r

THE SLAVE IN THE WINDOW

PAUL J. DU PLESSIS
It is notoriously difficult to contribute to the larger theme of this volume, the socio-economic
setting of Roman slavery, using Roman legal sources as the main source of information. The
reasons for this are twofold. First, legal sources forming part of the 6'h century compilation
of Roman law created by order of the emperor Justinian are at least three degrees removed
from their original context. That is, they are analyses/commentaries on the law, written by
Roman jurists of the classical period (l s, - 3 rd centuries AD), which were broken up into
snippets, stripped of the context and reassembled (with some interpolations) under topical
headings by the compilers of Justinian's compilation project. Secondly, it is virtually
impossible to establish from the extant sources the extent to which they engaged with socio­
economic concerns in legal writing since the Roman jurists were only passively involved in
the legal process. While scholars such as Alan Watson have argued that the jurists were
essentially 'isolationist' in legal argument, it cannot be denied that 'some' connection must
have existed between Roman law and the socio-economic concerns of Roman society, but
the exact nature of this connection remains at issue. 1
Despite these complications, it is sometimes possible to detect traces of the socio­
economic aspects of Roman law in the extant sources. This will be the central theme of
this chapter. More specifically, this chapter will demonstrate how such aspects and socio­
economic considerations may in fact have contributed to legal development. To
demonstrate this, an example from the law of urban tenancy will be used. This area of law
demonstrates the remarkable differences between juristic attitudes to property and 1s an
interesting example of the interplay between cases and rules of law.

The slave as invecta and illata: matters of legal principle

Take the following text as an example:
D.20.2.9 Paulus libro singulari de officio praefecti vigilum. Est differentia obligatorum
propter pensionem et eorum, quae ex conventione manifestati pignoris nomine tenentur,
quod manumittere mancipia obligata pignori non possumus, inhabitantes autem
manumittimus, scilicet antequam pignoris nomine percludamur: tune enim pignoris
nomine retenta mancipia non liberabimus: et derisus est Nerva iuris consultus, qui per
fenestram monstraverat servos detentos ob pensionem liberari posse.

1 See A. Watson's 'Law and society' in J. W. Cairns and P. J. Du Plessis (eds.) Bevond Dogmalics:
,
Law and Sociely in the Roman World (Edinburgh 2007), 9-36.

49
 50 BYTHESWEATOFYOURBROW

There is a difference between property hypothecated for rent and hypothecated

property held according to an agreement as explicit security. We cannot free slaves
hypothecated as security, but we can free slaves living on rented premises, that is,
before we are prevented from doing so by their becoming security. After that we
cannot effectively free slaves detained by way of security. The jurist Nerva was
mocked for holding that we can free slaves detained for rent by pointing at them
through a window.
This text is essentially free from interpolation and its palingenetic context is not
particularly informative. 2 It was written by Paul, a contemporary of Ulpian who
flourished during the early part of the 3"1 century AD, and it originally formed part of a
larger work on the duties of the Prae.fectus Vigilum, a public office tasked with municipal
maintenance in Rome. 3 The larger context of this text is urban tenancy, a specific
manifestation of the consensual contract of letting and hiring (/ocatio conductio) in
Roman law. To protect the landlord from the potential insolvency of his tenants, Roman
law developed a legal mechanism whereby the landlord obtained a real right (ius in rem)
over the tenant's property which permitted him to sell these goods in lieu of unpaid rent.
This legal mechanism known as pledge (pignus) was not specific to letting and hiring: but
could be used to obtain security for debt arising froi'n a number of contracts. 4 Roman law
knew two types of pledges. The parties could either agree on a pledge with possession or
one without possession. The former required the debtor to hand over physical control of
the object until such time as the debt had been repaid, while the latter (properly known as
hypotheca) allowed the debtor to keep the object under his control, but with the legal
consequences that the creditor could attach and sell it in the event of the non-payment of
the debt. Pledges without possession were the norm in classical Roman law as they
allowed the debtor to retain the object and to pledge it for more than one debt. It is also
the type of pledge envisaged in the text above, which is why the term pignoris nomine has
been translated as hypothec.
Where a pledge was used to obtain security for the payment of rent, the parties could
opt for one of two arrangements. First, the parties could make an express agreement in the
contract of letting and hiring, listing certain objects to be hypothecated for the rent. 5 This
arrangement had two advantages. Both the landlord and the tenant knew .the identity of the
objects hypothecated and they could be easily identified and attached when the tenant
defaulted in paying the rent. The only drawback with listing specific objects was that they
could depreciate in value or cease to exist, thereby rendering the hypothec insufficient to
cover the rent. As an alternative, the parties could leave it to the legal order to provide
sufficient security for rent. This was done through an implied contractual term which

