Roman Public Life

by A. H. J. Greenidge

The full legal status of a Roman citizen was designated by the word caput. It denoted all the rights that he possessed, but primarily it is a conception of public law, for the possession of private was originally regarded as an annexe to the possession of public rights. Thus caput is retained even though the exercise of private rights is hindered for a time, as it is in the case of a son under power; the filius familias possesses a caput, although it is modified by his subjection to his father. This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The materfamilias holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband’s death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. Appearance before a court of law at Rome, whether for the purpose of defending one’s own or another’s rights, was regarded as a public act; and Roman sentiment so strongly disapproved a woman’s taking part in public life that, when one was found bold enough to plead her cause in the Forum, the Senate in alarm made an official inquiry of the gods what the portent signified.[112] It is possible that in the earliest stage of Roman law women were not regarded as having any rights to defend; later they are regarded as having rights, and therefore a caput, but as incapable of defending them. When, in the latest stage, the disabilities of sex disappear partly through enactment,[113] but chiefly through a series of legal fictions, the capacity of women to defend their own interests first emerges.[114]

The limitation by which a series of civil rights is destroyed is spoken of as a “lessening of caput” (capitis deminutio). It is in every case an infringement of rights already possessed by the individual. Now the loss of public rights could only follow on a loss of citizenship; but this is not the diminution but the annihilation of caput, and could not therefore in the earliest stage of Roman law (when there was no status recognised but that of citizenship) be called a capitis deminutio. The term must have been wholly confined to a loss of private rights, i.e. to the loss of the rights conveyed by the control of a familia.[115] Thus the adrogatus suffers a lessening of caput by passing into the power of another. But a change from a higher to a lower status (even when the higher did not imply active rights) may at an early period have been regarded as an infringement of caput. We know, for instance, that the datio in mancipium of a son of a family was thought (at what period is uncertain) to involve it, because the child passes from a better to a worse station, although in his former condition he had no active rights of his own. It is stranger still that, certainly at an early period, the fact of a woman’s passing into her husband’s power (conventio in manum) was held to have this consequence. It is one that is scarcely intelligible in the case of a filia familias who passes from one potestas to another; but in the case of a woman only under the burden, lighter and ever tending to be more relaxed, of the tutela of her relatives, it is a natural though not strictly legal conception.[116] Some other applications of the system are still more artificial, and are perhaps creations of late Roman jurists who came to consider that the essence of a loss of caput was a change of status (status commutatio).[117] Thus adoption, which is the change from one potestas to another, and even manumission, which is the freedom from power, were supposed to involve it. These applications contain some historical truth only in so far as both these changes involve a temporary mancipation.

The original capitis deminutio is thus a purely private law conception and implies the distinction between persons sui juris and alieni juris. To the first category belong those who are free from the power of another, to the latter those who are under the potestas, manus, and mancipium; amongst citizens, therefore, the son, the wife, and any one mancipated to another. The person alieni juris is not altogether devoid of private rights, but they are singularly incomplete in their effects. Thus the son under power has the right of marriage (conubium), but the children of the marriage are not in his power but in his father’s; he has (if not in the earliest period, yet throughout the greater part of Roman history) the right of taking part in the legal business of trade (commercium), yet all that he acquires by this business belongs to his father. In his case, however, the condition is transitory, while in the case of the slave and the mancipatus (apart from the possibility of emancipation) it is permanent.

Conversely, the fact of being sui juris does not always imply freedom of action; this might be limited through consideration of age or sex. Minors and women may be free from potestas, but the former were subject to a temporary, the latter originally to a perpetual tutela.

§ 4. The Citizens and the Political Subdivisions of the State

The whole collection of Roman citizens forms the populus Romanus quiritium,[118] or populus Romanus quirites.[119] Of the terms thus placed in apposition, populus Romanus is the more general descriptive name, and quirites the official title by which the citizens are addressed in the assembly. Yet both words appear to have the same signification; populus is the armed host,[120] and the quirites are the “bearers of the lance.”[121] If the latter etymology is correct, the word quirites came, by a course of development which finds many parallels in Roman history, to mean exactly the opposite of its original signification. At the end of the Republic it signifies the citizens in their purely civil capacity, wearing the toga, the garb of peace, and exercising political functions within the city; Caesar once quelled a mutiny of his legions by addressing them as quirites, showing by this address that they were disbanded and were no longer soldiers.[122]

A more real historical difficulty with respect to the original connotation of these words, is to determine whether they denoted the whole people, Plebeians as well as Patricians. Roman records do not use populus as equivalent to the patrician community alone; but these records all refer to a time after the Plebeians had won political rights, at least the rights of serving in the legions and of voting. If populus and quirites denoted the aggregate of fighting, and therefore privileged, men, they must have originally referred exclusively to the patrician community. After the Servian constitution the words denote the whole people (universus populus). Populus and plebs are henceforth only distinguished as the whole to the part—the distinction being necessary, since the Plebs continued to form a corporation apart, and this corporation excluded the patrician families.[123] So, in a later official formula, senatus populusque Romanus denotes two corporations, the latter composed of all the members of the state, but in this the individual members of the smaller corporation are included.

Civis, a word of uncertain origin, signifies less definitely than quirites the possession of active political rights. Hence its application to women and to the partially-privileged members of the state—to those who were, at certain periods of Roman history, given rights in private law, while debarred from the exercise of the suffrage or the attainment of office. It is possible that the distinction between the full citizen (civis optimo jure) and the partial citizen (civis non optimo jure), although probably not a primitive,[124] may yet be an ancient conception of Roman law. Those Plebeians who had never been, or who had ceased to be, entirely dependent on a patronus for the exercise of their legal rights, would practically have belonged to this latter class. Before the reform of Servius, which gave them political privileges, they might have been called cives; it is only after this reform that they could have been called quirites. It was, perhaps, in consequence of this change in the constitution that cives replaced quirites as the designation of the full citizens with reference to all their rights.

If we ask what the original rights of the citizen of Rome were, it is impossible to frame a simple category applicable to all the cives. Taking our stand at a period just before the Servian reforms, we find that private rights were possessed in varying degrees by all the members of the community. These rights are generally summed up as those of trade and of marriage (commercii et conubii). The first is the legal capacity to acquire full rights in every kind of property, to effect its acquisition, and to transfer it by the most binding forms, and to defend the acquired right in one’s own person by Roman process of law (legis actio). This commercium was possessed equally by the Patricians and the free Plebeians. It was no infringement of the right of commerce that the right of occupying domain-land wrested from the enemy may for a long time have been possessed only by the dominant order;[125] for such land was not acquired, but only held on a precarious tenure from the state, and the privilege was, perhaps, one of fact rather than of law. The jus conubii is the right to conclude a marriage which is regarded as fully valid by the state (matrimonium legitimum or jure civili), and which, therefore, gives rise to the patria potestas. This right was possessed by the Patricians and by at least the free Plebeians, but by each class only within itself. There was no right of intermarriage between the orders, and the member of each effected his position as a father by a different ceremony.[126] The rights consequent on membership of a clan—those of inheritance and of religious communion—were, as we saw, probably shared with the Patricians by those Plebeians at least whose ancestors had never been in a condition of clientship.