by Will Durant
The consent of both fathers was still required for legal marriage.8 Marriage by confarreatio was now (A.D. 160) confined to a few Senatorial families. Marriage by purchase (coemptio) lingered as a form; the bridegroom paid for the bride by weighing an as or an ingot of bronze in a scale before five witnesses, her father or her guardian having consented.9 Most marriages were now by usus, i.e., cohabitation. To avoid falling under the manus or proprietory power of her husband, the wife absented herself three nights in each year; thereby she retained control of her property, excepting her dowry. Indeed, the husband often put his property in his wife’s name to avoid suits for damages or the penalties of bankruptcy.10 Such marriage sine manu could be ended by either party at will; marriage by other forms could be ended only by the husband. Adultery was still a minor offense in the man; in the woman it was a major offense against the institutions of property and inheritance. But the husband no longer had the right to kill his wife taken in adultery; this right was now vested technically in her father, actually in the courts; and the penalty was banishment. Concubinage was recognized by the law as a substitute for marriage, but not as an accompaniment to it; and a man could not legally have two concubines at once. Children by a concubine were classed as illegitimate and could not inherit—which made concubinage all the more attractive to men who liked to be courted by hunters of legacies. Vespasian, Antoninus Pius, and Marcus Aurelius lived in concubinage after the death of their wives.11
The law struggled to encourage parentage among the freeborn, but with negligible results. Infanticide was forbidden except in the case of infants deformed or incurably diseased. The detected procurer of abortion was banished and lost part of his property; if the woman died he was to be put to death;12 these laws, of course, were largely evaded then as now. Children of any age remained under the authority of the father except when thrice sold by him into bondage, or when formally emancipated, or when the son held a public office or became a flamen dialis, or when a daughter married cum manu or became a Vestal Virgin. If a son married in the lifetime of his father, the patria potestas over the grandchildren, resided in the grandfather.13 By the legislation of Augustus the earnings of a son in the army, in public office, in priestly orders, or in the liberal professions were freed from the old rule that such gains belonged to the father. A son might still be sold into bondage (mancipium); but this differed from slavery (servitus) in leaving the bondsman with his former civic rights.
The slave had no legal rights whatever; indeed, Roman law hesitated to apply the term persona to him and compromised by calling him an “impersonal man.”14 It is only by a considerate error that Gaius discusses him under the law of persons; logically the slave came under the rubric of property (res). He could not own, inherit, or bequeath; he could not make a legal marriage; his children were all classed as illegitimate, and the children of a slave woman were classed as slaves even if the father was free.15 Slaves male or female might be seduced by their master without legal redress. The slave could not bring action in the courts against those who injured him; he could proceed in such a case only through his owner. The latter, under the law of the Republic, could beat him, imprison him, condemn him to fight beasts in the arena, expose him to die of starvation, or kill him, with cause or without, and with no other control than a public opinion formed by slaveowners. If a slave ran away and was caught he could be branded or crucified; Augustus boasted that he had recaptured 30,000 runaway slaves and had crucified all who had not been claimed.16 If, under these or other provocations, a slave killed his master, law required that all the slaves of the murdered man should be put to death. When Pedanius Secundus, urban prefect, was so slain (A.D. 61), and his 400 slaves were condemned to die, a minority in the Senate protested, and an angry crowd in the streets demanded mercy; but the Senate ordered the law to be carried out, in the belief that only by such measures could a master be secure.17
It is to the credit of the Empire—or perhaps of the diminishing supply of slaves—that their condition was progressively improved under the emperors. Claudius prohibited the killing of a useless slave and ruled that an abandoned sick slave who recovered should become automatically free. The lex Petronia, probably under Nero, forbade owners, without a magistrate’s approval, to condemn slaves to fight in the arena. Nero allowed maltreated slaves to use his statue as an asylum and appointed a judge to hear their complaints—a modest advance that seemed revolutionary to Rome, since it opened the courts to slaves. Domitian made it a criminal offense to mutilate slaves for sensual purposes. Hadrian ended the right of the owner to kill a slave without magisterial sanction. Antoninus Pius permitted an abused slave to take sanctuary in any temple and had him sold to another master if he could prove injury. Marcus Aurelius encouraged owners to bring before the courts, rather than themselves punish, damages sustained by them from their slaves; in this way, he hoped, law and judgment would gradually replace brutality and private revenge.18 Finally a great jurist of the third century, Ulpian, proclaimed what only a few philosophers had dared suggest—that “by the law of Nature all men are equal.”19 Other jurists laid it down as a maxim that where the freedom or slavery of a man was in question, all doubts should favor liberty.20
