non-manifest theft, with regard to the penalty but so far as the sources go the jurists never asked why, and the basis of the distinction was never clear. But, to return to the lex Aquilia; why was the measure of damages the highest value the slave or animal had in the past year? It is reasonable to suggest that in an early agricultural society, the decision was rational. The value of a slave or animal would vary according to the season. In winter, slaves and oxen could do less work. The chances of illness or death of slaves and herd animals alike would also be greater. To judge the loss to the owner only by the time of killing or when the action was decided would not necessarily properly compensate the owner.105 Still, the reason for the terms of the law is never made express, and it is never discussed or commented on by the armchair jurists. This is truly remarkable. Jurists, as jurists, were not interested in what happened in court, in systematization of law, and in law reform by legislation. Interpretation was their business. What makes their attitude to the lex Aquilia particularly striking is not just that the valuation of the damages soon appeared to cause absurd problems, but that the imperial jurists were often political bureaucrats - Julian, Ulpian, Paul, Papinian, for example - yet they sought no answer in a governmental solution. The jurists are, nonetheless, aware of the problems and to some extent they, especially perhaps Julian, try to address them, but scarcely openly. The most revealing text is from Julian, Digest, book : D. ..: 105 Still on this argument, a more rational measure of damages would have been the amount needed to acquire a replacement. . If a slave who has been mortally wounded has his death accelerated subsequently by the collapse of a house or by shipwreck or by some other sort of blow, no action can be brought for killing, but only as if he were wounded; but if he dies from the wound after he has been freed or alienated, Julian says an action can be brought for killing. These situations are so different for this
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