Doctors practice their profession by relying on the most intimate level of trust.

They are allowed a level

of access to the bodies of strangers not even permitted to family and lovers. Patients offer themselves
up to drugs and the knife in the hope of a healthier future with only money and fides that most Roman
of relationships acting as collateral. In ancient Rome, the anxiety ran deeper. Doctors were often
enslaved or formerly enslaved, sometimes by their own patients. The elite preference for Greek-
identifying physicians if anything, exacerbated this anxiety.

The doctors we find in Roman law must be read in context: professionals operating under intersecting
burdens of class and ethnicity that created, among those in control of the law, an especially distrustful
attitude. In that context, the persona of the doctor as he or she appears in the many jurists from a wide
span of Roman history quoted in the Digest is hearteningly positive. The cases Ill discuss today
represent rare deviations from this norm: most of the time, the doctors youll meet in the Digest are
reliable professionals being granted freedom, immunities from burdensome obligations, and legal
shields to enable them to get on with the business of healing.

Thats the disclaimer. On to the cases at hand.

We will begin with the area of modern law that is now most closely associated with medical practice:
tort law. In Rome, the Lex Aquilia was used to regulate damages caused by a human agent. It was
enacted as a plebiscite sometime in the mid-3rd century BCE, and Ive given you what survives of that
original law in Handout 1a and 1b.

There are two features of Aquilian liability that have direct bearing on medical practice: First, the
limitations created by the way Roman law defines slavery. As one Jurist points out when discussing
pauperies, or damage caused by a domesticated animal (bear attacks are specifically not covered), a
human body that has a purchase price is an enslaved body. Therefore, to put a price tag on a free body
is to treat it as a slave body. Although the jurist goes on to allow for compensation for lost wages and
medical expenses, this need to protect the institution of slavery keeps the Lex Aquilia from having the
same punitive force that modern malpractice suits carry. This is why most of the damaged bodies
discussed in the lex Aquilia are enslaved.

The second feature of this law relevant to medical practice, is the way in which drugs put distance and
deniability between a perpetrator and victim. The formalism of Roman Law, while not without some
nuance, poses a slight barrier at the outset. The Lex Aquilia was written to fit a scenario in which an
actor causes direct, physical damage to property, regardless of intent. But when there is distance
between actor and damage, matters are complicated, as Celsus explains in handout 2.

Doctors generally dont physically put drugs into the patients body, but rather rely on the patient to
follow directions. Further, the doctor isnt always the person who prepared the medication, but rather
the pharmacist. This means that in order to bring an Aquilian action, the plaintiff would need granted an
actio in factum, or equivalent action. What this meant on a practical level is unclear; its reasonable to
imagine that an in factum case would take more time to gain the praetors initial approval before the
accusation was made public and a court date set. There is no way of saying how much of a barrier to
justice this was in practice; I suspect a minor one, given the lengthy laundry list of actiones in factum
that accrue in book 9. Still, minor hassles can discourage creative litigation in a way that becomes
relevant to our first case, in handout 3.
It is likely no coincidence that the example Labeo chooses to illustrate his point involves an obstetrix, or
female physician specializing in gynecology and obstetrics. Labeo, a jurist with ties to both Julius Caesar
and Augustus, writes in a time rather infamously preoccupied with the behavior of women sexual
behavior especially. And, of course, obstrices would regularly be providing contraception and abortion,
both of which were primarily accomplished through pharmacy. The most effective measures were also
dangerous, and recognized as such. Labeos interpretation extends the lex Aquilia by means of an actio
in factum to cater to the preferences and concerns of the elites of the time no surprises there. Indeed,
given Labeos adherence to the Proculan juristic school; a movement in legal scholarship of the early
Principate that favored broader interpretations of existing laws, in opposition to the Sabinian school,
which favored a stricter, more literal, and traditional approach to the law. Labeo is behaving as a
Proculan by granting this actio in factum, and behaving like a good Augustan partisan in supporting the
regulation of gynecological pharmacy. However, I also see evidence here that not every Jurist would
have supported this actio in factum. For this question to arise in the first place, there must have been
some who argued that Aquilian liability could not extend so far as to hold medical practitioners liable for
damages inflicted in the course of treatment Sabinians, most likely. We may see here the faint traces
of an active legal struggle over the control of womens bodies, a battle that certainly was being waged
outside of courtrooms during the early Principate. And in the Supreme Court today.

