Legal Equality: Who Counts?
Legal Equality: Who Counts?
Official Discrimination. The central political principle behind most modern legal systems is equality before the law. Neither individual cases nor legal rights in general are supposed to depend on the identity of the persons involved. While there are exceptions in practice (e.g., for minors, aliens, and the mentally ill), the ideal is well established. For the Romans, legal equality was more suspect in theory and the practical exceptions were more numerous and more serious. There was inequality both in substantive rights and in procedural access to the justice system. It may be useful, then, to consider in turn the various categories of people who did not have the full rights of the adult male Roman citizen.
Women. Women not under paternal control were subject to a limited form of guardianship (called tutela). The guardian (tutor) only had authority over will making and the sale of certain kinds of property (mostly farmland and large animals). Even in these cases he could only veto a transaction, not require it. Women’s financial competence seems not to have been the central issue. Originally, the tutor was a male relative of the woman’s father and probably was meant to act in the interests of her paternal family. Over the latter centuries of the Republic and early part of the Empire, devices arose so that a woman could choose and even replace her own tutor. This device eliminated the practical effects of tutela in most cases. Women were at various times prohibited from engaging in certain kinds of multiparty transactions: they could not offer security for a nonrelative’s business deal, and they could not represent another person in court. The idea here seems to have been that in these situations women became public rather than private actors, and public activity was to be the domain of men. In fact, in the fully public sphere (officeholding, voting), women had no rights at all. In private matters such as commerce or inheritance women had full legal rights (with the exceptions above). They could even go to court themselves to enforce those rights, though they might face informal prejudice if they did not employ a male advocate.
Slaves. Roman society practiced slaveholding on a large scale. In legal terms this practice was “chattel” slavery; that is, nearly all the normal law of property applied to slaves. They were subject to whatever use, abuse, sale, lease, or other treatment their owners desired. Originally the law of property was essentially the only law that applied to slaves. So, for instance, the situation was the same if one’s ox or one’s slave damaged a neighbor’s farm. A person could either make good the damage or hand the offending “animal” over to the injured party. The character of the Roman slave as property never changed fundamentally, but over time some of the law of persons came to be applied to them in addition. Under the empire they could be tried for crimes (and receive especially harsh punishments). At some point the killing of someone else’s slave became punishable as homicide. Slaves even gained the ability in practice to hold property. The master kept a fund (peculium) for the slave, which was technically his property but from which he could be held liable for the slave’s debts. Slaves even “owned” other slaves in this way. Since they had essentially no rights, it is not surprising that slaves could not file suits. Even if someone wished to assert that he had been wrongly enslaved, a free person had to make the claim in court. Slaves could testify in legal proceedings, but only under torture (a procedure whose wisdom even the Romans were divided on). They were allowed to testify against their own masters only in exceptional circumstances.
Minors. The Roman treatment of minors was fairly complicated, with full adult rights coming in several stages and varying ages. The most important distinction was not a strictly chronological one. Any child of any age and of either sex with a living father (or paternal grandfather) had essentially no private law rights in his or her own right. Such a child could not make binding agreements or even own property. (They could, however, be allotted peculium just like a slave.) The father could technically even execute his own children, though this practice seems to have been extremely rare. A child could be “emancipated” by the father and would then be treated more or less as if the father had died.
The fear of conspiracies led the Roman government to drastic action that included use of slave informers (thus overcoming another deep-seated fear), mass execution of citizens, and even execution without trial.
Over the course of the first half of the second century b.c.e. there was a series of at least four mass trials of Roman matrons charged with poisoning. Little is known of the details, but it is virtually certain that these were “witch-hunts” rather than the reflection of waves of poisoning. This is a stereotypical conspiracy story in at least two respects. Wives were supposedly murdering their husbands—the ultimate betrayal from within. Poisoning was appropriate both because it is inherently sneaky and because in primitive technological circumstances it can never be disproved. Any woman whose husband died of illness or natural causes could be suspect.
Rome was home to many imported religious practices and made sporadic attempts to suppress or control some of them. The most dramatic of these attempts was a move in 186 B.C. to crush the followers of the god Bacchus (the Greek Dionysus). It was alleged that the religious movement concealed a conspiracy to corrupt and take over the state, as well as concealing simpler criminal and sexual offenses. Thousands of worshippers were tried and killed; places of worship were destroyed. The cult was not banned entirely, but further worship could only take place under tight regulation and supervision from the Roman government. The text of one of the Senate’s decrees on the matter, inscribed on a bronze tablet, has survived to this day:
Let no one wish to hold Bacchic rites. If there are any people who say that they do need to hold Bacchic rites, they should come to the Urban Praetor at Rome, and the Senate should vote on the matter when their application is heard.
