로마매매법상 노예매춘금지조항

Abstract

The ancient Rome was a slave-owning society. The masters might stipulate a contractual terms for the sale of a slave, according to which the slave should be exported (ut exportetur), or manumitted (ut manumittatur), or not manumitted (ne manumittatur), or not prostituted (ne prostituatur). This article deals only with the last clause “ne serva prostituatur” in its usual typical forms. It shows that the Roman slaves were forcibly engaged in the prostitution organized and managed by a pimp (leno or lena). The clause was used alone, or with other covenants sanctioning the effect of its contravention. Typical additional clauses were those prescribing liberty to the prostituted slave-girl, or securing a manus iniectio or ius abducendi for the vendor, or a conventional penalty (poena) either by a stipulatio (Pap. D.18.7.6.pr) or a nude pact (pactum) (Cf. Pap. D.18.7.7). The first Roman jurist referring to these clauses is Massurius Sabinus who was active under Tiberius(14-37 C.E.) and the successive emperors (Pap. D.18.7.6.pr), but it is reasonable to assume that they had been used in the legal transactions much earlier. According to the legal sources, the combination of a prohibitive clause and a conventional penalty was usual in its frequency and probably the oldest in its age (Pap.-Sab. D.18.7.6.pr). The ius abducendi, the right of the vendor to take the prostituted slave-girl back, was developing simultaneously or a little later (Alex.- Hadr. C.4.56.1 [a.223]). We may suppose that it was already in a full shape when Hadrianus(117-138 C.E.) endorsed and authorized it with a full legal effect. The third clause vindicating liberty for the slave-girl forced to sell herself without preference (sine dilectu) seems to have developed from the legal practice of the imperial council declaring the afflicted person to be free (Pap.-Sab. D.18.7.6.pr). Then, it apparently became a convention to insert such a clause; some time or other, it was no more necessary to add this liberating clause to the prohibition of the prostitution, because the contravention of the prohibitive clause in itself brought on the liberty to her (Marcian. D.40.8.6; Alex. C.4.56.2 [a.223]; Iust. C.7.6.1.4 [a.531]). It seems that this liberty clause was older than the reservation of the manus iniectio. It is not easy to describe the exact lines of the development of these covenants, but it is without doubt that they got a strong support from the imperial constitutions which, favoring the liberty of the slave concerned (Cf. Paul. D.18.7.9), did play their important part to give them an exceptional “real” effect by urging surprisingly the successive buyers to conform to the clause, even if they did not know its existence (Mod.-Vespasianus[69-79 C.E.] D.37.14.7.pr; Paul. D.18.1.56; Alex. C.4.56.1 [a.223]). The slave-girl once liberated, the buyer who prostituted her, further, lost his legal position as her patron, according to the constitution of Septimius Severus and Caracalla (198 or 211 C.E.) (Paul. D.40.8.7; Ulp. D.2.4.10.1; Alex. C.4.56.1 [a.223]; Iust. C.7.6.1.4 [D. k. Nov. 531; C.6.4.4.2 [PP. k. Dec. 531]). The origin of the additional agreements to protect slave-girls from a forced prostitution by the new master goes admittedly back to the solemn oral declaration (nuncupatio) on the occasion of a mancipatio, a solemn form of conveyance of ownership of a res mancipi. The “real,” or better: “extended” effect of the clauses is also explained by this solemnity, but in the classical period it must have been supported by the supreme legal authority represented by the emperor, to be sure because of its exceptional character with the falling into disuse of the mancipatio as the social background. It is evident that the legal rules thus developed took only a small part of the steps which were intended to protect slaves in various situations of life, mostly taken under the more or less humanitarian government of the Pax Romana, but never envisaged abolishing slavery. It is for all that undeniable that these clauses, while preserving the interest of the slave-owning master class, were appreciably mitigating and ameliorating the situations of the slave-girls in the Roman society. The protective measures for the prostitutes themselves, freeborn or unfree, were, however, not a primary object of the legal policy even in the event of abolishing brothels at the time of Justinian (Nov. 18 [a.535]).