But this now brings us into territory more native to Roman criminal law, and our second named statute,
this one passed by Sulla during an infamously productive period in 81 BCE. The Lex Cornelia de Sicariis et
Veneficis, unlike the Lex Aquilia, targets intent to kill above other concerns. Sulla seems to have had
bigger fish to fry than Greek doctors the law itself seems aimed (tellingly) at roving individuals or gangs
armed with intent to kill. The difference, it seems, between Sullas henchmen and his rivals is the all
important iniuria legal killing is just fine. But the test of this law is not an actual killing, as in the Lex
Aquilia, but the intent to kill; Murder in the first, if you will.

All Sullan snark aside, this law does include rules covering poison as well as roaming-while-armed. Sulla
seems to have been a thorough sort of person. This brings us to handout 4, in which the law first takes
care to specify malus poison, prompting our jurist to explain that this is meant to differentiate between
healing drugs and harmful drugs. I am not convinced Marcian has read the dictator correctly, but his
comment speaks to a more pressing issue in legislating drugs. It is difficult to judge intent in the case of
pharmacy, just as it is difficult to establish responsibility. I think it significant that this exemplum involves
yet another female medical provider. The particularly harsh verdict one that soundly fails the Lex
Cornelias test of intent! is a particularly glaring example of anti-woman bias.

However, I would like to move on to a less obvious aspect of this law by drawing your attention to the
last sentence of handout 4, where there are listed a handful of items subject to a certain level of legal
control. The result of a sentus consultum, even! The items listed are all toxic, and all regular parts of
ancient pharmacy and listed in Pliny the Elder, despite what my favorite equestrian says later, in
handout 6. Included are painkillers, hypnotics, blistering agents, and the queen of poison herself
Aconite! But I find the last and specially marked item id, quod lustramenti causa dederit cantharidas,
pride of place here, as it points to another moral panic of the Imperial period: aphrodisiac poisons.

The oil excreted by the cantharis beetle causes blistering to human skin, and was useful for clearing a
variety of skin problems. However, it is famous for its other, riskier use. One of the side effects of
cantharis poisoning caused by taking even small amounts internally or through mucus membranes is
a rise in blood pressure. This means that, in the process of being poisoned, erectile dysfunction can be
overcome. The risks were well known in antiquity Pliny, in handout 6, seems to think his audience all
know about what happened to Lucullus and even today its one of the more recognizable items in
ancient pharmacy to modern eyes under its other name, Spanish fly. Indeed, the dangers seem to add
to the drugs legend, even in modernity. I have provided the highlights of a very worrying google
search as handout 5a. Youre welcome.

Such publicity might have done more to encourage cantharis experimentation than discourage it, with
the collateral risk of a death that would be both painful and humiliating. The senatus consultum applies
pressure to the suppliers, and might not have come as a welcome decree to the doctors and
pharmacists supervising cantharis use. Let us remember that many of these people were enslaved, and
many more practiced under the considerable pressures of money and social obligation. The Law did not
oblige such people to perform illegal acts when ordered, but it is difficult to imagine what just say no
would look like in this environment. Perhaps the senatus consultum empowered more suppliers to resist
their patients demands but I am less than optimistic.

That lack of optimism derives, in part, from a case that Galen mentions in Antecedent Causes, number 7
on your handout. I approach this anecdote with some skepticism poison-happy stepmothers are
something of a trope in the literature of Roman moral panic but Galen presents it as fact, and the legal
aspects resonate neatly with the lex Cornelia as interpreted by Marcian. The doctor, who was separated
from the poisoning by several intermediaries, was condemned along with everyone involved. Galen
doesnt specify what, exactly, the doctor was condemned to, but let us hope for his sake that it was
temporary exile. That, however, isnt Galens point. Instead, he applies some precision sophistry to the
matter, invoking the authority of Erasistratus to argue that doctors dont kill people poison kills
people.

