This is the fifth part of our five part series (I, II, IIIa, IIIb, IIIc, IV) on the structure of the Roman Republic during the third and second centuries BC, the ‘Middle Republic.’ Last time we looked at the odd but very important role played by the ROman Senate as the central coordinating organ of the res publica, despite its lack of formal powers. This week, we’re going to look at the last major civil structure in the republic: the courts.
Roman law is, of course, a massive topic and we can’t cover all of it. I am going to proceed here to lay out just a few features of it, namely the evidence we have for it, the basics of Roman legal procedure and finally a discussion of how individual status could impact one’s legal rights and position. For those interested in a deeper take, I really do recommend A.M. Riggsby’s Roman Law and the Legal World of the Romans (2010), which is a very accessible portal into Roman law and legal practice. In any case, the Romans were a litigious, law-oriented culture which made heavy use of the courts both as fields for elite competition and as dispute-settling mechanisms.
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(Bibliography Note: The bibliography on this topic is vast. As noted above, I think A.M. Riggsby’s Roman Law and the Legal World of the Romans (2010) is the best place for a newcomer to start. There is also the older and still useful J.A. Crook, Law and Life of Rome (1967) and some discussion of principles and procedures in A. Lintott, The Constitution of the Roman Republic (1999). On wills and testimentary law, E. Champlin, Final Judgments: Duty and Emotion in Roman Wills (1991) is the essential reading. On courtroom practice itself, see L. Bablitz, Actors and Audience in the Roman Courtroom (2007). The fragments of preserved Roman law are assembled in M.H. Crawford, Roman Statutes (2 vols, 1996), but this is not by any means a beginner-friendly volume, unfortunately. Finally, the Corpus Iuris Civilis can be found online in Latin at the Latin Library; various older English translations also float around online, but note also the new translation, B. Frier, ed., The Codex of Justinian (2006), though this is hardly easy to get a copy of.)
Evidence and Laws
The effort of charting the Roman legal system is immediately different from our previous effort in the Greek polis for a few key reasons. First, of course, we are dealing with just one legal system rather than dozens; there were many poleis, but only one Roman Republic. Second, whereas I noted that we have no complete code of laws from any polis, we do have an effectively complete law code for Rome. The challenge is that this code, the corpus iuris civilis (‘Body of Civil Law’) was compiled in 534 AD and represents the slow but steady accretion of law from the earliest written Roman law – the Twelve Tables (the exact text of which does not survive in full) – to the sixth century. Meanwhile the great majority of Roman statutes are lost to us or survive only in abridgements, summaries or commentaries. Nevertheless our evidence for Roman law, legal procedure and practice is much, much better than for any Greek polis.
What sources do we have? Well, we do have some Roman laws, either in fragmentary inscriptions or as quoted – typically only in part – in other works. But we also have two introductory textbooks in Roman law which survive, one by an author known only as Gaius (the most common Roman praenomen, so this tells us basically nothing) dating from the second century AD and another compiled under (and credited to) Justinian (r. 527-565), both called the Instititones or ‘trainings.’ We also have the corpus iuris civilis, as mentioned, a massive compilation of legal works which include the Digest, a compiled summary of the opinions of the chief legal theorists (jurists) of the Roman imperial period. And then finally layered on top of this, we have historical works, which can give us a sense in some cases of how the law changes or who might report on famous trials, though as Andrew Riggsby notes (op. cit.), the conventions of the historical genre was such that the author wasn’t supposed to display too much pedantry into the details and so the legal episodes in the historians are sometimes rendered with frustrating imprecision.
As you may note from the dates where, while we have a lot of evidence for Roman law, most of it is imperial in date and indeed not only imperial but high or late imperial. And that makes reconstructing the legal world of the Roman Republic more challenging. We sometimes know from our historical sources that Roman law changed at one point or another, but as noted these sources tend to write with a genre-compliant level of imprecision which makes tracking exact changes difficult. What sustained evidence we do have, from things like Cicero’s legal speeches, come from the Late Republic. So while we have a lot more information on how the legal system of the Roman Republic functioned as compared to that of any Greek polis or indeed of any ancient society anywhere, there are still sometimes frustrating gaps in our knowledge. Still, I would describe our understanding of the Roman legal system as relatively complete.
In practice, Roman law has three main sources of law – that is, fonts from which the law itself is created – formal, written law (leges and plebiscita, in the imperial period imperial decrees do this too), edicts by magistrates that supplemented the written law (edicta), and finally the role of precedent in two forms: the mos maiorum (the customs of the ancestors), a general instinct by Romans (and thus Roman juries) to adhere to tradition and also by the slow accretion beginning in the second century BC (and becoming prominent really in the imperial period) of case law and legal theory compiled by Roman legal theorists and advisors called jurists. These forms differ a bit between the Middle and Late Republic on one hand and the (much better documented) imperial period, but we can sketch out the system in the Republic as such:
The bedrock of law were laws and plebiscites passed by assemblies; after 287, plebiscita passed by the concilium plebis have the same legal force as leges (singular: lex, ‘written laws’) passed by any of the other assemblies. During the Republic, these actions by assemblies were the strongest form of law and overrode the others. However these laws tended to be quite general and so they were supplemented by edicta (‘edicts,’ literally ‘things said out’) issued by the magistrates who oversaw the courts, the most important of which by far was the praetor urbanus; these edicta set out how that magistrate intended to handle various legal issues (mostly private law), which in practice amounted to legal rules.
In practice, praetorian edicts – simply often called ‘the Edict’ in our sources and by scholars – varied little year-to-year, with most urban praetors simply reenacting the edict of the year before with minor changes. A magistrate looking to make such changes to their edicta might in turn seek the advice of a jurist on how to craft such changes. These edicts tend to be consistently structured, with the magistrate indicating that they will permit an ‘action’ (that is, a legal proceeding to resolve a dispute) in this or that case, e.g. “if anyone dumps anything in a road, I shall grant an action.”2 Alternately, they might come as complete formula, specifying in the case that something happens the legal action that will be taken, complete with penalties, fines, restitution and so on.
