Gallus listened as Cyprianus made his opening remarks. The three principal players—Gallus, Vitulus, Cyprianus—had experience working with each other in the courts. Each knew what to expect from the other. None of them, most certainly Tiberius Gallus, was under any illusion that this case would be easily won.

Rising to his feet, Gallus saluted Cyprianus as Iudex. Then, turning to Quintus Flaminius Vitulus, he nodded, smiling slightly at his opponent, colleague and friend. Let’s see if I can even up the score this time, old chum. Turning now to the jurors, Gallus nodded to them and began his case.

“Fellow Citizens, men of the Jury: Rome has charged you with the sacred task of upholding her law. Today you will hear the story of an inept slave who caused considerable damage and suffering through his inattention to detail when working with that most dangerous of substances, molten lead. You will also hear the story of a man who over-reacted to this tragic accident by usurping Roman Law and engaging in an act of cruel revenge against property of which he had neither dominus legitimus, nor proprietas. He did so in direct violation of the Lex Aquilia, which has been on the books for nearly two hundred years.

“Before I delve too deeply into the details of the case and their corresponding points of law, let me say something about the plantiff in this case, Bilbao Balbus. He is a Spaniard, and we are at war with Spanish rebels. He is a well-respected merchant; many Knights have business arrangements with him, and he has a reputation for efficient and honest dealings. I ask you to set aside, for the moment, any prejudices you may have against Spaniards due to current events in Hispania. When you look here at Balbus, see not only a Spaniard. See rather a man who has thrown in his lot with Rome, does honest and profitable business with Rome, and who now turns to Rome and her Roman Law, fully confident that the Law, which is no respecter of persons, will treat him fairly and equally.

“Now, friends, the details of the case.

“Titus Vitulus owns a metal foundry specializing in lead work. Balbus, a merchant from Further Spain, rented his slave, Caudius, to Vitulus four days a week as part of the foundry's work force. This labor was exchanged for a discount on lead pipes which Balbus exports back to Hispania. Caudius was a hard worker, but occasionally lax in following the safety precautions--such as they were--in the foundry. Vitulus had to frequently correct Caudius, and at times the discipline was harsh. Balbus didn't contest these disciplinary actions, believing as he did that it would make Caudius a better worker and more valuable servant. On the day of the incident, Caudius was part of a two man team carrying a cauldron of molten lead suspended beheath a pole, from the furnace to the pipe molds. Caudius tripped, and the molten metal splashed over the lower portion of Plumbarius, a slave belonging to Vitulus, who is one of his most skilled leadworkers.

“Plumbarius was burned horribly, and it appeared he would die. In a fit of rage, Vitulus had Caudius crucified on the spot, crucifixion being a punishment of last resort for an unruly or rebellious slave. Balbus, as you might imagine, is furious; Caudius was his property, not that of Vitulus. He, Balbus, and he alone should have been the one to determine the proper punishment for Caudius.

“Plumbarius survived, though he is now maimed and incapable of performing all the work tasks in the foundry he once did so aptly for his master.

“And thus here you sit, because Balbus is bringing suit against Vitulus for illegally crucifying his slave, and is seeking damages only. I say ‘damages only’ because under the Lex Aquilia, it is possible to both sue for damages and prosecute for a capital offense! Balbus, however, is a reasonable man and recognizes the seriousness of his slave’s actions. Truth be told, Balbus probably would have nailed the fellow up himself, had he but been given the chance. But he was not given the chance, despite the fact that Caudius was, in every sense of the law his property, not that of Vitulus.”

Gallus paused, taking time to briefly examine some minor feature in the weave of his toga, allowing his words to sink in for a moment before he continued.

“Now, let us examine what the Law has to say on the subject.

“Balbus was clearly the dominus legitimus, the legitimate lord and owner of Caudius. Caudius was born into slavery jure gentium; his slave mother had been the possession of Balbus for many years prior to his birth. There is no question of Caudius’ servile status, and that he was completely and legally the property of Bilbao Balbus.

“According to the strict principles of our Roman Law, it is a clear consequence of the relation between Master and Slave that the Master can treat his slave as he pleases; he can sell him, punish him, and even put him to death. Indeed, when we apply the term Dominium--ownership—with reference to a slave, it is clear that the slave is merely a thing or object of ownership. We also use the term potestas which applies to the master’s power over the slave, the same word we use to express a father’s power over his children.”

Dividing his gaze between Cyprianus and the jury, Gallus continued. “Clearly…clearly, this slave was the property of Bilbao Balbus. Clearly it was Balbus and Balbus alone who possessed Dominium and Potestas over this clumsy slave, and it was Balbus and Balbus alone who had the right under Roman Law to punish this slave as he saw fit.”

Gallus was now directly in front of the table where Vitulus the Advocate sat with Vitulus the Defendant. Gallus resumed in an easy conversational tone.

“It was this man, however,” making a careless gesture toward Vitulus the Defendant, “who saw fit to drag Caudius away from the scene of the accident, scourge him and crucify him, rather than attending to the serious injury to his own slave. To willfully destroy property that was not his own.”