Despite these mitigations, the legal subjection of slaves is the worst blot on Roman law. The last indignity was the tax and restrictions upon emancipation. Many owners evaded the lex Fufia Canina by informally freeing a slave without official witness or legal ceremony; such liberation, however, conferred not citizenship but only Latinitas. The slave freed by process of law became a citizen with limited civic rights; but custom required him to pay his respects to his former owner every morning, attend him when needed, vote for him at every opportunity, and, in some cases, pay him a portion of all money earned. If the freedman died intestate, his property went automatically to his living patron; if he made a will he was expected to leave him a part of his estate.21 Only when the master was dead, dutifully mourned, and safely buried could the freedman really breathe the air of freedom.
To these general divisions of the law of persons must be added the legislation which in modern codes is separately known as criminal law. Roman jurisprudence recognized crimes against the individual, the state, and social or business groups considered as juridical persons. Against the state one might be guilty of maiestas, treason by act or word; vis publica, sedition; sacrilegium, offenses against the state religion; ambitus, bribery; crimen repetundarum, extortion or corruption in public administration; peculatus, embezzlement of state funds; and corruptio judicis, bribery of a judge or juryman; from this partial list we may see that corruption has an ancient pedigree and a probable future. Against the individual one could commit iniuria, physical injury; falsum, deception; stuprum, indecency; and caedes, murder. Cicero mentions a lex Scantinia against pederasty; 22 Augustus corrected the error with a fine, Martial with epigrams, Domitian with death. Personal injury was no longer punished with equivalent retaliation, as in the Twelve Tables, but by a fine. Suicide was no crime; on the contrary, before Domitian, it was in some sense rewarded; a man condemned to death could usually, by suicide, ensure the validation of his will and the unimpeded transmission of his property to his heirs. The law left the last choice free.
IV. THE LAW OF PROPERTY
Problems of ownership, obligation, exchange, contract, and debt took up by far the largest part of Roman law. Material possession was the very life of Rome, and the increase of wealth and the expansion of trade demanded a body of law immeasurably more complex than the simple code of the Decemvirs.
Ownership (dominium) came by inheritance or acquisition. Since the father owned as agent and trustee of the family, the children and grandchildren were potential owners—sui heredes in the law’s queer phrase—“their own heirs.”23 If the father died intestate they succeeded automatically to the family property, and the oldest father among the sons inherited the dominium. The making of valid wills was hedged about with hundreds of legal restrictions, and their composition requ
ired, as now, a gorgeous and sonorous tautology. Every testator was compelled to leave a specified portion of his estate to his children, another part to a wife who had borne him three children, and (in some cases) parts to his brothers, sisters, and ascendants. No heir might take any part of an estate without assuming all the debts and other legal obligations of the deceased; not infrequently a Roman found himself saddled with a damnosa hereditas—a legacy, so to speak, in the red. Where an owner died without children and without a will, his property and his debts passed automatically to the nearest “agnate,” or relative descended from a common ancestor exclusively through males. In the later Empire this male conceit abated, and by the time of Justinian agnates and cognates (relatives through male or female lines of ascent) inherited with equal right. An old law passed on the urging of Cato (169 B.C.) had forbidden any Roman who owned 100,000 sesterces ($15,000) or more to bequeath any part of his estate to a woman. This lex Voconia was still on the statute books in Gaius’ time, but love had found a way. The testator left property on trust (fideicommissum) to a qualified heir, and bound him by a solemn request to transfer the property before a stated date to the woman named. By this and other channels much of the wealth of Rome passed into the hands of women. Gifts offered another escape from testamentary law; but gifts made in prospect of death were subject to legal scrutiny, and under Justinian they were liable to the same laws as those that harassed legacies.