Finally, serious cases went before juries and as we’ll see – just as with Greek courts – there were no strict rules of evidence nor interpretation of law imposed upon the juries. Consequently, the speakers could absolutely argue that perhaps what the accused did was/wasn’t illegal, but it should be, often on the basis of precedent and tradition, and urge the jury to act accordingly. Thus Cicero in the Pro Milone insists that Milo’s murder of Clodius (if he did it, which he didn’t)3 surely should be pardoned by the jury on the grounds that Clodius was a threat to the republic. Alternately, some of the accusations Cicero flings at Verres in the Verrines, for instance that he failed to consult his consilium (‘advisory council’) on important decisions are probably not in reference to actual laws broken, so much as an accusation of criminal negligence on the grounds that consulting the consilium is traditional best practices under the mos maiorum.
Public and Private Law
Like the Greek courts we discussed, the Romans divided legal actions into two categories, public actions (under the ius publicum, ‘public law’) and private actions (under the ius privatum, ‘private law’).4 Generally, we might think of these categories as being somewhat like the modern distinction between criminal and civil law, but in practice many of the things we would consider under criminal law – particularly crimes against persons and their property – were private actions for damages in the Roman legal system (same as the Greeks in this regard), rather than public actions.
The two kinds of actions had very different procedures, so we’ll deal with them separately, starting with ius privatum. Most private law was governed not under written statutes (the leges) but by the urban praetor’s edicta. We can start with a dispute, because as with Greek courts, Roman courts imagine most of the legal issues they deal with as disputes between two parties. A dispute leading to a private action might be something like a property dispute, a failure to return a loaned object, for instance or a dispute over the precise boundary of a field. It might also be things we imagine as crimes, such as theft (furtum) or battery (iniuria, ‘injury’ but note that word’s etymology – it means something in iure, ‘unjust, unlawful’).
In the Republic, there were two ways now to proceed, though they both involved going to the magistrate, generally the praetor urbanus unless a foreigner was involved, in which case the issue might go before the praetor peregrinus. The older way, more common before c. 150 BC was a legis actio (“legal action”), which followed a very strict script, with each party approaching the praetor for the complaint and having to speak specific words to trigger a legal action. The phrases that we see in our sources tend to be so strictly preserved as to deviate from the Latin of their own day and the legal action would fail if the words were spoken incorrectly. This was terribly inflexible and so began to be replaced in the second century by what we call formulary procedure, which is the more common way for Roman private legal actions to proceed.
Formulary procedure works in two basic phases. First, the two disputing parties come before the relevant magistrate (again, usually the praetor urbanus, but sometimes the praetor peregrinus) in a preliminary hearing during which the case was in iure – ‘at law.’ At this preliminary hearing, the two parties laid out their dispute to the praetor. The praetor then needed to find a judge (the iudex; sometimes a panel of judges, but not a whole jury) to adjudicate the dispute and set for that judge a set of instructions, called the formula. That formula has a few basic elements: who is involved, what they dispute, how the judge ought to reach a verdict and depending on the verdict, what happens (for instance setting or limiting monetary damages). Andrew Riggsby presents (op. cit., 113) a fairly typical schoolbook example of a formula:
Let Titius be appointed judge. If it appears that Aulus Agerius deposited a silver table with Numerius Negidius and that the same was not returned to Aulus Agerius by the bad faith of Numerius Negidius, let the judge condemn Numerius Negidius to pay the value of the matter to Aulus Agerius. If it does not so appear, absolve him.5
Judges were selected by the praetor, but agreed upon by the parties. The praetor had a list of Romans who qualified – they needed to be free born (not freed) citizen men of a certain wealth with good reputations. The praetor could then suggest possible judges, until he found one that both parties would agree to, making this process resemble arbitration as much as a criminal trial. Once the formula was given, a judge selected and the trial of the matter scheduled, it went to trial and the praetor’s job was basically done. The two parties would then present their cases – giving a speech, calling witnesses, presenting evidence and so on – before the judge, who would deliver a verdict.
In practice in reaching that verdict, the judge had to do the work of both a judge in a modern court – deciding questions about how the relevant law should be applied – as well as the work of a jury in deciding questions of fact (“did Numerius actually steal that table?”). What the judge did not do was in anyway constrain the parties arguing to anything like ‘truth’ or ‘standards of evidence.’ Once in front of the judge, you could make whatever arguments you liked, short of attempting to bribe the judge (which was a crime).
The system for public law was only somewhat different. Again, while we might correlate our criminal law with Roman public law, that’s not quite right; only a set handful of crimes, understood to be crimes against the community or crimes where the injured party might not be able to vindicate their rights fully, were governed under public law procedures. The basic categories were: ambitus (electoral bribary), repetundae (official corruption, lit. “things that must be given back”), vis (‘political violence,’ particularly violence understood as being against the state), falsum (forgery and counterfeiting of official things, namely documents (like wills) and coins, whose contents were guaranteed from the state), peculatus (stealing state property), maiestas (‘treason,’ very broadly construed to include official incompetence) and finally some cases of homicide (usually those involving close relatives or the use of poison).
Whereas ius privatum carried mostly monetary damages, the penalties in a ius publicum case could be a lot more severe. Of the above list, most were capital changes: vis, falsum, maiestas and homicide were all in theory punished by death, though in practice individuals condemned in this way were allowed to slip into exile rather than be killed. Conviction might also bring infamia, a formal of legal disability that, among other things, barred one for seeking office. Peculatus and repetundae cases involved just financial damages, while ambitus cases originally just barred one from seeking office, but eventually came to include exile as a penalty. No Roman tort came with corporal punishment, as citizens in Rome were (supposed to be) immune to corporal punishments of this sort. That makes this a very all-or-nothing legal system, which jumps almost instantly from ‘monetary damages’ to ‘death and exile’ as punishment options, as the Romans also did not maintain any long-term imprisonment facilities.
In the case of a public charge, anyone could prosecute (similar to our Greek ὁ βουλόμενος (ho boulomenos)), though it seems like it was normal for certain magistrates to be expected to take the lead on certain sorts of charges. Nevertheless, the Roman system had no public prosecutor or district attorney of any sort, so cases – even public ones – had to be brought on private initiative.
