The classical literature and art of Greece appear to claim for this god a place in the pantheon of the leading divinities; and yet the meagreness of the cult-records, unless they are accidentally defective and strangely misleading, establishes the conclusion that he played but a small part in the social and political life, and counted but little for the higher religious consciousness of the race. His figure is more transparent than that of any other male Olympian; and the study of his cult is comparatively easy, and most of the problems that present themselves concern comparative philology, mythology, ethnology, rather than religion. He is one of the very few Hellenic gods whose elemental origin is obvious and never disguised, for he belongs unmistakeably to the fire; and the preanthropomorphic perception of fire as a divine thing seems to survive in various popular or poetic expressions which use the name of the god as a synonym for it. We are familiar with the Homeric phrase describing the cooking of meat, ‘they held it over Hephaistos’; and the prophet in Sophocles’ Antigone says of the offerings that refused to catch fire on the altar, ‘from the sacrifice Hephaistos did not gleam,’ and again the fire with which the enemy threatened the walls of Thebes is called in the same play ‘the Hephaistos of the pine-torch.’

Among the minor cults of Hellas that of Hestia specially arrests our attention for the light that it throws on a certain primitive phase of religious thought as well as on a special chapter in the history of primitive culture. Being the least anthropomorphic of Hellenic divinities, she appears to be the product of that period of animistic belief that may everywhere have preceded a more precise anthropomorphism. At least, although Homer is silent about her, we can scarcely doubt her great antiquity. It has long been recognized that we must be cautious in the deductions we draw from Homer's silence. He may have known of her cult, and have found her figure inappropriate to the purposes of a divine drama. He uses the term ἱσΤίη indeed merely as a common noun, designating the ‘hearth’ or the ‘fire of the hearth’ but the word has at times a certain sacred association and value for him; for he regards the hearth as the natural place for the suppliant and as a thing that might serve as the pledge of an oath.

But the first literary record of the personal goddess is found in the Theogony of Hesiod, who speaks of her as the eldest daughter of Rhea and Kronos, and sister of Demeter. He does not, however, describe her nature or functions, and the first witnesses to these are certain passages in the Homeric Hymns.

The leading personal deities of the public worships of Greece have been the main subject of this treatise hitherto. But the picture of the state-polytheism would be incomplete without a careful study of the minor cults, of which the material documents are collected at the end of this volume, but which can only be considered now in regard to their general and essential features.

The high gods are, as we have seen, mainly anthropomorphic and ethical personalities more or less detached from nature. Yet pure nature-worship and nature-magic were practised widely no doubt by the prehistoric Greek communities, and never wholly abandoned in the historic period. The rite, that Pausanias described as maintained in his own day by Methana near Troizen, of carrying round the vineyards the dismembered limbs of a cock to preserve the vines when the baneful wind blew that they called Lips, may be preanimistic magic, directed to no personal god. The processes whereby the ‘magi’ of Kleonai endeavoured to avert storms of hail and snow, according to the statement of Clemens, combined magic with elemental worship: ‘they endeavour to avert the threat of (the sky's) anger by incantations and sacrifices; and if they are in want of a sacrificial victim, they draw blood from their own fingers.’ This blood-letting must have had the piacular purpose of soothing the wrath of the elements, and this is religion.

When the fetish-types of the iconic and semi-iconic period of religious art were being abandoned, and the anthropomorphic form was beginning to emerge clearly, the archaic artist was accustomed to present Dionysos as a grave and bearded god, amply draped, usually erect and tranquil or in quiet movement–except in the rare representations of his battle with the giants–and only distinguished from the other high divinities by thyrsos, ivy-crown, cup, or vine-spray, or often by a freer treatment of the hair. But here and there the consciousness that in character, form, and action; he was different from the others, appears to glimmer through the stiff conventions of the early art of design and modelling. The sculptor of the chest of Kypselos distinguished the deity of nature by his picturesque environment, the divine giver of the wine-feast by his recumbent posture, and remembered that he haunted the wilds and the cool solitude of the cavern rather than the cities of men. The engraver of that very early coin of unknown provenance, mentioned above, seems to have had in mind–as few probably of his contemporaries had–the semi-barbaric character of the god derived from a barbaric origin, and therefore ventured to give him a coarse and almost brutal type of features [Coin P1. 20].

