Roman Law
11/6/2007
Outline

 

I. FAMILY LAW (cont’d)

 

 

II. NEXUM AND DEBT

 

III. SLAVERY AND PATRONAGE

 

 

 

 

IV. ILLUSTRATIVE PASSAGES

 

XII TABLES: Family Law; Nexum, Slavery; Patronage

 

1.

Marriage (cont’d): Divorce, Power to punish one’s wife

2.

patria potestas: ius vitae necisque

3.

adoption

 

Nexum and debt

 

 

 

1.

Noxal surrender

2.

Manumision: by will, vindicta, censu

3.

Patronage

 

 

1.

NA 4.3.1.–.2
It is on record that for nearly five hundred years after the founding of Rome there were no lawsuits and no warranties [cautiones] in connection with a wife’s dowry in the city of Rome or Latium, since of course nothing of that kind was called for, inasmuch as no marriage were annulled [separated] during that period. Servius Sulpicius too, in the book which he compiled On Dowries, wrote that security for a wife’s dowry seemed to have become necessary for the first time when Spurius Carvilius, who was surnamed Ruga, a man of rank [vir nobilis], put away his wife because, owing to some physical defect, no children were born from her; and that this happened in the five hundred and twenty-third year after the founding of the city, in the consulship of Marcus Atilius and Publius Valerius [231 B.C.]  And it is reported that this Carvilius dearly loved the wife whom he divorced, and held her in strong affection because of her character, but that above his devotion and his love he set his regard for the oath which the censors had compelled him to take, that he would marry a wife for the purpose of begetting children.

2.

Cicero, Phil. 2.28.69
Illam suam res sibi habere iussit, ex duodecim tabulis clavis ademit, exegit.

3.

Plutarch, Rom., 22.3
He also enacted certain laws, and among them one of severity, which forbids a wife to leave her husband, but permits a husband to put away his wife for using poisons, for substituting children, and for adultery.  [Various suggestions on what the text actually says; the better mss. have kleidon not teknon upobole.]

4.

Dionysius of Halicarnassus 2.25: Romulan laws
Other offences, however, were judged by her relations together with her husband; among them was adultery, or where it was found she had drunk wine — a thing which the Greeks would look upon as the least of all faults.

5.

D.H. 2.26
But the lawgiver of the Romans gave virtually full power to the father over his son, even during his whole life, whether he thought proper to imprison him, to scourge him, to put him in chains and keep him at work in the fields, or to put him to death, and this even though the son were already engaged in public affairs, though he were numbered among the highest magistrates, and though he were celebrated for his zeal for the commonwealth.  ...  And not even at this point did the Roman lawgiver stop in giving the father power over the son, but he even allowed him to sell his son, without concerning himself whether this permission might be regarded as cruel and harsher than was compatible with natural affection.  And, — a thing which anyone who has been educated in the lax manners of the Greeks may wonder at above all things and look upon as harsh and tyrannical, — he even gave leave to the father to make a profit by selling his son as often as three times, thereby giving greater power to the father over his son than to the master over his slaves.

6.

Story of Lucius Gellius: (Valerius Maximus Facia et Dicta Memorabilia 5.9.1)
Lucius Gellius, a man who had held all public offices up through that of censor, possessed near certainty that his son was guilty of very serious offenses, namely committing adultery with his stepmother and plotting the murder of this father. Still, he did not rush at once to vengeance but (instead) summoned almost the entire Senate to his consilium, set forth his suspicions, and offered the young man the chance to defend himself. And when he had very carefully examined the case, he acquitted him not only by the verdict of the consilium but also by his own. Now if, carried away by the force of anger, he had hastened to vent his cruelty, he would more have committed a wrong than avenged one.

7.

D. 48.9.5 (Marcianus, Inst.)

While hunting, a man had killed his son, who was committing adultery with his stepmother. The deified Hadrian is said to have exiled him to an island, because in killing him he used more of a brigand’s right than a father’s. For the father’s power (patria potestas) ought to be founded upon pietas not cruelty.

8.

D.48.8.2 (Ulp. De Adulteriis)
A father cannot kill his son without a hearing but should bring an accusation against him before the prefect or the provincial governor.

9.

G.1.140–1
Persons in mancipio since they rank as slaves, become sui iuris if manumitted by vindicta, census or will.  More than this, it possible for them to obtain liberty by the census even against the will of their holder in mancipio with the exception of one whom his father has mancipated with a proviso for remancipation to himself; for in that case the father is considered in a sense to reserve his potestas in virtue of the fact that he covers him by mancipation.  Nor, we are told, does a person acquire liberty by the census against the will of his holder in mancipio if his father gave him in mancipation on account of his wrongful act, for example if he (the father) was condemned for theft on his (the son’s) account and surrendered him by mancipation to the plaintiff; for in that case the plaintiff holds him in lieu of money.  Be it noted finally that we are not allowed to behave insultingly to those whom we hold in mancipio; if we do, we shall be legally liable for the insult.  And further, a man is not detained long in this status which for the most part is created only for a moment, as a matter of form, except, of course, where a man is mancipated on account of wrongdoing.