2 B. W. Frier, Landlords and Tenants in Imperial Rome (Princeton 1980), 113 and 119-20. On the
palingenetic context see 0. Lene[, Palingenesia Turis Civilis (Graz 1960). 1: col. 1144 (§ I 058); it
appears immediately following D.19.2.56.
3 I intend to return to the office of the Praefectus Vigilum and his involvement in the urban rental

market in a future article.

� See Marc. (lib. sing. form. hypothec.) D.20.1 .Spr.
5 See Paul (5 Resp.) D.20.3.4.
 PAUL J. DU PLESSIS:THE SLAVE IN THE WINDOW 5I

I
came into existence during the l" century BC.6 This term, read into all contracts of urban
tenancy, hypothecated a certain category of the tenant's goods (known as invec'tct et illata) I

as security for the payment of rent. The parties' knowledge or consent was not required
for this clause to operate.T When the tenant defaulted in paying. the rent, the landlord
could unilaterally lock the tenant out of rented premises and could attach goods deemed
by him tobe invecto et illata with the threat to sell these unless payment is received. Since
this clause operated ipso iure, disputes could arise over ,'vhether certain goods o1' the
tenant were invec'ta et illata. Thus, an interdict (ele migranclo) was created in classical
Rornan law to dispute the landlord's attachment of certain goods on account of these
being in,r,ecta et illata.s When a tenant wished to dispute the detaining of certain goods by
the landlord on account of unpaid rent, he had to approach the praetor to obtain an
interdict tle migrando. This legal rernedy allowed him to argue in the presence of the
praetor that certain goods should be released by the landlord. Alternatively, if the tenant
was prepared to pay the rent owing (plus the rent for the remaining period of the contract)
he could petition the praetor to cornpel the landlord to release the goods.
The text irnder discussion contains a reference to the jurist^Marcus Cocceius Nerva (t
AD 33), friend of the emperor TiberiLrs and head of the Proculians." Paul reports that
Nerva was rnocked (lit. laughed atldirisus est) for suggesting that slaves detained fbr rent
could be freed by pointing at them through the window. It is not often that such personal
colnments about juristic dissent are visible in the texts nor is it really possible to tell who
laughed at Nerva. With that said, though, the legal grounds forNerva's cornment requires
further investigation. First, it is possible (though unlikely) that Nerva was suggesting that
by changing the status ofthe slave (from property to libertintts), they could be freed from
the hypothec, since Roman law did not permit the holding of real rights over free
persons.ru But merely pointing at a slave was not sufficient in Roman law to eff-ect
ll
manumission of a slave. It seems far more plausible that Nerva was advocating that the
owner of the slave (the debtor) could free slaves from the real right which the creditor had
over these on account of the unpaid rent merely by pointing at them. If this is what Nerva
suggested, then the reason why he was mocked was because of his disregard for proper
procedure, namely approaching the praetor to request an interdictum de ntigrando and
making your case that certain goods were not included in the landlord's hypothec.

6
See P. J. Du Ptessis, 'The lnterdictum de Migrando revisited', RIDA 54.3 (2007), 219-44, at
224-25.
7
Du Plessis, 'The Intertlictunt de Migrando revisited' (n.6),232-35.
8
Du Plessis, 'The Interdictum de Migrando revisited' (n.6),219-25.
e
See F. Schulz, Roman Legal Sc'ierrce [Revised edition with Addenda] (Oxford 1953), 121-22.