Trials of this sort could be held before Rome’s voting assemblies, but beginning in the second century, we also see jury trials. In practice the procedure here is that the person looking to launch the prosecution first went to the praetor to get permission to proceed and have the whole thing scheduled. The jury was selected much the same way as a iudex was, but with more individuals, typically 25 to 75 jurors for a trial (so larger than our juries, but not so large as Athenian juries) drawn from Rome’s propertied classes. As with private cases, there was no judge to constrain the arguments here, just a jury which at the end of the matter voted one way or the other (majority rules), delivering a non-appealable verdict.
So you are left to make whatever arguments you think will work. Except…you don’t have to make them, which brings us to one of the major differences in Roman court practice:
Lawyers!
In a move you will either find brilliant or lamentable, depending on if you are currently admitted to one or more state or federal bars, the Romans invented the lawyer, or more correctly we might say they invented the legal expert (a iuris prudens) and the legal advocate (often orator or patronus). Now in our legal system, we combine these roles into the singular lawyer, but the Romans separated them out: a iuris prudens or ‘jurist’ was there to help you untangle questions of law, while your advocate was there to help you argue in court or more correctly, to argue in court for you. The distinction is summed up neatly in a quote from Cicero (Topica 12.51) where a jurist, Aquilius Gallus, who put himself out to answer legal questions from the public, when asked how to argue a question of fact quipped, “Nihil hoc ad ius; ad Ciceronem” – “This is not a question for the law, but for Cicero,” meaning for an orator.6
The advocate comes first, developmentally and clearly develops out of the Roman institution of patronage (patrocinium or clientela). As you will recall, Romans of lesser means and status might attach themselves to Romans of greater means and status for protection in a reciprocal relationship in which the client was expected to support his patron politically and militarily while the patron protected the client economically and legally. Well this is the legal angle of that: if you are a client and you get into legal trouble, you should expect that your patron will come to your defense. And since your patron wields so much more auctoritas than you do – that’s why he’s the patron and you the client – he will speak instead of you (rather than merely writing your speech, as a Greek logographer might) when the matter comes to trial. A patron could represent a client either before a jury in a public trial or before a iudex in a private one.
Of course if you do not have a patron and find yourself in legal trouble, you could always find a patron willing to represent you. In Roman custom, anyone who represents you in court becomes your patron (though they might also be engaged on a case-by-case basis and expect some rather more concrete display of gratitude), which of course in turn means that for a gifted Roman speaker with political ambitions, the courts might be a good place to collect valuable and influential clients whose political support you can use to your advance. This, of course, famously was how Cicero built his career.
In practice what this all means is that basically every Roman elite – because they all have large networks of clients – is going to be expected to show up in court at least some of the time to argue on behalf of their clients. Consequently, training in rhetoric was increasingly viewed as an essential part of the education of wealthy men – and even some wealthy women as, unlike in Athens, Roman would could represent themselves in court if they were sui iuris (legally independent) and some did, though it was very rare to do so. But note that the training here is rhetorical training, not legal training; Cicero insists that a good advocate should know the law but it wasn’t necessary to be an expert on it. A light smattering of legal knowledge would do.
That said, sometimes expertise was called for with tricky matters and here we turn to the jurists. Jurists seem to emerge as a distinct group in the mid-second century BC; they become a lot more prominent in the imperial period as formal legal education emerges. But in the Roman Republic, these fellows are not really professionals, they are simply elites who have opted to study the minutiae of the law effectively as a hobby, but thus they are also people you can turn to for legal services. Cicero notes they particularly held with pleading (that is, making the initial request for a case), in consulting and in drafting legal documents. As with orators, these fellows aren’t generally working for a fee, but are elites doing this work for prestige or out of patronal obligations or to advance a public image. The emergence of a true juristic profession will have to wait for the imperial period.
Courtroom Procedure
What actually happens in a courtroom proceeding follows the Greek model fairly closely so we needn’t belabor this point. As with that model, the trial itself consists of dueling speeches, sometimes multiple speeches for each party if they have multiple advocates. There are no rules of evidence, so advocates can introduce any sort of argument they think will be helpful; invective, distortion, character assassination, slander and misdirection are all permitted. Indeed, some of Cicero’s most famous legal speeches are famous because he uses such misdirection to obtain acquittals for clients who are obviously guilty (as for instance, with Cicero’s defense of Caelius – the Pro Caelio – where he transforms the case into a referendum on the scandalous and unpopular – according to Cicero – Clodia).
The Romans also, at least by Cicero’s day when we have a bunch of legal speeches (of Cicero) preserved) followed the basic structure of the Greek legal speech. The opening exordium works to establish a connection between the advocate and the audience, building trust before introducing the narratio, the ‘facts of the case’ as the speaker wants them presented. Then comes the divisio, where the speaker lays out the key question (in their view), structuring the dispute favorably for their case. Note how in a modern court, the divisio is often the job to some degree of the judge and his jury instructions; not here because there is no such figure. Then the speaker presents his affirmative case of why his solution to the divisio is correct, called the confirmatio, before a rebuttal of his opponents arguments in the refutatio. Finally, a big emotional finisher in the peroratio and the speech is done.
As with a Greek courtroom, one can have the law read out, read witness testimony, interview witnesses or present other evidence as part of the speech. Directly questioning the opposing counsel seems rarer in our Roman speeches to me, though rhetorical questions directed at the opponent (without expecting an answer) are pretty common. At its height, Roman rhetoric is every bit as refined as Greek rhetoric; Cicero is certainly in my view a match for Demosthenes (I actually like Cicero a bit more, but that’s perhaps because I prefer Latin generally to Greek).
Once the speeches are done, the iudex either makes a decision (as in a private case) or the jury votes (in a public case). The jury’s vote is simple: guilty or not, with a majority ruling. There is no appeals process for either public or private cases
Legal and Social Status
So far we’ve been talking about the ius civile, ‘civil law’ – literally the law for citizens. But Rome was unusual compared to Greek in an interesting respect here: the ius civile wasn’t the only ius. Instead the romans recognized, as a general principle, that there was also a ius gentium, ‘law of the peoples.’ This was part of the mos maiorum rather than a written part of Roman law but nevertheless the Romans considered all persons – even non-citizens – to have some legal protections under the ius gentium, a law that applies to everyone. Naturally the protections of the ius gentium were not as extensive as those of the ius civile; you’d much rather be able to appeal to the latter than the former. Neverthless, Roman jurists generally held that basic protections of person, property and contract applies as part of the ius gentium.7
Roman law thus did not operate under the principle that all were equal before the law: far from it (of course neither did Greek law). There was a law for citizens (ius civile), a law for non-citizens (ius gentium); non-citizens from certain allied communities in Italy in the Roman Republic might also have an additional package of legal rights on top of the ius gentium called the ius Latinum, ‘the Latin right.’ Of course the extreme version of this were the functionally non-existent rights of enslaved people in the Roman world; this is a topic really for its own post and one day we’ll take a more sustained look at ancient Mediterranean slavery, but in short: slaves in the Roman world had functionally no legal protections.