Acquisition came by transfer, or by legal conveyance resulting from a suit at law. Transfer (mancipatio, “taking in hand”) was a formal gift or sale before witnesses and with scales struck by a copper ingot as token of a sale; without this ancient ritual no exchange had the sanction or protection of the law. An intermediate or potential ownership was recognized under the name of possessio—the right to hold or use property; e.g., tenants on state lands were possessores (“sitters,” squatters), not domini; but their prescriptive right (usucapio, “taking by use”) became dominium, and could no longer be questioned after two years of unchallenged occupancy. Probably this lenient conception of occupation as so soon generating ownership came from patricians who were in this manner acquiring public lands.24 By the same right of usucapio a woman who lived with a man through a year without three nights’ absence became the property (in manu) of the man.
Obligation was any compulsion by law to the performance of an act. It could arise by delict or by contract. Delicts or torts—noncontractual wrongs committed against a person or his property—were in many cases punished by an obligation to pay the injured person a sum of money in compensation. A contract was an agreement enforceable at law. It did not have to be written; indeed, until the second century A.D. the verbal agreement made by uttering the word spondeo—“I promise”—before a witness was considered more sacred than any written compact. The many witnesses and solemn ceremony once required for legal contract were no longer necessary; business was quickened by the legal recognition of any clear agreement—usually entries made by the parties in their account books (tabulae) But the law guarded transactions carefully: it warned the seller with a caveat venditor, as well as the buyer with a caveat emptor, against the myriad forms of cheating natural to civilized life. Any seller of slaves or cattle, for example, was required by law to disclose their physical defects to the purchaser and was held accountable despite a plea of ignorance.25
Debt was contracted by loan, mortgage, deposit, or trust. Loans for consumption were usually secured by a mortgage on realty or movable goods. A default in principal entitled the mortgagee to take over the property. In early republican law, as we have seen, such default permitted the lender to attach the person of the borrower as a bondsman.III The lex Poetelia (326 B.C..) modified this rule by allowing the debtor to work off his obligation while retaining his freedom. After Caesar, defaulted mortgages were usually satisfied by the sale of the debtor’s property without jeopardy to his person; but cases of enslavement to a creditor occur as late as Justinian. Commercial defaults were mitigated by a law of bankruptcy which sold the bankrupt’s property to pay his debts, but permitted him to keep as much of his later acquisitions as his subsistence required.
The chief crimes against property were damage, theft, and rapine—theft with violence. The Twelve Tables had condemned a detected thief to be flogged and then delivered as a bondsman to his victim; if the thief was a slave he was to be scourged and flung from the Tarpeian rock. Increased social security permitted praetorian law to soften these severities to a twofold, threefold, or fourfold restitution.26 In its final form the law of property was the most perfect part of the Roman code.
V. THE LAW OF PROCEDURE
Of all ancient peoples the Romans were the most prone to litigation, despite the discouraging complexity, technicality, and confusing fictions of their procedural law. Doubtless our own legal actions would have seemed to them equally devious and prolonged. The older the civilization, the longer the lawsuits. Any man, as noted above, could make himself a prosecutor in a Roman court. In the patrician Republic the accuser, the defendant, and the magistrate were required to follow a form called legis actio, or process of law, and the slightest deviation invalidated the action. “Thus,” says Gaius, “a man who sued another for cutting his vines, and in his action called them Vines,’ lost his case because he should have called them ‘trees,’ since the Twelve Tables speak generally of ‘trees’, and not particularly of vines.”27 Each party deposited with the magistrate a sum of money (sacra-mentum), which was forfeited by the losing party to the state religion. The defendant also had to give bail (vadimonium) as security for his subsequent appearances. The magistrate then turned over the dispute to a person on the list of those qualified to act as judges. In some cases the judge issued an interim inter-dictum, requiring one or more of the parties in the case to perform or refrain from certain actions. If the defendant lost, his property—sometimes his person—could be seized by the plaintiff until the judgment was satisfied.
