 29 , since the compilers of Justinian decided to quote in Digesta Iustiniani the above fragment of his book De iudiciis publicis 30 , consisting of three volumes 31 . 25 The fragment quoted indicates clearly that the legal status of a slave in criminal law was similar to that of free persons 32 , practically from the beginning of the Principate period. It is worth mentioning here that the systemic reform, originated by Octavian August, was followed by changes in the Roman criminal law. These took the form of gradual withdrawal from quaestiones perpetuae on behalf of a new procedure outside the order (cognitio extra ordinem) 33 set by the leges iudiciorum publicorum. An active role in this process was played by the jurisprudence, particularly active in the period of the Severan dynasty. Another factor of great significance were the senatus consulta 34 , passed in the Early Principate, which, on the other hand, resulted from the diminishing role of assemblies. Most resolutions of the senate 35 concerned interpretation of the existing criminal law 36 , established back in the Period of the Republic.
The consuls mentioned by Venuleius Saturninus -Marcus Aurelius Cotta and Marcus Valerius Messala Messalinus 37 -were brothers, serving as consuls in 20 A.D. 38 , when s.c. Messalianum was passed. The two consuls are mentioned in known sources two more times: once in the context of liability of proconsuls for offences committed by their wives (D. 1, 16, 4, 2) and once with regard to criminal liability of a person providing dishonest legal assistance 39 on the basis of lex Cornelia de falsis (Coll. 8, 7, 1). A great majority of authors 40 quoting s.c. Messalianum, focus on presentation of its content, which has been preserved until our times only fragmentarily, from the "Studia Iuridica Lublinensia" 2016, vol. 24 (3) perspective of its impact on broadening of the definition of forgery (crimen falsi). Taking into account the condition of preserved sources on s.c. Messalianum, this perception of the core of the issue seems to be right and proper. The compilers of Justinian, selecting the source materials preserved in Digesta Iustiniani, decided that information on broadening of the definition of crimen falsi were more valuable than those referring to the legal status of slaves in criminal law. We can hardly suspect that in 20 A.D. two senatus consulta were passed, one of them dedicated to the new definition of crimen falsi, and the other focusing on procedural issues, including the possibility of judging slaves before the cognitio extra ordinem. Therefore, we must exclude the possibility of existence of two documents bearing the same name and assume instead that the basic objective of s.c. Messalianum was to broaden the definition of forgery, while "by the way", the resolution of the senate contained an expressis verbis description of the scope of criminal liability of slaves, as well as liability of proconsuls for crimes conducted by their wives.
As the quoted fragment by Venuleius Saturninus indicates clearly the identical status of slaves and free persons 41 , it is a good idea to analyze the actual scope of criminal liability of servi. Worth analyzing in this context is another fragment of text by Venuleius Saturninus: This fragment contains a lot of valuable informations on the legal status of slaves in criminal law. As a rule, the jurist assumed liability of servi on the basis of all leges criminales 42 , to then move on to discussing exceptions to this rule. Such presentation romana. Profili, Napoli 1989, p. 71;O. Robinson, The Criminal…, p. 37;K. Amielańczyk, Crimina legitima…, p. 191. 41 In development of Roman criminal law, offenders being free citizens were further divided into honestiores and humiliores. A synthetic discussion of these legal acts has been presented by K. Amielańczyk (Z historii ustawodawstwa rzymskiego…,. Cf. Fanizza,op. cit.,. It is also worth noting that the list provided by this jurist lacks lex Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 29/01/2021 09:40:41 U M C S of arguments must have been much more accessible for readers of De iudiciis publicis than enumeration of all legal acts defining criminal liability of slaves. It seems that this part of the jurist's disquisition, taking into account its present shape delivered in Digesta Iustiniani, should be free from any suspicions of interpolation.
Venuleius Saturninus assumed that the type of criminal sanction against the perpetrator would be the criterion excluding liability of servi for specific crimen 43 . Therefore, slaves were not subject to lex Iulia de vi privata, as this legal act provided for confiscation of a third of one's property 44 , and a servus had no legal capacity and thus could not have any property. This statement, however, is inconsistent with another fragment of Digesta Iustiniani written by Macer 45 , which refers to the possibility of active participation and use of violence by a slave. How can we explain this divergence? It seems that the compilers of Justinian -or the legal practice at the time -found it difficult to distinguish clearly between vis publica and vis privata 46 . Moreover, cognitio extra ordinem started to apply to slaves more broadly, extending beyond the scope of their criminal liability defined in the Period of the Republic 47 . Therefore, Macer's text should not be read as undermining the principle of liability imposed upon slaves for crimes committed by them, delivered by Saturninus, but rather as an addition to it. Discretionary authority 48 of the system of justice, broadened within the framework of cognitio extra ordinem, encompassed slaves committing criminal offences, for which they could not be tried according to the original legal act.