More complex was the position of dependents in families. As far as Roman law was concerned, the family – familia – headed by a father (pater familias) was a key legal unit. Children remained under the legal power of their father (patria potestas) until the father died (or in some cases for women, marriage); even an adult son remained the legal dependent of his father while his father lived. Individuals in potestate (under the power of another) didn’t hold their own property in a legal sense – their property came under the power of their pater familias. They also couldn’t conduct binding transactions without his consent (though an individual in potestate could still vote, serve in the army and run for office). Individuals under the legal power of another – be they children or slaves – could have a small amount of pseudo-property called a peculium, but this was still technically an extension of the property of the pater familias. The peculium is more relevant when dealing with slavery, but again, that’s a topic for another day.
Children who ended up without a pater familias were assigned a legal guardian (a tutor); a father might specify a guardian in his will – if not one was chosen by the praetor, with the law specifying the nearest male-line relative if possible. Guardianship of this sort lasted until the inheriting child was either 12 (for girls) or 14 (for boys). Notionally, these guardianships aren’t just to protect the children, but also the property, which after all of the child were to die before having children, might revert to the broader family.
The situation for women is more complex. Demographically, functionally all women in Roman society married at least once and Roman law effectively assumes this. Prior to marriage, girls are in the potestas of their father, like sons. Legally, this might or might not change with marriage. Roman marriages came in two legal types, cum manu and sine manu, “with” and “without” ‘the hand.’ Manus, ‘the hand’ here is another word for potestas, so really what this means is, “with the transfer of legal power” (cum manu) and “without the transfer of legal power” (sine manu). Under a cum manu marriage, a women essentially had the same legal status as a daughter to her husband,8 with her property becoming his property, even if she had before been sui iuris (legally independent), but she also becomes one of his heirs. Under a sine manu marriage, her legal position doesn’t change, she remains an heir to father but not her husband – essentially legally positioned much like her brothers.
The real significance of this, of course, is that women’s husbands are likely to be younger than their fathers and given ancient life expectancy, unlikely to live through their daughter’s whole adulthood.9 That in turn matters because sine manu marriages are clearly the most common sort by the Late Republic and probably even by the Middle Republic; the concern here is probably not the independence of daughters but rather the desire of fathers to keep any property willed to their daughters in their own family line, rather than it becoming the property of her husband (and his family). And that matters because a woman with no pater familias became sui iuris. In practice the combination of Roman life expectancy with the preference for sine manu marriage meant that there would have been a significant number of women who were sui iuris in Rome at any given time, thus holding their own property in their own name and conducting their own business. Those women might choose to remarry, but do so sine manu so as to retain their legal independence.
Now Roman women remained under all circumstances shut out of the ‘public’ functions in society: they could not vote, hold office, or participate in public trials. But Roman private law proceeded on the assumption that, unless specified otherwise – and it usually was not – a sui iuris women was not legally different from a sui iuris man; and recall most of the law here is private. Consequently, Roman women could hold property, execute contracts, do business, make wills, bring suit against people, and be sued themselves. That is a lot more legal latitude than women had in basically any other ancient society I know of and that’s well worth comment. However, women who were sui iuris were required to have a legal guardian, a tutor, however the tutores of adult women had a lot less power, being only able to veto her decisions and only under certain circumstances. Moreover, an adult woman was typically able to choose her own guardian and this was a continuing right; she could replace a guardian too. Interestingly, her sine manu husband had no say at all in this process – her choice of tutor did not need to be him (though it could be) nor did it need to be acceptable to him. It seems to have been common, at least by the late Republic, for women of means to choose guardians over whom they had significant control, such as their own freedman.
There’s one last avenue of status we should consider here and that’s social status. Roman law does not generally make distinctions among free citizens by status.10 This should be surprising: whereas the legal equality among citizens in a Greek polis was a product of the Greek ideological aversion to strong open status differences among citizens, the Romans had no such aversion. Patronage was a huge and fairly open part of their society. Yet we do not see the sort of distinctions we see, for instance, in the Code of Hammurabi or later post-Roman law codes in early medieval Europe, where different penalties were assessed for the same crime depending on the status of the individual or the victim.11 There are some exceptions and these mostly relate to crimes surrounding defamation or inuria; here the question was damages and in the Roman thought, a high status person had more reputation to lose from being lied about or humiliated, and so the damages would be higher.
Needless to say, Roman law is one of those topics we could delve deeper into endlessly. Some of these subtopics, especially the treatment and status of women and enslaved people in Rome, are ones that I want to return to in more depth in the future. But for now, I think this will have to do. On the balance, I’d say the Roman legal system is in some ways shockingly modern, complete with juries, two kinds of lawyers, and – by the rock-bottom low standards of the ancient world – a surprisingly ‘liberal’ legal order (which is nevertheless profoundly illiberal by modern standards, I must stress).
That closes out the main part of our series on the Roman Republic, but I have promised two addenda, one on the structure of Rome’s alliance system (which is going to take a more inter-communal flair and be less concerned with daily life and procedure) and one on Roman provincial governance outside of Italy.
- As a patron; no I will not shift to calling my patrons ‘members’ as Patreon is inexplicably doing.
- The actual text of that in one reconstructed edict reads, “Whence anything is thrown out or is poured out onto that place where commonly is made a road or where persons assemble I shall grant an action, for twice as much damage as thereby is caused or done against the person who dwells there.” from P.R. Coleman-Norton and F.C. Bourne, Ancient Roman Statutes (1961), 186, as helpfully given as an example in the Wiki article.
