Law of Persons Notes PDF
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These notes cover the Roman Law concept of the Law of Persons, focusing on freedom, citizenship, and family status as fundamental components of an individual's standing. The notes discuss issues of freedom versus slavery, the role of citizenship and its distinction, and the significance of family structures. They cover associated concepts like capitis deminutio and status.
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CRL 1018 - ROMAN LAW I Law of Persons "Three things are ours: Freedom, Citizenship, and Family” Tria enim sunt quae habemus liberate civitatem, famigliam. he quote refers to the three central aspectsofanindiv...
CRL 1018 - ROMAN LAW I Law of Persons "Three things are ours: Freedom, Citizenship, and Family” Tria enim sunt quae habemus liberate civitatem, famigliam. he quote refers to the three central aspectsofanindividual'sstatusunderRomanlaw,asdescribedbytheRoman T jurist Paulus. T hese aspects—freedom, citizenship, and family—are crucialtounderstandingone'slegalidentityand rights in Roman society. 1. F reedom (Libertas): T his refers towhetherapersonisfreeorunfree(i.e.,aslave).T helegalimplicationsof freedom(orlackthereof)weresignificant,asslaveshadveryfewlegalrights,whilefreepersonshadfulllegal capacity. ○ If a person was not in a position to prove their freedom—meaning they lacked legal documents or witnesses to confirm their status—they were assumed to be a slave by default. In the absence of evidence of freedom, others could claim the person as their property (a slave), and they would be treated as an object, with no legal rights. T his shows how essential the concept of freedom was in Romanlaw,asitdeterminedone'scapacitytoownproperty,marry,andengageinlegaltransactions.It was vital to prove one's status as a free person in order to access these rights. ○ People need to go to the Censors every 5 years to declare their status 2. C itizenship (civitas): Citizenship defined whether a person was a Roman citizen, and this status camewith certain legal privileges and obligations (e.g.,therighttovote,theabilitytoholdpublicoffice,etc.).However, thepassagenotesthatGaiusdidnotfocusextensivelyonthelegalstatusofcitizenship,asitwasassumedto be the normal or default condition in Roman law. ○ Citizenshipwasanotherfundamentalaspectofone'slegalidentity.ARomancitizenenjoyedaspecific set of rights and privileges that non-citizens (such as foreigners or slaves) didnothave.Notallfree people were granted Roman citizenship, which was highly valued and could be restricted. RomanCitizenship:BeingaRomancitizengrantedtheindividuallegalprotections,suchasthe righttovote,therighttomarryotherRomancitizens,therighttoownproperty,andtheability to seek legal redress in Roman courts. Non-RomanFreePersons:EvenfreepersonswhowerenotRomancitizens(suchasperegrini or"friends"ofRome,orevenfreedmenwhowerenotgrantedfullcitizenship)didnothavethe same rights as a full Roman citizen. T hey might have enjoyedsomeprivileges,buttheywere excluded from the full benefits of citizenship. ○ Citizenship was considered the normal condition for a Roman person, so there was no need for extensive elaboration on it. ○ Citizenshipwasseenaspartofpubliclaw,whichconcernstherelationshipbetweentheindividualand the state, while Gaius' work on the Law of Persons was focused more ontheprivatelegalstatusof individuals. Page1 CRL 1018 - ROMAN LAW I 3. F amily (Paterfamilias): Family status (often related to the concept of paterfamilias, ortheheadofaRoman family) determined one's legal standing within the household. T his is related to the concept of sui iuris (a person who is legally independent and has full legal capacity) and alieni iuris (a person who is under the authority of another, such as a child under the authority of a father or a slave under a master's control). ○ Roman society was patriarchal,meaningthatthefamilystructurewasbasedontheauthorityofthe paterfamilias,themaleheadofthehousehold.T hepaterfamiliashadsignificantlegalpowersoverhis family, including his children, wife, and even grandchildren. ○ T hePaterfamilias:T hepaterfamiliaswastheoldestlivingmaleinafamilyandhadcompletecontrol overallfamilymembers.Hecouldarrangemarriages,managefinances,andevendecidethefateofhis children, including whether they could inherit property. ○ Alieni Juris and Sui Juris: The family structure wasdivided into two main categories: SuiJuris:T hesewereindividualswhowerelegallyindependent,meaningtheywerenotunder theauthorityofanother(typicallyolderchildrenwhowerelegallyadults,orotherfreepersons who were not under any paternal authority). AlieniJuris:T hesewereindividualswhowerelegallyundertheauthorityofthepaterfamilias, includingchildren,grandchildren,wives,andslaves.T heyhadnoindependentlegalstatusand could not make legal claims without the approval of thepaterfamilias. ○ InheritanceandAuthority:T hepaterfamiliascontrolledtheinheritanceofpropertywithinthefamily. Whatever children or other family members earned or inherited became the property of the paterfamilias,notoftheindividual.Evenifamalechildhadchildrenofhisown,hisowndescendants were still under the control of thepaterfamiliasuntil he passed away. Capitis Deminutio and its Connection to Status " Capitis deminutio"(literally,"diminutionofhead")referstothelossoralterationofaperson'slegalstatus.T here were three forms ofcapitis deminutio: C apitis deminutio maxima: Loss of freedom (e.g., becominga slave). Capitis deminutio media: Loss of citizenship (e.g.,being exiled). Capitisdeminutiominima:Lossoffamilystatus(e.g.,apersonwhowasundertheauthorityofapaterfamilias might be freed from that authority). hesethreeelements—freedom,citizenship,andfamily—formthecorecategoriesofcapitisdeminutio,andthushelp T to determine the legal standing of individuals in Roman society. Status erstatos’intendeadunqueunmododiesseredalqualedipendocertesdrittiinragionedelqualelaleggericonosce P all’uomocertidritti →Statusrefers,therefore,toawayofbeingfromwhichcertainrightsdepend,andbywhichthe