nale of rhe distinction nor do they attempt an explanation. They ne\ er trv to gi\ e a )Ustit'ication. I hev illustrate the distinction in text after text, Init with no sign that the\- understand the rationale or question its \ alidit\’, or its good sense. Nor one single text discusses the impact of the distinction or wh\' it is important- hence 1 gi\e no textual authoritx’. Bur the jurists cited in the Digf^st do treat the distinction as significant, riuis, the beginning of D. 9.2.9 from the jurist Ulpian: Lahco ninkcs this liisrinction it a midwife gives a drug from wliieh tlie woman dies: It she administers it with her own hands it would appear that she killed; hut it she gav e it to the woman tor her to take it herself an (icfio hi fiictiiin must he granted. This opinion is correct; tor she pro\ ided a cause of death rather than killed. 1. It someone administers a drug to ainone hv force or persuasion, either in a drink or h\ injection, or ruhs him w ith a poisonous potion, he is liable under rhe lex . {(juiliu. 2. Xeratius sacs that if a man starv es a slav e to death he is liable to an uctio in fiictum. 3. If when mv slave IS out riding vou scare his horse so that he is thrown into a river aiul dies as a result, Ofilius writes that an actio in factnmmust he giv en in just rhe same wav as when mv slave is lured into an ambush hv one man and killed h\ another. We are, of cour.se, here talking ci\ il, not criminal liahilit\’, and of killing a .slav e.’" Whatev er the original rationale of the distinction, in classical and Byzantine law it is simply ridicidous, and all the more so because the absurdity seems to go unnoticed. It is, in fact, a feature of law that should he stressed, that old law is accepted without question. 1 cannot leav e the lex Aquilui without the further ohservation, that the distinction is so bizarre that even Rtvman jurists might he puzzled, d'hus i'l. ^.219 relates that if one pushes another’s slave from a bridge or river-hank into a river and the slave drowns, it is easy to conclude that the pusher caused the death directly by his 20 According to 6. 3.213 the slave owner had a choice of bringing a criminal action on a capital charge or suing under the lex Aquilia. 53
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