Roman social structure and the legal system

The social structure of the Roman Empire has been described as a pyramid, with the very narrow tip being the wealthiest aristocracy, the middle part being the more prosperous upper classes of the cities of the Empire, and the broadest part being the vast majority of inhabitants of the Empire who existed at subsistence level.¹⁵ Roman society was always very conscious of social status and rank.

Until the second century C.E., the main factor determining legal status was citizenship. Roman citizens could expect better treatment under the law, and non-citizens were liable to penalties, such as corporal punishment and execution, that citizens usually did not suffer. Even humble citizens had important rights that non-citizens (peregrini) did not have — they could not be beaten or abused by officials, and if convicted of a capital crime would generally be subject to exile rather than outright execution. But by the second century, as more and more people in the Empire acquired citizenship and as the Empire became less and less focused on Rome and Italy, Roman citizenship as a criterion for legal status began to lose importance. Then, in 212, the emperor Antoninus (Caracalla) granted Roman citizenship to all free inhabitants of the Empire, which ultimately led to devaluation of its worth.¹⁶

Even before 212, the legal dichotomy of citizen/non-citizen was being replaced, or supplemented, by a distinction based on rank, at least in some areas of the law. In terms of rank, the two basic groups were the “more honor­able” (honestiores) and the “more lowly” (humiliores). The honestiores were those of higher status, who received public honor and legal privileges: members of the Senate and their children and grandchildren, equites (equestrians), decu­rions (town councillors), and military veterans.

Highest in the Roman social order, at the top of the honestiores, were sena­tors and their families. By the end of the first century, the offices that led to membership in the Senate were no longer elected in the popular assemblies, but were chosen by the Senate (with the Emperor’s approval) or by the Emperor. Membership in the imperial Senate was not hereditary, in that sons of senators did not automatically become senators, but they were encouraged to attend meetings and hold offices on the traditional cursus honorum, and preference in choosing senators would generally be given to those from a senatorial family. There were about 600 senators in the Empire (Augustus had reduced the numbers considerably, but there were still about twice as many as there had been before the first century B.C.E.), many of whom orig­inated not from Rome or Italy, but from all over the Empire, though mostly from the west (especially Italy, Spain, and North Africa). Members of the Senate, their wives, children, and their sons’ children held the honorary title of clarissimus (for males) or clarissima (for females).¹⁸

As part of his policy to restore Rome, Augustus made rules concerning membership in the Senate. Senators had to have a net worth of at least one million sesterces. Some senators, of course, had many times that much,¹⁹ but emperors were known to give gifts to senators or to their sons who had fallen below that census. By the second century if not before, they were required to have at least one-third of their property in Italy. In 18 B.C.E., Augustus also enacted legislation which placed restrictions on the marriages and social behavior of senators. By this legislation, senators (and their children and grandchildren of both sexes) could not marry ex-slaves, actors or children of actors, or those prohibited to all freeborn people.

In the third century, the power and influence of the Senate (never as important as it had been in the late Republic) declined, as imperial priori­ties shifted to defense of the frontiers and shoring up of a collapsing economy, and emperors, who for the first time were not themselves of sena­torial rank, gave preference to equestrians and military men. In the late Empire, however, senatorial numbers and prestige again increased, begin­ning with the social reforms of Constantine and his inauguration in 330 of a new capital in the east, Constantinople. The number of senators expanded to about 2000, and senatorial ranks were divided into illustres (the highest of the high), spectabiles, and simple clarissimi?·''¹ The new social structure again had ramifications for marriage law, as had been the case at the beginning of the Empire with Augustus' reforms.²²

Next in the Roman status hierarchy was the equestrian order. Equestrians (equites) had to have a net worth of at least 400,000 sesterces. Many had much more; some who were worth over a million sesterces preferred to remain equestrians rather than to become senators by holding offices which led to membership in the Senate (among these were some sons of senators who “opted out” of politics and remained equestrians).²³ The background and wealth of equestrians varied more widely than did that of senators, and there were many more of them. In the Empire, there were administrative, and certainly military, positions reserved for equites — the most important being the prefect of Egypt (governor) and the praetorian prefect, head of the prae­torian guard and often the Emperor's right-hand man.