law recognizes certain rights for the individual. tatusinRomanlawreferstoanindividual'spositioninsociety,whichdeterminedtherightsandobligationstheyhad S underthelaw.Romanlawrecognizedcertainrights(dritti)thatdependedonone'slegalstatus,andtheserightswere granted based on one's freedom, citizenship, and family role. A person's status was foundational to their life in Roman society, determining how theycouldinteractwith others, what rights they had, and how they could participate insociety.Forexample,someonewhowassui Page2 CRL 1018 - ROMAN LAW I juriscouldfilelawsuits,inheritproperty,andmakecontracts,whilesomeonealienijuris(undertheauthority f another) could not. o T hestructureoftheRomanfamilyandtheroleofthepaterfamiliascreatedasocialorderinwhichrightsand obligations were inherited and passeddownbasedonone'splacewithinthefamilyhierarchy.T hishierarchy also extendedintoRomansocietyatlarge,wherelegaldistinctionsweredrawnbetweenfreecitizens,slaves, and those with different levels of legal capacity. Side Note:What / Who are friends of Rome? " Friends of Rome" (a mici populi Romani) referred toforeignpeoples,cities,orindividualswhohadformedalliances with the Roman state but did not possess full Roman citizenship. T hese "friends" were typically granted certain privileges,suchaslegalprotections,therighttotrade,andmilitarysupport,buttheywereexcludedfromthepolitical rightsofRomancitizens,likevotingorholdingoffice.T heirstatusasalliesmeanttheywereexpectedtosupportRome intimesofwar,ofteninexchangefordefenseoreconomicbenefits.Whilenotsubjectsorslaves,theywerealsonot treated as equals to full Roman citizens. THE FIRST DIVISION OF PERSONS Free Men and Slaves 1. Free Men: free man (homo liber) is someone whoisnotunderthecontrolordominionofanother;heis"masterofhimself" A (padrone di se). This contrasts with the status ofa slave, who is an object of another's ownership Afree manin Roman law can be divided into two categories: (a) Ingenuus (Born Free): A ningenuusis a person who is born free. T hegeneralprincipleofRomanlawisthatchildreninheritthestatusoftheirmotheratbirth,soifthemother was free, the child would be born free as well. T his status applies to individuals born to parents who were both free (underjus gentium, the law ofnations). (b) Libertinus (Freed Man): A libertinusis someone who was once aslavebut hasbeenfreed(manumitted) from slavery. In Roman law, a freedman (or libertus) was someone who had been a slave but gained freedom through a formal process calledmanumission. This could occurin a variety of ways, such as: ○ By the master’s will (e.g., the master might free a slave as an act of generosity). ○ As part of a legal procedure (e.g., a slave could be freed in a court of law). ○ T hrough certain conditions, such as serving a master for a specified number of years. Afterbeingfreed,alibertinuswouldnolongerbeconsideredaslave,buttheystillhadsomelegaldistinctions compared to thosewhowerebornfree(ingenuus).Forinstance,afreedmanmightstillowecertaindutiesor obligationstotheirformermaster,andtheirdescendantsmighthavesomesocialstigmaduetotheirprevious status. Page3 CRL 1018 - ROMAN LAW I W hile they are legally free, their status is not the same as someone born free. Freedmen (liberti) did not automaticallypossessthesamerightsasthosebornfree.T heirstatuswasconsideredsomewhatinferiordue totheirpreviousconditionofslavery,althoughtheirchildrenwouldbeconsideredfreebornandcouldinherit Roman citizenship and rights. UnliketheGreeks,whooftenexcludedfreedpersonsfromfullcitizenship,theRomansgrantedcertain rights to freedmen, and their children, if born to free parents, would enjoy the full rights of Roman citizens 2. Slaves: laves in Roman law were divided into two main categories: those who were born into slavery or became slaves S through legal means. (a) Born Slaves (Servus): A personborntoamotherwhowasaslavewouldalsobeaslave(asdiscussedearlierunder"unfreebirth"in the passage you provided). T his principle followed jus gentium (the law of nations), which dictated that the child inheritsthemother's status, so a child born to a slave mother would automatically be born a slave. (b) Becoming a Slave: A free person could become a slave through certain circumstances, either by Jus Gentiumorthroughtherulesof ivil Law: C 1. By Jus Gentium (Law of Nations): ○ Afreepersoncouldbeenslavedbybeingcapturedduringwarorconflict.T hiswasacommonpractice in Roman times, where captives taken in battle were often enslaved. ○ Under Jus Gentium, foreigners who were not protected by treaties or agreements (pacts of amity) couldalsobeenslavedifcaptured.Inotherwords,evenifthepersonwasnotaRomancitizenorpart of a group officially at warwithRome,theycouldstillbecomeenslavediftheywerecapturedwithin the Roman Empire. 2. By Civil Law: ○ Slavery could also result from specific legal situations defined under Roman civil law. T hese could include: Debtors: A person who could not pay their debts mightbe sold into slavery. Punishment: A person who was convicted of a crime, particularly one that involved punishmentinthemines(oftenadeathsentence),mightbecondemnedtoslavery,referredto asservus poenae("slaves of punishment"). ManumissionAbuse:Afreepersoncouldfraudulentlyallowthemselvestobesoldintoslavery in order to share in the sale price, although this was a rare and somewhat illegal act. Ingratitude by Freedmen: A freedman who committed serious offenses, especially showing ingratitude towards their patron (the person who freed them), could be legally reducedback into slavery. Page4 CRL 1018 - ROMAN LAW I T he Status of the Romans he status of a Roman citizen was afundamentalconceptinRomanlaw,determiningaperson'srights,duties,and T capacitytoactwithinthelegalsystemofancientRome.T helegalandsocialstructureoftheRomanEmpirewasbased onacomplexsystemofstatusesthatdefinedone'spositioninsociety,whichinturninfluencedthekindsofrightsand obligations one could have. Below is a detailed explanationofthesestatuses,theirsignificance,andtheirimpacton legal and social interactions. 