As this god was so popular a figure of Greek polytheism and art, we are able to answer without difficulty the question before us now, under what forms was Hermes conceived by the Hellenic imagination from the first period onward? For the series of monuments is practically unbroken, from the uncouth aniconic or phallic emblem onwards and upwards, to the masterpiece of Greek sculpture that the fortune of our times has revealed to us.

We may suppose that the Homeric world may have sometimes imagined him as a young and beautiful god: at least, when he walks among men, he is said to be ‘like to a youth, before the hair has grown on his cheek, whose young prime is then most lovely.’ But it was not till long after Homer that the artists came to represent him thus.

Among the earliest iconic types may be quoted a very archaic bronze from Perugia of Hermes carrying the kerykeion, and wearing a peaked cap (P1. IX). With this we may compare one of the earliest monuments of Arcadia, a bronze statuette from Andritzena, in the Central Museum of Athens, a work of the sixth century, mentioned above as one of the earliest representations of Hermes the Ram-bearer (P1. X). The forms are powerful, though stunted, and present the sturdy type of the shepherd-athlete, combined, perhaps intentionally, with a hint in the countenance of the genial malice characteristic of the god.

Being an eminently popular god of varied functions, Hermes becomes a frequent figure of Greek art in its various branches. But the surviving representations of him that can be shown to be derived from the public worship are not numerous. The records of the aniconic period, to which his earliest history goes back, have already been discussed, and they have given us reason to believe that such mere fetich-things as the phallos or the pile of stones by the wayside were once erected as his emblems or as objects in which he was immanent. But the monuments that have come down to us do not exemplify this earliest era of his cult, but rather the next, which was advancing towards eikonism; and we have many examples surviving of the ‘terminal’ type, the bearded head of Hermes above a four-square shaft, in the centre of which a phallos is carved, as the mark of his fertilizing power originally, but later also as an ‘apotropaion’ intended to ward off the evil eye. The same type may have occasionally occurred in other worships, such as those of Dionysos and Priapos; but in the absence of any special feature which prevents us, we may safely interpret these as Hermes-columns; and their association with this god is often made clearer still by the ‘kerykeion,’ or herald's-rod, carved up one of the sides of the shaft.

It is hardly an exaggeration to say that, in the age of the classical lawyers, Roman commerce was mainly in the hands of slaves. The commercial importance of different slaves would of course vary greatly. The body-servant, the farm labourer, the coachman, have no importance in this connexion, and there were many degrees between their position, and that of a dispensator or steward, who seems often to have been allowed almost a free hand. The Digest gives us several striking instances. A slave might carry on a bank, with or without orders, the master's rights varying according as it was or was not with the peculium. A slave might be a member of a firm, and his master's notice to him, without notice to the other party, would not end the partnership. Even sale of the slave would not, in fact, end the firm: the new master would acquire the rights from the date of transfer, though as a slave's faculty is purely derivative the firm would be technically a new one.

A dominus can acquire or continue possession through a servus or ancilla. But possession differs from other rights in that it has an element of consciousness. A man may begin to own without knowing it, but he cannot ordinarily so acquire possession. Accordingly we learn that (apart from peculium) a man does not possess what his slave has received, unless and until he knows of it. When he learns the fact he possesses, and he is said to possess by his own animus and the slave's corpus.

We are told in the Sources that servorum una est condicio. This proposition expresses, in an inaccurate way, a fact;i.e that in general all slaves are in the same position, in that their faculties are derivative. The slave, as such, has scarcely anything that can be called a right, and the liabilities of most slaves are much alike. But whatever Justinian and his authorities may mean, there is no evident sense of the phrase in which it is exact. In social standing there is the widest difference between different slaves. In legal capacity they differ, if not so widely, at least considerably. These differences are however for the most part not due to any peculiarities in the slave, but result from something affecting the holder, or his title, or from something in the authorisation conferred on the slave. A slave with peculium is the same kind of slave as one without. So in the case of a derelict slave, or one pendente usufructu manumissus. But there are some cases which cannot be so explained away. Such are that of the statuliber who has a sort of incapacity to be jurally injured, though he is still a slave, and those of servi publid populi Romani,servi fiscales, and, possibly, servi municipii, who have privileges not distinguishable from property rights.