- He absolutely did.
- Note that both lex (pl. leges) and ius (pl. iura, but rare in the plural) mean ‘law’ but with a slightly different sense. Leges are generally written laws – the word is connected to legere, ‘to gather, to read’ – whereas ius is law in its more profound sense, closer to how we use the word ‘justice’ (which derives from it). When contrasted with lex, ius stands for fundamental principles of justice, law and rights, as compared to their written expression in a legal code (the leges). In a phrasing like ius publicum, we might read it as ‘public right’ as in ‘a public right of action;’ ius in this sense can embrace not merely the written law, but the whole of the law: leges, edicta, traditions and generally understood rights altogether.
- The names here are all standard, the equivalent of John Doe and Richard Roe in English legal texts.
- Riggsby, op. cit. 47, includes this quip in translation.
- The jurists, of course, explain that slavery is also part of the ius gentium, so the fact that the general protections of the ius gentium might not apply to enslaved people was itself held to be part of the ius gentium.
- Except that he could not, even in theory, have the right of life and death over her.
- Compounded by male age at first marriage being higher than female age at first marriage. So a normal Roman man, having children in his late 20s (with a wife in her late teens) is going to be in his mid-to-late-40s by the time his daughters are at marrying age (late teens themselves). Life expectancy for males at 25 is about 26 additional years, so roughly half of young Roman women will lose their fathers before or shortly after their first marriage. The next half-life of Roman fathers hits around 60 (so when their daughters are c. 30-40). Which is a fancy way of saying most Roman women will lose their fathers either just before or within the first decade or so after their first marriage.
- Though freedpersons had certain legal disabilities, mostly involving office holding.
- With the significant exception of crimes involving enslaved persons.
> Roman women could hold property, execute contracts, do business, make wills, bring suit against people, and be sued themselves. That is a lot more legal latitude than women had in basically any other ancient society I know of and that’s well worth comment.
I wonder how ancient Egyptian law compares here. Herodotus considered it remarkable that Egyptian women worked as merchants—did Egyptian women also have more legal rights than Greek women, or were female merchants in Egypt conceived of as working as agents of a male relative?
Ancient Egyptian women generally worked inside the home, a position of some status as they had an official title ‘Mistress of the House’ which they proudly inscribed on their tombs. However they had full property and legal rights and needed no male guardian.
There is no definite answer there – not only is our understanding of dispute resolution between ordinary people very fuzzy due to lack of sources, the vague picture we have is one that’s even more based on oral tradition and never properly defined shared community values than the Greek system.
Which actually makes sense: The Greek polis and Roman republic function as mediator and arbitrator between economic units (the house/familia), while the Egyptian State functioned as rent-generator for the hereditary elite. Thus the question of “What happens if two farmers fight?” was really important for the former (because those two were active participants in the political process) than the latter (were those two certainly were not). This disinterest also extended to marriage and inheritance, because the question of “Who gets to profit off the re-established household when a widowed woman remarries?” does not arise in this system, and thus it was left to the community to deal with widowed women. (It should be noted, that no matter whether it’s Ancient Egypt, Greece or Rome, the economic pressure to remarry in a subsistence farming economy is massive because of the workload).
The sources we have are clear that women are considered lesser than men, being legally considered the property of the man in her life (father or husband), but it should be noted that legally, that man was also property of his landowner. Daughters also had less claims to a man’s inheritance, but yes, they did have a claim of their own. They also had an exclusive claim on inheriting the “women things” of their mothers.
What is abundantly clear is that women had a massively larger amount of societal freedom compared to the Greeks, but that’s honestly not hard. There’s many sources of the Greek culture shock of things like “women being visible working in a market” or “a woman cussing back at you if you bumped into her in the street”. As much as they were property, they were also recognized as human beings with feelings and a will of their own, that a man wasn’t allowed to just disregard a woman’s opinions in the same way a Greek man was allowed to. Just like with the Roman Republic, we can imagine this “right to shout at people in the street” was used by women to participate in the community even if not formally part of any legal or political process.
In conclusion, I think it’s hard to draw a proper, qualitative comparison with the Romans because of the matter of sources, but the picture is good enough to know they clear the bar of “better than the Greeks”, although that isn’t very high: A society that goes “widowed women are a threat to our society on the order of false coinage, get an government man to figure out who her new husband is, stat!” really has some issues.
> Judges were selected by the praetor, but agreed upon by the parties. The praetor had a list of Romans who qualified – they needed to be free born (not freed) citizen men of a certain wealth with good reputations. The praetor could then suggest possible judges, until he found one that both parties would agree to, making this process resemble arbitration as much as a criminal trial.
Do we have any documented cases of the judge-selection process being deadlocked? This feels like a system that grew out of a different system where failure to agree on a judge resulted in a blood feud, but presumably that was no longer happening by the time of the Middle Republic.
Excellent article as usual, though it felt almost a bit short. The discussion of legally independent women’s situation was especially interesting. Though concerning distinctions among free citizens, besides your point about freedpeople, would you not also consider the infamia groups like prostitutes, actors and gladiators suffered to be that? I had also thought the humiliores/honestiores divide in Late Antiquity to have legal importance, but that might be a misunderstanding on my part
I don’t know, but I would suspect that it’s a matter like that for higher stationed citizens, but in reverse : harder to claim you were humiliated (or that it had a negative effect on you), when you’re already a prostitute/gladiator, and even if you were, your dignity is of lesser value for reimbursement.
In order to think about this question, one should take several facts into account:
1) Rome was VERY big (see Alon Levy’s comment, below), and there were not hundreds of praetores, but very few, so… we can imagine that people deemed not worthy would find it difficult to get to a trial.
2) Patronage extended way beyond family. I’m not an expert, but I understand that most roman citizens would try to shelter under the patronage of more powerful people. The patron would be the first filter: maybe he (usually he) would deem an intervention worthy of his time and influence (so, would help our litigant get to trial), or maybe he wouldn’t (and would dissuade our litigant, or propose other means of satisfaction).
3) The praetor was a very distinguished citizen, only one step below the consules. The judges would also usually be drawn form the patrician élite. The chances of a person of very low social standing of being heard would be very slim indeed.