1. Roman Citizens (Civis Romanus) C ivisRomanus(RomanCitizen)wasthemostprivilegedstatusintheRomanlegalsystem,anditconferreda widerangeoflegalrightsandprotections.Citizenswereentitledtobothcivilrights(rightsrecognizedbythe jus civile, the law of Rome) andpolitical rights(rights related to participation in public affairs). Jus Civile (Civil Rights): ○ Marriage: Roman citizens had the exclusive right toenterintoalawfulmarriage(connubium),which was recognizedbyRomanlaw.T hisalsograntedlegitimacytotheirchildrenandgavethefatherlegal authority (paterfamilias) over his family, includingrights to inheritance and the ability to make a will. ○ Property and Contracts: Roman citizens could enter into contracts (commercium), buy and sell property, and make legal agreements such as wills. T his gave them substantial control over their personal and financial matters. ○ Testaments and Inheritance: Only Roman citizens could make a legally valid will, which could be executedbythestateaftertheirdeath.Romancitizenshadthecapacitytobebothheirsandlegateesin inheritance proceedings. Jus Politicum (Political Rights): ○ Voting:Romancitizenshadtherighttovoteinpublicassemblies(comitia),whichwasacrucialpartof the Roman political system. ○ HoldingPublicOffice:OnlyRomancitizenscouldholdimportantpublicoffices(jushonorem),suchas magistracies, and be elected to positions of power like consuls or praetors. T his allowed citizens to participate in the governance of the state. Status within the Family: Roman law was highly concerned with family status and the authority of the paterfamilias (the head of the household). T he paterfamilias had extensive legal rights over his family, including the ability to sell children intoslavery,arrangemarriages,anddetermineinheritance.Evenwhena Romancitizendied,theirlegalrightspersistedthroughtheexecutionoftheirwill,asthestaterecognizedtheir status. 2. Non-Citizens (Peregrini) P eregrini(foreignersornon-citizens)wereindividualswhodidnotpossessRomancitizenship.T heywerestill considered subjects of Roman law, but their rights were more limited than those of Roman citizens. Jus Gentium (Law of Nations): T he jus gentium was the legalframeworkthatappliedtoperegrini.Itwasa more general set oflawsthatgovernedtheinteractionsofRomewithforeigners.Unlikethejuscivile,which appliedstrictlytoRomancitizens,thejusgentiumallowednon-citizenscertainbasiclegalprotections,suchas the right to enter into contracts, own property, and bring legal actions, but it did not grant political rights. No Political Rights: Peregrini did not have the right to vote or hold public office. T heywereexcludedfrom Roman political life and could not participate in the governance of the state. Marriage and Family: While peregrini could enter into marriage, their unions were not recognized as fully legitimate by Roman law. T heir children, therefore, would nothavethesamelegalstatusaschildrenbornto age5 P CRL 1018 - ROMAN LAW I Roman citizens. However, over time, thedistinctionbetweenthelegalstatusofchildrenborntocitizensand t hose born to peregrini became less rigid. 3. Slaves (Servi) L egal Position of Slaves: Slaves were considered property under Roman law and had no legal rights. T hey were not personswithlegalstandingbutwereregardedasres(things).T heyhadnocapacitytoactorenter into contracts, and their legal status was entirely dependent on their master. However, slaves were still consideredtobehumanbeings,eventhoughtheirstatusdeniedthemthecapacitytoownproperty,marry,or make legal decisions. Emancipation:Slavescouldbefreedbytheirmasters,aprocessknownasmanumission.Oncefreed,aslave wouldacquirethestatusofalibertus(freedman).Afreedmanwasgrantedcertainrights,butstill,therewere social and legal distinctions between him and a fully free Romancitizen.Forinstance,afreedmancouldnot hold certain political offices, and his descendants, if born afterhisemancipation,wouldstillfacesomelegal restrictions. 4. Hostes and Barbari (Enemies and Barbarians) H ostes(Enemies):IndividualsorgroupswhowerehostiletoRomeandhaddeclaredwarwerecategorizedas hostes (enemies). T hey had no rights under Roman law, and if captured,theywereeitherenslavedorkilled. T hey were considered outside the legal protection of Roman law. Barbari (Barbarians): T hese were peoples living outside the Roman Empire, often considered uncivilized by Romanstandards.BarbarianshadnolegalstandinginRomanlawandcouldbetreatedasslavesorsubjectedto other harsh penalties if captured. T he distinction between hostes andbarbariwassignificant,asbarbarians were sometimes assimilated into the Roman Empire through treaties or military conquest, and they might receive some legal protections, though they were still treated as subordinates. 5. Legal Hierarchy within Roman Citizens omansocietyhadacomplexsystemofsocialstratification,whichwasreflectedinbothlegalandsocialdistinctions. R T hetwomostprominentdivisionswithinRomancitizenswereplebeiansandpatricians,butwithinthose,therewere further subdivisions that impacted people's legal standing, rights, and opportunities. Plebeians vs. Patricians P atricians: T he patricians were the aristocratic class in early Roman history, comprisingthewealthiestand most powerful families. T hey had greater access to political power, military leadership, and the most prestigious offices in Rome. Initially, onlypatricianscouldholdthehighestmagistracies,suchasconsul.T he patricians were also the original group who held exclusive control over religious and political institutions. Plebeians:T heplebeianswerethecommonpeople,oftenfarmers,tradespeople,andlaborers.T heyhadfewer legal rights compared to patricians, and initially, they could not hold high political officeorintermarrywith patricians (which was prohibited by the lex Canuleia in 445BCE).Overtime,however,theplebeiansgained more rights, largely through the Conflict of the Orders, a long struggle for political equality, leadingtothe creationoftheTribunesofthePlebsandtheLexHortensia(287BCE),whichallowedplebeianstopasslaws that applied to all citizens, including patricians. 