Introduction another’s power, captured the essence of one who

Introduction

Three features defined the Roman law of personal status. These were liberty (libertas), citizenship (civitas) and family (familias)1. The freeborn (ingenui) male citizen who was also sui iuris; that is, independent of another’s power, captured the essence of one who was able to benefit from the full range of rights proffered by the Roman legal system2. Beneath him there was a complex hierarchy, each subject to their own legal disabilities. These included, inter alia, the freed ex-slave (libertini), non-citizens (hostis/perigrini), and persons in another’s power (in potestate). Furthermore, there were significant legal and social distinctions between the genders3.

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Nor were these distinctions static. They evolved with time, to reflect the changing political, economic and social landscape of Rome. In what began with the overthrowing of the Monarchy in the early 5th Century BCE, Rome became a Republic founded on libertas4, a notion also found in modern European constitutions5 such as France6. By the time of Justinian (527–565 AD), the distinctions between ingenui and libertini were minimal, and women saw comparatively more rights than during the early Republic. Yet personal status remained important throughout ancient Roman, and distinctions were introduced just as they were eradicated, supporting the notion that hierarchy and subordination “were permanent features of Roman social and legal life.”7

Freeborn and Freed

A range of distinctions existed between ingenui and libertini. During the Republic and early Empire, freedmen were also split into three classes: “citizens”, “Junian Latins” and dediticii8. Each had their own rights and duties, though by the late Empire, Justinian had abolished the latter groups9. Thus, for the purposes of this discussion, I will focus on the manumitted slaves who acquired citizenship only.

The legal disabilities applied to freedmen may be summarised in brief. First, he was obliged to show respect (obsequium) to his former master or patron (patronus)10. This would, most frequently, include a duty to work or perform services (opera) for the patron11, to provide gifts (munera)12, and to maintain him if he fell on difficult times13. It might also entitle a patron to a freedman’s expertise. For if an intelligent ex-slave had received training whilst in potestate to become a successful tradesman14, doctor15 or entrepreneur16, he would prove a valuable asset to his former master.

Libertini also faced wider discrimination. In the early law, they were prohibited from marrying ingenui, although Augustus substituted this with the senatorial order17 and Justinian abolished the law altogether18. Neither could freed-persons run for public office, or stand for the Senate19, though this mattered little in practice20. Finally, there was a particular, social snobbery emanating from the elite classes. This is reflected in the famous depiction of the ex-slave, Trimalchio, in the Satyricon21, who, despite his wealth and success, retains a certain vulgarity as though a mark of his past.  

Thus, it is the opinion of some scholars22 that the lifelong connection between libertini and patronus meant that an ex-slave would never fully break free of the shackles of his servitude23. They take the fact that a freedman could be reduced back to slavery24, or even sent to the metal mines25, if he committed an act of vengeance against his patron, as evidence of this. Yet sources suggest, in practice, freedmen did not allow themselves to be limited by their past bonds. Knapp elucidates that “selected for a variety of survival and success skills, the typical freedman was multifaceted, socially savvy, and economically prepared.”26 In fact, such was the success of some ex-slaves that they would be the envy of ordinary freeborn persons27.  

Cicero’s ex-slave and trusted advisor, Tiro is one famous example of such a freedman who, following his patron’s death, worked to publish a number of his works and arrange his estate. Nor was he alone in this feat. Preserved epitaphs from the tombs of various freedmen, such as Eurysaces the Baker, depict their successes and achievements. These sources suggest that manumitted slaves, from the elite classes at least, were able to overcome the legal disabilities imposed on them.

In the late Empire, Justinian established the ius annuli aurei28,29,  which dissolved all legal disabilities associated with freedmen apart from those concerning patronage (salvo jure patroni)30. In this way, the distinction between libertini and ingenui had become minimal; and what determined an ex-slave’s future was not so much the law but his education, motivation, and entrepreneurship.

Women

As might be expected of any classical civilisation, the role and status of women in ancient Rome was foremost subordinate to their male counterparts. In the Digest, Papinian writes: “There are many points in our law…where…women are in a worse legal position than men.”31 And certainly, there were different expectations of the genders. Fidelity, chastity, and fertility were all qualities of the ideal Roman woman3233, and at varying points in Rome’s history, these were traits that were legally enforceable. Yet not all women were inhibited by the legislative disabilities imposed on them. Dodds envisions “wealthy, sui iuris widows with compliant tutors” as examples of females who were essentially, entirely independent34. Thus, the legal and practical distinction between the genders is observed to have varied greatly.

It is true that Roman women had a host of legal disabilities imposed upon them. For one, they were excluded from civil and public office35. They could not bring actions to court; nor act as guarantors or advocates for others36. They were also barred from the office of the banker, which was considered “masculine…work”37 and the senate too38. Furthermore, during the Republic, a free woman who had sexual relations with a slave might find herself relegated to slavery under the Senatus Consultum Claudianum of AD 5239, but the same did not apply to free men.