Obviously, none of this would be written in the law, but would apply very effectively.
After all, as Anatole France pointed out, the law, in its magnificient equality, forbids both the rich and the poor from begging in the streets, sleeping under the bridges and stealing bread…
“Rome was VERY big (see Alon Levy’s comment, below), and there were not hundreds of praetores, but very few, so… we can imagine that people deemed not worthy would find it difficult to get to a trial.”
How big, though? And WHAT in the sense of Rome?
We have a map of Ager Romanus, and of its extension between 396 BC and 90 BC. But it is so big a lot of Roman citizens must have lived far from Rome. So the numbers of citizen armies refer to the extended countryside, not city of Rome.
We know that some parts of Ager Romanus had local officials. Clearly so Arpinum. Roman citizenship sine suffragio since 305 BC. Full political rights since 188 BC – yet clearly had local magistrates as well. So did Cicero have to make speeches before the courts of Arpinum, too?
But still, city of Rome. By imperial age, the estimates are around a million mouths in the built-up area. Before 396 BC, it could not have been close to that. Does anyone have an idea of just how the actual population of the built up area of the city grew between 396 BC? Was Rome of Second Punic War a city of 500 000 mouths, or 100 000? There is a mention of a cow getting to fourth floor of a house during Second Punic War as a weird incident, indicating that Rome already had multistorey houses (like Pompeii never did).
Well, according to a very trusted (although somewhat pedantic) historian, by 225 BC there were about 100.000 (male) citizens https://acoup.blog/2023/07/27/collections-how-to-roman-republic-101-part-ii-romans-assemble/
I tried to look up how many lawsuits are filed today and realised I don’t know where to look. I found a site saying there were 27,372 new federal suits filed in the US in June 2023, which might mean something on the order of like 20-40 cases for a Roman population (depending on how you count women). So about one or two per day.
But then I’m not sure how many cases are heard by other courts. So, say maybe 6 cases a day.
Depending on how long it takes the two parties to agree on a judge that’s maybe doable by one guy (presumably the praetor peregrinus has their own caseload to deal with), with time to run the games and deal with senate business. Once the city gets bigger it’d start getting hard, and you really wouldn’t want to deal with the backlog of leaving the city for the maximum allowable 10 days.
This is all garbage in garbage out back of the envelope stuff. It looks like it’s maybe plausible for 3rd century BCE romans to be as litigious as 21st century Americans. Does anyone know a good estimate of how many legal cases typically would happen in Rome?
I referred to the numbers of total citizen count in my post. The issue with these is that these do not provide breakdown – Roman citizens in municipia, vs. Roman citizens in countryside far from Rome but not formally organized as municipia, vs. Roman citizens in walking distance/built-up area but outside pomerium, vs. Roman citizens inside pomerium.
We have some actual caseload numbers from Roman Egypt. But not systematic comprehensive ones.
Wait, the parties just … appeared before the authority? No service? No haggling over jurisdiction? No touching the debtor with a baton?
This really does sound more like an arbitration than a legal action.
Our modern version of arbitration involves an agreement without going in front of a judge. If these Romans are going in front of their version of a judge, it’s a legal action. It seems a bit more ad hoc than our modern versions, but then it’s for a much smaller community than ours.
First, not sure why my earlier post appeared in this thread rather than in its own.
@ Nate T That’s my point. As described in the OP, the appearance of both parties before a magistrate means they’re agreeing to proceed with a legal action. What if one party doesn’t want to go to court? The OP describes a high-cost system involving patrons, specialized advocates, and no appeal. Why would a Roman “defendant” (or whatever they’re called) agree to appear in “court” rather than tell the “plantiff” to pound sand?
For example: A says that B borrowed A’s plow team and didn’t return it. B says, “I’m not giving it back. Sue me.”
Now what?
Maybe there are social pressures in the smaller community, as you suggest? But presumably those diminished as the Republic expanded across Italy and beyond.
It seems hard to imagine a well-developed legal system without some mechanism to haul parties into court, and determining which courts have authority, if any. And I’m also imagining background activity where the parties are negotiating outcomes short of formal legal acts, which would be informed by jurisdictional rules.
I would assume that you go to the praetor on your own and ask them to bring the other guy over for the dispute. He’s got official mooks with clubs to enforce his will and the authority to arrest people.
@Jonny B The mechanism is social pressure and patronage.
Social pressure still works as Rome expands, because the pressure is, well, social; it comes from your neighbours and fellow citizens, not the central government. B is in a much smaller community than a modern city, if B is being a jerk, everyone will know about it.
And that leads into patronage. If B is going to be a jerk, B had better have a more powerful and influential patron than A, *and* be more valuable to their patron than say A would be. If B doesn’t go along with the social standards and submit to arbitration, A can try to make life miserable for B, and if A has a powerful patron that could lead to a dramatic drop in social status and quality of life for B. And why should the patron of B stand up for someone who is being a jerk? It would reflect badly on them.
How did the Romans conceive of the relationship between jurists and magistrates—or later on, between jurists and the Emperor? Even under the Republic I can imagine the role of the jurists being largely practical, making sure the magistrate uses the right wording and doesn’t leave anything out, but of course I can also imagine people feeling that magistrates out to consult jurists to make sure the will of the assemblies is being followed. Under the empire (especially the dominate) I’d expect the balance of considerations to change, though even Justinian seems to have relied on jurists more heavily than I’d naively expect. Was Justinian maintaining a pretense that he was still bound by the law, was he saying “I respect the wisdom of tradition even if I reserve the right overrule tradition if the situation demands it”, or are we down to practical considerations at that point?
As a testament to the almost boundless impact of Roman law on European law, in both countries I’ve lived in (the UK and the Netherlands) the advocate/jurist split can still be seen. In England barristers are professional advocates, and a barrister in criminal law will still frequently receive a brief on a case (s)he is due to handle the night before, from a solicitor. (Solicitors only recently gained the right to speak in higher courts.
As for the Netherlands, the relevant terms are ‘advocaat’ and ‘jurist’….
This question is off-topic (and would be very unlikely to ever be on-topic). You said the proper term for elephant cavalry is elephantry. If there were goats big enough to ride, what would the right word for goat cavalry be? This question may or may not have anything to do with a Blades in the Dark game I’m playing in tomorrow… 🙂
Capricity, I guess?