6. Social Subdivisions (Honestiores vs. Humiliores): Page6 CRL 1018 - ROMAN LAW I mperorAugustus,andlateremperors,refinedtheRomansocialhierarchyfurtherbyintroducingnewdivisionswithin E the citizenry. T his system was used to separate the more privileged individuals from the lower classes, and it had practical consequences in terms of legal rights and punishments. H onestiores:T hiswasaclassofhigher-rankingcitizenswhowereconsideredthe"honorable"or"respectable" ones. It included the Senatores (senators), Equites (knights), veterans, soldiers, and holders of municipal offices.T heseindividualsweretypicallywealthyandinfluential,andtheyenjoyedprivilegessuchastheability to hold high public offices, command the military, and receive lighter legal punishments. ○ PunishmentsfortheHonestiores:Ifamemberofthisgroupwasconvictedofacrime,thepunishment was often less severe. Instead of being executed or subjected to public humiliation, they might face banishment(exile)orlossofproperty.Forexample,asenatorwhocommittedaseriouscrimemightbe sent into exile rather than executed. Humiliores: T he lower class of citizens, including the plebeians and others without significant political or social power, were referred to as humiliores. T hese individuals were generally poorer andhadfewerrights than thehonestiores. The humiliores could be subjectedto harsher punishments for crimes. ○ Punishments for theHumiliores:Ifsomeoneinthehumilioresclasswasfoundguiltyofacrime,they mightfacehumiliatingpunishmentssuchasbeingforcedtofightinthegladiatorialarena(admetalla, or sent to the mines) or even crucifixion. T hese punishments were meant to be more severe and degrading, emphasizing the lower status of these individuals in Roman society. 7. Political Appointments and Legal Rights: omancitizenscouldrisethroughthesocialhierarchybasedontheiractions,wealth,orfavorwiththeemperor.T he R emperor had the power to elevate certain individuals into higher ranks of society or appoint them to important positions. T he Emperor's Authority: The emperor could appoint individuals to key positions such as: 1. Commander of the Legions(to lead the Roman military), 2. Proconsul(a governor of a Roman province), 3. Administrator of Cities(to govern urban areas ormanage municipal affairs), 4. Priest(in the Roman religious hierarchy). hese roles were highly prestigious and carried significant legal, social, and economic privileges. However, the T individuals appointed to these roles had to belong to the honestiores class or at least have significant wealth or political connections. 8. Status within the Patricians: venamongthepatricians,thereweresubdivisionsbasedonwealth,landholding,andinfluence.T hemoreaffluentand E powerful patricians would be categorized into different ranks. S ubdivisionsofPatricians:Overtime,thewealthiestandmostpowerfulpatriciansweregivenadditionaltitles, which reflected their status and the specific areas of society in which they held influence. These included: 1. Vir Egregius(Distinguished Man), 2. Vir Perfectissimus( Very Perfect Man), 3. Vir Eminentissimus(Most Eminent Man), 4. Vir Clarissimus(Most Famous Man). Page7 CRL 1018 - ROMAN LAW I T hesetitlesweremeanttodistinguishindividualsbasedontheirmeritortheirfamily’sstatus,andtheycouldbeused in official records or in political contexts to emphasize one’s position within Roman society. 9. Legal Implications of Status: he status of an individualunderRomanlawhadmajorimplicationsfortheirrights,duties,andeventheirabilityto T marry, own property, and participate in political life. For example: P atricianshadfulllegalrights,includingtheabilitytoholdpublicoffice,makecontracts,andmarryintoother elite families. Plebeians had more limited rightsatthebeginningbutgainedmoreinfluenceovertime.However,theywere still subject to the social hierarchy that restricted their interactions with patricians. Honestiores were treated more favorably by the law, while humiliores could be subjected to harsher punishments. 10. Roman Marriage and Citizenship: M arriage (Connubium) was a key civil right,especiallyforcitizens.OnlyRomancitizenscouldlegallymarry (connubium), and this right helped to define the legal status of their children. Children born from a union betweenRomancitizenswereconsideredlegitimate(suiiuris),whilethosebornfromunionsbetweencitizens and non-citizens might not have the same status. Overtime,astheempireexpanded,distinctionsbetweenpatricians,plebeians,andothersocialordersbecame more fluid, especiallyasthejusgentium(thelawofnations)begantobeappliedmorebroadly.T hisprocess helpedtointegratemorepeopleintoRomansociety,althoughsocialdistinctionsremainedanimportantfeature of Roman law and politics. 11. Rights and Privileges of Roman Citizens omancitizensenjoyedavarietyofcivilandpoliticalrightsthatwerenotavailabletonon-citizens(peregrini).T hese R rights were codified in laws and regulations that granted specific privileges, depending on one's social and legal status: Political Rights (Jus Civile) 1. JusSuffragii–T herighttovoteintheRomancomitia(publicassemblies),whereRomancitizenscouldvoteon laws, elect magistrates, and make decisions about the republic. 2. Jus Honorum – T he right to hold public office.T hisincludedaccesstopositionssuchasconsul,praetor,or tribune.OnlyRomancitizenshadthelegalrighttobeappointedtotheseoffices,whichgrantedthempowerin both administrative and military matters. Civil Rights (Jus Civile) 1. JusConnubii–T herighttoenterintoalegalmarriage(c onnubium),whichwasrecognizedunderRomanlaw. T his was crucial, as marriages between Roman citizens could confer legitimacy on children and allow the establishment of family ties that were legally enforceable. 2. Jus Commercium – T he right to engage in legal contracts, buy property, inherit, and make wills. T his was essential for citizens who wished to manage their wealth, conduct business, or pass on their estate. 