CHAPTER V - The Slave as Man (cont.). Non-Commercial Relations (cont.). Delicts by Slaves

Summary

We have now to consider the rights and liabilities which may be created when a delict is committed by a slave. The general rule is that upon such a delict a noxal action lies against the dominus, under which he must either pay the damages ordinarily due for such a wrong, or hand over the slave to the injured person. We are not directly concerned with the historical origin of this liability: it is enough to say that it has been shewn that the system originated in private vengeance: the money payment, originally an agreed composition, develops into a payment due as of right, with the alternative of surrender: the pecuniary aspect of the liability becomes more and more prominent, till the surrender of the slave loses all trace of its original vindictive purpose, and is regarded as mere emolument, and the money composition comes to be regarded by some of the jurists as the primary liability. But the system as we know it was elaborated by the classical jurists, who give no sign of knowledge of the historical origin of the institution, and whose determinations do not depend thereon.

The XII Tables distinguish between Furtum and Noxa. Furtum here means furtum nee manifestum, (the more serious case was capitally punishable,) and Noxa no doubt refers to the other wrongs—mainly forms of physical damage—for which the Tables gave a money penalty. The provisions of the Tables as to most of these other matters were early superseded, but the verbal distinction between furtum and noxa was long retained in the transactions of everyday life.