Another significant restriction to the rights of women was the requirement for tutelage, to authorise her transactions once she was sui iuris. To that end, whilst a woman might convey property informally, she was restricted from making a will, freeing her slaves, or carrying out a number of other formal acts without the approval of her tutor. Though this was surely restrictive if enforced, there is evidence to suggest that by the late Republic the requirement of a tutor had become a mere formality4041 that could, and was, easily circumvented by changing tutors when necessary. By Augustus’s reign, a woman could be released from requiring tutelage by having children (three for ingenui and four for libertini)42.

Indeed, amongst the wealthy, it is probable that the most intelligent and enterprising females were not inhibited by their gender. Cicero’s wife is a good example; she being the one to “raise funds for him” and manage his estate when he went into exile43. And these facts are underpinned by the context in which they exist. In comparison to the status of women in other ancient civilisations, the liberties in Rome were substantially greater44. Women participated in society and the lives of men in ways incomparable to in ancient Greece, and, what is more, as Beard notes, “sui iuris, an adult woman could own property…buy and sell…inherit or make a will – many of the rights that women in Britain did not gain till the 1870s”45.

Citizenship

There were a huge number of distinctions within the free citizen population as well as between citizens and non-citizens. These divisions gave rise to two civil wars which, in their conclusions, usually led to greater equality between the inhabitants of Rome and its territories. However, often, with the demise of certain distinctions came the genesis of new statuses, suggesting that ancient Rome was founded on a need for class division.

The first civil war arose in the 5th Century BCE, in light of the fall of the Monarchy. It came to be known as the Conflict of the Orders46, derived from the Latin ordo, meaning social class. The new Republic, supposedly founded on principles of libertas, instead divided citizens into nobility (patricians) and commoners (plebeians). Whilst the former lived in relative wealth, owning land, property, slaves and having influence on politics and legislation, the latter had no such rights47. Eventually, the inequality sparked strikes and political unrest, culminating in a number of concessions from the minority patrician class. Chief amongst them was the XII Tables, which elucidated fundamental laws to all-comers. By 287 BCE48 the war had virtually eradicated any legal distinctions between the classes, leaving only social snobbery in its wake.

The equality achieved by this conflict was short lived, however. Rome, in rapidly expanding its territories, had quickly instituted a new distinction between citizens and foreigners (peregrini)49. This was necessary to stop an influx of migrants from entering into Rome and diluting the wealth of its citizens. To this end, foreigners were typically subject to a range of legal disabilities, including a lack of freedom of movement50, and no full rights of commercium and conubium – the rights to trade and form contracts, and to enter into a civil marriage, respectively51. By 91 BCE the inequality had started a second civil conflict – the Social War. This ended with relative speed due to the offer of citizenship to all free persons who were prepared to put down their arms.

The distinction between peregrini and citizen became redundant with Caracalla’s Constutio Antoniniana in AD 212, which granted citizenship to all free inhabitants of the Empire. Though historians are unclear as to why exactly Caracalla enacted this law, the effect was immediate, with over 30 million provincials becoming Roman citizens overnight52. Thus, another distinction came to an end. And in its place, Caracalla’s grant gave rise to two new classes – the honestiores and the humiliores, somewhat reminiscent of the long abolished patrician and plebeian distinction.

 

Family

The division between persons sui iuris and persons alieni iuris is perhaps the greatest formal distinction in the Roman Law of Persons. Whilst the former was independent and free from another’s authority, the latter was in the power (potestas) of the paterfamilias53, the head of the household.  Being in potestate gave rise to a multitude of private, legal disabilities54. In the early law, one aliena iuris could not own property, nor marry without the consent of the paterfamilias. These two limitations allowed fathers, as they often were, considerable influence over their children even as they reached adulthood. As Johnston comments, “subordinate members of the Roman family, even though freeborn, lacked basic legal capacity in private law…they were little different from slaves…any capacity attributed to them belonged to their paterfamilias.”55

Indeed, in the early Republic, the paterfamilias had extreme and far-reaching rights over his family. He controlled, in a literal sense, the lives and deaths of those in his power56. For instance, he could sell his sons into slavery through noxal surrender (noxae deditio) if they had committed an illicit act (delictum) such as theft or damage to property57. By the late Republic however, these rights had been curbed considerably58.

Nevertheless, the limitations on ownership of property remained. In order to overcome this, two legal devices developed to permit children greater freedom. The first was the peculium, a fund legally owned by the paterfamilias but entrusted to the child to do with as he wished. The fund benefitted both parties, as it allowed the father to delegate businesses to his offspring whilst he was occupied elsewhere59, and, in practice, it gave children ownership of property. In the late Empire, Augustus introduced a new kind of fund – the peculium castrense which gave sons the right the keep earnings acquired during military service. This was taken even further by the peculium quasi castrense and the peculium bona maternal, in the 4th Century AD, which encompassed public service earnings and property inherited from the maternal side60.

Emancipation (mancipatio)61 was the second method of circumventing the problem of ownership. Through this, an adult alieni iuris could be freed by his paterfamilias62to make him sui iuris. There was no formal method to achieve this under the XII Tables, therefore a process was created by the jurists whereby a father could arrange to sell his son three times successively to emancipate him63.  