3. JusTestamenti–T herighttomakeavalidwill,ensuringthedistributionofone'spropertyafterdeath.Roman citizens could designate heirs and legatees, which was a key right of property ownership. age8 P CRL 1018 - ROMAN LAW I 12. Foreigners and Non-Citizens ven though foreigners (peregrini) were friends of Rome, they were not granted the full rights of Roman citizens. E However, Rome recognized the practical importance of dealing with foreigners, especially fortrade,diplomacy,and military cooperation. P eregrini: T hese were individuals who were not Roman citizens but lived within Roman territories or had dealingswithRome.T heyweresubjecttoRomanlaw,buttheirrightswerelimitedtothejusgentium(lawof nations), which offered some protections but excluded political rights, such as voting or holding office. Praetor Peregrinus: A special magistrate, the Praetor Peregrinus, was appointed to handle legal disputes involvingforeigners,especiallythoserelatedtotrade,contracts,andpersonalinjuries.T hiswasRome’swayof recognizing that foreign legal customs and situations needed to be addressed within the Roman legal framework, even if those foreigners were not Roman citizens. Legal Exclusion of Foreigners: oreigners, even if friendly to Rome or holding diplomatic roles, could not become Roman citizens unless granted F citizenshipbyspecificlawsorbyimperialedict.Evenambassadorsandtheirentourages,despitetheirstatus,werenot entitled to the legal benefits of Roman citizenship. 13. The Evolution of Roman Citizenship ver time, the distinctions between Roman citizens and non-citizens began to blur as Rome expanded and O incorporated more territories into its empire. In 212 CE, the Constitutio Antoniniana issuedbyEmperorCaracalla granted Roman citizenship to all free inhabitants of the empire. T his decree abolished many of the previous distinctions between citizens and non-citizens, as nearly everyone within the empire could now enjoy Roman legal protections.T hejuscivile(civillaw)begantobeappliedmorewidely,andmanylegaldistinctionsbasedoncitizenship were gradually removed. 14. The Status of Women neofthemostimportantaspectsofRomanfamilylawwashowthemother'sstatusdeterminedthelegalstatusof O herchild.T hisisparticularlyrelevantinthecaseoffreedwomen(womenwhowereformerlyslaves)andslaveryin Roman society. T he Status of the Mother Determines the Status of the Child: ○ Ifthemotherisfree,anychildshebearswillalsobefree,regardlessofwhetherthefatherisfreeora slave. T his is a key legal principle: in Roman law, the mother's status atthetimeofconceptionand birth determined thechild’s status. ○ If the mother is a slave, the child would be born into slavery because Roman law presumed that childrenofslaveswouldinheritthestatusoftheirmother(theconditionofservitudewaspasseddown matrilineally, i.e., from mother to child). T hechild'slegalstatus(whetherfreeoraslave)wasdirectlytiedtothemother'sconditionatthetimeofthe child's conception and birth. Even if a free woman later became aslave,thechildbornofherfreestatus would still be considered free under Roman law. T he principle is that the child’s status could not be prejudiced by a change in the mother's condition.For example: ○ Ifawomanisfreeatthetimeofconceptionbutlaterbecomesaslave,thechildremainsfreebecause the child’s status is based on the mother’s status at the time of conception, not her status at birth. age9 P CRL 1018 - ROMAN LAW I ○ C onversely, if a slave woman has a child while she is still enslaved, the child will also be a slave, regardless of any later change in the mother's status. 15. The Acquisition of Legal Personality: " Personaecoluichee'liconosciutocapacedidiritto":T hetermpersona(person)inRomanlawrefersnot just to an individual human being, but to someone who is legally recognized as having rights (capable of havinglegalrightsandduties).AsSerafinistates,a"persona"isanylegalentitythatisrecognizedashaving rights by the state, i.e., someone who is able to act within the legal framework of society. T he Role of Birth in Acquiring Legal Personality: T he key pointinRomanlawisthatachildonlyacquires "personality"(orthecapacityforrights)afterbirth.T hismeansthatafetuswasnotconsideredalegalperson under Roman law. ○ Achildmustliveforamomentafterbirth:Inotherwords,forachildtobelegallyconsidered"born" and to acquire legal rights, it must have lived for at least a short time after being fully born.T his requirementemphasizesthatmeredeliveryorbirthwasn'tenough;thechildhadtoshowsignsoflife, even if just briefly, in order to be recognized as a "person" under the law. LegalPersonalityandRights:Oncebornandrecognizedasalegalperson,thechildwouldacquirerights(such as inheritance, the ability to enter contracts, and the right to own property). T he child'slegalstatuswould depend on various factors, such as their parentage, their citizenship, and their social position. 16.Jolowitz’s Quote (H.F. Jolowitz Roman Foundationsof Modern Law): Jolowitz'sobservationabouthow"achildacquirespersonalityassoonasitisborn"andtheemphasisonit living for at least a moment after birth is important. T his legal framework is foundational to the idea of personhoodandlegalrightsinRomanlaw.T hechildisnotlegallyconsideredapersonuntilbirthandeven after birth, it must show signs of life to be considered a full legal person with rights. T his moment of birth marks the transition from being a non-person (a fetus) toalegalpersonwithrights, reflectinghowRomanlawwasdeeplyconcernedwithpersonalstatusandtheneedforlegalrecognitionasa person. A child’s legal status as a person begins with birth, and for alllegalpurposes,thechildexistsasan independent subject of law only after being born. Slaves 1. The Division of Persons: Free Men vs. Slaves ree Men vs. Slaves: T he first major division in Roman law is between free men and slaves. Slaves aredefinedas F peoplewholackpersonalfreedomandlegalrights,exceptforcriminallawprotections(theywerestillliabletocriminal offences). A person could be enslaved in 3 different ways: U nfree birth (Jus Gentium): T his applies to a person born into slavery, usually becausetheirmotherwasa slave at the time of birth. Hostilecapture(JusGentium):Apersoncouldbecomeaslaveiftheywerecapturedinwar,especiallyifthey were from outside