E. H. Warmington, ed. and trans., Remains of Old Latin, volume 4 (Cambridge, Mass.: Harvard University Press, 1959).
SENATUS CONSULTUM SILIANUM
Romans wanted to believe that their slaves were all loyal members of the family, but they were also aware that they were independent, thinking beings. One result of this was fear. This was especially true for the elite, who were vastly outnumbered in their homes by their slaves. One result of this fear was the senatus consultum Silianum, a senatorial decree dealing with slaves whose master had been murdered or died under suspicious circumstances. Those who had been in the house at the time were to be interrogated under torture, and if they were complicit (or had simply failed to help), they were to be executed.
As no home can be safe except if slaves are compelled and guard their masters both from members of the household and from outsiders at the risk of their own lives, decrees of the senate have been introduced concerning the questioning on public authority of the household slaves of those who have been killed.
Source: Alan Watson, The Law of the Ancient Romans (Dallas: Southern Methodist University Press, 1970).
Levels of Minority. In terms of chronological age, there were several levels of subadulthood. If a court found that a person under twenty-five years of age had been tricked in a business deal, it could order restitution. This
court ruling provided some protection but may also have discouraged others from doing business with young men and women. doing business with young men and women. Girls under twelve and boys under fourteen were largely under control of a tutor. This tutor had more control than that of an adult woman. His approval was needed for any of the child’s transactions, and he could also initiate transactions himself. He was not allowed to get rid of certain large assets, but the main check on his authority was a legal duty to act in the minor’s interest. If he failed to do so, then he could be sued when the child left his guardianship. Finally, children under seven could not be legal actors at all; they depended entirely on their tutors. Note that none of these age-based restrictions is relevant to children with a living father; they have no property in the first place, and thus no guardians.
Peregrini. Peregrini is the Roman term for citizens of other nations, whether under Roman political domination or not. The usual ancient understanding was that a person was subject to the law of his own people, not of the territory he happened to be in at a given time. (This understanding did not leave one free to commit crimes, since one lacked the legal protections of citizens as well.) This situation is the source of the problems of provincial justice discussed above. It also raised questions about aliens in Roman territory. One thing that helped close the gap was that the principle was applied only to laws (leges) in a narrow technical sense. The praetor could and did grant actions in cases involving noncitizens. Hence, peregrini had access to most of Roman commercial law. In other areas, such as family law, they were on their own, but this situation may have been in everyone’s best interest. Aliens could bring prosecutions in the public, criminal courts, though they seem usually to have preferred to engage a Roman patron as an advocate.
The Disabled. The deaf had full substantive rights but could not represent themselves (or anyone else) in court because the proceedings in general and the magistrate’s orders in particular were oral. (The derivation of “edict” from the Latin for “speak out” shows that even that text was notionally oral.) The blind were also prohibited from representing others in court.
Status. Even among adult, able-bodied, male Roman citizens, there were officially recognized distinctions of rank or status. These differences were primarily of significance to the political system, but in a few instances they were relevant in the courtroom as well. Through most of Roman history certain individuals were in an official state of disgrace, today called by the Latin term infamia. Those suffering infamia included members of certain professions (e.g., prostitutes and gladiators), persons convicted of major crimes or abuse of the legal system, and persons who had violated certain special trusts (e.g., by stealing from a child who was their ward). Whatever the source of their disgrace, such people were generally prohibited from holding public office and from representing others in court. Thus their legal position was like that of women (though women technically could suffer infamia as well). Perhaps of more significance was a distinction that arose only during the Empire. The aristocracy, including senate, equites, and down to decurions (members of town councils) were lumped together in a group called the honestiores (“the more honorable”). All others were humiliores (“the more lowly”). Criminal offenses came to have a dual set of penalties. The honestiores got a more lenient sentence for a given offense; humiliores suffered the more severe (and often corporal) one.
Modern justice systems depend primarily on material penalties—fines and/or imprisonment—but Romans seem to have taken the shame of infamia seriously. Sometimes, however, they did exploit what look like loopholes in the law. In 19 c.e. a woman named Vistilia figured out that she could avoid the penalties for adultery by registering with the aediles as a prostitute. Prostitutes, whose business was perfectly legal, were naturally allowed to have sex with whomever they pleased. The case became quite notorious because Vistilia was from a prominent family, and the Senate decided that she should be punished regardless of the law and that noblewomen should in the future be prohibited from registering. Still, they seem to have been surprised that the more concrete penalty was needed.
Source: The Annals of Tacitus, translated by D. R. Dudley (New York: New American Library, 1966).
John Anthony Crook, Law and Life of Rome (Ithaca, N.Y.: Cornell University Press, 1967).
Bruce W. Frier, “Sociology of Roman Law,” in The Oxford Classical Dictionary, edited by Simon Hornblower and Antony Spawforth, third edition (Oxford: Oxford University Press, 1999), pp. 823–825.
Michael Grant, History of Rome (London: Weidenfeld & Nicolson, 1978).