Now a harsh tone replaced the conversational one as Gallus stood squarely before the defendant and locked eyes with him. “This man, enraged at his own inability to supervise his work force, sought to assume the mantle of ‘Dominus’ and ‘Potestas’ over a slave not his own, a slave on loan to him by another! There was no urgency to the situation which required immediate punishment of that slave…other than the urgency to satisfy this man’s uncontrollable rage!”

Adopting once more a conversational voice, Gallus moved toward the jury to resume his address. “Slaves are protected against injury from other persons. Under the provisions of the Lex Aquilia of AUC 467, if a slave is killed, the master can sue for damages, or even prosecute the killer for a capital offense! The lex is applied whenever a person is neglectful and acting intentionally. Crucifixion in not an unintentional act, to be certain, (‘Whoops! Just crucified a slave by accident…I HATE that when it happens’)and Vitulus certainly neglected to remember who the true owner of the property was!”

Gallus looked over his shoulder at Quintus Flaminius, smiled and winked. “Ah, but what about the argument my opponent is about to make concerning Usus Fructus?” Turning back to the jury, “You know…Usus Fructus: the right to enjoy the fruits of one person’s labor or land while the ownership belongs to another. It’s a very common practice, well-accepted. Vitulus called upon its provisions in his successful defense of his land dispute case a few days ago.

“Under the provisions of Usus Fructus, Balbus is the proprietas-owner of the thing used—in this case the slave Caudius. Vitulus as the Fructuarius--the chap who uses the thing—is entitled to the fruits of the labor. Up until the time of the incident, this arrangement between Balbus and Vitulus had been a “fruitful” one indeed; both men were making money.”

Gallus ended the last sentence as if he had ended his argument. He bowed to defense, judge and jury and was nearly back to his seat when he suddenly turned as if remembering something, and once again addressed the jury.

“Oh, yes! And there’s this: Under the provisions of Usus Fructus, the Fructuarius--Vitulus the Defendant and metal worker, mind you—was bound not to injure the property so used. As with quarries, farm land, or mines, he could work the thing for his benefit, if he worked it properly. The Fructuarius could make such changes or alterations in the thing used as would improve it, but not such as would in any way deteriorate the thing!”

Gallus hesitated a moment, his lower lip jutting out in an over-obvious pout. “Now I am not a great authority on what makes a slave serviceable, nor am I a physician….BUT! I would think that flaying open the back of the thing used—the res fructuaria, driving iron spikes through its hands and feet whilst affixing it to a cross, and then breaking its legs while so affixed would not, not! constitute any reasonable man’s definition of making ‘such changes or alterations in the thing used as would improve it!!’”

Heaving an audible sigh, Gallus made his concluding remarks.

“So then, you men of the jury, let us review the seven facts in this case and the law pertaining to them:” Gallus emphasized each point as he made it by extending one of the fingers on his hands to count them out.

“First: That the slave Caudius is—was—the sole property of Bilbao Balbus.

“Second: Balbus loaned the slave Caudius to Titus Vitulus under the provisions of Usus Fructus to work in his foundry, with a clear expectation to have his property returned in at least its original condition.

“Third: That the slave Caudius caused an unfortunate accident seriously injuring a valuable slave belonging to Vitulus. Today’s trial could have been about Vitulus seeking damages from Balbus, but it is not, because Vitulus took the law into his own hands.

“Fourth: Vitulus, in a fit of rage, crucified the slave Caudius, an act of willful destruction of property belonging to another, certainly undertaken without that owner’s consent.

“Fifth: Vitulus, by his act of wrongful crucifixion, violated the provisions of Usus Fructus by irretrievably damaging the property loaned to him.

“Sixth: That Vitulus, by killing another man’s slave, is guilty of violating the Lex Aquilia. This was not an act of ‘self defense’ by any means; the damage to his own slave was already done, and the molten lead once cooled had no further power to harm. The trembling Caudius, his act of oafishness complete, was no longer an imminent threat to anyone. Vitulus had right to seek recompense for the damage done to his slave, certainly. He had no right whatsoever to kill another man’s slave.

“Finally, Seventh: That Vitulus, clearly guilty of wrongfully killing another man’s slave under the Lex Aquilia, is subject to the penalty not only of paying the cost of the dead slave, but is also technically liable to face capital charges. The wronged party—Balbus—generously waives any rights to capital prosecution which he might have, but seeks only monetary recompense for his property thus destroyed.”

“What recourse do we have?” asked Gallus, now back behind his table, and about to resume his seat next to Balbus. “Two separate provisions of law, that of loaned property in general and that of wrongfully executed slaves in particular, have been unmistakably violated. The jury’s only recourse under Roman Law is to find for Balbus, the wronged property owner in this case.”

“I rest my case.” Bowing to defense, jury and iudex, Gallus resumed his seat, and awaited the response of Quintus Flaminius Vitulus.