the Roman Empire. RulesofCivilLaw(JusCivile):UnderRomancivillaw,variouslegalcircumstancescouldleadtoenslavement, such as being sold into slavery by a parent, enslaved due to debt, or sentenced to labor as punishment. Page10 CRL 1018 - ROMAN LAW I 2. Unfree Birth (Jus Gentium) T he basic rule under the Jus Gentium (the law of nations) was that a child’s status followed the mother’s statusatthetimeofbirth.T hismeantthatachildborntoaslavemotherwouldbeaslaveaswell,regardless of the father's status. ○ T his contrastswiththeJusCivile(civillaw),whichfollowedthestatusofthefatherindetermininga child’s status if theparentswerelegallymarriedandhadconubium(therighttomarryunderRoman law). However, there were exceptions to this rule under theJus Gentium: ○ Ifthemotherwasfreeatthetimeofconception(oratanypointduringpregnancy),thenthechildwas considered free, even if the mother became a slave later. ○ Over time, some statutory exceptions to this rule existed, but Emperors Hadrian and Vespasian repealedtheseexceptions,reinforcingthegeneralrulethatachild’sstatusfollowedthemother’sstatus at birth. 3. Hostile Capture (Jus Gentium) H ostile capture was another major cause of enslavement under Roman law. T his applied particularly to foreignerswhoweretakencaptiveinwarorconflict.IfaforeignerwascapturedbytheRomans(andwasnot protected by treaties or other legal agreements), they could be enslaved. ○ T his principle was grounded in the ideathatforeignenemiesorunprotectedforeignershadnolegal rights within the Roman system, so they could be enslaved as part of the spoils of war. ○ T his form of enslavement could apply to individuals captured in militaryconflict,butalsotoanyone found within Roman territory who was not protected by some legal agreement. 4. Rules of the Civil Law (Jus Civile) Several other rules underRoman civil lawallowedfor the enslavement of individuals. These were: S aleofChildrenbyT heirFather:IntheearlierperiodofRomanlaw,afatherhadthelegalrighttosellhisown children into slavery, but this was onlyallowedwithinthelimitsofRomeandinaformcalledmancipium(a type of legal control over a person). This power of sale was somewhat restricted as the law evolved. InsolventDebtors:UndertheTwelveTables(ancientRomanlaw),ifapersonwasinsolventandunabletopay their debts, they could be sold into slavery. Specifically, debtors who couldn’t pay could be sold acrossthe T iber Rivertonon-Romans(i.e., outside the cityof Rome, to territories like Etruria). ○ In ancient Rome, debtors who were unable to pay their obligationscouldfacesevereconsequences, includingenslavementorexecution.T heTwelveTables,Rome’searlylegalcode,allowedforthesaleof insolvent debtors into slavery, particularly across the T iber River to non-Roman citizens, known as sale trans Tiberim. ○ Ifadebtorfailedtosettletheirdebts,theycouldbekeptinchainsfor60days,duringwhichtheyhada chancetonegotiatewiththeircreditor.Afterthisperiod,thecasewouldbebroughtbeforeaPraetor,a magistrate, who would announce the amount owed and attempt to resolve the matter. ○ If no agreement wasreachedafterthreemarketdaysofpublicproclamation,thedebtorwouldeither be executed or soldintoslavery.T hisharshpunishmentreflectedtheRomanlegalsystem’semphasis onfinancialresponsibilityandtheauthorityofcreditors,whilealsohighlightingtheabsolutepowerof fathers over their children, who could even sell their sons into slavery for debts. Page11 CRL 1018 - ROMAN LAW I ○ A dditionally, the sale of debtors across the Tiber and the use of enslavement as punishment underscored the severity of Roman social and legal practices, where personal freedom could be forfeited due to financial failure. EvadingtheCensus:Romancitizenswhoavoidedregisteringinthecensus(alegalregistrationofcitizensfor taxationandmilitarypurposes)couldbeenslaved.T hiswasamethodofpunishingthosewhoviolatedthelaws governing Roman citizenship and obligations. Manifest Thieves: Individuals caught in the act oftheftcould be enslaved as a form of punishment. 5. Additional Ways to Become a Slave Under the Empire: During the Roman Empire, several additional methods for becoming enslaved came into effect. These included: F raudulentSalebyaFreeMan:Afreeman(over20yearsold)mightfraudulentlysellhimselfintoslaveryto shareintheproceedsofthesale.T hiswasaformofdeception,wheresomeonevoluntarilyenteredslaveryto receive the financial benefits of the transaction. S.C.Claudianum(52AD):T heSenatusConsultumClaudianumwasalegaldecreethatimpactedwomenwho cohabited with slaves. According to this law, if a free woman entered into a relationship with a slave and continuedtodosodespiteobjectionsfromtheslave’smaster,shecouldbedeclaredaslaveherself.T hiswasa way of controlling andpunishingwomenwhohadintimaterelationshipswithslaves.Justinianlaterabolished this law. Servi Poenae (Slaves of Punishment): T his was a specific category of slavery. Individuals who were condemnedtodeathorsentencedtohardlaborintheminescouldlosetheirfreedomandbecomeslavesof punishment. T hese individuals did not have amaster(sincetheywereslavesofthestate,notanindividual), and were typically subjected to extremely harsh conditions. - Justinian later abolished Ingratitude by Freedmen: Freedmen (former slaves) who were guilty of serious ingratitude toward their patrons (the people who had freed them) could bereducedback to slaveryas a form of punishment. Poverty and Sale of Children: Under extreme poverty, Roman parents were allowed to sell theirnewborn childrenintoslavery,althoughtherewastypicallyarightofredemption(thepossibilityofbuyingthechild’s freedom later). 