“All law,” says the precise Gaius, “pertains to persons, to property, or to procedure.”3 The word persona had signified an actor’s mask; later it was applied to the part played by a man in life; finally it came to mean the man himself—as if to say that we can never know a man, but only the parts he plays, the mask or masks that he wears.
The first person in Roman law was the citizen. He was defined as anyone who had been accepted into a Roman tribe by birth, adoption, emancipation, or governmental grant. Within this franchise were three grades: (1) full citizens, who enjoyed the fourfold right of voting (ius suffragii), of holding office (ius honorum), of marriage with a freeborn person (ius connubii), and of engaging in commercial contracts protected by Roman law (ius commercii); (2) “citizens without suffrage,” who had the rights of marriage and contract, but not of voting or office; and (3) freedmen, who had the rights of voting and contract, but not of marriage or office. The full citizen had, furthermore, certain exclusive rights in private law: the power of the father over his children (patria potestas), of the husband over his wife (manus), of an owner over his property, including his slaves (dominium), and of a freeman over another by contract (mancipium). A kind of potential citizenship, called Latinitas or ius Latii, was conferred by Rome upon the free inhabitants of favored towns and colonies, whereby they acquired the right of contract, but not of intermarriage, with Romans, and their magistrates received full Roman citizenship upon completing their terms of office. Each city of the Empire had its own citizens and conditions of citizenship; and by a unique tolerance a man might be a citizen—and enjoy the civic rights—of several cities at once. The most precious privilege of a Roman citizen was the safeguarding of his person, property, and rights by the law, and his immunity from torture or violence in the trying of his case. It was the glory of Roman law that it protected the individual against the state.
The second person in Roman law was the father. The patria potestas had been weakened by the spread of law into areas formerly governed by custom; but we may judge its surviving force from the fact that when Aulus Fulvius set out to join Catiline’s army, his father called him back and put him to death. In general, however, the power of the father declined as that of the government rose; democracy entered the family when it left the state. In the early Republic the fathers had been the state; the family heads formed the Curial Assembly, and the clan heads probably constituted the Senate. Rule through family and clan diminished as population became more abundant and diverse, and life more mobile, commercial, and complex; kinship, status, and custom were replaced by contract and law.4 Children won greater freedom from their parents, wives from their husbands, individuals from their groups. Trajan compelled a father to emancipate a son whom he had maltreated; Hadrian took from the father the right of life and death over his household and transferred it to the courts; Antoninus forbade a father to sell his children into slavery.5 Custom had long since reduced the use of these old powers to rare occurrences. Law tends to lag behind moral development, not because law cannot learn, but because experience has shown the wisdom of testing new ways in practice before congealing them into law.
The Roman woman gained new rights as the man lost old ones; but she was clever enough to disguise her freedom under continuing legal disabilities. The law of the Republic assumed that she was never sui iuris, “of her own right,” but always dependent upon some male guardian; “according to our ancestors,” said Gaius, “even women of mature age must be kept in tutelage because of the lightness of their minds.”6 In the later Republic and under the Empire this legal dependence was largely annulled by feminine charms and willfulness, abetted by male susceptibility and affection. From Cato the Elder to Commodus Roman society, legally patriarchal, was ruled by women, with all the graceful mastery of Renaissance Italian or Bourbon French salons. The laws of Augustus made some obeisance to the facts by releasing from tutela any woman who had borne three legitimate children.7 Hadrian decreed that women might dispose of their property as they liked, provided they obtained the consent of their guardians; but actual procedure soon dispensed with this consent. By the end of the second century all compulsory tutelage was ended in law for free women over twenty-five.
The consent of both fathers was still required for legal marriage.8 Marriage by confarreatio was now (A.D. 160) confined to a few Senatorial families. Marriage by purchase (coemptio) lingered as a form; the bridegroom paid for the bride by weighing an as or an ingot of bronze in a scale before five witnesses, her father or her guardian having consented.9 Most marriages were now by usus, i.e., cohabitation. To avoid falling under the manus or proprietory power of her husband, the wife absented herself three nights in each year; thereby she retained control of her property, excepting her dowry. Indeed, the husband often put his property in his wife’s name to avoid suits for damages or the penalties of bankruptcy.10 Such marriage sine manu could be ended by either party at will; marriage by other forms could be ended only by the husband. Adultery was still a minor offense in the man; in the woman it was a major offense against the institutions of property and inheritance. But the husband no longer had the right to kill his wife taken in adultery; this right was now vested technically in her father, actually in the courts; and the penalty was banishment. Concubinage was recognized by the law as a substitute for marriage, but not as an accompaniment to it; and a man could not legally have two concubines at once. Children by a concubine were classed as illegitimate and could not inherit—which made concubinage all the more attractive to men who liked to be courted by hunters of legacies. Vespasian, Antoninus Pius, and Marcus Aurelius lived in concubinage after the death of their wives.11
The law struggled to encourage parentage among the freeborn, but with negligible results. Infanticide was forbidden except in the case of infants deformed or incurably diseased. The detected procurer of abortion was banished and lost part of his property; if the woman died he was to be put to death;12 these laws, of course, were largely evaded then as now. Children of any age remained under the authority of the father except when thrice sold by him into bondage, or when formally emancipated, or when the son held a public office or became a flamen dialis, or when a daughter married cum manu or became a Vestal Virgin. If a son married in the lifetime of his father, the patria potestas over the grandchildren, resided in the grandfather.13 By the legislation of Augustus the earnings of a son in the army, in public office, in priestly orders, or in the liberal professions were freed from the old rule that such gains belonged to the father. A son might still be sold into bondage (mancipium); but this differed from slavery (servitus) in leaving the bondsman with his former civic rights.
