I. MAIN FEATURES OF THE LAW

Citizens and non-citizens. The ‘normal man’ referred to above^[XXVI] is, of course, a citizen. From the ordinary ancient principle that law was ‘personal’² it followed that a non-citizen, a foreigner (peregrinus), had no rights under the specifically Roman ius civile.

Very early, however, the Romans found it convenient to accord limited rights under the ius civile to their immediate neighbours, the Latins, and a similar status was later allowed to the growing number of colonies which the Romans established as their rule spread. This status, between that of citizen and peregrine, continued to be called ‘Latinity’ though by the end of the Republic it had long ceased to have any geographical or ethnical significance. Nor were the privileges it conferred always the same. One must distinguish here three different rights. Commercium (or ius commercii) was the right to be a party to a mancipatio and perhaps to use some other specifically Roman methods of acquiring property and making contracts; conu­bium (ius conubii) was the right to contract with a Roman citizen

²          See above, p. 57.

a marriage recognized by the civil law; testamenti factio was the right to make, and take under, a Roman will. All Latins had commercium, some at least had testamenti factio, few had conubium.

Latinity was not, however, the most that the non-Roman could aspire to.

A new class was created by a lex Junia (? a.d. 19), which accorded Latinity, but without conubium or testamenti factio, to imperfectly manumitted slaves (Junian Latins).² In the early years of the Empire the promise of citizenship was increasingly used as an instrument of policy to attract these and other Latins into activities in the public interest—the building of houses, the shipping of grain to Rome, service in the fire brigade (a matter of great importance in so crowded and inflammable a city as ancient Rome), the bearing of children, and so forth. In the result, any enterprising Latin must have been able to raise himself to the citizenship.

The importance of the distinction between citizen and non­citizen largely disappeared after the grant of the citizenship in a.d. 212 to the bulk of the population of the Roman world, though Junian Latins seem to have been excluded from this grant.

The Roman family—patria potestas. In the early law, and to a considerable extent throughout Roman history, the family is the legal unit. Its head, the paterfamilias, is the only full person known to the law. His children, of whatever age, though they are citizens and therefore have rights in public law, are subject to his unfettered power of fife and death.

¹ See above, p. 9.                                                         ² See below, pp. 74 f.

Romans to be peculiar to themselves. The powers of a Greek father served only a protective purpose, like those of a guardian, and ended when the child came of age.

Patria potestas could, as we shall see,¹ be artificially created and terminated, but normally a Roman citizen was in the potestas of his oldest living male ancestor, and as such was called a filiusfamilias. He became himself a paterfamilias, with potestas over his descendants, if any, on the death of his last surviving male ancestor. Thus a man whose father and grandfather were both living was in the potestas of his grandfather. On his grandfather’s death he would be in the potestas of his father, and on his father’s death he would himself be a paterfamilias.

The family was thus based on the agnatic relationship, i.e. one traced exclusively through the male fine. For example, a man is agnatically related to his sister, but not to his sister’s children, to his brother and his brother’s children, but not to the children of his brother’s daughter. (The English system of surnames is agnatic, except for the rule that a wife takes her husband’s name.) The daughter of a paterfamilias is therefore in his potestas, but her children are in the potestas of their father or his paterfamilias. To put it in another way, a man’s agnates are those persons, male or female, who are in the same potestas as himself or who would be in the same potestas if their common ancestor were alive. His cognates, on the other hand, are simply his blood relatives, whether agnatic or not.

In early law there was evidently little difference between son and slave, both being regarded as the property of the pater­familias to be disposed of as he wished. Thus the formalities for the emancipation and adoption of sons were in essentials the same as those used for the conveyance of property,³ and in early law a paterfamilias could as freely sell his sons as his slaves. In regard to the public law, however, sons did differ funda­mentally from slaves. They could vote, and could hold any public office. And, of course, the status of a slave, unlike that of a son, was not affected by the death of the paterfamilias.

’ Below, pp. 76 ff. ⁴ See below, pp. 248 ff., 260.             ³ See below, pp. 76 ff.

In the exercise of the power of life and death (ius vitae necisque), as in the making of all important decisions, the Roman was in the habit of consulting an informal ‘council’ of advisers, who constituted what amounted to a domestic tribunal. This was, however, only a matter of custom, not of law. The Censors might take notice of any gross abuse, but otherwise the exercise of the ius vitae necisque could not be questioned. We know, for example, that one of those who took part in the Catilinarian conspiracy (63 b.c.) was put to death simply by his father’s order. It is not until the beginning of the second century a.d. that we hear of any attempt at restriction, and then it is only by ‘extraordinary’ imperial intervention in particular cases, more akin to the old Censorial supervision of morals than to the establishment of a rule of law.

If a father could kill his child he could also sell him. If sold abroad (‘across the Tiber’) the child became a slave, but such sales were very early obsolete. If the sale was made within Roman territory the child did not become a slave, but had a quasi-servile status (in mancipio), which differed from slavery in a number of minor ways but mainly in that his rights as a free man were only in suspense and therefore revived if he were manumitted.^{[27] [28]} In the classical law such sales, though they sur­vived among the formalities of emancipation and adoption, had substantial use only in noxal surrender.^[29] In the later Empire we do indeed hear of the sale of new-born children, but the father always retained the right to redeem any child whom he had sold.

The paterfamilias was said to be sui iuris (in his own power); those in his power (whether children, slaves, or persons in man­cipio) were alieni iuris (in the power of another).

Proprietary incapacity of filiusfamilias. The civil law rule was that a filiusfamilias could own nothing, anything that he acquired belonging automatically to the paterfamilias. This rule was obviously inconvenient, and it became customary for the pater­familias to allow his son the free use of some property (his peculium), and in particular of such property as he acquired by his own exertions.