10.

Livy 2.23: [495 B.C.]
The chief cause of the dispute was the plight of the unfortunates who were ‘bound over’ to their creditors for debt.  These men complained that while they fighting in the field to preserve their country’s liberty and to extend her power, their own fellow-citizens at home had enslaved and oppressed them; the common people, they declared, had a better chance of freedom in war than in peace; fellow Romans threatened them with worse slavery than a foreign foe.  finally, their growing resentment was fanned into flame by a particular instance of the appalling condition into which a debtor might fall.  An old man suddenly presented himself in the Forum.  With his soiled and threadbare clothes, his dreadful pallor and emaciated body, he was a pitiable sight, and the uncouthness of his appearance was further increased by his unkempt hair and beard.  Nevertheless, though cruelly changed from what he had once been, he was recognized, and people began to tell each other, compassionately, that he was an old soldier who had once commanded a company and served with distinction in various ways — an account which he himself supported by showing the scars of honourable wounds which he still bore upon his breast.  A crowd quickly gathered, till the Forum was as full as if a public assembly were about to be held; they pressed round the pathetic figure of the old soldier, asking him how it was that he had come to this dreadful pass.  ‘While I was on service,’ he said, ‘during the Sabine war, my crops were ruined by enemy raids, and my cottage was burnt.  Everything I had was taken, including my cattle.  Then, when I was least able to do so, I was expected to pay taxes, and fell, consequently, into debt.  Interest on the borrowed money increased my burden; I lost the land which my father and grandfather had owned before me, and then my other possessions; ruin spread like a disease through all I had and even my body was not exempt from it, for I was finally seized by my creditor and reduced to slavery: nay, worse — I was hauled away to prison and the slaughterhouse.’

11.

Livy 2.5. [The story begins with a conspiracy to restore the Tarquins in 507 B.C. right after their expulsion.  The conspirators were caught as the result of the report of an informer, and the conspirators were executed.]
After the execution, the informer was rewarded; in addition to a gift of money he was granted his liberty with citzen rights.  It was hoped that this measure might double the effect of the execution as a deterrent.  The informer is said to have been the first slave to be emancipated by touching with the vindicta (staff); some think that the word vindicta was derived from his name, Vindicius.  It was the custom subsequently to regard all slaves who were freed in this way as admitted to the rights of citizenship.

12.

DH 2.9.1
After Romulus had distinguished those of superior rank from their inferiors, he next established laws by which the duties of each were prescribed.  The patricians were to be priests, magistrates and judges, and were to assist him in the management of public affairs, devoting themselves to the business of the city.  The plebeians were excused from these duties, as being unacquainted with them and because of their small means wanting leisure to attend to them, but were to apply themselves to agriculture, the breeding of cattle and the exercise of gainful trades.  This was to prevent them from engaging in seditions, as happens  in other cities when either the magistrates mistreat the lowly, or the common people and the needy envy those in authority.  He placed the plebeians as a trust in the hands of the patricians, by allowing every plebeian to choose for his patron any patrician whom he himself wished . . . . The regulations which he then instituted concerning patronage and which long continued in use among the Romans were as follows:  It was the duty of the patricians to explain to their clients the laws, of which they were ignorant; to take the same care of them when absent as present, doing everything for them that fathers do for their sons with regard both to money and to the contracts that related to money; to bring suit on behalf of their clients when they were wronged in connexion with contracts, and to defend them against any who brought charges against them; and, to put the matter briefly, to secure for them both in private and in public affairs all that tranquillity of which they particularly stood in need.  It was the duty of the clients to assist their patrons in providing dowries for their daughters upon their marriage if the fathers had not sufficient means; to pay their ransom to the enemy if any of them or of their children were taken prisoner; to discharge out of their own purses their patrons’ losses in private suits and the pecuniary fines which they were condemned to pay to the State, making these contributions to them not as loans but as thank-offering; and to share with their patrons the costs incurred in their magistracies and dignities and other public expenditures, in the same manner as if they were their relations.  For both patrons and clients alike it was impious and unlawful to accuse each other in law-suits or to bear witness or to give their votes against each other or to be found in the number of each other’s enemies; and whoever was convicted of doing any of these things was guilty of treason by virtue of the law sanctioned by Romulus, and might lawfully be put to death by any man who so wished as a victim devoted to the Jupiter of the infernal regions.

 

 

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