6. Justinian's Reforms: E mperor Justinian (6th century AD) enacted reforms that abolished some of the practices of enslavement mentionedabove.Forexample,theS.C.Claudianumwasrepealed,meaningthatwomenwhohadrelationships with slaves could no longer be enslaved due to this law. Justinianpreservedtheothermethodsofenslavement,butmanyofthesepracticesbecamelessfrequentover time. Rights of Masters Over Slaves 1. Legal Status of Slaves (Jus Vitae Necisque) I nRomanlaw,slaveswereconsideredproperty,fullyunderthecontroloftheirmasters.T hismeantthatthey had no personal or proprietary rights—they were entirely dependent on their masters. T he master had the "right of life and death"(jusvitaenecisque),meaningtheycould,intheory,killaslaveatwillwithoutlegal repercussions. However, this right was not absolute and was subject to some legal limitations, especiallyin later periods. Page12 CRL 1018 - ROMAN LAW I 2. Legislation to Protect Slaves Over time, Roman law evolved to provide some protections to slaves: ○ LexPetronia(BeforeA.D.79):T hislawpreventedmastersfromexposingtheirslavestocombatwith wild animals in the arena (a common form of entertainment) without authorization from a magistrate. ○ Emperor Antoninus Pius (138–161 A.D.): He enacted laws that protected the lives of slaves. For instance, if a master killed a slave without just cause, the master was punished as though they had killed someone else'sslave,potentiallyfacingthedeathpenaltyunderthelexCorneliadesicariis(81 B.C.), a law against murder. ○ RescriptofAntoninusPius:IfslavesfledtotheEmperor'sstatueforprotectionduetomistreatment, theEmperorruledthattheycouldbesoldunderconditionsthatwouldpreventthemfromreturningto their former master's control. T his practice later gave slaves access to the courts in a more direct manner, challenging their condition of servitude. 3. Slavery in Practice (De Facto) Slavery in Rome existed in various forms and underwent significant changes over time: ○ Early Rome: Slaves were few in numberandoftenintegratedintohouseholds.T heyweresometimes treated with more consideration and could even live on relatively equal terms with their masters. ○ LaterRomanEmpire:AsRomeexpandeditsempire,thenumberofslavesgrewdrastically.Slaveswere used extensively in agriculture and on large estates, where conditions could be harsh. ○ UrbanSlavery:Incities,slaverywassomewhatmoretolerable.Slavesinurbansettingssometimeshad the opportunitytomanagetheirownpersonalfinances(peculium),whichcouldbeusedtoeventually buy their freedom. Some urban slaves were highly educated and held important roles in business, literature, or art. ○ Economic Decline: As theEmpirefacedeconomicdifficulties,thetreatmentofslavesworsened,and thesystemofcolonatus(aformofdependentagriculturallabor)graduallyreplacedslavery,especially in rural areas. 4. Slave as "Thing" vs. "Person" L egally, slaves were considered property(res),meaningtheycouldbeownedlikeanyotherobject.However, they were still human beings, and there were certain legal and moral recognitions of their personhood: ○ BurialandKinship:Slaveshadsomehumanrights,suchasreceivingaproperburial(whichmadethe burial ground "locus religiosus"). While slaves could not legally marry, natural family relationships (kinship)wererecognized,andtheserelationshipsaffectedthelegaltermsofmanumission(theprocess of granting freedom to a slave). ○ Criminal and Civil Liability: Slaves were subject to criminal law and could be punished for delicts (crimes). T heir masters were liable for their actions unless the slave was surrendered under noxal surrender (a Roman legal concept where a master could surrender a slavewhocommittedadelict). After manumission (freedom), slaves became personally liable for their actions and could enter into contracts. ○ Naturalvs.CivilLaw:Althoughslavescouldnotenterintocivilcontractsduringtheirservitude,they could bind others through natural law. T his natural obligation could persistevenaftermanumission, though it could not be enforced as a civil claim but rather as a defense in certain legal situations. 5. Ulpian's View on Slavery Page13 CRL 1018 - ROMAN LAW I T he Roman jurist Ulpian statesthatslavesareboundbydelicts(crimes)andremainliableevenaftergaining freedom. However, while slaves could not be bound by civil lawcontracts,theywerestillsubjecttonatural law, which meantthattheiractionscouldhavelegalconsequencesandtheycouldcreatenaturalobligations, even after manumission. Quasi-Servile " quasi-servile" conditions in Roman law,atermthatreferstoindividualswho,whilenottechnicallyslaves,occupied socialorlegalpositionssimilartoslavery.Itexplainsvariouscategoriesofpeoplewho,duetotheirlegalstatusorthe conditionsunderwhichtheylived,foundthemselvesinsituationsthatweresomewhatanalogoustoslavery.Here'sa breakdown of the key concepts: 1. Slaves of One Pattern? Justinian'sView:Justinian,theByzantineemperorandlegalreformer,statedthatallslaveswereessentiallythe same in Roman law. However, this was a simplification. T here were different categoriesofslaves,someof whom had more privileged or protected positions than others. T hese categories complicate the idea of all slaves being identical. 2. Privileged Slaves M anumission with Conditions(Statuliber):Astatuliberwasaslavewhohadbeengrantedfreedomundera conditionalarrangement.Forexample,theslavemightbemanumittedbutremainsubjecttocertainconditions (e.g., they might have to serve their master for a specified period). During this time, the slave could notbe mistreated or abused, and the praetor (a Roman magistrate) would offer legal protection against such abuses. Bonitary Ownership: Before certain reforms (such asthelexJunia,alawintroducedin18BCE),slaveswho wereinformallymanumittedormanumittedbya"bonitary"owner(anownerwhohadacquiredpropertyrights notthroughthefullformalitiesofcivillawbutundermoreflexibleterms)couldalsobeinaprivilegedposition. T hese individuals had certain protections and rights, especially after the lex Junia gave themaspeciallegal status. 3. Freemen in an Anomalous Position L iberHomoBonaFideServiens(FreeManinGoodFaithTreatedasaSlave):T hisreferstoasituationwhere a person who was actually free (a freeman) was treated as a slave by others, even though they were not legally enslaved. In these cases, the individual’s position was legally ambiguous,andspeciallegalruleswere established to address the abuse or mistreatment that such individuals might suffer. T his could happen,for example, when a free person was forced into servitude or treated unjustly as though they were a slave. 