LAW AND FAMILY
Every epigraphic inscription is, in its essence, a testimony to the human being. The name, title, act, or merit engraved in stone represent the person’s legal and social position, as well as family status. Epigraphic monuments allow us, with greater or lesser certainty, to ascertain the legal and social status of individuals even when legal terms are not explicitly stated. Therefore, before approaching the reading of such inscriptions, it is useful first to understand in brief the legal notions persona and caput and the law ad personas, since precisely through them Roman thought defines the relationship between the individual and the community. This means that we shall briefly acquaint ourselves with the status of the inhabitants in the Roman Empire, as well as with the content of Roman citizenship, which is a highly fluid category not only across centuries, but even within a shorter time span.
It is no accident that the jurist Hermogenian begins the discussion of law with ad personas, because: hominum causa omne ius constitutum est — “since all law is established for men's sake” (trans. Watson 1985, 15) (Digesta I.5.2.1). (Gaius, in the first book of the Institutiones, devotes attention to this branch of law, and in Justinian’s Institutiones the same subject, but with a slightly more developed system, is treated in the first book (Just. Inst. I. 3. 26) The classification to which he refers is as follows:
This is only one of the classifications of Roman law formulated in antiquity, which is in fact a systematization of Roman private law adopted from the division of subject and object in grammar and in elementary philosophy. This division is attested first in Gaius’ Institutiones (Gai. Inst. 1.1, 9), and then in the Digesta (D. I, 5, 1) and Justinian’s Institutiones (Just. Inst. 1, 2, 12). It should be borne in mind that this systematization does not entirely correspond to the modern division of law.
One may say that ad personas is that part of the law which concerns persons — personae, i.e., the legal rules that regulate legal status and capacity to act within society (law of status), as well as the position within the family (family law).
1) Free and slaves
Gaius’s introduction to “the law of persons” does not begin with a definition of the subject, i.e., the notion persona, but with a classification of that very notion; this practice applies to the further sections of legal theory as well, and is retained in Justinian’s Institutiones (Just. Inst. I.2) and in the Digesta (D. 1.5.3): “The primary distinction in the law of persons is this, that all men are either free or slaves. (aut liberi sunt aut servi).” (Gai. Inst. I.9). The general division of persons is into free and enslaved. In Justinian’s Institutiones (Just. Inst. I. 3. 1–2) libertas is defined in order to explain slavery as its polarity: “1. Freedom, from which men are said to be free, is the natural power of doing what we each please, unless prevented by force or by law. 2. Slavery is an institution of the law of nations (ius gentium), by which one man is made the property of another, contrary to the natural right.” (trans. Sandars 1865, 87) Namely, the institution of slavery is the only one that belongs to ius gentium and does not coincide with ius naturale. Yet this position of Justinian is not found in Gaius.
Further, the division concerns the free, who, depending on how many rights they possess, may be Romans, Latins, and peregrini (dediticii). The most important factors that affect a person’s status were: (a) whether they were born free or slaves (libertas); (b) whether they had Roman citizenship or not (civitas); (c) what their position was within the family (status familiae).
Within Roman society, every inhabitant, regardless of sex, could be (1) a Roman citizen, i.e., have status civitatis, or (2) an inhabitant with the right to freedom: status libertatis, without (fully) enjoying the rights of Roman citizenship, or (3) in the position of a slave: in statu servitutis.
2) The position of citizenship (status civitatis)
Roman citizenship did not have the same content for all Roman citizens (cives Romani); in fact, very few citizens who had status civitatis possessed all the rights envisaged by citizenship. The citizen with the greatest rights, called civis optimo iure, possessed the following rights in the sphere of public law: (1) right of voting in a popular assembly (ius suffragii); (2) the right of standing for public office (ius honorum); (3) the right to be enrolled in the Roman legions; (4) the right to participate in religious ceremonies. In the category of private rights, civis optimo iure possessed: (5) the right to a lawful marriage (ius conubii); (6) the right to use the institutions of property law (ius commercii); (7) the right to three names (ius trium nominum).
Roman citizenship could be acquired in two ways: by birth (ius sanguinis) and by naturalization (naturalisatio).
In the first case, citizenship by birth is acquired if the parents have the right to conclude a lawful marriage (ius conubii). This right was held primarily by Roman citizens, but in a certain period it was granted to Latins as well. This means that the father of the household (pater familias) had paternal power (patria potestas) over his children born of a lawful wife, who became lawful heirs to his property and to his status: “Also in our potestas are the children whom we beget in iustae nuptiae (civil marriage). This right is peculiar to Roman citizens.” (Gai. Inst. I.55) (trans. de Zulueta 1958, 17).