The slave had no legal rights whatever; indeed, Roman law hesitated to apply the term persona to him and compromised by calling him an “impersonal man.”14 It is only by a considerate error that Gaius discusses him under the law of persons; logically the slave came under the rubric of property (res). He could not own, inherit, or bequeath; he could not make a legal marriage; his children were all classed as illegitimate, and the children of a slave woman were classed as slaves even if the father was free.15 Slaves male or female might be seduced by their master without legal redress. The slave could not bring action in the courts against those who injured him; he could proceed in such a case only through his owner. The latter, under the law of the Republic, could beat him, imprison him, condemn him to fight beasts in the arena, expose him to die of starvation, or kill him, with cause or without, and with no other control than a public opinion formed by slaveowners. If a slave ran away and was caught he could be branded or crucified; Augustus boasted that he had recaptured 30,000 runaway slaves and had crucified all who had not been claimed.16 If, under these or other provocations, a slave killed his master, law required that all the slaves of the murdered man should be put to death. When Pedanius Secundus, urban prefect, was so slain (A.D. 61), and his 400 slaves were condemned to die, a minority in the Senate protested, and an angry crowd in the streets demanded mercy; but the Senate ordered the law to be carried out, in the belief that only by such measures could a master be secure.17
It is to the credit of the Empire—or perhaps of the diminishing supply of slaves—that their condition was progressively improved under the emperors. Claudius prohibited the killing of a useless slave and ruled that an abandoned sick slave who recovered should become automatically free. The lex Petronia, probably under Nero, forbade owners, without a magistrate’s approval, to condemn slaves to fight in the arena. Nero allowed maltreated slaves to use his statue as an asylum and appointed a judge to hear their complaints—a modest advance that seemed revolutionary to Rome, since it opened the courts to slaves. Domitian made it a criminal offense to mutilate slaves for sensual purposes. Hadrian ended the right of the owner to kill a slave without magisterial sanction. Antoninus Pius permitted an abused slave to take sanctuary in any temple and had him sold to another master if he could prove injury. Marcus Aurelius encouraged owners to bring before the courts, rather than themselves punish, damages sustained by them from their slaves; in this way, he hoped, law and judgment would gradually replace brutality and private revenge.18 Finally a great jurist of the third century, Ulpian, proclaimed what only a few philosophers had dared suggest—that “by the law of Nature all men are equal.”19 Other jurists laid it down as a maxim that where the freedom or slavery of a man was in question, all doubts should favor liberty.20
Despite these mitigations, the legal subjection of slaves is the worst blot on Roman law. The last indignity was the tax and restrictions upon emancipation. Many owners evaded the lex Fufia Canina by informally freeing a slave without official witness or legal ceremony; such liberation, however, conferred not citizenship but only Latinitas. The slave freed by process of law became a citizen with limited civic rights; but custom required him to pay his respects to his former owner every morning, attend him when needed, vote for him at every opportunity, and, in some cases, pay him a portion of all money earned. If the freedman died intestate, his property went automatically to his living patron; if he made a will he was expected to leave him a part of his estate.21 Only when the master was dead, dutifully mourned, and safely buried could the freedman really breathe the air of freedom.
To these general divisions of the law of persons must be added the legislation which in modern codes is separately known as criminal law. Roman jurisprudence recognized crimes against the individual, the state, and social or business groups considered as juridical persons. Against the state one might be guilty of maiestas, treason by act or word; vis publica, sedition; sacrilegium, offenses against the state religion; ambitus, bribery; crimen repetundarum, extortion or corruption in public administration; peculatus, embezzlement of state funds; and corruptio judicis, bribery of a judge or juryman; from this partial list we may see that corruption has an ancient pedigree and a probable future. Against the individual one could commit iniuria, physical injury; falsum, deception; stuprum, indecency; and caedes, murder. Cicero mentions a lex Scantinia against pederasty; 22 Augustus corrected the error with a fine, Martial with epigrams, Domitian with death. Personal injury was no longer punished with equivalent retaliation, as in the Twelve Tables, but by a fine. Suicide was no crime; on the contrary, before Domitian, it was in some sense rewarded; a man condemned to death could usually, by suicide, ensure the validation of his will and the unimpeded transmission of his property to his heirs. The law left the last choice free.