4. Colonate (Colonatus) C olonatus:T hecoloniwerepeoplewhowerefreebutboundtotheland.T heyweretiedtoaparticularpiece of land or estate,andwhiletheywerenotslavesinthetraditionalsense,theirconditionsweresorestrictive that they resembled slavery. T he coloni were often tiedtothesoilinagriculturallabor,andtheycouldnotleavethelandtheyworkedon withoutthemaster'sconsent.Inpractice,theirsituationbecameveryclosetoservitudeorserfdom.T hisclass Page14 CRL 1018 - ROMAN LAW I ofpeopleevolvedinthelaterRomanEmpireandhadsignificantparallelstothevillenagesysteminmedieval urope. E 5. Categories of Free People: Ingenuus vs. Libertinus I ngenuus (Free-born Person): A person borntofreeparents—eitherbothparentswerefree,oratleastthe motherwasfree—wasconsideredfree-born(ingenus).T heseindividualswerefullyfree,withalltherightsof Roman citizens. Libertinus (Freedman): A freedman was someone who had been manumitted (freed from slavery). Importantly,manumissioncouldoccurunderthecivillaw(meaningtheywerefreedaccordingtoRomanlegal process) or as a result of returning from slavery in a foreign land. ○ A freedman might not have the same full legal status as a free-born citizen, and in certain legal situations, they could face restrictions. For example, their descendants might not have full rights or could still face limitations based on their origin as former slaves. Postliminium: If a person was captured into foreignslavery(slaveryunderforeignlaw),theycouldrecover their Roman citizenship and status upon returning to Roman territory. T his was known as postliminium, where the individual's rights and freedom were restored as if theyhadneverbeenenslaved.T hisappliedto people who had been captured in war or through piracy, for example. 6.Summary of Key Terms M anumission (Statuliber): A conditional or informal grant of freedom, sometimes protected by law from abusive treatment. Liber Homo Bona FideServiens:Afreepersonwhoisincorrectlyorabusivelytreatedasaslave,leadingto special legal rules to protect them. Colonatus: A class of free people bound to the land,with conditions resembling servitude or slavery. Ingenuus: A free-born person. Libertinus: A freed slave, with certain restrictionson their legal rights compared to free-born citizens. Postliminium: T he legal principle that allowed someone to regain theirRomancitizenshipandlegalstatusif they returned from foreign captivity or slavery. Manumission anumission refers to the legal act by which a slave is granted freedom. In ancient Rome, the master could take M various steps to make a slave free, and there were both regular (formal) and irregular (informal) modes of manumission.T hesemethodsallowedaslavetotransitionfromthestatusofaslave(s ervus)tothatofafreeperson (libertus). Below, I will explain the different modesof manumission in Roman law. 1. Regular or Formal Modes of Manumission hesemethodsinvolvedofficialproceduresorrituals,oftenoverseenbymagistratesorotherauthorities.T heformal T modes of manumission wereconsideredlegallybindingandprovidedclearrecognitionoftheslave'snewstatusasa free person. (a) Vindicta (by a fictitious lawsuit): Page15 CRL 1018 - ROMAN LAW I V indictawasoneoftheoldestandmostformalwaystofreeaslave.Itinvolvedaritualizedlawsuitwherethe slave's freedom was proclaimed in front of a magistrate. ○ Process:Aplaintiff,knownastheadsertorlibertatis("assertorofliberty"),wouldtouchtheslavewith a special wand (called a vindicta) and claim that the slave was free. T he magistrate would then recognize this claim, and the slave would be legally freed. ○ Later Development:Overtime,thisprocedurebecameamereformality,andbythetimeofJustinian (6thcenturyAD),itcouldtakeplaceoutsideofthecourtroom—anydayandanywherethemagistrate could be found, even in casual settings such as at the bath or theatre. ○ H istoricalContext:T hismethodwasinitiallyasignificantlegalprocess,butbythe3rdor4thcentury, ithadbecomelargelyceremonial,withsomescholars(likeHermogenianus)statingthattheactcould even be performed by thepraetor's lictor(an officialassistant to the magistrate). (b) Censu (by enrollment on the census): Censureferred to manumission by registering the freedslave in theRoman census. ○ T he census was a record of Romancitizens,andonceaslave’snamewasenteredinthecensusasa free person, they were officially recognized as free. ○ T hiswasamorepublicformofmanumission,confirmingtheindividual’slegalstatusintheeyesofthe state. (c) Testamento (by will): A slave could be freed through atestamentaryact,either directly or by af iduciary arrangement: ○ DirectTestamentaryManumission:T hemasterwouldincludeaclearstatementintheirwill,suchas "Let my slave Stichus be free"(Stichus servus incusliber esto). ○ FideicommissaryManumission:T hemasterwouldcreateatrustwithintheirwill,instructingtheirheir to free the slave. For example: "I charge my heir with the duty to free my slave Stichus" (fidei committo heredis mei ut Stichum servum manumittat). Ifthemastergavedirectfreedom,thefreedslavewascalledalibertusorcinus(afreedmanof thedeceased),andtheywouldinheritthepatron’slegalrights,suchasthepotentialforfamily patronage. In the case of fiduciary manumission, theheirwouldbecome the freedman’s patron. 2. Irregular or Informal Modes of Manumission T hesewerelessofficial,non-legalorprivatemethodsbywhichaslavecouldbegrantedfreedom.Althoughtheywere ot legally formalized, these methods still had consequences and were sometimes recognized by Roman law. n (a) Inter Amicos (among friends): T he master could declare a slave free in the presence of friends or trusted individuals, without anyofficial ceremony. T his was considered an informal, social act, and was sometimes done within the household or community setting. (b) Per Epistolam (by letter): Page16 CRL 1018 - ROMAN LAW I A mastercouldsendalettertotheslave,officiallygrantingthemfreedom.T hiswasconsideredaninformalact, but once the slave received the letter, they were considered free. (c) Convivii Adhibitione (by invitation to dinner): A particularly informal method of manumission was the act of inviting the slave to