'u ulp. 173 Ed.) D.20.2.6.

rr
Private manumission of slaves, such as munumissio per mensailt, became possible during the late
Republic. There may be some link between Nerva's statement and the let lunia (Norbano) of
unknown date (possibty AD l9), which dealt with the status of slaves manumitted through private
acts; but since the reason why Nerva was mocked is not stated explicitly, this remains merely
speculation.
 52 BYTHESWEATOFYOURBROW

If this interpretation of Nerva's view is correct, it suggest that he was advocating a

form of self-help similar to the landlord's right to lock the tenant out of the rented
premises as a means to attach the invecta et i/lata. This, in turn, indicates that Nerva gave
priority to the ownership of the tenant above the real right of the landlord arising from the
hypothec. In other words, the reasoning behind Nerva's view is one of the relative
strength of the owner's power over his property. It also raises a larger question about the
use of slaves as the object of a hypothec more generally and as security for the payment of
rent more specifically. The latter will be dealt with first, the general questions thereafter.
Since the clause which hypothecated the tenant's invecta et illata was an implied term
read into all contracts ipso iure, it did not require the consent of the parties. Legal sources
show that the term invecta et illata, though nowhere defined in Roman legal sources, had
a specific content. 11 This specific content must have made it easier both for landlord and
tenants to argue the inclusion or exclusion of specific goods in front of the praetor. Legal
sources reveal the following about the content of this term. First, the term only applied to
objects which were brought onto the rented property with the intention that they remain
1
there for a substantial period of time.1. Things in transit did not come under this heading.
Secondly, it did not include objects which did not belong to the tenant, but which he was
merely controlling in terms of a limited right. 14 Thus, for example, slaves rented from
their owner or those which the tenant held by virtue of a usufruct were not included. In
third place, slaves employed in essential services or with whom the owner was on
affectionate terms (a mistress or a child born from a slave woman) were also excluded. 15
Finally, slaves which formed part of protected property such as those belonging to a
dowry or to a ward were excluded. 16 From this list of exclusions, it is obvious why the
procedure in front of the praetor was required and why Nerva 's suggestion was not
followed. To the casual observer ( or the landlord for that matter) it would be virtually
impossible to distinguish between the different 'categories of exclusions' of slaves
mentioned above. Thus, following the lock-out of the tenant by way of self-help, the
tenant had to prove in front of the praetor that some of the slaves in the house could not be
classified as invecta et il/ata and therefore had to be released to him. The fate of any slave
which did not fall into one of these categories of exclusions depended on the actions of the
tenant. If the tenant offered to pay the rent owing as well as the rent for the remaining
period of the contract, the praetor would order the landlord to free the tenant's invecta et
i/lata to enable him to find alternative accommodation. If the tenant could not pay the

I
rent, the landlord was entitled (under the terms of their agreement) to sell the goods to
recover the debt.
Anyone who has contemplated this arrangement carefully will realise that it is not a
good form of security. Not only does the landlord.have no knowledge of the content of the
rented property until such time as the tenant defaults in paying the rent owing. whereupon

le Du Plessis, 'The lnterdictum de Migrando revisited· (n. 6), 229.

1
3 Pom. (13 var. feet.) D.20.2.7.1.
14 D.43.32.2.

15 Ulp. (73 Ed) D.20.1.6, 8.

16
Frier, Landlord� and Tenants (n. 2), 110-11.
r PAUL J. DU PLESSIS: THE SLAVE IN THE WINDOW 53

the landlord first has to lock the tenant out of the property and then wait for him to bring
the interdictum de migrando to exclude certain objects. Only once this had occurred could
the landlord value the remaining goods to ascertain whether they would cover the debt.
This has led some scholars to argue that the invecta et i/lata hypothecation clause only
ever operated ih tandem with another agreement whereby the tenant provided an
additional form of security for the payment of rent, such as by hypothecating a specific
valuable piece of movable property. 17 This is a plausible argument as such an
arrangement would also circumvent the potential problem arising from the deterioration in
value of the slaves during the course of the term of the lease.
It is unclear from the extant sources what effect a tenant's decision to abscond had on
the slaves. Although there is one text which states that a period of two years had to elapse
before the premises could be unlocked to take an inventory, it seems unlikely that this
procedure would have been standard in cases of default in t�e payment of rent. 18 For one
thing, detaining slaves which formed part of the invecta et illata for a period of two years
would have been detrimental to the financial interests of the landlord given the possibility
of their demise or deterioration in value. In all likelihood, the absconding tenant would
have taken his slaves with him. The flight of the tenant would have made little difference
in Jaw, however, since the main legal remedy for hypothecs, the actio serviana (later
renamed as the actio hypothecaria), could be used to obtain possession of the goods. But
given that slaves were clearly used as security for the repayment of debts (arising mainly
from contract), juristic concerns about slaves as security require further investigation. This
will be done under two headings: aspects of maintenance and 'value'. First, maintenance.