It should be somewhat vulgarized – after all, we say cavalry, not caballary. This uncomfortably leads to something like cavry, which sounds too similar to cavalry…
Capristy, capricy, capry…
I like the sound of capraeni. It feels like it could be a unit type in a Total War game.
“Capry” sounds sufficiently “vulgarized” and also sufficiently similar to “cavalry” to make for humorous misunderstandings, so it gets my pick.
“What? No, I didn’t order the soldiers riding capybaras to charge! They were to be held in reserve!”
And the proper term for newborn cavalry (that is, soldiers riding babies) is…
infantry
And once they grow up, they become adultery.
This will haunt my dreams.
Anyone who fights on foot is by definition a mere boy irrespective of age. Real men ride horses!
After the first session and input from the other players, the goat is now likely to be a vampire goat…
Well, if soldiers ride vampire goats, that’s chupacabry.
Elephantry is people riding elephants, not to be confused with elinfantry, elephant foot troops. And *definitely* don’t confuse either with elphintry, the unmounted soldiers of the Fae Court.
How accessible was the praetor? In other words: if I have a dispute with another of the hundreds of thousands of Roman citizens, can I just go to the praetor directly, or are there so many people in line that I need to go through an intermediary, submit an appeal in writing hoping for an answer, wait in line for hours, etc.?
I would also like to know how this plays into the Roman patron system. I could easily see many situations where patrons would intercede on behalf of their clients (and more than a few where clients would intercede on behalf of their patrons) to keep things out of court. How often would a praetor go to the two disputing parties and say the equivalent of “Why don’t you go to your patrons, and if that doesn’t work see me next week”? Or, perhaps more likely, would the praetor consult with the patrons/clients at all? We know the patrons had morning get-togethers, and this would be a good time for a semi-not-really-official visit, just happened to be passing through, thought I’d pop in, sort of thing.
Were judges compensated by the parties to the dispute, by the state, or in some other way (i.e. reputational benefits)?
The last. Any man with sufficient public reputation to be considered as a judge was also wealthy enough not to need any slary or fee; this was considered doing his public duty (as with magistrates and senators, none of whom were paid). Naturally, “just doing my duty” tended to involve a lot of reputation-burnishing, client acquistion and making an impression on future voters.
I find it fascinating that the Roman comfort with open hierarchical distinctions between citizens is probably what lead to the development of the attorney. But my wonder aside, I do have a number of questions:
1) I don’t have my copy of Livy in front of me, but I’m certain he mentions something about throwing open prisons recruiting from there post one of the disastrous battles with Hannibal. Am I just misremembering and inventing this? Did Livy make it up/work with some wonky source? If Rome didn’t have long-term imprisonment facilities, how would this have worked? Or is it just a way of showing how desperate the Romans were that they’re even scraping up a few dozen-hundred men this way?
2) Concerning the legal control fathers have to their children, did Roman law make any distinction between minor children and adult children? Children living in the family home vs living somewhere off on their own? Was that even a thing that happened, of adult children moving out somewhere and setting up home away from the paterfamilias?
How did paternal authority interact with the status of soldiers and minor officials?
When Augustus promulgated a law forbidding soldiers to marry, he, very soon after, promulgated another allowing them to make wills in the lifetime of their fathers without the father’s permission. (Your wife and her children could just inherit from you, your concubine and her children need a will.)
I think that 2 is not quite right. In Book 22 ch 56 Livy mentions that a) some slaves were levied and that b) that this was *instead* of the more obvious course of trying to ransom and recruit the Roman *prisoners-of-war* that Hannibal had.
I had a chance now that I got home to consult my books, and this is what I had vaguely recalled. Livy, 23.14.3-4 http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0144%3Abook%3D23%3Achapter%3D14
“The Dictator decided to still further increase his strength by adopting a measure to which only a country in an almost hopeless state could stoop, when honour must yield to necessity. After duly discharging his religious duties and obtaining the necessary permission to mount his horse, he published an edict that all who had been guilty of capital offences or who were in prison for debt and were willing to serve under him would by his orders be released from punishment and have their debts cancelled. 6000 men were raised in this way, and he armed them with the spoils taken from the Gauls and which had been carried in the triumphal procession of C. Flaminius.”
Now, again, Livy might have gotten something confused or just made it up, or relied on bad sources, but that does seem to imply that there was a legion and a bit’s worth of people who were in prison. And it’s actually a lot more than I remembered, I had forgotten the 6,000 figure.
I wonder if they used the same sort of debtor’s prison that England used to use – you were held until somehow you coughed up the money (from family, charity, etc.). You were also charged for e.g. food, so having family feed you was pretty much a necessity.
Yes, this sounds very much like a debtor’s prison to me. The phrasing “who were in prison for debt and were willing to serve under him would by his orders be released from punishment and have their debts cancelled” is pretty clear.
A debtor’s prison is very different from a punishment prison: A punishment prison operates at the state’s expense, and uses the deprivation of freedom as punishment. A debtor’s prison on the other hand is more like “enforced wage slavery until your debt is repaid”: You work for a wage that goes directly towards repaying your debt, minus expenses of the whole prison thing, and you can’t leave until that’s done, but the prison is actually profitable, or it wouldn’t exist. (compare debt slavery, where you permanently forfeit your freedom)
Except we have, and I’m quoting our good host directly here.
“as the Romans also did not maintain any long-term imprisonment facilities.”
Regardless of who is paying for it, a debtor’s prison is in fact a long-term imprisonment facility.
Think less of a prison, and more of a work camp. You’re not going to lock debtors in a room (except possibly to pressure them or their families into paying) as a punishment for not paying their debts, if you don’t usually punish people by locking them in a room.
If you’re lucky and you know a valuable trade, you might simply be put to work, doing mostly what you were doing before. Otherwise, you’re going to be treated similarly to a slave laborer, though with better legal protections.
From what I’ve recently read, debtor’s prisons in Rome were private prisons, not state-owned ones. The likely system is that the prison’s owner buys up the debts of debtors, and then puts them to work.
From what I understand of debtor’s prison in England, the punishment for escaping was forfeiting a bond. In other words, they would owe more.