Real or apparent, inherent or resulting from their special relations with other persons, these distinctions need discussion: accordingly we shall consider the special cases in which the position of the slave causes exceptional results to flow from his acts, or from acts affecting him. As the cases are for the most part quite distinct, no attempt is made at anything more than rough grouping.

These praetorian actions appear to be a partial correction of what looks like a glaring injustice. By the civil law a dominus acquired freely through his slave, but was in no way liable on his transactions. Doubtless the injustice had not been so great as it might appear, for in earlier law the slave was not the important instrument of commerce he afterwards became. Moreover in sale to a slave the ownership did not pass till the price was paid, so that the vendor could recover the thing by vindicatio, while the dominus could not enforce the completion of an unfulfilled undertaking to the slave without tendering what was due. In fact a well-known analogous case suggests that the difficulty was the other way. When the lex Plaetoria allowed minors to set aside their agreements the result was that no one would deal with them. Here, also, this may well have been the real difficulty: if any commercial use was to be made of slaves, a remedy against the dominus was essential. So soon as these actions were evolved the slave became a much more useful person. He may be said to have fulfilled much the same function as the modern limited liability company. A person who has money to invest, and does not himself want to engage in trade, can invest his money in shares in such a concern. He runs a certain risk but he knows exactly how much he can lose.

SERVUS FUGITIVUS.

Broadly speaking a fugitivus is one who has run away from his dominus. The word is used, however, in two senses which must be kept distinct. One of the regular warranties exacted on the sale of a slave is that he is not fugitivus. This means that he has never been a fugitivus in the above sense. It is a breach of this warranty, if he be fugax, given to running away—which is itself a punishable offence. For the purpose of the peculiar incapacities and penalties we have to consider, it is necessary that he be in flight at the present moment, and this is what is ordinarily implied in the expression servus fugitivus. It is in connexion with sale that the private law deals most fully with these slaves, and it is there we must look for an exact answer to the question: what is a fugitivus? He is one who has run away from his master, intending not to return. His intent is the material point, a fact illustrated by two common cases. He runs away, but afterwards repents and returns: he has none the less been a fugitivus. He runs away and takes his vicarius with him: the vicarius is not a fugitivus, unless he assented, in full understanding, and did not return when he could. It is not essential that he be off the property of his master, if he be beyond control, and thus one who hides in order to run away when he can is a fugitivus. He does not cease to have been a fugitivus by renouncing his intention, e.g. by attempting suicide.

There are several types of case to consider.

I. Concubina. Justinian provided that if a man having no wife made a slave his concubine, and she so remained till his death, he saying nothing as to her status, she became free and her children ingenui, keeping their peculia, and subject to no patronal rights in the heres. This applied only if the will contained no provisions, e.g. a legacy of them, shewing a contrary intent. After varying legislation on legitimation3he further provided that if the dominus freed an ancilla and afterwards married her with written instrumenta dotis, the children already born should be ingenui for all purposes. It is idle to look for legal principle under these rules.

II. Cases of prima facie abortive gift. We have already considered the cases in which a beneficiary could be compelled to accept, so that, gifts took effect, and we shall soon consider the effect of refusal to carry out the gift after acceptance. Apart from this a gift failed if the gift or instrument on which it depended failed to take effect. But cases of exceptional relief were rather numerous. The following list cannot claim completeness.

1. (a) Relief against failure to enter under the will.

1. (i) An institutus enters ab intestato, omissa causa testamenti. The gift is good, retaining its modalities.

2. (ii) Suus heres institutus abstains. The gift is good if not in fraudem creditorum, which on such facts it is likely to be.