The slave as invecta and iliata: matiers ofmaintenance

Slaves, like other pieces of living movable property, only had value to the creditor as long
as they sustained an economic value sufficient to cover most if not all of the debt for
which they were given as security. It was therefore in the interest of both creditor and
debtor to ensure that the slave sustained such value for the duration of the debt. In pledges
with possession, where the creditor obtained control of the slave until the debt had been
repaid, classical Roman law laid down a number of legal rules concerning the treatment of
the slave as can be seen in the following three texts:

D.13.7.31 Africanus libro octavo quaestionum. Si servus pignori datus creditori

furtum faciat, liberum est debitori servum pro noxae deditione relinquere: quod si
sciens furem pignori mihi dederit, etsi paratus fuerit pro noxae dedito apud me
relinquere, nihilo minus habiturum me pigneraticiam actionem, ut indemnem me
praestet. Eadem servanda esse lulianus ait etiam cum depositus vel commodatus
servus furtum faciat.

17 Du Plessis, 'The lnterdictum de Migrando revisited' (n. 6), 238.

18 D.19.2.56. It has been suggested to me by Michael Crawford 111 personal

communication that the time period of two years may be interpolated.

 54 BY THE SWEAT OF YOUR BROW

If a slave who has been given as a pledge commits theft against the lender, the
debtor has the option of leaving him there by way of noxal surrender. But if he
knowingly pledged me a thief, then even if he is willing to leave him with me as
noxally surrendered, I shall nonetheless have my action on pignus to compel him to
make good all my loss. The same rules are to be applied, says Julian, in the case of
a slave who commits theft after having been deposited or lent to be used.
And:
D. I 3.7.8pr Pomponius libro tricensimo quinto ad Sabinum. Si necessarias impensas
fecerim in servum aut in fundum, quern pignoris causa acceperim, non tantum
retentionem, sed etiam contrariam pigneraticiam actionem habebo: finge enim
medicis, cum aegrotaret servus, dedisse me pecuniam et eum decessisse, item insulam
fulsisse vel refecisse et postea deustam esse, nee habere quod possem retinere.

If I incur necessary expenses on a slave or estate given to me as a pledge, I will have

not only the right of retention, but also the counter action on pledge: suppose, for
instance, that I no longer have the thing I might have retained, as where I spend
money on doctors when the slave is ill and then he dies, or I prop up or repair the
building and then it bums down.
And:
D.13.7.24.3 Ulpianus libro trigensimo ad edictum. In pigneraticio iudicio venit et si
I res pignori datas male tractavit creditor vel servos debilitavit. Plane si pro
maleficiis suis coercuit vel vinxit vel optulit praefecturae vel praesidi, dicendum
I est pigneraticia creditorem non _teneri. Quare si prostituit ancillam vel aliud
improbatum facere coegit, ilico pignus ancillae solvitur.
It is something also to be taken into account under the action on pignus if the
,'1I creditor mistreats pledged property or weakens slaves. Clearly, if it is on account
of their wrongdoing that he confines them, binds them, or hands them over to the
prefect or the governor, the creditor must be held not to be liable in the action on
pignus. If, therefore, he puts a slave-girl to prostitution or compels her to some
other disreputable conduct, the pignus of her is discharged on the spot.
None of the three texts in question, which span the second and third centuries AD, are
suspected of serious interpolation. It is important to rememb�r that pledge was one of a
category of Roman contracts which came into existence through the delivery of the
object. 19 Thus, sinc:e the owner of the object did not relinquish ownership to the creditor
for the duration of the contract, contractual standards of care (do/us and culpa) governed
the creditor's interaction with the object of pledge. 20 When read together, these passages
demonstrate that classical Roman law created three parameters which governed the use of
slaves as the object of a pledge with possession. First, apart from financial value, the
character of the slave was an important consideration, since wrongdoing on the part of the

