Introduction to Roman Law

James Hadley

• Editorial: Ozymandias Press
• Año: 2018
• ISBN:
  9781531281755
• Categoría: History
• Categoría: World History

The Corpus Juris Civilis represents the Roman law in the form which it assumed at the close of the ancient period (a thousand years after the decemviral legislation of the Twelve Tables), and through which mainly it has acted upon modern times. It was compiled in the Eastern Roman Empire (the Western ceased in 476 a.d.), under the Emperor Justinian (controversies as to his character), who reigned 527-565 a.d.

LAW OF STATUS AND FAMILY RELATIONS.

THREEFOLD DIVISION OF STATUS (capacity for legal rights: 1. As to libertas: all men were liberi or servi; 2. As to civitas: all freemen were cives or peregrini; 3. As to familia: all citizens were sui juris (as patres-familias, with or without wife and children) or alieni juris (as filiifamilias, subject to a life-long patria potestas). In each case the change to a lower position was called deminutio capitis (diminution of the law-person), which was minima when it was only loss or change of family relation; media, loss of citizenship; maxima, loss of personal liberty.

I. Slavery was referred by Roman jurists to the jus gentium, but not to the jus naturale.—Usually it began from captivity in war; but by its own nature was hereditary, being inherited from the mother (partus sequitur ventrem). The rule pater est quern nuptiae demonstrant was inapplicable to slaves, who could have contubernium, but no legal matrimonium.—The slave might become free by the testament of his master, or by census when the master had him enrolled on the list of citizens. But the usual form of manumission was a fictitious suit between a vindex of the slave, claiming him as free man, and the master, who allowed judgment to go against himself: a form greatly simplified as time went on.

The slave had no rights recognized by the law, though certain laws (having the nature of police regulations) restrained excessive cruelty to slaves. The slave might, however, receive a legacy or an obligatory promise, acquiring them for his master. He might even enter into contracts binding on his master, as where the master had intrusted him with some business, or had given him a peculium to manage, or had derived any actual advantage from his contract

The manumitted slave was called libertinus, and his status was in some Respects inferior to that of the ingenui or freeborn.

II. Roman Citizens, besides the rights of the jus gentium, which belonged also to aliens, had those of the jus civile (in its narrower sense). These last were divided into—1. Those of connubium, pertaining to marriage and its incidents, and 2. Those of commercium, pertaining to business relations. The people of the Latin cities long enjoyed the commercium without the connubium; and this condition (jus Latii) was afterward attended to other communities, who then received the law-name of Latini. After Caracalla (211-217) gave citizenship to the free people of the provinces, the pereyrini were either persons born outside the empire, or those who had forfeited citizenship by some offence; while the Latini were chiefly freedmen manumitted without due regard to legal requirements.

III. The patria potestas lasted through the life of the pater familias and for a long time was almost unlimited. The father was entitled to the entire services and acquisitions of the child; he could inflict on him any punishment, could sell him into a kind of slavery called mancipium, and had over him even the jus vitae et necis. This, however, did not affect the public rights and duties of the son, who could hold any office, civil or military. The patria potestas (like the husband’s power over his wife in English law) had its root in the sense of family unity, the family appearing as one in the father, its single representative and executive. Under the emperors it began to be limited, both as to personal inflictions and property rights. From Augustus on, the son could acquire a peculium castrense; later, a peculium quasi castrense. By Justinian’s legislation, what the son acquired in public service was wholly the son’s; what he acquired with the father’s capital or instruments was wholly the father’s; what he acquired in any other way was the son’s, but subject to a life-long usufruct of the father.

A new patria potestas might be created by adoptio. This was also called arrogatio, when applied to a person sui juris: it then required the express assent of the people, later that of the emperor. The adoption of a person alieni juris was accomplished by a fictitious suit, in which the natural father forbore to defend his right against the claim of the adoptive father. The effect on the adopted person (at least during the earlier period) was to put him in the same relations to his old family and his new one as if he had been born in the latter.

The patria potestas might be terminated by a process, called emancipatio, because it involved a sale (which in the case of a son must be thrice repeated) into the quasi-slavery of the mancipium and a release from that condition. Both emancipation and adoption involved a minima capitis deminutio.

