A Slave Climbs a Tree: A Story on the Origins of Common Law

Guest blogger Riley Graebner is a clerk at the U.S. Court of International Trade, located in New York City.  While a student at Georgetown University Law School, he studied Roman law. 

As one strolls through the streets of Rome, it is well to remember that the monuments that line the boulevards are the remains of a vibrant civilization that gave rise to cultural traits and institutions that remain with us today. Among these, none looms larger than the heritage of Roman law. In the story that follows—fictionalized, but grounded in Roman legal history—the case of an injured slave joins with precedent, custom and judicial activism to make what we know as common law.

The real Gaius, a celebrated Roman jurist,
and one of a half dozen major contributors to the
Roman law.  This bas relief is in the
U.S. House of Representatives

Imagine you are Gaius, a Roman citizen in 300 B.C., a carpenter and a plebian. Yours is not the dominant Rome of textbooks or HBO, but a Rome sharing power on the peninsula with other states, the Samnites among them, in the days before the Empire. This Rome is half way between shrugging off Etruscan rule and the rise of Julius Caesar—rapidly expanding but only a generation removed from a state the size of the present-day province of Lazio. Construction of the Appian Way has just begun. By 290 B.C., Rome appears to have control of much of the peninsula, but the permanency of that grip is open to debate.

Your business, Gaius, has done well enough for you to afford a slave. He’s a competent boy of 12 who helps you take care of the house and run errands. You send your slave to collect wood from a supplier outside the city limits. On his errand, the slave runs into Tulla, a fellow carpenter, competitor and citizen. Jealous of your success, Tulla orders your slave to fetch a piece of fruit from a branch high up in a tree, hoping to place him in peril. The slave loses his balance, falls out of the tree, and breaks his leg.

Roman Senators

The wheels of Roman justice begin to turn. You check the list of authorized causes of action, published each year by the praetor, the Roman juridical magistrate. You find what you are looking for: lex aquilia provides a remedy for anyone whose slave is “wrongfully” injured by another. You find another cause of action in the Twelve Tables, a quasi-constitutional document dating back two centuries. If your slave had only a bad bruise, the praetor would probably decline to hear your case; Roman justice moves only for serious offenses. But your slave will be out of commission for months and possibly permanently disabled. Under the Twelve Tables, an injury of this severity warrants attention.

But what does “wrongful” mean? Lex aquilia seems to require that Tulla made direct contact in harming your slave, but the contact in this case seems to be less than “direct.” Hiring a lawyer is not yet an acknowledged right, but you need one and, overcoming laws that appear to prohibit payment, you hire one and pay him.


A Roman Open-Air Courtroom

Case researched and prepared, you and your lawyer walk down to the Forum, where the praetor sits in his sulla curulis, surrounded by six lictors who wear purple-lined togas. A small crowd gathers to hear the day’s arguments. You call Tulla before the praetor. Tulla appears as requested, but the praetor promptly sends both of you off to negotiate for a minimum of two weeks. You try to work things out, but Tulla insists he never saw your slave and never commanded him to climb the tree.

When the praetor hears that no settlement has been reached, he announces the process for the settling the case: “Brutus will be the judge. If it appears that Tulla has wrongfully injured the slave of Gaius, the judge will order Tulla to compensate Gaius with the value of 30 days of the slave’s labor. If no evidence exists of wrongful injury, Tulla will be absolved.” With no police force to aid in collecting evidence, you investigate, talking to a farmer who observed the incident. Yes, he says, he heard Tulla order your slave up the tree. Yes, it was high and dangerous.

You and Tulla appear before the judge, Brutus. Your lawyers speak eloquently. Tulla claims he was nowhere near your slave. The farmer asserts otherwise. Brutus grants a verdict in your favor. A strict formula stipulates damages: 30 days’ worth of the slave’s labor, an amount fixed in Roman custom and practice. Under the honor system that dominates Roman life, Tulla feels compelled to pay you or he risks losing his place in Roman society.

The Forum, where the Twelve Tables were
posted. 

Although many legal historians point to Rome as the birthplace of civil law—a system where statutes predominate rather than the edicts of judges—Roman legal procedure eventually created a body of case law which defined and shaped legal responsibilities. Romans called it ius honorarium, but we would probably see it as akin to common law. In our fictional scenario, featuring a slave injured by an act founded in jealousy, the expansion of codified rights by judicial fiat--the praetor’s process--has already begun.  Many of the Twelve Tables have been lost to history, but the Roman Forum and the judicial legacy that began there remain to this day.

Riley Graebner