19
Gaius (lib. sing.form. hypot hec.) D.20.1.4, Ulp. (28 Ed.) D.13.7.9.2.
20 J. A. C. Thomas, Textbook ofRoman Law (Amsterdam, New York, Oxford 1976), 330.
 PAUL J. DU PLESSIS: THE SLAVE IN THE WINDOW 55

slave which was the result of a character trait known to its owner before handing it over as
a pledge not only led to loss of the asset, but also to a claim of financial compensation on
account of the theft. In second place, the state of the slave's health was crucial, tbr a
sickly slave could hardly sustain sufficient financial value to cover the debt. Thus, any
necessary expenses incurred by the creditor in maintaining the health of the slave could be
recovered from the debtor. It is not clear how the necessity of the expenses were to be
determined, but it was most likely done in the context of a lawsuit. Third, the character of
the creditor was an important factor. They were permitted to punish slaves legitimately,
but could not maltreat them. The latter led to the pledge being redeemed ipsct iure. Again,
the text does not indicate how the distinction between legitimate punishment and
rnaltreatment would be assessed, most likely also through the legal process. Be this as it
may, all three parameters orbit around the issue of the value of the pledged object. to
which we shall now turn.

The slave a.r' invecta and lllata: matters oJ''voltrc'

Afiicanus records the following case:

D.20.4.9.pr Africanus libro octavo quaestionum. Qui balneum ex calendis proximis

conduxerat, pactus erat, ut homo Eros pignori locatori esset, donec mercedes
solverentur: idem ante calendas Iulias eundern Erotern alii ob pecuniam creditam
pignori dedit. Consultus, an adversus hunc creditorem, petentern Erotem locatorem
praetor tueri deberet, respondit debere: licet enim eo tempore homo pignori datus
esset, quo nondum quicquam pro conductione deberetur, quoniam tamen iam tunc
in ea causa Eros esse coepisset, ut invito locatore ius pignoris in eo solvi non
posset, potiorem eius causam habendam.

A man who rented baths from the first of the following month agreed that a slave
Eros should be pledged to the lessor until the rent was paid. Betbre the first of July he
pledged Eros to another creditor for a loan. Asked whether the praetor should protect
the lessor against the latter creditor in a suit for Eros, he [Africanus] answered that he
should. Although, when Eros was hypothecated, nothing was yet owing tbr rent,
even then the position of Eros was that he should not be released from serving as a
pledge without the lessor's consent. So the landlord should have priority.

The content of this text is basically sound. It cannot be determined with certainty whether
Afiicanus is recounting an actual or hypothetical case, though given the nature of the
work from which this text was originally taken, it seerns plausible that this was a real case.
The text demonstrates the well-known fact, brought to the fore in this volurne in the
chapters by Benet Salway and Michael Crawford, that slaves could be of a very high
value, and indeed valuable enough that one could be used as security for the rent of an
expensive commodity. In this case, it is known that baths, like tracts of land, were in some
cases let out for a period of five years (the lustrum) with an annual rental payment due at
the start of July. Both the landlord and tenant must therefore have been sufficiently
confident of the intrinsic economic worth of the slave at the outset of the transaction and
its ability to sustain this value for a period of five years to cover the payment of rent. This
suggests that a type of valuation must have occurred at the start of the pledge. How the
 56 BYTHESWEATOFYOURBROW

