Status Libertatis
At the centre of the Roman law of persons lay the distinction between those who were free (liberi) and those who were slaves (servi).[251]
Liberty, enjoyed by those who were either freeborn or freed persons, was defined as the natural ability to do anything one pleases unless it is prohibited by force or law.[252]
It is important to note here that the Romans were deeply aware of the limitations imposed on individual liberty by their collective existence and considerations of public welfare (salus publica).
The scope of liberty was conditioned by the need to safeguard the social order to which each citizen had to subordinate his own rights. Liberty was perceived by the authority-minded Roman community as freedom within the established socio-political order and not outside, let alone against it. The all-pervading notion of authority (auctoritas) was the natural and indispensable complement of liberty, setting limits to the free expression of individual impulses or choices. From a Roman moral perspective, submitting to the authority of one who manifested the ability to lead was considered the test rather than the negation of liberty. Where the authority of the leader was reciprocated by the genuine loyalty (fides) of the follower, order with liberty or liberty within order could prevail. This relationship supplied the foundation of the Roman concept of discipline: subordination by free will and reason rather than by force or compulsion. To the Romans discipline was the indispensable basis of order and liberty. In this respect, differences of rank and social status were considered to be the natural consequences of a well-ordered society by no means incompatible with liberty. The notion of civil liberties as a private sphere protected against interference by the state was wholly alien to the Romans, for it was incompatible with a civilization that attributed the highest value to the state. And yet, on the whole, Roman society during the republican and early imperial epochs was far from totalitarian. Instead, it presents the picture of a laissez-faire society in which each law-abiding citizen could lead the life that his talents, means and desires dictated. In many respects, the Roman citizen enjoyed a security of existence equal to any modern constitutional order: he was protected against illegality by the scrupulous observance of the rule of law enjoined on all state officials; he could neither be arrested nor convicted arbitrarily; and his private property rights were upheld. The magistrates power of enforcement could be exercised only to secure obedience to lawful demands and the autonomy of private life was generally respected.3.2.1.1 Slavery
The most vulnerable group in Roman society were the slaves (servi).[253] In the early republican period a relatively small number of slaves lived in Rome; but from the mid-third century bc the slave population expanded rapidly and, by the end of the Republic, slave labour was the predominant factor in economic life.[254] The living conditions of slaves varied considerably, depending on their personal skills, education and place of work.[255] In general, urban slaves were treated better than rural slaves and were more frequently released from slavery. But the vast majority of slaves, especially those working on the large estates, lived in misery and were treated harshly by their masters.[256]
Slavery could arise in a number of ways, the principal of these being birth from a slave woman,[257] capture in war[258] and as a punishment.
A slave was considered to be both a person (persona) and a form of property (res) legally existing as the object rather than the subject of rights and duties. As he was the property of his master (dominus), he lacked legal capacity and this theoretically entitled the master to govern the slave as he pleased.[259] A slave could not contract a lawful Roman marriage, had no standing in the courts and their offspring immediately became the property of the slaves master. However, slaves had limited contractual capacity attached to the condition that whatever they acquired accrued to their masters.[260] It should be noted also that initially a slave could not impose legal duties on his master by his actions. From the republican period, however, the praetor could intervene and grant certain praetorian actions, labeled actiones adiecticiae qualitatis (such as the actio de peculio and the actio de in rem verso), against the master and in favour of third persons who had entered into dealings with a slave. Furthermore, a master could be rendered liable for the delicts of his slave on the grounds of an actio noxalis.A slave could be released from slavery (manumissio) in three ways: by a formal announcement by the master in public and before a higher magistrate (usually a praetor) that the slave was free (vindicta); after the enrolment of a slave as a Roman citizen by the censor, according to the masters request (censu); and under his masters will (testamento). Besides these legally recognized ways of manumission, there were other informal ways of liberating slaves, e.g., when a master in the presence of his friends declared his slave to be free (manumissio inter amicos); or when he expressed such a wish in a letter (manumissio per epistulam); or even when he shared his table with his slave (manumissio per mensam). Although these methods of liberation provided little security for the slave, if he could prove that the relevant actions transpired he could then refuse to return to slavery by appealing to the praetor.[261] Liberated slaves or freedmen (libertini, liberti) were Roman citizens, but enjoyed fewer social and political rights than those with no slaves in their ancestry. Nevertheless, many freedmen successfully earned a steady living through their involvement in trade, industry and the arts; some even gained access to positions of power, especially in the last century of the Republic and during the Principate.
3.2.2
More on the topic Status Libertatis:
- Status lay at the heart of the law of persons. As Rome developed into a highly stratified society, the different gradations of status were reflected in a myriad of detailed rules.
- 4.2 Status
- Status Civitatis
- The status of Convention rights in English law
- Status Familiae
- The status of textbooks and journals
- CHAPTER II THE LAW OF STATUS
- Status, pay, the “decline of oratory”, and terminology
- Status, Slavery, and Citizenship
- Status and Capacities of a Person
- Persona, caput, and status
- The status of a person was determined by reference to all the rights, capacities and powers attributed to them.
- The Roman law of persons was concerned with the status or legal position of the human being.
- CHAPTER XXVIII. EFFECT ON QUESTIONS OF STATUS, OF LAPSE OF TIME, DEATH, JUDICIAL DECISION.
- 6. CAPITIS DEMINUTIO