This merely socially recognized peculium¹ (to which the com­mentators have given the name peculium profecticium) was par­ticularly unsatisfactory for the filiusfamilias who was a soldier, serving perhaps for long periods away from Rome, and Augustus accordingly allowed him a legal title to what he acquired on service. In its developed form this peculium castrense was owned by the son for all purposes except that if he died intestate it reverted to his father. Under Constantine and subsequent Emperors the principle was extended to earnings in various other branches of the public service {peculium quasi-castrense). In the same period the son was allowed a limited interest in other property {bona adventitia)—at first in what he received from his mother or her relations, and finally in anything which he did not derive from his father. But this was not a peculium·. the son had no right to enjoyment of the property during the father’s life but became fully entitled on the father’s death. If the son was emancipated, the father retained a life-interest (usufruct) in half, the other half going immediately to the son.

¹ It did however have some indirect legal consequences: see below, pp. 201 f.

In this piecemeal way the filiusfamilias eventually acquired considerable property rights, even though in the case of bona adventitia they were only reversionary rights. In modern French and German law, though little else remains of the Roman patria potestas but the name and a certain patriarchal attitude, the father still has the right to the enjoyment of his child’s property, though only until the child comes of age and subject to a duty to maintain and educate him. In English law, by con­trast, the father has no right at all to the enjoyment of his child’s property.

It must also be remembered that although patria potestas was in principle life-long, emancipation was in fact fairly common.

Position of slaves, in law and in fact. In law the slave was a thing. Being endowed with reason and often indeed well-educated, he was inevitably a peculiar thing and could, for example, acquire rights for his master. But he himself had no rights: he was merely an object of rights, like an animal. It was not until the first and second centuries a.d. that any attempt was made to regulate the master’s treatment of his slave, and such regulation as there was took the same form as our legislation for the pro­tection of animals. The master might be punished criminally for abuse of his powers, but the slave could not himself invoke the protection of the law. For example, the master was, early in the Empire, forbidden to send his slave to fight wild beasts in the arena without the approval of a magistrate, and later any killing of his slaves without good reason was made criminal. And there were many other more particular instances of imperial intervention, especially by Hadrian and Antoninus Pius. The latter even allowed the slave to take the initiative for his own protection. If a slave took refuge from the ‘intolerable cruelty’ of his master at a statue of the Emperor, the master would be compelled to sell him. To this limited extent the slave may be said to have become the subject of a right. Finally, under Justinian, the master was allowed no more than reasonable chastisement.

This was the law, but the slave’s position in fact naturally varied greatly according to the abilities, and therefore the value, of the individual slave, and the character of his master. Large-scale ownership of slaves, as of other forms of capital, only began with the extension of Roman conquests to the Eastern Mediterranean in the second century b.c.¹ Until then slaves were few in number and usually of the same race as their masters, and lived in close proximity to them. By the end of the Republic, however, they had come in vast numbers from all corners of the known world. Caesar on a single occasion in Gaul sold 63,000 captives, and the Younger Pliny records, admittedly as worthy of note, that a man who had himself been freed from slavery had amassed at his death 4,116 slaves. The growth of the large estates was made possible by large gangs of labour­ing slaves, drawn mainly from the ruder and hardier races of the north. Their condition was as hard and inhuman as it well could be. Slaves such as these were the machines of the ancient world. Varro indeed speaks of a slave as a ‘speaking tool’,² and Cato could argue coldly that it was more economical to work a slave to death and then replace him than to treat him pro­perly. Nor was the condition of house-slaves necessarily better. It was the traditional practice, for example, to keep the door­keeper slave chained to his post, and Juvenal no doubt draws from the life his picture of the lady’s maid mercilessly flogged by her petulant mistress. At the other end of the scale, some slaves were highly educated men, usually from Greece and the Near East, who, even on Cato’s principle, would deserve to be treated well. They might be doctors or teachers or private secretaries, and were treated like free men. Indeed they were often made free by their masters as a reward for faithful service. Many also were engaged in commerce or as managers of their masters’ estates. It is the existence of slaves like these that differentiates Roman slavery from any that the modern world has known, and which explains the bulk and complexity of the Roman law governing the consequences of their transactions. The labourer on the plantation provides little scope for the private law. It is quite otherwise with the manager of a large business.

The independent activity of slaves was made possible largely by the peculium. This was identical with the peculium profecticium ¹ See above, p. 8.         ² Aristotle had similarly called him an ‘animated tool’. of the son. It was owned legally by the master but ‘socially’ by the slave. How firmly established was the slave’s claim to his peculium can be seen from the common practice whereby the master made him a gift of freedom in his will provided he paid a sum of money to the heir. The only source from which he could draw this sum was his peculium, and yet by law this was already the property of the heir as successor of the master. In the same way, we hear of slaves having business dealings with their masters as if they were independent persons. It must moreover be remembered that the peculium was not just a sum of money, but might include any form of property, even other slaves. It might, for example, be an entire business conducted by the slave at his own discretion; and, if the business prospered, he might offer to ‘buy’ his freedom with the money he had saved. Yet in law it all belonged to the master. For the law was the same for slaves as for sons: any property they acquired belonged auto­matically to the master. In the same way, a slave could alienate nothing without his master’s authority, but a general authority was normally assumed to accompany the grant of the peculium, and a slave could therefore in practice, so far as property rights were concerned, act as if he were an independent person. His contracts, however, presented greater difficulties. Contractual rights, like property rights, passed to his master, but few con­tracts create only rights, and the law held that a man could incur no duties under a contract entered into by someone else, even his own slave. This strict rule would have deprived slaves of much of their commercial usefulness had not the Praetor intervened to modify it.¹