parties availed themselves of the value of the slave is unknown, but if juristic discussion
of the (first and third chapter of the) Lex Aquilia is anything to go by, it must have been
fairly easy to determine not only the value of the slave in the last 30 days, but also in the
year preceding its destruction. 21 As with most economic transactions, a ce1tain amount of
fluctuation in the value of the object is normally factored into the agreement. But the level
of fluctuation may have required assessment by the judge, as the following text by Ulpian
shows:
D.13.7.25 Ulpianus libro trigensimo primo ad edictum. Si servos pignoratos
artificiis instruxit creditor, si quidem iam imbutos vel voluntate debitoris, erit actio
contraria: si vero nihil horum intercessit, si quidem artificiis necessariis, erit actio
contraria, non tamen sic, ut cogatur servis carere pro quantitate sumptuum debitor.
Sicut enim neglegere creditorem <rem> dolus et culpa quam praestat non patitur,
ita nee talem efficere rem pigneratam, ut gravis sit debitori ad reciperandum: puta
saltum grandem pignori datum ab homine, qui vix luere potest, nedum excoluere,
tu acceptum pignori excoluisti sic, ut magni pretii faceres. Alioquin non est
aequum aut quaerere me alios creditores aut cogi distrahere quod velim receptum
aut tibi paenuria coactum derelinquere. Medie igitur haec a iudice erunt
dispicienda, ut neque delicatus debitor neque onerosus creditor audiatur.
If a creditor gives training in skills to slaves who have been pledged, he will have
the counter action provided they were already in course of acquiring those skills or
the debtor consented. If these requirements are not satisfied, the counter action will
nevertheless lie (provided the skills are essential) but not in such a way as to
compel the debtor to do without his slaves because of the amount spent by the
creditor. For just as his fraud and fault liability prevent neglect, so it also stops the
creditor so improving the thing pledged as to make it difficult for the debtor to
redeem. Take the case in which you are given a pignus of a large tract of land by a
man who can hardly pay his way let alone do agricultural improvements, but,
having taken the pledge, you do bring it under cultivation and make it very
valuable. As a general rule, it is not fair that I should go looking for other lenders
or be forced to sell what I want back or, for want of means, breach my duty to you.
A balance, therefore, must be struck between these considerations by the judge, in
such a way as to give ear neither to a fussy debtor nor to an oppressive creditor.

There do not appear to be any significant problems with this text. While it is more usual to
expect depreciation of the slave during the course of the term of the commercial
transaction. this text demonstrates that the jurists were also concerned with appreciation of
the slave. The gist of the law is that the judge has to look at the dispute in context to
assess whether the creditor should be compensated for the expenses incurred in providing
skills-training to the slaves. In assessing the matter, the contractual standards (do/us and
culpa) as well as the 'fairness' to both parties need to be taken into account.
Since financial valu·e is relative, the creditor could also be left with a surplus as
explained in this text:

21
See D.9.2.
 PAUL J. DU PLESSIS: THE SLAVE IN THE WINDOW 57

D.13.7.8.1 Pomponius libro tricensimo quinto ad Sabinum. Si pignori plura

mancipia data sint, et quaedam certis pretiis ita vendiderit creditor, ut evictionem
eorum praestaret, et creditum suum habeat, reliqua mancipia potest retinere, donec
ei caveatur, qod evictionis nomine promiserit, indemnem eum futurum.
A number of slaves are given as p7gnus, and the creditor sells some at given prices
with a term making him answerable in cas� of eviction. Having thus recouped his
debt, he can still hang on to the other slaves until an undertaking is entered with
him indemnifying him against liability under his promise against eviction.
The content of this text is basically sound, but it requiJes some background information.
In this case, slaves were given as a pledge with possession to a creditor. The debtor
defaulted in the repayment of the debt and the creditor proceeded to sell the slaves to
recover said debt. The slaves were sold at a cerium pretium, a certain price, the precise
meaning of which is not clear, but would suggest some form of valuation. The creditor
sold the slaves under the condition that he would be liable to the purchaser if ownership of
the slaves were lost to a third party with a stronger legal right (eviction). The sale of some
(but not all) of the slaves was sufficient to recoup the debt. Legally, the remaining slaves
had to be returned to their owner as the pledge had been satisfi�d, but Pompoi1ius observes
that this will only be done once the debtor had entered into an agreement with the creditor
indemnifying him against possible claims for eviction. The text also demonstrates another
(financial) point. At the time when the parties entered into the pledge agreement, they
agreed that x number of slaves at y price was sufficient to cover the debt. By the time the
creditor proceeded to sell the object of pledge, he only needed to sell some of the slaves.
This suggests an appreciation in the financial value of the slaves, which may be connected
in some way to the use of the term cerium preliu111.
The example of Eros discussed above does not, of course, overtly mention that the
financial value of the slave could consist not only of its intrinsic worth, but also of adjuncts
thereto. Thus, for example, the peculi111n of the slave could also make it an attractive object
of pledge. Whether this could be an incentive to a creditor is explained in the following text:

