The Rights of (Some) Men: A Look at the Law of Roman Citizenship
By Benjamin Gallagher
I INTRODUCTION
The concept of ‘citizenship’ has changed drastically throughout history and continues to play a major complex role in law, philosophy, and politics today. Arguably, the most interesting historical and legal concept of citizenship is that used by the ancient Romans. This article seeks to provide a brief overview of the concept of citizenship in ancient Rome and its various degrees.
II THE ‘CITIZEN’ IN ANCIENT ROME
Rome, like most other ancient cities, was founded by the accumulation of peoples, brought together to forge a common future as defined by a common law and identity.[1] In this environment, the ‘Roman citizen’ was born.
As outlined by the Institutiones, a Roman legal textbook written by Gaius in 161AD, the Roman concept of citizenship was unique. Specifically, in Rome, a person’s societal rights and duties depended on fundamental differences in legal status.[2] This ultimately resulted in, as put by legal scholar E. A. Whittuck, a distinct form of citizenship characterised by varying ‘divisions of men’, with different societal-legal groups endowed with differing legal rights.[3] The largest divisions of men are presented in the attached diagram.
A Slaves
Under the first division of men, people were divided into freemen or slaves.[4] At the height of the Roman Empire, it is estimated an immense 35 - 40% of Roman Italy’s population was enslaved.[5] Oddly, dominant Roman jurisprudence viewed all people as originally free per natural law.[6] However, slavery was justified under the law of ius gentium, a concept equivalent to ancient customary international law. Ius gentium saw slavery as a concept common to all nations, therefore making the practice a legally acceptable one.[7]
In ancient Rome, there were 3 primary ways in which a person’s legal status could be reduced to slavery. Firstly, prisoners of war were deemed to be slaves as the property of their captors.[8] These slaves often became ‘servus publicus’, meaning slave property of the Roman state. Especially skilled servi publici could often earn small amounts of money for personal use and were sometimes eligible for manumission.[9]
Secondly, a female slave’s children would automatically become the slaves of her owner.[10] This was based on the legal doctrine of partus sequitur ventrem, literally meaning ‘that which is brought forth follows the belly’.[11]
Thirdly, Roman citizens could become slaves by judicial order.[12] This was often reserved as punishment for the most heinous of crimes, with these slaves unable to ever buy their freedom, be sold, or be granted manumission.[13]
A slaves’ legal rights in ancient Rome were, unsurprisingly, few. During the Roman Republican era, owners had the absolute power of life and death over slaves, making slaves akin to any other type of chattel.[14] Over time some legal amelioration did come for Roman slaves. Notably, a rescript by Emperor Antonius Pius (138-161 AD) ordered provincial governors to investigate cases of extreme cruelty to slaves.[15] Where such cruelty was found, governors were directed to sell the slaves to new owners, to prevent further cruelty.[16] However, owners ostensibly still held almost unlimited power over their slaves. A notable but gruesome example is that slave owners would only be liable for the deaths of slaves if it was an intentional act at their own hands.[17] This means that death by starvation, squalid conditions, or even beatings where the end intention was not death, would go unpunished.
B Cives Romani
The second division of men is the division between men free by birth or via manumission.[18] Under this division, men could be divided into Cives Romani (Roman citizens), Latini (non-Roman Italic Latin peoples), and Peregrini (foreigners).[19]
Cives Romani granted a suite of political and civil rights unmatched by any other type of ‘citizenship’ in ancient Rome.[20] Within Cives Romani, numerous societal factors determined the extent of legal rights a person had. These included:[21]
Lineage (whether patrician (noble peoples) or plebian (commoners));
Census rank based upon political and economic standing (senatores (senator), equites (knights), or the proletariat (wage-earners); and
Gender (male or female).
Generally, the Cives Romani who held the greatest breadth of legal rights were male patricians of the senatores class. These men were known as cives optimo jure.[22]
There were three primary ways one could become a Cives Romani. Firstly, there was citizenship by birth. In ancient Rome, a child of a Roman law marriage would automatically become a Cives Romani.[23] For a marriage to be valid under Roman law, both parties must possess the right of connubium, meaning the right to legally create and enter marriage contract.[24] Connubium was a right generally restricted only to Cives Romani and, in rare circumstances, some other individuals.[25] Therefore, Cives Romani by birth was generally restricted to the children of Cives Romani.
Secondly, there was citizenship by manumission. A slave in ancient Rome could hope to become Cives Romani either by express grant through a magistrate,[26] through their owner choosing to free them immediately, or at their death through their legal will and testament.[27]
Thirdly, there was citizenship by government grant. Government grants of citizenship were often done as political measures,[28] such as granting Cives Romani to foreign magistrates or soldiers who had completed their years of service in Rome’s auxiliary legions.[29] The most famous government grant of citizenship was the Constitutio Antoniniana or ‘Edict of Caracalla’, which granted Cives Romani to all free men and women in the Roman Empire in 212 AD.[30] This created an equal notion of citizenship to all peoples within the Roman Imperial nation-state and therefore a system much closer to the modern view of citizenship.