But if one of the parents had no right to a lawful marriage, then the child inherited the legal position of the mother. However, in Roman law, this custom deriving from ius gentium was soon abolished by the Lex Minicia. The law itself is rather unknown, since the authentic text has not been preserved; it is mentioned only in Gaius’ Institutiones (Gai. Inst. I.78) and in Ulpian’s Regulae (Tit. Ulp. 5.8). Moreover, the year of promulgation is not given, nor are further details about the law known. It is presumed to have been enacted in 90 BCE. The Lex Minicia prescribes that a child born of parents of differing status acquires the lower status:
“Our proposition, that the offspring of a Roman woman and a peregrine is, in the absence of conubium, a peregrine, is laid down by the L. Minicia, which enacts that the child is to follow the status of the peregrine parent. In the reverse case, where a Roman citizen takes a peregrine wife with whom he has not conubium, the same lex provides that the offspring of their union shall be a peregrine. But it was in the case we are considering that the L. Minicia was really necessary; for apart from it the child would properly have taken the other status, seeing that the child of persons between whom conubium does not exist takes his mother’s status under the rule of the ius gentium. But the provision of the lex that the offspring of a Roman citizen and a peregrine wife is a peregrine seems superfluous, seeing that even apart from the lex the same result would follow from the rule of the ius gentium in any case.” (trans. de Zulueta 1958, 25, 27).
The second way of acquiring Roman citizenship is by naturalization, that is, by civil procedure, when the father of the household performs adoption (adoptio, when a sui iuris person is brought under the paternal power of another pater familias) or adrogatio (when an alieni iuris person is transferred from the paternal power of one father into the paternal power of another). Likewise, by special acts of the state Roman citizenship was granted to certain individuals, to cities, or to provinces. This form of acquiring citizenship is much more frequent on inscriptions from the Roman provinces, as well as in legal papyri from Roman Egypt.
It should be mentioned that slaves of Roman citizens, upon manumission, became freedmen (liberti or libertini), thereby acquiring the status and the nomen gentilicium of their former master.
After 212 CE the differences among inhabitants of the Roman state with respect to civic status were leveled. The emperor Marcus Aurelius Severus Antoninus Caracalla (reigned 198–217 CE) granted Roman citizenship to all free inhabitants of the Roman Empire, with the exception of the dediticii, by means of the imperial edict known as the Edict of Caracalla or Constitutio Antoniniana. Although this edict is of immense significance for the Roman state, it is not cited even once in Justinian’s Corpus Iuris Civilis, but part of the edict is preserved in Greek on a papyrus from Egypt, catalogued as P.Giss. 40. Dio Cassius gives another reason for the proclamation of this edict:
“This was the reason why he made all the people in his empire Roman citizens; nominally he was honouring them, but his real purpose was to increase his revenues by this means, inasmuch as aliens did not have to pay most of these taxes.” (Dio Cassius, LXXVIII 9.5)
After this edict, the right to three names was obtained by all inhabitants who became citizens in the Empire. Soon after 212 CE, the new citizens received the nomen gentilicium Aurelius/Aurelia and by this they were distinguished from the “old citizens.” From the fourth century, citizens who had distinguished themselves in the community received another nomen gentilicium, Flavius/Flavia, which indicates a higher social status. The broad popular masses still bore the nomen gentilicium Aurelii, and this situation can be attested on inscriptions in the corpus dating from the third century onward.
There were certain categories of Roman citizens who were restricted in the exercise of their civic rights, namely women, children alieni iuris, minors, and freedmen. When the Christian religion became the official religion of the Roman Empire, restrictions with respect to civic rights also applied to pagans, heretics, apostates, and Jews (who had restrictions in the earlier period as well, primarily as peregrini), as well as coloni.
Restrictions on civic rights were also imposed on certain individuals who were temporarily deprived of particular rights due to some sanction, for example: slaves for debt (nexi or addicti), persons in mancipio, gladiators (gladiatores), and temporarily captured Roman citizens.
On the other hand, the restriction of civic rights could result from a sanction due to conduct that remained in force permanently. Personae intestabiles were those who had acted as witnesses in a mancipatio procedure or the like, but then refused to testify, thereby incurring a restriction in the use of institutions of property law (ius commercii). That sanction is mentioned also in the Law of the Twelve Tables (Lex XII tab. 8.22): “Whoever shall have allowed himself to bear witness or shall have been balance-holder (libripens), unless he stand by (his) evidence, he is to be unacceptable and unable to bear witness.” (trans. Crawford 1996 vol. II, 583) Citizens who displayed immoral behavior received from the censors a nota censoria and were entered in the censorial records, thereby losing the ius honorum. Citizens lost public-law capacities and had their private-law capacities reduced if they were declared infames as a result of infamia. Infamia (disgrace) is not merely ill repute or a bad reputation, but the consequence of a criminal act or delict, such as bigamy, violation of tempus lugendi (the period prescribed for mourning a deceased husband, during which the widow may not enter into another marriage), fraudulent bankruptcy, negligent tutelage, theft, brigandage, etc. Finally, if they were assessed as turpes personae on account of infamia facti, i.e., notorious and/or shameful deeds, they incurred restrictions in the area of marriage law. By the Augustan laws (Lex Iulia de maritandis ordinibus and Lex Papia Poppaea), the senatorial order was forbidden to marry freedwomen or persons engaged in dishonorable professions, and this is treated in the Digesta (D. 23.2). Such a sanction was incurred by those engaged in dishonorable occupations, such as prostitution, pimping, professions connected with the theater, and the like.