D.20.1.1.I Papinianus libro undecimo responsorum. Servo pignori dato peculium eius
creditor citra conventionem specialiter super eo conceptam frustra distrahit, nee
interest, quando servus domino peculium adquisierat.
The creditor cannot sell the peculium of a pledged slave without a special agreement
to that effect. It does not matter when the slave acquired the peculi111n for his owner.
This text, seemingly without any significant problems, although concise, contains two
important pieces of information. As previously stated, a pledge could take one of two
forms, namely one with possession and one without possession. To reiterate: pledges with
possession were usually based on an explicit agreement between creditor and debtor,
while those without possession sometimes (at least in the context of letting and hiring)
operated ipso iure without the consent of the parties. Thus in pledges with possession
which were based on an agreement between creditor and debtor, they had to agree
specifically that the pec11/iu111 of the slave would be included. As the second sentence of
this text shows, the term peculium not only included the value of the fund at the time of
the agreement, but also its value during the course of the pledge. Furthermore, the fact that
 58 BY THE SWEAT OF YOUR BROW

an explicit agreement to this effect was required suggests that in tacit pledges which
operated ipso iure (like the one over the invecta et i//ata of the tenant) the value of the
slave's pecu/ium was as a rule not included. This again reinforces the view that this form
of pledge only ever operated in addition to another agreement which provided security in
22
the main.
One final point affecting the value of the slave relates to offspring. The jurists
approached the matter in the following manner:
0.20.4.11.3 Gaius libro singulari de formula hypothecaria. Si de futura re convenerit,
ut hypothecae sit, sicuti est de partu, hoc quaeritur, an ancilla conventionis tempore in
bonis fuit debitoris: et in fructibus, si convenit ut sint pignori, aeque quaeritur, an
fundus vel ius utendi fruendi conventionis tempore fuerit debitoris?

If there is agreement to hypothecate future assets, such as a slave's offspring, we

must enquire whether the slave mother formed part of the debtor's estate at the
time of the agreement. If fruits are hypothecated, again, was the farm or the usu­
fruct the debtor's at the time of the agreement?

And:

D.20.1.29.1 Paulus libro quinto responsorum. Si manc1p1a in causam pignoris

ceciderunt, ea quoque, quae ex his nata sunt, eodem iure habenda sunt. Quod
tamen diximus etiam adgnata teneri, sive specialiter de his convenerit sive non, ita
procedit, si dominium eorum ad eum pervenit qui obligavit vel heredem eius:
ceterum si apud alium dominum pepererint, non erunt obligata.

If slaves are subject to a pledge, so are their offspring. When we say that the
offspring are pledged, whether especially mentioned or not, we mean if they are
owned by the debtor or his heir. If the slaves gave birth under a different owner,
the offspring are not subject to a pledge.

These two texts, which do not appear to contain any significant problems, illustrate
different scenarios. The first refers to a pledge without possession (a hypothec) and seems
to suggest a specific agreement between the parties. In such cases, it was prudent to
asce11ain the status of the mother at the time of the pledge agreement, otherwise the
creditor would not be able to establish a real right over the offspring. The second text
seems to refer to a pledge with possession. In such cases, the offspring are deemed
hypothecated as well, whether explicitly mentioned or not, but the final sentence seems to
provide for an exception to the rule.