Continuing his thought, Venuleius Saturninus referred to other legal acts (ceteris legibus), which provided for criminal sanctions that were not adequate for the legal status of the slave 49 . It is worth understanding that the jurist did not mention any of these exempli gratia. Taking into account the list of leges criminales, it should be Fabia de plagiariis, although the compilers dedicated title 15 of volume 48 of Digesta Iustiniani to crimen plagii. An attempt to explain why lex Fabia de plagiariis is missing from Macer's list has been made by K. Amielańczyk (Crimina legitima…, gra.1939.59.1.219, pp. 219-260. 49 It is worth noting that apart from crimes codified in the leges criminales, and then their catalog broadened by the creative role of the imperial jurisprudences and constitutions, slaves could also commit other prohibited acts, which, due to the nomenclature, cannot be referred to as crimes. These included, e.g., an accusation against their own master, made to the city prefect (D 1, 12, 1, 8), a freed Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 29/01/2021 09:40:41 U M C S noted that the list of these was not very long. Why, then, is the jurist's comment so laconic? We might answer this question by hypothesizing that Venuleius Saturninus did not intend to write a long text with an enumeration of leges and the associated sanctions. It was sufficient to quote those penalties, which were not adequate to the legal status of a slave, that is, poena pecuniaria or relegatio 50 . When passing a judgement concerning a slave, the judge knew, which leges criminales were not applicable. Moreover, it is necessary to keep in mind that ancient Romans distinguished between crimina communia and crimina propria 51 . The concept behind this distinction seems to be the core of the jurist's statement -it was obvious to the jurist that he should not focus on crimen ambitus 52 or crimen repetundarum 53 , as slaves had no capacity of committing these. The same could be said about crimen annonae 54 due to the sanction introduced by lex Iulia de annona, that is, a fine in the amount of 20 aurei 55 .

U M C S
The most interesting part of the text is dedicated to lex Pompeia de parricidiis 56 . Venuleius Saturninus stated clearly that servi were excluded from the scope of this legal act, as it pertained to protection of the closest family members and patrons. Obviously, slaves had nothing to do with any of the two groups of subjects protected by lex Pompeia. The further part of the text, referring to this act, seems even more mysterious. The phrase natura communis, used by the jurist, suggests an interpolation 57 , although he also presents a more balanced stance 58 . How should we then understand this part of his statement: sed cum natura communis est, similiter et in eos animadvertetur? It seems that the jurist used an analogy here to show that, in fact, if slaves are treated as equal to free citizens on the basis of ius naturale 59 , their criminal liability should not be any different 60 . Therefore, there is no reason not to inflict upon a slave the penalty, which was commonly used in the jurist's times -the sack penalty (poena cullei) 61 . The slave did not have to be the direct perpetrator, which, in fact, was based on the catalog of individuals subject to legal protection, but rather participate in the trial as a co-perpetrator 62 . It is also necessary to keep in mind that ancient Romans did not define a general concept of participation in a crime 63 . In such a case, an argument based on an analogy would be that there was no significant difference -in the period of the Empire -between perpetrators being slaves or free citizens. Both groups faced the consequences of their actions, and discretionary authority of the judges allowed them to punish servi more severely.
The last part of the analyzed fragment refers to lex Cornelia de iniuriis. Iniuria 64 went through a substantial revolution in Roman law -from a delict in private law to a public law offence. This dual preception of iniuria had some far-reaching consequences, in particular in the trial procedure, where public and private law components intersected one another. In the case of a crimen iniuriae, there was no accussatio, but a private actio iniuriarium 65 . Moreover, the penalty for this offence provided in lex Cornelia de iniuriis was a financial one (a fine) 66 , and, as it had been indicated by Venuleius Saturninus, poena pecuniarnia could not apply to slaves. A question thus arises: Why the jurist mentioned this act, if servi could not be tried independently on its basis? The answer can be found in the last sentence of Venuleius Saturninus's statement. It seems that the legal expert wanted to make it clear that in the Republican version of legis Corneliae de iniuriis, there was no such thing as liability of slaves -however, it was much different in the case of cognitio extra ordinem. This would prove, in fact, that discretionary authority of the judge reached much beyond typification of crimen iuniuriae in its original Republican version. This argument may be supported by preserved mentions in legal sources 67 , which confirm the application of cognitio extra ordinem towards servi. The available literature does not mention interpolation in the last sentence of this statement; therefore, assuming the text is authentic, it can be stated that public law liability of slaves for crimen iuniuriae has its roots in the 2 nd century A.D.

***
Summarizing the above deliberations, it should be underlined that the legal status of slaves in Roman law was of a dual nature. From the perspective of ius civile, they were treated as res mancipii, and having peculium at their disposal (or being devoid of it), they could execute legal acts to improve the financial situation of their owner.
The legal status of slaves in criminal law underwent a more significant evolution. Apart from jurisdiction of owners based on dominica potestas, slaves could be tried for their crimes by tresviri capitales. They were excluded from jurisdiction of quaestiones perpetuae.
From the Principate period, slaves, like free persons, become a party to the criminal procedure. There were some exclusions from application of leges criminales in 65 K. Amielańczyk On the other hand, the discretionary authority of judges, extended in the Empire Period, allowed for creative interpretations of the Republican criminal legislation, particularly with regard to penalties inflicted upon slaves.
Roman jurists had no doubts as to whether slaves could commit crimes categorized in the leges criminales. Their legal status was equal to that of free persons with a single exception -penalties inflicted upon them were much harsher in comparison with other perpetrators.