Roman Public Life

by A. H. J. Greenidge

Lastly, there was the principle that the paternal power cannot interfere with the jus publicum. It is a principle that applies both to persons and to property. In its first application it means that the son can exercise his vote independently of the paternal control; that he can fill a magistracy which subjects his father to his command; that, at least in later times, even the function of guardianship (tutela) can be exercised without the father’s will; for this, too, is a public duty.[94] With respect to property, public law, though not infringing on the theory that all goods belong to the paterfamilias, yet does not regard them as the object of purely individual ownership. The father is rather a trustee than an owner, and even under the Servian constitution, that is, according to tradition, before the close of the monarchy, the value of a freehold is taken to qualify the members of the familia, not merely its head, for service to the state, and ultimately for the exercise of political rights.[95]

An instance of the triumph of the state in its conflict with private property is furnished by the position of the bondsman (nexus). It may be appropriately discussed here; for the nexus is in private law practically in the position of the son under power. He was a man who had contracted a debt on the security of his person,[96] and who, on non-fulfilment of that obligation, had had his body and his services attached by the creditor. In private law he is a slave; in public law he is a free-born Roman citizen, and may be summoned for service in the legions when the state needs his help.

It would be an anachronism to enter on a full treatment of Roman slavery in connexion with the beginnings of Roman history. Almost all that we know of the legal relations of slaves to their masters, of their capacities and their disabilities, their hopes of freedom, their position in the home, and their influence on the public life of the city, refers to a far later period. Yet the class doubtless existed from the earliest times, and as Roman legal conceptions became modified but never completely altered by the course of time, it is possible to give a faint outline of the conditions of slavery in the Regal and early Republican periods.

Slavery may at all periods of the history of Rome be defined as an absence of personality. The slave was a thing (res) and belonged to that more valuable class of chattels which the Romans called res mancipi, and which included land and beasts of burden. He was, therefore, a part of the homestead (familia),[97] the transfer of any portion of which required the most solemn forms of Roman law. As a thing, the master is said to exercise dominium over him; he might deal with him as he pleased, and had over him the power of life and death. The slave, on the other hand, has not only no rights against his master, but cannot conclude legal relations with others. He has no legal relatives, no legal wife; he may be permitted to retain the fruits of his own labour, but even his master’s will cannot make it his property. How far this “thing” possessed a potential personality we do not know—how far, that is, the personality inherent in him could be realised by subsequent emancipation. Liberation could at best have raised the slave to the condition of the client at this early period—a slight ascent in the scale of actual rights, but one that might have been valued for the greater personal freedom and the surer guarantee of religious protection which it gave. But the fact that the slave is a part of the homestead, and at the same time an intelligent being, makes him in the truest sense a member of the family. The owner is said to have power (potestas) over him, a word which is used only of rule over reasonable beings; and this dominica potestas does not differ essentially from the patria potestas which is exercised over the son. The treatment of the two was doubtless different, for the one would some day be a lord, the other would remain a slave, but their legal relation to the dominus was the same.

But the legal status of the slave is no true index of his condition. This will depend on two factors, his origin and his social relations to his master; and on both these grounds the early slavery of Rome must have compared favourably with that of later times. The slave trade was probably unknown, and the condition must have been mainly the result of capture in war from neighbouring states. Slavery is not altogether degrading when it is wholly the consequence of the laws of war. The slave was an Italian, perhaps of as noble birth as his master, and this, though it may have aggravated the bitterness of the lot, must have rendered possible an intimate social intercourse which would not have been possible with the barbarian, and must have forced on the master’s mind the conviction that a sudden turn in fortune’s wheel might place him in the same position in the city of his serf. Again, the servitude was domestic; whether employed in the home, or on the common lands of the clan, or on the petty plot of ground that the master called his own, the slave was never severed from his master or his master’s kindred. We hear in early times of his sitting at his master’s table,[98] and of his being the tutor and playmate of his lord’s children.[99] He may in some cases have been better off than the client or the unattached Plebeian engaged in some petty trade. Certainly the opportunities for the primitive culture afforded by the Roman household were more open to him than to the other orders excluded from the Patriciate. In the case of domestic slavery extending over a small area, public opinion is generally a powerful restraint on the master’s caprice. We do not know whether this opinion found a religious expression in such principles as those which protected the client’s rights; but the fact that the censor of the later Republic, who perpetuates the obligations of religious law, punishes acts of cruelty committed by the dominus,[100] may show that the slave was not wholly without the pale of divine protection.

If, as we have seen, the Roman’s chief mode of livelihood, the land, was not his own property but that of the clan, no individual disposition of it during lifetime or after death was possible, although there may have been some right of bequest over the movables classed as res nec mancipi. When the theory of common possession was modified by the recognition of a heritable allotment, bequest may have become possible; but doubtless intestate inheritance still continued to be the rule. A law of inheritance is first known to us from the Twelve Tables, which allowed the utmost freedom of bequest and legacy; but there was a survival both of theories and practices which show that testamentary disposition was originally regarded as the exception and not the rule.

First, we may notice that even in later times the immediate heirs of a man were regarded as having a claim to property, a kind of potential ownership, during the lifetime of the pater, and that inheritance is regarded merely as a continuation of ownership (dominium);[101] and in accordance with this view we find the practice of holding an inheritance in joint ownership, the co-heirs bearing the name of consortes.[102]

Secondly, the earliest testaments of which we have knowledge were public acts performed before the comitia of the people. The most ancient was the patrician form of testament—the testamentum comitiis calatis—effected at the comitia curiata which were summoned (calata) twice a year for this purpose.[103] The original purpose of this public testament is obscure. It is possible that originally it took place when there was no direct heir (suus heres) to receive the inheritance, and that it was accompanied by some form of adoption of a successor. The person adopted might have been the son belonging to another family; although of such a procedure there is no further trace in Roman law.[104]

The publicity of the act and the infrequency of its occurrence show how exceptional a will must have been, and that the normal mode of succession was that by intestacy. But we have no warrant for saying that this testament at the comitia calata was an act of private legislation and was permitted by the assembled burgesses. The gathering was perhaps merely a form, and the persons assembled may have acted only as witnesses;[105] but the very publicity would have made it almost impossible to pass over a son of the family, unless there were expressed grounds for his disinheritance.