3) “The loss of one’s head”
In Roman legal terminology, to denote the legal subject, it is not so much the term persona that plays a role as the terms caput or status, which is correlative with persona. Caput primarily means “head,” but it also acquires the meaning of human being (similarly to persona), man, soul, life; in legal terminology caput is differentiated from persona only in the classical period of Roman legal history and refers to the rights and legal capacity of the person (the subject in law). The loss or diminution of rights possessed by an individual is denoted by the term capitis deminutio. Hence, of the slave, who belongs to the category of persons without freedom, Paul says nullum habet caput (D. 4.5.11) — “has no head,” i.e., has no status, no rights whatsoever; servile caput nullum ius habet (D. 4.5.3.1) — “the servile status contains no rights.”
Legal capacity ceases on account of natural death or on account of civil death, which is associated with the notion caput. Namely, as noted above, the free person always has certain rights, i.e., has status (caput). Only the slave has no caput, even though both categories — free and enslaved — are personae. In certain situations, a person may lose civic rights which entailed a curtailment or change of status (status permutatio), and this is called capitis deminutio (“diminution of status,” i.e., of the head) as Gaius explains:
“159. Capitis deminutio is a change of previous status; it occurs in three ways, there being capitis deminutio maxima, minor (also called media), and minima. 160. There is capitis deminutio maxima when a man loses both citizenship and freedom at the same time. This happens to those who evade inscription in the census, whom the regulations for the census order to be sold. A similar legal provision ….. who in contravention of that lex take up residence in the city of Rome. Another case is that of a woman who under the SC. Claudianum becomes enslaved to the owner of a slave with whom she has cohabited against the will and warning of that owner. 161. 'There is capitis deminutio minor or media when citizenship is lost but freedom is retained, as happens to one interdicted from fire and water. 162. There is capitis deminutio minima when, though both citizenship and freedom are retained, there is a change of status, as happens to those who are adopted or who make a coemptio, and to those given in mancipation and manumitted from it, so much so that a man undergoes a capitis deminutio every time that he is mancipated or manumitted.” (Gai. Inst. I.159–162) (trans. de Zulueta 1958, 53)
Roman jurists suggest that capitis deminutio maxima means losing both citizenship and freedom, i.e., the person becomes a slave, or is simply condemned to capital punishment. Such a person loses bonds with their family. Namely, all three statuses are lost simultaneously. This arises as a sanction for a serious criminal offense, such as desertion, willful evasion of the censorial rolls in order to avoid tax. Capitis deminutio media (or minor) means the loss of citizenship but not of freedom. In the earliest times this occurred when the citizen went into exile, or became an inhabitant of another state. During the empire, the same effect was achieved by deportatio. The last, capitis deminutio minima, means a change of family status. This occurs when kinship ties of a member with the family are dissolved as he enters another family, either by adoption (adoptio or adrogatio), or by marriage under the power of the husband (cum manu), or by becoming sui iuris and head of his own household through emancipation. One of the ways of the least change of status mentioned in the excerpt is coemptio, which is carried out through the formal procedure of mancipatio, such that authority over the woman is transferred from one representative to another, i.e., the woman is re-emancipated, similarly as in marriage by purchase when authority passes from the father to the husband (conventio in manum).
One example that can show us certain matters about status is the inscription titled “Donation by Polycharmos from Stobi,” written in Greek and dated to the second century CE. In the inscription the donor is presented with the three names: Claudius Tiberius Polycharmos, Κλ(αύδιος) Τιβέριος Πολύχαρμος, with the additional name ὁ καὶ Ἀχύριος, and the title ὁ πατὴρ τῆς ἐν Στόβοις συναγωγῆς. The three names indicate a person with status civitatis. However, the praenomen and the nomen gentilicium show that we are dealing with a naturalized Roman who previously had either status libertatis or was in statu servitutis, and then assumed the nomen gentilicium from his manumitter — in this case, the emperor. Naturalization may be the result of citizenship conferred by the emperor. The cognomen Polycharmos confirms the naturalization. The name Achyrios, for its part, perhaps indicates his Jewish origin. This is only one example in which the names are taken into account; but, as noted, the content of Roman citizenship encompasses more rights and obligations, which can be carefully read out from inscriptions in order to understand the status of the one in whose honor the monument is made or the one who erects the monument.
Epigraphic data undoubtedly enable a reconstruction of the complex system of statuses and legal relations in Roman society. Thus, the very reading of inscriptions constitutes an act of “reviving” the legal and social person from the past. Through them Hermogenian’s thought is confirmed, that hominum causa omne ius constitutum est — all law is established for the sake of the human being — and that understanding the law concerning persons essentially means understanding the human being as the center of the juridical world.
Daniela Tosheva
Further reading:
(continues)