5. Citizens, Latins, and Peregrini
To be a Roman citizen in the Roman world was a privilege. As the apostle Paul of Tarsus discovered, his Roman citizenship, unexpected in the person of an itinerant Jewish preacher, could protect him from the casual brutalities of Roman governance.61 As far as Roman private law was concerned, although the fullest status was only available to citizens, it was only a smaller number within this group, those who were not in someone else’s potestas, who enjoyed the greatest of rights.
The Roman law of persons is largely a study of those whose rights are limited in some way or other, whether by lack of freedom or its consequences, by subordination, by gender, or simply by being foreign.In early Rome there was a distinction between patricians and plebeians. This may have originated in a racial distinction, perhaps between a ruling caste of Etruscan origin and local indigenes. After 445 BC intermarriage between the two groups was permitted, but a sense of patrician social superiority persisted until the end of the Republic and indeed into modern use. There were two privileged orders of citizens in the imperial period. Senators became an order under Augustus, reflecting an existing sense of superiority of those descended from members elected to the Senate, whether of patrician or plebeian family. Equestrians (knights) were in origin from families wealthy enough to serve in the early citizen army on horseback. This military aspect ceased to be of importance in the late Republic when all Roman soldiers served in the infantry legions, cavalry being provided by auxiliaries. Membership of the order was for life only and not inheritable, and it conferred distinction in judicial, financial, and military life.
In the later Empire a class of coloni emerged, a precursor of the serfs of the post-Roman period.
Though not formally unfree, the coloni were in effect tied to the land they worked. The position was hereditary and those who sought to escape it could be compulsorily returned to their land.As we have seen, one surprising way of attaining Roman citizenship was to be freed from Roman slavery, albeit not all so freed acquired citizenship immediately in the early imperial period. For those free persons who lacked it, Roman citizenship could be gained by performing a variety of public services - for example, by building and operating ships to carry grain to Rome, or mills to grind grain for Rome. It could be purchased, as by the Roman tribune who was amazed to discover that his prisoner, a Jew from Tarsus named Paul, was himself freeborn.62
Citizenship might also be conferred on individuals or communities by the emperor as a boon. Claudius was criticized for doing this too freely. Pliny records a typically convoluted case involving his personal physician, Harpocras, for whom he requested a grant of Roman citizenship. The emperor Trajan initially responded favourably. It then emerged that as Harpocras was an Egyptian by origin he should first have acquired citizenship of Alexandria before becoming a Roman. Trajan somewhat reluctantly granted this too.63
A Roman who was captured in war (as opposed, say, to being captured by pirates, as Julius Caesar once was) lost his citizenship. For the period of his captivity he was incapable of exercising his rights as an owner of property, his marriage was dissolved, and any potestas over his former subordinates was in suspense.64 On recovering his freedom his rights revived as soon as he entered Roman territory, postliminium. But he needed to repossess all his previous property and to remarry his wife, if she were still available and willing. If he died a captive, he was fictitiously presumed to have died at the moment of capture, so any will made previously took effect on that basis.
The Romans recognized the application of local customary laws of their foreign subjects in both local and Roman courts.
Those (the majority) who did not possess Roman citizenship were classed as peregrini (foreigners) and had only such rights as the Romans were willing to grant them. In private law terms this meant that, whilst they could have dealings with Romans, some essential features of the Roman legal system, particularly those relating to commercial and property matters, were denied to them.Latins
A hybrid status was occupied by the peoples of historic Latium, noted above in connexion with slavery (155). As Latins, citizens of nearby cities, the Romans had accorded them limited rights of intermarriage and commerce, probably on a reciprocal basis, as early as the fifth century BC. Following the Social War of 91—88 BC, Roman citizenship was granted to all Latin communities in Italy. However, there were a number of colonies established elsewhere in the Mediterranean which had been granted a limited form of Latin right (not including the right of intermarriage) and these survived - and were indeed added to - in the period up until the grant of citizenship to all under Caracalla around AD 212.
Dediticii
Communities defeated by the Romans in war would typically be permitted to retain their existing legal and social customs, although they were regarded as foreigners in Roman law. But where no agreement was reached with such defeated peoples they were regarded as being in a lower category, called dediticii, with whom few or no dealings were expected.65 The status virtually disappeared in imperial times, although it was artificially retained for a certain class of manumitted slave, as noted above (156).
Constitutio Antoniniana
Around the year AD 212 the emperor Caracalla (formally Marcus Aurelius Severus Antoninus, who reigned from AD 198—217) granted Roman citizenship to all free persons in the Roman world.