Not to be forgotten are the rights Cives Romani granted a person. Some of the major rights Cives Romani could enjoy included:[31]
Jus suffragii et honorum: The right to vote, to hold public office, and to enjoy the services of the magistracies.
Connubium: The ability to contract a valid legal marriage.
Commercium: The ability to acquire and dispose of various kinds of property, as well as create legal contracts.
Rights conferred under the customary ius gentium.
Rights conferred by the Porcian Laws: These laws contained numerous rights. Firstly, Cives Romani were exempt from degrading or shameful punishments. Cives Romani could also opt for voluntary exile instead of capital punishment unless the crime was treason. Lastly, the right of provocatio ad populum was standardised for Cives Romani, which granted the right for an appeal to the people in major cases.
A historical example of the special legal rights Cives Romani granted a person is seen in the case of St. Paul the Apostle. Whilst proselytising in Jerusalem, St. Paul was arrested and almost flogged.[32] However, St. Paul was a Cives Romani by birth.[33] Therefore, the Porcian Laws protected St. Paul as a Cives Romani from such a degrading punishment,[34] while a Latini or Peregrini counterpart would have likely been whipped.
C Latini
Latini, or ‘Latins’, were the peoples of Italic tribes conquered by the Romans, such as during the brutal Social War (91-87 BC).
Latini had what could best be described as pseudo-citizenship, not quite having the rights of a Cives Romani, but possessing their own ius Latii (‘Latin Right’).[35] The ius Latii entitled the Latini to the aforementioned rights of commercium, however they lacked connubium.[36] The Latini generally lacked suffrage. However, a Latini could achieve suffrage if they resided within the city of Rome, or were granted it under special circumstances.[37]
D Peregrini
All other free inhabitants of ancient Rome not yet covered fell under the Peregrini (‘foreigner’).[38] Peregrini covered a vast variety of peoples, being all those peaceful non-Romans living within Imperial borders.[39]
The Peregrini had few formal rights in ancient Rome, however, did have the customary international ius gentium.
II CONCLUSION
In learning about legal systems of the past, such as Roman citizenship law, the modern legal practitioner and student is given an invaluable opportunity to reflect on the jurisprudential underpinnings of the modern conception of citizenship. Positively, this reflection allows for an appreciation of the pre-dominant egalitarian notion of citizenship in western democracies today. Specifically that all citizens, formally, have equal rights as the constituent peoples of a nation-state rather than being restricted under various divisions of men.
[1] Cicero and Jeffrey Henderson (ed), De Re Publica, (Loeb Classical Library, 1928).
[2] John A Crook and Howard H Scullard (eds), Law and Life of Rome (Thames and Hudson, 1st ed, 1967) 36 (‘Crook’).
[3] Gaius and E. A. Whittuck, Institutiones, tr Edward Poste (Oxford University Press, 4th ed, 1904) 18 (‘Gaius’).
[4] Ibid.
[5] Walter Scheidel, ‘Human Mobility in Roman Italy II: The Slave Population’ [2005] (95) The Journal of Roman Studies 64.
[6] Donald Mackenzie and John Kirkpatrick (ed), Studies in Roman Law (William Blackwood and Sons, 7th ed, 1898) 87 (‘Mackenzie’).
[7] Ibid.
[8] Ibid.
[9] Adolf Berger, Encyclopaedic Dictionary of Roman Law (American Philosophical Society (reprint), 1991) 706.
[10] Mackenzie (n 6).
[11] Ibid.
[12] Ibid 88.
[13] Michael Gagarin (ed), The Oxford Encyclopaedia of Ancient Greece and Rome (Oxford University Press, 2010) 323.
[14] Gaius (n 3) 1.52.
[15] Mackenzie (n 6) 89.
[16] Ibid.
[17] Ibid.
[18] Gaius (n 3) 18.
[19] Ibid
[20] Mackenzie (n 6) 76.
[21] Ibid 76-81.
[22] Ibid 76.
[23] Crook (n 2) 40.
[24] Ibid.
[25] Ibid.
[26] Ibid 41.
[27] Ibid.
[28] Ibid 41-43.
[29] Ibid.
[30] Ulpian, Digesta seu Pandectae (Corpis Juris Civilis, 529) 1.5.17.
[31] Mackenzie (n 6) 76-81.
[32] Henry Wansbrough (ed), Revised New Jerusalem Bible (Darton, Longman & Todd Ltd, 2019) 22:22.
[33] Ibid 22:25-28.
[34] Ibid 22:30.
[35] Crook (n 2) 43-45.
[36] Ibid.
[37] Ibid.
[38] Ibid 45-46.
[39] Ibid.