Also included among the honestiores were decurions (called curiales in late antiquity), members of municipal senates (town councils). Most towns had

an “order” of 100 decurions (though smaller towns might have fewer). They, and their families, formed the upper rank of the towns of the Empire. Some decurions were wealthier and more powerful than others. There was not a universal census requirement as there was for senators and equestrians, but individual towns and cities presumably had requirements.²⁴ Only those of free birth could become decurions; freedmen could not, but their sons could. Decurions were responsible for the upkeep of their cities — including constructing and maintaining public buildings like theaters, temples, and civic buildings.²⁵ In fact, they were ultimately responsible for ensuring that the taxes owed to the imperial treasury were paid (though collection was in the hands of the imperial procurators, often equestrians): if the people of their municipality did not provide the full amount of taxes owed to the imperial government, decurions would have to make up the difference.

Until the third century, the honor attached to being a decurion and to those who benefited their cities, and the general prosperity of the Empire, meant that in spite of these drawbacks there were still many men willing to hold such a position.

Women could not hold office, either as senators or as local magistrates such as decurions. They could, however, wield influence, particularly in their home towns or provinces, by serving as priestesses of public cults. Often the women of prominent and wealthy local families held religious office, and participated in public benefaction (euergetism) by endowing building projects or financing festivals. Elite and wealthy women were sometimes honored as patronesses of towns or of collegia (trade associations), to which they had contributed money, and if they held high rank, this would be indi­cated on inscriptions honoring them for their generosity.²⁷

The basis of wealth in ancient society was land. The Empire's wealthiest families would have property in many different parts of the Empire (impe­rial senators were required to own land in Italy), especially the west — North Africa, Sicily, Gaul and Spain, and perhaps Asia Minor. Senators and eques­trians of moderate wealth would have local estates in the country (their family seat) and perhaps one or two other properties elsewhere. Decurions generally owned property in and around their town.²⁸ Women in the Roman Empire, though barred from imperial and municipal offices, did own prop­erty in their own right (generally via family inheritance), and are found in legal and documentary sources as owners, purchasers, leasers and renters of land.

Though the biggest difference in terms of wealth and privilege was between the honestiores and humiliores, there were status distinctions within the humiliores also. Humiliores as a group were not defined as closely as hones­tiores, and comprised a much wider economic and social range.

Ingenui (feminine form ingenuae) were “freeborn,” that is, born of a free mother, as normally it was the mother's status that determined the status of the child.²⁹ Virtually all honestiores were ingenui (senators and decurions had to be of free birth, though they could be descended from former slaves), but the humiliores also included many ingenui. Many were the children of former slaves; to be freeborn, it was only necessary that one's mother have been freed by the time of one's birth. Augustus' marriage legislation laws barred all ingenui from marrying prostitutes and pimps. Other than that, the legal situation of non-elite ingenui might not differ much from that of former slaves, except that the freeborn did not owe duties to a patron (former master). Freeborn humiliores might be peasants, tenant farmers, or (along with many former slaves) the lower-class inhabitants of towns and cities.

Slaves frequently appear in Roman legal sources and in documentary evidence, but almost always as property to be sold, bought or inherited. There has been considerable debate over the sources of the slave supply in the Empire.³⁰ In the Republic, slaves came into Italy in large numbers by way of Roman conquest, particularly from Greece, Asia Minor, and Gaul. By the early Empire, the number of slaves acquired each year by conquest had decreased, but the slave population continued to be enhanced by defeated rebel peoples (especially Jews after the revolts of 66—72 and under Hadrian) and by “barbarians” from outside the borders of the Empire who had either been defeated in war or purchased from traders. Slaves in the imperial period were frequently acquired by breeding and by the rescue and rearing of newborn infants abandoned (“exposed”) or even sold by parents unable or unwilling to bring them up.³¹

Slave labor on a large-scale basis was only found in Italy and Sicily, a legacy of the large estates of the Republic. In many parts of the Empire, other sources of agricultural labor supply, such as free tenant farmers (coloni) or serfs, were more common than enslaved people, who were more likely to be employed in domestic chores within households. Even families of fairly modest wealth would have one or two slaves; only the very wealthy, senato­rial families, and the imperial household, would have hundreds of slaves. It used to be thought that slavery declined in the later Empire, and that enslaved workers were largely replaced by coloni, whose legal status became closer to that of actual slaves. But scholars now recognize that different kinds of labor were used all along, even on the same lands, and indeed there is plenty of evidence in the legal sources for the continuation of the institu­tion of slavery in late antiquity.³²

The circumstances and conditions of slavery varied enormously. Whereas legally slaves were at the bottom of the social scale, some might be better off, or have better chances of improving their life or their children’s lives, than the freeborn poor. Domestic slaves had the best chance of being manu­mitted and joining the large freed population. They also might be given an allowance (peculium) by their owner, which they might be able to use to purchase their freedom, or be allowed to keep after manumission. Legally slaves could not marry, but some managed to have a family life, and even to maintain ties with children and partners in slavery after manumission.³³