About 150 B.C. the lex Aebutia abolished the necessity of using this ritual legis actio, and accepted in its place a procedure per formulam. Specific acts and words were no longer required; the parties shared with the magistrate in determining the form under which the matter was to be submitted to the judge; and the magistrate then wrote to the judge an instruction (formula) on the factual and legal questions involved; it was partly in this way that the praetor, as magistrate, made “praetorian law.” In the second century A.D. a third mode of action—cognitio extraordinaria—came into use: the magistrate decided the case himself. By the end of the third century the formulary procedure had disappeared, and the summary judgment of a magistrate responsible only to the emperor, and usually owing his office to him, reflected the coming of absolute monarchy.
The litigants could conduct their case, and the praetor or judge decide it, without the help of lawyers if they wished; but as the iudex was not often a professional trained in the law, and the litigants might at every step stumble over a technicality, all parties to a dispute usually sought the aid of trial lawyers (advocati), legal technicians (pragmatici), consultants (iurisconsulti), or jurists (iurisprudentes). There was no lack of legal talent, for every fond parent yearned to see his son an advocate, and the law, then as now, was the vestibule to public office. A character in Petronius gives his son a collection of red-backed books (codices) “to learn a little law,” as “it spells money.”28 A law student began by learning the elements from some private instructor; in his second stage he attended the consultations of eminent jurists; thereafter he apprenticed himself to a practicing lawyer. Early in the second century A.D. certain iurisconsulti set up in various parts of Rome schools (stationes) at which they gave instruction or advice in the law; Ammianus complains of their high fees, saying that they charged even for their yawns and made matricide venial if the client paid enough.29 These teachers were called iuris civilis professores; apparently the title of professor came from the fact that they were required by law to declare (profiteri) their intention of
teaching, and to secure a license therefor from the public authority.30
Out of the many lawyers so trained there were inevitably some who sold their learning to sordid causes,31 accepted bribes to present their client’s case weakly,32 found loopholes in the law for any crime, fomented disputes among rich men, dragged on suits to any lucrative length,33 and shook the courts or the Forum with their intimidating questioning and their vituperative summations. Forced to compete for cases, some lawyers sought to build a reputation by walking hurriedly through the streets with bundles of documents in their hands, borrowed rings on their fingers, dependents attending them, and hired claqueurs to applaud their speech.34 So many ways had been found of circumventing the old Cincian law against fees that Claudius legalized them up to 10,000 sesterces per case; any fee above this figure was to be recoverable by law.35 This restriction was easily evaded, for we hear of a lawyer in Vespasian’s reign amassing a fortune of 300,000,000 sesterces ($30,000,000).36 As in every generation, there were attorneys and judges whose clear and disciplined minds were at the service of truth and justice regardless of fee; and the lowest practitioners were redeemed by the great jurists whose names are the highest in the history of the law.
Courts for the trial of offenders varied from the hearings held by individual judges or magistrates to the assemblies, the Senate, and the emperor. Instead of a single judge the praetor might choose by lot (subject to a number of challenges by accuser and defendant) a jury of almost any size, usually fifty-one or seventy-five, from the 850 Senatorial or equestrian names on the jury list. Two special courts were permanently maintained: the decemviri, or Ten Men, to try cases of civil status; and the centumviri, or Hundred Men, to hear suits in property and bequest. The proceedings of these bodies were open to the public, for the younger Pliny describes the great crowd that came to hear him address the larger court.37 Juvenal38 and Apuleius 39 complain of judicial procrastination and venality, but their very indignation suggests exceptional cases.