It was apparently a single grant (our direct knowledge of the provision is limited) transforming the status of all existing Latins and peregrines without altering the laws by which such statuses could continue to be created in the future. Justinian’s discussion of Latinity implies that it remained a status for certain manumitted slaves until his own act which abolished it.66 Among the more important persistent effects of the constitution was to absorb into the Roman citizen body people with distinctive legal traditions, particularly those of the Greek East. This transformed certain aspects of Roman law, including marital property as noted above (169).Notes
1. See J. A. Crook, Law and Life of Rome (London, 1967; repr. Ithaca NY, 1984), chs. 2 and 4; J. F. Gardner, Family and Familia in Roman Law and Life (Oxford, 1998); for the later period, J. Evans Grubb, Law and Family in LateAntiquity (Oxford, 1995). See also the articles collected in The Family in Ancient Rome: New Perspectives, ed. B. Rawson (London, 1986, repr. Ithaca NY, 1993); Marriage, Divorce and Children in AncientRome, ed. B. Rawson (Oxford, 1991); The Roman Family in Italy: Status, Sentiment and Space, ed. B. Rawson and P. Weaver (Oxford, 1997). Useful collections of materials in translation are J. F. Gardner and T. Wiedemann, The Roman Household: A Sourcebook (London, 1991); B. W. Frier and T. A.J. McGinn, A Casebook on Roman Family Law (New York, 2003); J. Evans Grubb, Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce and Widowhood (London, 2002).
2. Lex Irn. ch. 22: Ut qui civitatem Romanam consequentur maneant in eorumdem manu mancupio potestate.
3. Detailed accounts of the law of slavery are to be found in W.
W. Buckland, The Roman Law of Slavery (Cambridge, 1908), and A. Watson, Roman Slave Law (Baltimore, 1987).4.Roman"> Inst. 1.2.20.
5. Gaius 1.84.
6. Tac. Ann. 13.26.
7. Cf. Gaius 1.44.
8. Gaius 1.28ff.
9. Gaius 1.22.
10. D. 38.10.10.5.
11. D. 18.1.5.
size=1 color=black face=Garamond>12. The position of those freed from slavery is covered in S. Treggiari, Roman Freedmen during the late Republic (Oxford, 1969), and A. M. Duff, Freedmen in the Early Roman Empire (Cambridge, 1958).
13. D.
47.10.7.2.14. Inst. 3.7; C. 7.6.1.
15. Gaius 1.55.
16. J. A. Crook, ‘Patria potestas’, CQ 17 (1967): 113-122.
17. D. 48.8.2; D. 48.9.size=1 face=Garamond>5.
18. Inst. 2.12 pr.
19. C. i2.30.i;C. 6.60.1.
20. Inst. 4.8.7.
21. C. 5.17.5.
22. Si paterfilium ter venum duitfilius a patre liber esto, quoted in Gaius 1.132.
23. C. 5.27.5.
24. Gaius 1style='font-style:normal'>.99ff.
25. Cic. Dom. 34ff.
26. Gaius 1.134.
27. Gaius 1.185; Livy 39.9.
28. D. 27.1 deals with excuses from tutelage.
29. C. 5.35.2,3.
30. Inst. 1.25.13
31. D. 27.9.1style='font-style:normal'>; C. 5.37.22 pr.
32. D. 18.5.7.1.
33. D. 4.4.1.
34. Inst. 1.20.3.
35. The particular position of women is considered inJ. F. Gardner, Women in Roman Law and Society (London, 1986); for the wider context, see A. Arjava, Women and Law in Late Antiquity (Oxford, 1996).
36. Gaius 3.104.
37. Gaius 1.157.
38. Gaius 1.style='font-size:9.0pt;line-height:107%;font-family:"Garamond",serif; font-style:normal'>173.
39. Cf. Gaius 2.112.
40. Gaius 1.144; UE de tut. 11.
41. Gaius 1.190.
42. Gaius 1.135.
43. Specific studies of marriage in Rome include P.E. Corbett, The Roman Law of Marriage (Oxford, 1930, repr. 1969); S. Treggiari, Roman Marriage: iusti coniuges from the Time of Cicero to the Time ofUlpian (Oxford, 1991).
44. Cf. Gaius 1.76.
45. C. 5.4.23; generalized by Justinian: Nov. 117.size=1 face=Garamond>6.
46. D. 23.2.59-60; D. 23.2.57.
47. Cf. Gaius 1.196.
48. D. 23.2.21-22.
49. D. 23.2.2.
50. D. 50.17.30.
51. Plutarch, Quaest. Rom. 30.
52. lang=EN-US style='font-style:normal'>Gaius 1.110ff.
53. Tac. Ann. 4.16; Gaius 1.136.
54. Gaius 1.123.
55. Aulus Gellius, AA 3.2.13.
56. Gaius 1.111.
57. D. 24.2.9.
58. C.Th. 3.16.1.
59. For a good short survey of various forms of dotal property, see Gardner (n. 1), 85ff.
style='font-size:9.0pt;line-height:119%;font-family:"Garamond",serif; font-style:normal'>60. W.W. Buckland, A Textbook of Roman Law, 3rd edn. by P. Stein (Cambridge, 1963), 111.
61. Acts of the Apostles, 22:25.
62. Acts of the Apostles, 22:28.
63. Pliny, Ep. 10.6-9.
64. Gaius 1.129.
65. Gaius 1.14.
66. Inst. 1.5.3.