We have now reviewed the history of the Roman law, both before and after the formation of the Corpus Juris Civilis—both in ancient and in modern times. We proceed to look at the Roman law in its substance, to notice in a brief and rapid survey the leading points of the system, the history of which has thus far occupied our attention. In this survey we begin, as the Institutes or text-books of Gaius and Justinian do, with the subject of status. By the status (or standing) of a person is meant the position that he holds with reference to the rights which are recognized and maintained by the law—in other words, his capacity for the exercise and enjoyment of legal rights. This capacity the Roman jurists, who had a highly developed doctrine of status, represented as depending on three conditions, libertas (or personal freedom), civitas (or citizenship), and familia (or family relation). Accordingly, they distinguished three kinds of status: 1. In respect to libertas: all men were free or unfree. As to the unfree (the slaves), it can hardly be said that they had any status: they had no rights of their own recognized by the law, no rights which they could assert or vindicate by legal processes. But all freemen did not stand on the same footing before the law: some had a more advantageous position than others, according as they differed. 2. In respect to civitas. All freemen were citizens or non citizens. The rights which pertained to mere personal freedom belonged alike to citizens and aliens. But there were other rights, belonging to the jus civile in its narrower sense, as explained in the last lecture, which were open to citizens only, while aliens living under the jus gentium (or common law of all nations) were excluded from them. But even among Roman citizens there was a wide difference in capacity for legal rights, according as they differed. 3. In respect to familia. All citizens were either sui juris (men of their own right), acting for themselves independent of family control, or alieni juris (subject to another man’s right), subject to the control of one who stood as head of the family. Both enjoyed alike the rights of freemen and of citizens; but there was a great difference between those who were sub patria potestate (under the power of a father) and those who either had no father living, or had been emancipated from his power. The former were filiifamilias) children of a family and dependent in their property relations on the head of the family, the paterfamilias; while the latter were themselves patresfamilias, or heads of families. A man in this position was a paterfamilias in the law-sense of the term, though he had neither wife nor children, though his family consisted of himself alone; as, on the other hand, a man with a wife and ten children was only a filiusfamilias, if he was subject to the family control of a living father. You will have observed that, in this threefold division of status, the highest class in each division includes all classes of the division following it. The first division is into liberi and servi (free people and slaves); in the second, the liberi are divided into cives and peregrini (citizens and aliens); in the third, the cives are divided into homines sui juris and homines alieni juris (independent and dependent persons). If a man lost the position of advantage which belonged to him in any of these divisions, he was said to suffer a capitis deminutio (a diminution of the caput), a phrase of frequent use and great importance in the Roman law. The word caput in this phrase denotes the law-person, the person as invested with all legal rights and powers which belong to him. If the change of status was only a change of family relation, the deminutio capitis was comparatively small; it was the minima capitis deminutio; the subject of it still retained the rights of a freeman and a citizen. If the change of status involved a loss of citizenship, this was a much more serious privation; yet it was not the worst which a man could suffer; he still retained the rights of a freeman. Hence the loss of citizenship was designated as media capitis deminutio. But a change of status in which a man lost his personal liberty was the greatest and sorest of all: it was the maxima capitis deminutio: his legal personality was swept away: no rights, no status remained to him. (The loss of freedom then is the max. cap. dem.; the loss of citizenship, the media cap. dem. and the loss or change of family relation, the minima cap. dem.)

But we must attend more particularly to these three kinds of status; and first, to that in which freemen are distinguished from slaves. The condition of freedom requires no special explanations. But something must be said about slavery as it existed under the Roman law. The subject, happily, is not so interesting for us now as it was a few years ago, when a system of slavery much resembling that of the Romans covered more than half the area of the United States, and seemed likely to extend its power over the West India Islands, over Mexico and Central America, and perhaps even beyond the Isthmus. Yet an institution which cast so terrible a shadow over our recent past, and still so strongly affects the present of our country, can be no matter of indifference to us: it lends an interest, more than the merely historical or antiquarian, to the similar institution of the Romans. The Roman jurists recognized slavery as belonging to the jus gentium, for they found it among all nations of which they had any knowledge. But they did not in this case, as in most others, identify the jus gentium with jus naturale. They acknowledged in explicit terms that slavery was an arbitrary institution, the creature of force and not of right, that it had no foundation in reason and equity, and therefore formed no part of the jus naturale. They did not hold that a superiority of birth or race, of intelligence or civilization, gave any right, gave any thing but the mere actual power, to deprive the inferior of what they regarded as his natural condition of freedom. As for the idea that slavery was a real advantage to the enslaved, something which they ought to accept with gratitude and dread to lose, it seems never to have occurred to any Roman jurist. Perhaps masters then were different from the patient and placable patriarchs of recent times.

How did slavery arise? As to the origin of slavery, where it was not an inherited condition, it was most frequently the result of war. According to the ancient theory of war, the captor in his treatment of the captive was not bound by any rule of right: the relation between them was one of mere force; if that force was used to take his life, the captive could not complain of a rigor which in the opposite case he might himself have exercised. If he received life even under the conditions of slavery, it was more than he was entitled to claim. But Roman citizens made prisoners by their fellow-citizens in civil war, were not reduced to slavery; this treatment was reserved for alien enemies. It was a natural consequence of the theory of slavery that the condition should be hereditary. If the slave exists only for the master, if all products of natural powers or activities belonging to the slave are the absolute property of the master, the master’s right of ownership must extend to the children of the slave, the fruit of his body. Inherited slavery was a maternal inheritance. The famous maxim partus sequitur ventrem (the child follows the mother’s condition), of which we used to hear so much, was a maxim of the Roman law. The child of a female slave had no father recognizable by the law, any more than the child of a public prostitute. For the other law-maxim pater est quem nuptiae demonstrant (he is father whom a lawful marriage points out as such; that is, the mother’s lawful husband is the presumed father of her child) this maxim could have no application to the slave. No such thing as marriage among slaves was, or could be, recognized by the law. As slaves were wholly subject to the disposal of their masters, no unions having the character of permanence or sacredness could exist among them: such a union, if it existed, would abridge the master’s power of absolute control. Among slaves there could only be contubernium, cohabitation of the sexes for a longer or shorter time, but no legal matrimonium.

How could slavery be terminated? There were different modes of manumission, as by census, when the master caused his slave to be enrolled as a freeman on the list of citizens made out by the censors; and by testament, when the master in his will gave directions binding on his heir that the slave should be made free. But the most common way, and the one which gave occasion to the name of manumission, was, in its origin at least, a pretended or collusive suit. The plaintiff in this suit was a Roman citizen who maintained the cause of the slave, asserting him to be of right a freeman; he was called the vindex of the slave: the master himself was the defendant. The proceedings were much like those described in the last lecture, as used under the earlier law when t...