Manumission of a slave by his or her master or mistress was quite possible, either during the owner’s lifetime or (more often) in his or her will. A large number of slaves was freed, and those still in slavery could always look to successful freedmen as models. However, the vast majority of slaves in the Empire were never manumitted.³⁴ Moreover, as part of his extensive social legislation, Augustus placed restrictions on the circumstances under which slaves could be freed. The lex Fufia Caninia of 2 B.C.E. limited the number of slaves an owner could free in his or her will: those with ten slaves or fewer could free up to half their slaves; those with between eleven and thirty slaves could free up to a third; and those with between thirty-one and a hundred slaves could free up to a fourth.³⁵ The lex Aelia Sentia of 4 C.E. said that for a slave to be legally manumitted, he or she had to be at least thirty years of age, and the manumittor at least twenty. There were excep­tions to this rule, however: a master could free one of his slavewomen in order to marry her, or could free his blood relatives (perhaps his own chil­dren by a slave), even if master or slave did not meet the age requirements, as long as this was done before a tribunal (consilium) specially constituted for that purpose.³⁶ It was not illegal or unusual for a man to free his slave­woman and marry her (unless he was a member of the senatorial aristocracy and so forbidden to marry ex-slaves; see above). On the other hand, for a slave mistress to free her male slave in order to marry him was generally not approved socially and was illegal in the later Empire.³⁷

The situation of former slaves who had not been freed under the rules of the lex Aelia Sentia was addressed by a later lex Juma. Under this law, such freedmen and freedwomen, called Junian Latins, did not have Roman citi­zenship (unlike those who had been manumitted under the law by Roman citizens) and occupied a sort of legal limbo. They lived in freedom and could own property and marry (as could legally manumitted freedpeople), but they could neither inherit nor leave property to their children, and when they died their property reverted to their former master (patron), as did a slave’s peculium. Any children that Junian Latins had after being freed informally would be freeborn (those born while their mother was still in slavery would be slaves) but illegitimate. However, Junians could convert their status to that of Roman citizens by the procedure of anniculi probatio (“evidence of a one-year old child”) if they went before the urban praetor or a provincial governor with a child they had borne who had attained the age of one year. The number of Junian freedmen is unknown, but they may have comprised a large percentage of the former slave population in the early Empire and, to judge from late Roman laws, this continued to be the case in late antiq­uity.³⁸

Rank carried legal privileges. Ancient society was much more concerned with honor than modern western society — and honor was what one had in the eyes of others, due to birth and social status. More credence and respect was given to honestiores as a matter of course; in a legal dispute with an hones­tior, a humilior could not hope to prevail unless, perhaps, he had a very powerful patron. Honestiores were rarely subject to capital punishment; even for serious crimes they were likely to be exiled instead. One of the most obvious differences in the legal treatment of honestiores and humiliores can be seen in the criminal penalties to which the two groups were subject. In general, honestiores were punished by monetary penalties, or, in the case of serious crimes, exile. Exile came in two forms, depending on the seriousness of the offense: relegatio involved banishment for a period of time but not confiscation of property; deportatio, the severer form, entailed not only phys­ical banishment but also loss of citizenship and confiscation of property by the imperial treasury. Also, honestiores were not supposed to be liable to torture, except in cases where they were suspected of treason against the emperor. (This rule was not always followed, however, and the lower end of the honestiores were vulnerable to treatment from which they were supposed to be exempted.) Humiliores, on the other hand, who generally had neither the financial resources nor the honorable standing in the community of honestiores, received corporal punishment: beating, if the offense was not serious, or condemnation to the mines, or, for serious crimes, a degrading form of the death penalty such as burning, crucifixion or condemnation to animals in the arena.³⁹ Under the Empire, slaves were subject to the same legal treatment as humiliores, or indeed, to worse treatment. Torture of slaves to extract evidence was standard legal procedure; this included not only slaves who were themselves accused of crimes, but also in some cases those whose owners had been accused.⁴⁰

Status was almost as critical a factor in determining one's place in society as gender. Though women were subject to some legal restrictions with regard to their public activities, and their actions were subject to the approval of some man (father, tutor, or husband), women of the elite had privileges not available to men who were below them legally.⁴¹ In studying the legal position of women in the Roman Empire, the importance of social status must always be kept in mind.