While it may seem the sort of argument unlikely to win Roman hearts and minds, there is a surprisingly
similar train of thought to be found in none other but Pliny the Elder. Pliny, an author who has some
very sharp opinions about Greek doctors avarice and homicidal tendencies, is willing to blame cantharis
our friend the Spanish Fly rather than an Egyptian doctor for the death of the equestrian Cossinus.
Yet, not only did the doctor provide a dangerous drug, but he botched the dosing directions in rather
mind-boggling fashion! Any competent physician (or equestrian polymath) would know that cantharis
should be for external use only. To order someone to drink a toxic substance one of a select list named
in the senatus consultum, no less should have put this doctor squarely in Plinys crosshairs, but
instead, he frames this as the actions of a rogue drug. It seems that Galens reasoning isnt quite as
unusual as it might seem, if Pliny is also swayed by it in this moment.

(As an aside, I want to be clear that I dont mean this as a criticism of Pliny as a thinker or author. To the
contrary, I find this a revealingly human moment, in which his opinions are resting on a shifting base of
bias and cultural conditioning. Pliny, like the rest of us, can vary in when and how and why he chooses
his targets.)

I include handout 9 as a final example of moral concerns causing a jurist to ignore the Lex Cornelias test
of intent to harm. Not only does it do that, but it also criminalizes standard and common aspects of
medical care. Abortion, although controversial, was discussed frankly in the medical texts of the first
centuries CE. This particularly harsh opinion, if applied, would have ruined the career of, for instance,
Soranus of Ephesus. I know of no actual case in which a doctor was exiled, sent to the mines, or
executed for administering abortifacients. That said, I find this passage, and those that preceded it,
indicators that doctors specializing in sexual health would have to be particularly cautious of the law.

The final two cases are the sort of scenarios that are particularly evocative of how different medical
practice would have been in ancient Rome. In handout 10, an enterprising free doctor is making creative
use of the law of obligations the rules by which patronage functioned, and through which creating
freedmen from slaves was incentivized. It is also an old case; Alfenus Verus dates to the 1st century BCE!
So this reflects conditions of employment that were in place while the Hellenization of the Roman
medical marketplace was still ongoing, even as it renders a verdict that, to me, seems much less
sympathetic to slaves and freedmen than Imperial legislation.

Here, something has gone awry with the way in which Roman law incentivized freeing slaves. Given
references elsewhere to doctors seeking financial support from owners and patrons for their medical
practices, its reasonable to believe that owning an enslaved doctor was not much of a cost saving
measure. Other passages discuss freed doctors with what is, in effect, a mortgage on themselves, a
situation in which the doctor is freed now, but must still work off the balance of his value, or risk re-
enslavement. Even doctors who have paid for themselves would have owed certain favors to their
patron, or risk the penalties for ingratitude.

This is likely why the freedmen in this case are complying albeit grudgingly with demands that seem
outrageously unfair to modern eyes. Theyre technically free men, but this is a job they just cant quit. It
is also why Verus delivers the anemic concessions that he does. If he were to release these freedmen
from their obligations, then the precedent could apply to other professional freedmen. It would remove
an incentive for owners to train their slaves to perform services vital to the ancient city, and it would
likewise discourage owners from freeing such slaves. Why would you free someone who would become
your competition? This time, the doctor not only escapes punishment, but is vindicated in his abuse of
his patrons rights. I really hate this guy.

The final case in handout 11 is, to me, the symptom of a glaring legal loophole in the laws we have been
examining. Aquilian liability limits the sorts of damages you can seek for damage to a free persons body.
Cornelian liability requires (or should require) the intent to kill. So what happens when the doctor
harms, rather than kills, a free patient?

Our doctor is, indeed, a devious fellow, extorting money from patients by making their conditions
worsen in order to squeeze them dry. Here is the sort of doctor Pliny the Elder objected to the most; a
callous, devious sociopath out to cleverly separate Romans from their money. It is a creative strategy, to
say the least, whether it is a hypothetical case constructed from Roman paranoia or the only traces of an
actual case that went before a provincial governor. But it also illustrates the reason I find the Digest so
compelling. Step by step, Roman Law like Rome itself stretched and extended to cover new territory,
and to inspire creative misuse that, in turn, spawned still more legislative expansion. Perhaps we owe a
debt of sorts to the sparring matches between doctors and legislators. Well behaved doctors dont
create legal precedents.