And one should remember that Roman law is the most celebrated system of private law: that is one reason for my choice of topic. Indeed, without that reason, no other would suffice. Chapter of the lex Aquilia as it has come down to us contains a description of the measure of damages, at D. ..: I have given the date as around B.C. because that is indicated by Theophilus, Paraphrasis .., and there are no counter-indications.103 Theophilus relates it in time, but not in substance, to a secession of the plebeians. We have no indication in the Roman sources for the reasons behind the valuation being the highest value in the past year. This, it should be stressed, is typical. The jurists often seem uninterested in the rationale of a rule. Thus, the lex Falcidia of B.C. enacted that if legacies exceeded three-quarters of an estate they would be cut downpro rata.104 Clearly, the intent behind the law was to persuade the heir to accept the inheritance because otherwise the will would fail. But the surrounding circumstances are never discussed. The TwelveTables of around/B.C. made a distinction between furtum manifestum, manifest theft, and furtum nec manifestum, The lex Aquilia refers to “whatever was the highest value of the slave during the year.” This clause contains the mode of valuation of the damage that has been done. . Now the year is reckoned backward from the time when the slave was killed; but if he was mortally wounded and later died after a long interval, we shall reckon the year, according to Julian, from the time he was wounded, though Celsus writes to the contrary. . But are we valuing only his body, how much it was worth when he was killed, or rather how much it was worth to us that he should not be killed? We use this rule, that the valuation should be what he was worth to the plaintiff. 103 See, e.g. B. Beinart, ‘Once More on the Lex Aquilia’, Butterworths South African Law Journal (1956), pp. 70ff. contra, A.M. Honoré, ‘Linguistic and Social Context of the Lex Aquilia,’ Irish Jurist (1972), pp. 183 ff. 104 See, e.g. W.W. Buckland, Textbook of Roman Law, 3d ed. edit. P. Stein (Cambridge, 1963), p. 342; Alan Watson, The Spirit of Roman Law(Athens, GA, 1995), pp. 68 f.
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