 

Conclusion

Personal status was hugely important in Roman society.

1 Paul du Plessis, Borkowski’s Textbook on Roman Law, (first published 1994, 5th edn, OUP, 2015)

2 David Johnston, The Cambridge Companion to Roman Law, (Cambridge University Press, 2015)

3

4 Titus Livius (Livy), The History of Rome, Book 2.1, (Tr. Benjamin Oliver Foster, Ph.D., Ed.) Sourced from: Accessed 12 January 2018. Livy mentions the word “liberty” seven times alone in this first paragraph. 

5 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

6 The French Constitution of 4 October 1958, Accessible at:

7 David Johnston, The Cambridge Companion to Roman Law, (Cambridge University Press, 2015)

8 William L. Burdick, The Principles of Roman Law and Their Relation to Modern Law, (The Lawbook Exchange Ltd., 2004)

9 Inst. 1, 5, 3

10 David Johnston, Roman Law in Context, (Cambridge University Press, 1999)

11 William L. Burdick, The Principles of Roman Law and Their Relation to Modern Law, (The Lawbook Exchange Ltd., 2004)

12

13

14 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

15

16

17

18

19 Paul du Plessis, Borkowski’s Textbook on Roman Law, (first published 1994, 5th edn, OUP, 2015)

20 Robert Knapp, Invisible Romans, (Harvard University Press, 2011), ch.5

21

22 William L. Burdick, The Principles of Roman Law and Their Relation to Modern Law, (The Lawbook Exchange Ltd., 2004)

23 Robert Knapp, Invisible Romans, (Harvard University Press, 2011), ch.5

24 Dig. 25, 3, 6; Code 4, 10, 1

25 Ulpian, Digest, Duties of the Prefect of the City, sole book, 10

26 Robert Knapp, Invisible Romans, (Harvard University Press, 2011), ch.5

27 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

28 William Smith, A dictionary of Greek and Roman antiquities, London: Taylor and Walton, 1842

29 Edgar S. Shunway, Freedom and Slavery in Roman Law, (University of Pennsylvania Law Review, Vol. 49, No. 11, Nov. 1901)

30 William Smith, A dictionary of Greek and Roman antiquities, London: Taylor and Walton, 1842

31 Papinian, Questions, book 31

32

33 See epitaphs in Jane F. Gardner, Thomas Wiedermann, The Roman Household: A Sourcebook, (Routledge, 2013), pp. 53

34 Julie Dodds, The Impact of the Roman Law of Succession and Marriage on Women’s Property and Independence, (Melbourne University Law Review, Vol. 18, December 1992)

35 Dig. 50. 17. 2, Ulpian On Sabinus

36 Dig. 50. 17. 2, Ulpian On Sabinus

37 Callistratus, Monitory Edict, book 1

38 Paul, Edict, book 17, 2

39 Kyle Harper, Slavery in the Late Roman World, AD 275-425, (Cambridge University Press, 2011), ch. III, This ended with Justinian in AD 533

40 Gaius, Inst., 1.190

41 Bruce W. Frier, Thomas A. McGinn, A Casebook on Roman Family Law, (Oxford University Press, 2004)

42

43 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

44 Sandra R. Joshel and Sheila Murnaghan, Women and Slaves in Greco-Roman Culture: Differential Equations, (Routledge, 2005)

45 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

46 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

47 Olga Eveline Tellegen-Couperus, A Short History of Roman Law, (Psychology Press, 1993)

48 There is some dispute about the exact date; Beard says 287 BCE, Tellegan-Couperus says 286 BCE

49 Daniel J. Gargola, The Shape of the Roman Order: The Republic and Its Spaces  *****************

50 Lina Girdvainyte, Roman Law, Roman Citizenship, Roman Identity? Interrelation between the Three in the Late Republic and Early Empire, (Masters Thesis, Leiden University, 2014)

51 Paul du Plessis, Borkowski’s Textbook on Roman Law, (first published 1994, 5th edn, OUP, 2015)

52 Mary Beard, SPQR, A History of Ancient Rome, (Profile Books Ltd, 2015)

53 Bruce W. Frier, Thomas A. McGinn, A Casebook on Roman Family Law, (Oxford University Press, 2004)

54 It is clear that postestas only applied in the private legal sphere, hence a magistrate who was in his father’s power would have no obligation to obey him in official, public matters. Pomponius, D. 16.9.)

55 David Johnston, The Cambridge Companion to Roman Law, (Cambridge University Press, 2015)

56 David Johnston, Roman Law in Context, (Cambridge University Press, 1999)

57 Eva Cantarella, Fathers and Sons in Rome, (The Classical World, Vol. 96, No. 3, Spring 2003)

58 David Johnston, Roman Law in Context, (Cambridge University Press, 1999)

59 Eva Cantarella, Fathers and Sons in Rome, (The Classical World, Vol. 96, No. 3, Spring 2003)

60 David Johnston, Roman Law in Context, (Cambridge University Press, 1999)

61 Gaius, Institutes, book 1

62 Gaius 1, 140, 141

63 David Johnston, Roman Law in Context, (Cambridge University Press, 1999)

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