3. (iii) If the heres abstains for a price, he is compellable to buy the slave and free him.

4. […]

A gift of liberty by will is not necessarily absolute and immediate: it may be subject to a condition or deferred to a future day. Pending the event the man is a statuliber: we have already considered his position and have now to discuss the other questions affecting these modalities.

Where the liberty is deferred to a certain future time, it is said to be subject to dies certus. If the words ad annum are added, e.g. ad annum liber esto, they are construed as meaning “at the end of a year.” If the words are ad annos decem, they are treated as swpervacua. A gift of freedom intra annum post mortem entitles the donee to liberty at once. The rule is attributed to Labeo, and is declared to be justified by him as an inference from the rule that where the gift is: Let him be free si heredi intra decimum annum decem dederit, the man is free if he pays at once. It is plain that this does not justify the rule. The one rule says merely that to impose a time within which the condition must be satisfied is not to impose dies in addition to the condition: it leaves the choice of time within a certain limit to the slave himself. The other does not: it does not say who is to have the choice of time, and the actual rule is a case of favor libertatis. We saw that ad annum meant at the end of the year.

The Institutes tell us that all men are either slaves or free, and both liberty and slavery are defined by Justinian in terms borrowed from Florentinus. “ Libertas,” he tells us, “ est naturalis facultas eius quod cuique facere libet nisi si quid vi aut iure prohibetur.” No one has defined liberty well: of this definition, which, literally understood, would make everyone free, the only thing to be said at present for our purpose is that it assumes a state of liberty to be “ natural.”

” Servitus,” he says, “ est constitutio iuris gentium qua quis dominio alieno contra naturam subicitur.” Upon this definition two remarks may be made.

i. Slavery is the only case in which, in the extant sources of Roman law, a conflict is declared to exist between the Ius Gentium. and the Ius Naturale. It is of course inconsistent with that universal equality of man which Roman speculations on the Law of Nature assume, and we are repeatedly told that it is a part of the Ius Gentium, since it originates in war. Captives, it is said, may be slain: to make them slaves is to save their lives; hence they are called send, ut servati, and thus both names, serous and mancipium, are derived from capture in war.

It is not necessary to attempt the hopeless task of denning liberty. Justinian adopts from Florentinus the definition: Liberty is the natural capacity {facultas) of doing what we like, except what, by force or law, we are prevented from doing. This definition no doubt expresses certain truths. Liberty is “natural”: slavery is iuris gentium. It is presumed that a freeman can do any act in the law: his incapacity must be proved. The reverse is the case with a slave. But, literally understood, it would make everybody free. As a matter of fact all persons not slaves are free, and as we have arrived at a more or less exact notion of Roman slavery we may leave the matter there.

The conception of manumission needs some examination. It is not in strictness transfer of dominium. A man has no dominium in himself or his members. Nor is it an alienation of liberty. The right received is not that of the master, and the rule that a man cannot give a better liberty than he has is intelligible without reference to such an idea. Nor is it a mere release from the owner's dominium: that is derelictio, from which manumission differs in several ways. Dereliction does not make the man free, it merely makes him a res nullius. Moreover manumission leaves many rights in the master, and there is no such thing as partial dereliction. If it had contained a dereliction, then, since derelictio is purely informal, a manumission which failed for lack of form would have been a dereliction. But this was not the case.

To alienation of the master's property his consent was always necessary. With that consent, which might be by ratification, or by a general authorisation if wide enough in its terms, the slave could alienate anything. He could not of course make a cessio in iure, because this was in form litigation, but apart from that the form is immaterial. There is indeed little authority for mancipatio by a slave, but what little there is is in favour. Julian contemplates the transfer of proprietas in a slave, by a slave with authority, but it is possible that the text, which speaks of traditio, may have been originally so written, so that the reference would be only to Praetorian ownership. Of course the dominus could not authorise the slave to do what would have been unlawful had he done it himself. Thus a slave could not validly make a donatio to his owner's wife. Without authority, the slave was powerless: he could not transfer dominium. If he sold and delivered, possession passed but no more, and the taker, if he knew that there was no authority, could not prescribe, and was indeed a fur. Money lent, citra voluntatem, could be vindicated, as could money paid by a fugitive slave for the concealment of himself or his theft.