22 Slaves could of course also act as business agents using their peculium. While they could not
pledge property belonging to their peculium without consent (see Marc. (lib. sing. form. hypolhec.)
D.20.3.1.1), they could take property from debtors on account of a debt owed to their peculiwn
provided that their master consented (lul. (11 Dig.) D.13.7.28). It was seemingly also possible for a
slave to pledge goods belonging to the master (and which did not fall in the slave's peculium) with
the latter's consent (Paul. (5 Resp.) D.20.1.29.3).
 PAUL J. DU PLESSIS:THE SLAVE IN.THE WINDOW 59

C'onclus iort.s

While Rornan legal sources do not provide much inlbrrnation aboltt the socio-ecotlorllic
context of slavery, they do contain interesting glimpses of sucl.r concerns and tl.re uay irl
which this affected juristic reasoning. ln this chapter, I analysed slaves as the object of
pledge both generally and with specific reference to letting and hiring. This investigation
yielded the following results: in cases of pledges with possession, using a slave as the
object ofthe pledge placed the bulk ofthe legal responsibility on the creditorl not only did
he have to ensllre that he did not fall tbul of the contractual standards required for
pledge
(t{oltrs or ctiptt), but he also had to tread a tlne line between looking after the pledge orr

the one hand, and inflicting reasonable chastisement in cases of trat.rsgressions. The only
groulds tbr compensation were necessary expenses (which presumably included food and
iodging) as well as delictual conrpensation tbr theft. lt is therefore hardly surprising that
pledge without possession became the norm in classical Roman law. Although the creditor
no longer obtained possession of the object of pledge, his contractual responsibilities
towards the object of pledge were lessened considerably. The loss of possession combined
w,ith the strengthening of the legal remedies fbr the attachntent of the object of pledge was
essentially a trade-off against extensive contractual responsibility characteristic of pledge
tvith possession. It could well be that such socio-legal concems contributed to a change in
the law.
This investigation into the use olslaves as the object of pledge (whether with or
tvithout possession) also demonstrated some of the juristic collcerns in relation to the
value of the slave. A creditor would only consent to the use of a slave as the object of
pledge if he were convinced that the financial value of the slave was sufficient and could
sustain itself for the period of the debt. How this was ascefiained is not clear from the
texts, though there are suggestions that valuations occurred before the agreerlleut and at
the end of it. The 'value' of slaves, then, may have been of quite specific interest to
Roman slave owners tbr reasons hitherto rarely discussed. And knowledge of the'value'
of slaves may thus have been in.rportant also oLrtside the rernit of the slave market. Afier
all. we cannot tell frorn our sources how often a creditor sought to recoup the debt through
sale ofa hypothecated slave. An interest in slave prices (and evidence for the latter) need
thus not immediately indicate an interest in the sale of slaves. The latter is, however,
typically foregrounded in discussions of slave prices as the above mentioned chapter by
Salway dernonstrates.
Moreover, as Jesper Carlsen reminds us in his contribution to this volume, slaves could
appreciate in value through training; where the slave appreciated in value, not through
market forces, but through the actions of the creditor, the judge had to ascertain whether
the debtor had to compensate the creditor fbr expenses incurred in skills-training. lt is also
evident from one text that an appreciation in the value ofa group ofslaves on account of
market forces placed a duty on the creditor to sell only as many as were necessary to
satisf, the debt and to return the remaining slaves once the creditor had been suitably
indemnifled against any potential losses arising fiom the sale of the slaves. Finally, it is
clear that the value of the slave ref-erred to its actual financial value, not to adjuncts such
as its peculium. It was only with express agreement that a pledge over a slave included its
peculiutn, though it does not appear to have included offspring in certain cases.
I

60 BY THE SWEAT OF YOUR BROW

How do these general observations about the use of slaves as pledges contribute to
modern understanding of slaves as pledges in urban tenancy? Where the parties agreed to
hypothecate a specific object (like Eros), this would have been based on his (assessed or
otherwise agreed) financial value and his ability to sustain such value until the term of the
lease expired (or the debtor defaulted in the payment of the rent). The slave'speculium,if
there were any, would only have been included by express agreement. The slave in the
window, on the other hand, came under the general invecta et illota clause read into all
urban tenancy contracts. It would have been the responsibility of the tenant to raise the
interdictum de migranc{o to dispute the inclusion of the slave among the goods attached by
the landlord.