Roman Law
11/6/2007
Outline
|
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
|
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.
|
|