Similar rules applied where, having authority, he exceeded it. Where A owed B 10 ex fideicommisso and 10 on an independent obligatio naturalis, and a generally authorised slave paid 10 expressly towards the whole debt, 5 could be vindicated, as a general authority to pay is not held to apply to natural obligations.

This aspect of the Slave was necessarily prominent in the Law. He was the one human being who could be owned. There were men in many inferior positions which look almost like slavery: there were the nexus, the auctoratus, the addictus, and others. But none of these was, like the slave, a Res. Potestatis verbo plura significantur: in persona magistratuum imperium…in persona servi dominium. The slave is a chattel, frequently paired off with money as a res. Not only is he a chattel: he is treated constantly in the sources as the typical chattel. The Digest contains a vast number of texts which speak of the slave, but would be equally significant if they spoke of any other subject of property. With these we are not concerned: to discuss them would be to deal with the whole law of property, but we are to consider only those respects in which a slave as a chattel is distinguished in law from other chattels. From their importance follows the natural result that the rules relating to slaves are stated with great fulness, a fulness also in part due to the complexity of the law affecting them. This special complexity arises mainly from five causes, (i) Their issue were neither fructus nor accessories, though they shared in the qualities of both, (ii) They were capable of having fructus of kinds not conceivable in connexion with other res, i.e. gifts and earnings, (iii) The fact that they were human forced upon the Romans of the Empire some merciful modifications of the ordinary rules of sale, (iv) They had mental and moral qualities, a fact which produced several special rules, (v) There existed in regard to them a special kind of interitus rei i.e. Manumission.

BONA FIDE SERVIENS.

The expressions qui bona fide servit, and bona fide serviens are rather misleading. The bona fides really in question is that of the holder. This would be a priori almost certain (for it is scarcely conceivable that the classical lawyers should have made the animus of the slave decisive) and the texts leave no doubt. They are cited by Salkowski, who shews that bona fide possidere and bona fide servire are used interchangeably, and that there are texts which expressly make the bona fides attach to the possessor.

As to what is involved in bona fides a few words are necessary. Gaius tells us there must be a iustapossessio. This appears to mean that iusta causa is required. On the other hand it is immaterial that the slave is furtiims. So far as the bona fides itself is concerned, the texts give no indication that the words have any meaning other than that they bear in the law of usucapio. But just as a man may have bona fides and yet be unable to usucapt, because the thing is furtiva, so it is conceivable that one who cannot usucapt because his possession began in bad faith, may become a bonae fidei possessor for our purpose in the course of events. Broadly speaking a bonae fidei possessor is one who supposes himself to have the rights of owner, and whose acts will be regulated on that assumption. No man regards himself at the moment as a bonae fidei possessor.

Servus Communis

Regarded purely as a chattel, there is little to be said of the servus communis. The general principles of common ownership apply, and a few remarks will therefore suffice. He is the property of the owners in undivided shares, and possession of him by one of his owners, omnium nomine, is possession by all. A legacy of “my slaves” includes those in whom I own a share. They are reckoned, pro Falcidia, in the estate of each owner. The rights of ownership are necessarily somewhat cut down in view of the rights of other owners. Thus one of common owners cannot put the slave to torture, save in a matter of common interest. On the same principle, the actio servi corrupti is available to one master against another. The text appears corrupt, and there are signs of doubt, which may be due to the fact that the slave is the wrongdoer's own in a sense—a fact which is allowed to bar any action on servi cormptio, for receptio, i.e. of a fugitivus, against a co-owner. But even here Ulpian inclines to allow the action if the reception was celandi animo, though he quotes Julian as refusing it in any case. It is not easy to see why the relation makes any difference, since the act is presumably a furtum, for which Paul and Ulpian are clear that actio furti will lie against a co-owner. In all these cases an indemnity can be claimed by commwni dividundo, or, if they are socii, by pro sodow.