John Lord - Beacon Lights of History, Volume 03 - Ancient Achievements

The great importance of the subject demands a more minute notice of the principles of the Roman law than the limits of this work properly allow. I shall therefore endeavor to abridge what has been written by eminent authorities, taking as a basis the late work of Lord Mackenzie and the learned and interesting essay of Professor Maine.

The Institutes of Justinian began with the law of persons, recognizing the distinction of ranks. All persons are capable of enjoying civil rights, but not all in the same degree. Greater privileges are allowed to men than to women, to freemen than to slaves, to fathers than to children.

In the eye of the law all Roman citizens were equal wherever they lived, whether in the capital or the provinces. Citizenship embraced both political and civil rights. Political rights had reference to the right of voting in the comitia; but this was not considered the essence of citizenship, which was the enjoyment of the connubium , and commercium . By the former the citizen could contract a valid marriage and acquire the rights resulting from it, particularly the paternal power; by the latter he could acquire and dispose of property. Citizenship was acquired by birth and by manumission; it was lost when a Roman became a prisoner of war, or had been exiled for crime, or became a citizen of another State. An unsullied reputation was required by law for a citizen to exercise his rights to their full extent.

The Roman jurists acknowledged all persons originally free by natural law; and while they recognized slavery, they ascribed the power of masters entirely to the law and custom of nations. Persons taken in war were considered at the absolute control of their captors, and were therefore, de facto , slaves; the children of a female slave followed the condition of their mother, and belonged to her master. But masters could manumit their slaves, who thus became Roman citizens with some restrictions. After the emancipation of a slave, he was bound to render certain services to his former master as patron, and if the freedman died intestate his property reverted to his patron.

Marriage was contracted by the simple consent of the parties, though in early times equality of condition was required. The lex Canuleia , A.U.C. 309, authorized connubium between patricians and plebeians, and the lex Julia , A.U.C. 757, allowed it between freedmen and freeborn. By the conventio in manum , a wife passed out of her family into that of her husband, who acquired all her property; without it, the woman remained in the power of her father, and retained the free disposition of her property. Polygamy was not permitted; and relationship within certain degrees rendered the parties incapable of contracting marriage. (These rules as to forbidden degrees have been substantially adopted in England.) Celibacy was discouraged. Concubinage was allowed, if a man had not a wife, and provided the concubine was not the wife of another man; this heathenish custom was abrogated by Justinian. The wife was entitled to protection and support from her husband, and she retained her property independent of him. On her marriage the father gave his daughter a dowry in proportion to his means, the management of which, with its usufruct during marriage, belonged to the husband; but he could not alienate real estate without the wife's consent, and on the dissolution of marriage the dos reverted to the wife. Divorce existed in all ages at Rome, and was very common at the beginning of the empire; to check its prevalence, laws were passed inflicting severe penalties on those whose bad conduct led to it. Every man, whether married or not, could adopt children under certain restrictions, and they passed entirely under paternal power. But the marriage relation among the Romans did not accord after all with those principles of justice which we see in other parts of their legislative code. The Roman husband, like the father, was a tyrant. The facility of divorce destroyed mutual confidence, and inflamed every trifling dispute; for a word or a message or a letter or the mandate of a freedman was quite sufficient to secure a separation. It was not until Christianity became the religion of the empire that divorce could not be easily effected without a just cause. This facility of divorce was a great stigma on the Roman laws, and the degradation of woman was the principal consequence. But woman never was honored in any Pagan land, although her condition at Rome was better than it was at Athens. She always was regarded as a possession rather than as a person; her virtue was mistrusted, and her aspirations were scorned; she was hampered and guarded more like a slave than the equal companion of man. But the progress of legislation, as a whole, was in her favor, and she continued to gain new privileges until the fall of the empire. The Roman Catholic Church regards marriage as one of the sacraments, and through all the Middle Ages and down to our own day the great authority of the Church has been one of the strongest supports of that institution, as necessary to Christianity as to civilization. We Americans have improved on the morality of Jesus, of the early and later Church, and of the great nations of modern Europe; and in many of our States persons are allowed to slip out of the marriage tie about as easily as they get into it.

Nothing is more remarkable in the Roman laws than the extent of paternal power. It was unjust, and bears the image of a barbarous age. Moreover, it seems to have been coeval with the foundation of the city. A father could chastise his children by stripes, by imprisonment, by exile, by sending them to the country with chains on their feet. He was even armed with the power of life and death. "Neither age nor rank," says Gibbon, "nor the consular office, could exempt the most illustrious citizen from the bonds of filial subjection. Without fear, though not without danger of abuse, the Roman legislators had reposed unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master." By an express law of the Twelve Tables a father could sell his children as slaves. But the abuse of paternal power was checked in the republic by the censors, and afterward by emperors. Alexander Severus limited the right of the father to simple correction, and Constantine declared the father who should kill his son to be guilty of murder. The rigor of parents in reference to the disposition of the property of children was also gradually relaxed. Under Augustus, the son could keep absolute possession of what he had acquired in war; under Constantine, he could retain any property acquired in the civil service, and all property inherited from the mother could also be retained. In later times, a father could not give his son or daughter to another by adoption without their consent. Thus this patria potestas was gradually relaxed as civilization advanced, though it remained a peculiarity of Roman law to the latest times, and was severer than is ever seen in the modern world. Fathers were bound to maintain their children when they had no separate means to supply their wants, and children were also bound to maintain their parents if in want. These reciprocal duties, creditable to the Roman lawgivers, are recognized in the French Code, but not in the English, which also recognizes the right of a father to bequeath his whole estate to strangers,–a thing which Roman fathers had not power to do. The age when children attained majority among the Romans was twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians, as it was supposed they never could attain to the age of reason and experience. The relation of guardian and ward was strictly observed by the Romans. They made a distinction between the right to govern a person and the right to manage his estate, although the tutor or guardian could do both. If the pupil was an infant, the tutor could act without the intervention of the pupil; if the pupil was above seven years of age, he was considered to have an imperfect will. The youth ceased to be a pupil, if a boy, at fourteen; if a girl, at twelve. The tutor managed the estate of the pupil, but was liable for loss occasioned by bad management. He could sell movable property when expedient, but not real estate, without judicial authority. The tutor named by the father was preferred to all others.