“Escaping” in this sense, was “moving beyond certain boundaries. Which meant that they would be very cautious if they were even close to a boundary, since someone could accuse them of violating it.
I know it was common for ancient societies to have short-term prisons (generally for prisoners awaiting trial), but not long-term ones. I assume Rome was the same.
But how long did it take to convene a trial? The system we see is pretty rough-and-ready. You don’t have a lot in the way of procedural protections. There’s no discovery process. No appeals or filing motions that can logjam things up for ages. A complaint, getting everyone together, and then a trial, that probably lasted a day or two tops. How long were these people sitting in jail? A week? Say a month for something really huge. If you have 6,000 people sitting in jails waiting trials than that means you have 78,000 people on average going through the penal system every year. Or more if you count prisoners who weren’t willing to sign on or ones who weren’t able-bodied men of fighting age.
Over in 27.36, Livy gives the entire conscriptable population of Rome as 137,108. Granted, this is after some massive defeats that would have definitely put a dent in the population, But even if you assume a pre-war conscriptable citizen population of roughly double that to 270,000, then you’re implying a legal system that throws 28% of its male population in prison every year.
That strikes me as implausible.
They did indeed have a short-term prison: I think Bret has event mentioned it a few times: The Mamertine Prison, or Tullianum: https://en.wikipedia.org/wiki/Mamertine_Prison
A father could divorce his daughter from her husband to marry her to someone else.
For that matter, a husband could divorce his wife to marry her off as if she were his daughter.
They had a lot of power over adults.
Including adult sons.
Yeah I’m refusing to go to the ‘updated’ terminology at Patreon too. Sure, one could be a member of something. Or! One could be a patron of the arts, & wear a fancy ball gown, or a really sharp suit!
Which is cooler, I ask you. THERE IS NO QUESTION.
It’s not as bad as X, but it’s definitely a downgrade—both in terms of branding (Patreon, patron) and in terms of appeal (see prior comment).
Was there ever a rich and influential Roman who wasn’t particularly good at public speaking? (For modern examples, from all accounts George W Bush was incredibly charming in small groups, but came across as a bit stiff and awkward giving speeches on TV). I suppose that at that point, he would have had decades of experience giving speeches in front of the Senate, so probably couldn’t have been that bad.
If one of his clients got into a bit of legal trouble, could he outsource his advocacy to Cicero or some equivalent?
There certainly were Romans in Empire who were not particularly good at public speaking. The classic example from Empire was Claudius.
But that was Empire, and he was a Caesar in Empire. How was the case in Republic? Were there any Romans of high profile political families who, like Claudius, were not good at public speeches? In Republic, they might have stayed knights and not ran for elections… but in late Republic (Cicero´s letters), there might be mentions of brothers etc. who stayed out of Senate? So any actual examples?
Undoubtedly so – although “public speaking” is a broad field and encompasses much more than speechmaking. It seems there were a fair number of men more adept in war than the law courts, others who worked out deals between Senators behind closed doors, and much more.
Also, note that elite women apparently played some role in the upper echelons of Roman politics, although the exact amount of influence is very unclear. They wouldn’t be giving public speeches, but seem to have exerted pressure on spouses and sons – and maybe even fathers.
So there were some who were probably rather average. Pompey (G. Pompeius) for example, got praised for his oratory mostly by people who had reasons to want to flatter him (e.g. Cicero). In other sources there’s a distinct lack of enthusiasm, although he did have ‘remedial’ lessons (we even have the name of his teacher) and he seemed to have got his message across as most modern politicians do, in the end
You’ve got a small typo in “ROman Senate”.
Typo hunt:
unlike in Athens, Roman would could represent themselves -> Roman women
legal speeches (of Cicero) preserved) followed -> no second closing parenthesis
no appeals process for either public or private cases -> needs full stop
Instead the romans recognized, as a general principle -> Romans
which after all of the child were to die before having children, -> if the child
that women’s husbands are likely to be younger than their fathers and given ancient life expectancy, unlikely to live through their daughter’s whole adulthood
-> this reads as if the husband is unlikely to live, fairly sure you mean the father
Regarding the divisio being the province of the judge in modern law, that’s not quite correct. An appellate brief customarily leads off with the “Question Presented.” Phrasing this question correctly can win the case just by itself. I remember my appellate advocacy professor, a considerable raconteur, telling us the story of a Supreme Court brief that led off with “Can the National Labor Relations Board, as a remedy for a legal violation, order an employer to agree to a specific contractual term?” If you know anything about American labor law, that is such an obvious “no” that the case is won right there.
Do we have a sense of how “deeply” the patronage and family structures ran? My impression (possibly quite wrong) from the source discussion was that it is elites writing about elites. Did citizens without property have the same family structure? Did the patronage system go deep enough to give effectively everyone access to the legal system?
I acknowledge that a chasm of 600 years lies between the legal system of the Republic and the system envisaged by Corpus Iuris* Civilis as does the omnipresent gulf between theory and practice**. But, CJS is, in and of itself, an important subject of historical jurisprudence as the foundation of European legal systems. A couple of good references for those of us who have no Latin are:
“The Corpus Juris Civilis: A Guide to Its History and Use” by Frederick W. Dingledy,
William & Mary Law School, fwding@wm.edu which can be downloaded, gratis, from:
https://scholarship.law.wm.edu/libpubs/118/
And,
Annotated Justinian Code translated and annotated by Fred H. Blume at the University of Wyoming
College of Law — George William Hopper Law Library
https://www.uwyo.edu/lawlib/blume-justinian/
“From about 1920 to 1952, Fred H. Blume, attorney and Wyoming Supreme Court Justice, worked alone in his spare time to produce a massive, annotated English translation of Justinian’s Code. His hopes of seeing it published during his lifetime never came to fruition. … This web site is dedicated primarily to housing an edited, electronic version of Justice Blume’s magnum opus …”
*In modern publications one often sees the word Iuris spelled with a J — Juris. The letter J is a Medieval invention. Iuris is more authentic, but Juris is more useful as it connects the word with all of the variants that are commonly used in contemporary English such as Judge, Jurist, jurisprudence, etc.
**In theory, theory and practice are the same, in practice they are almost always different.
I am now imagining the first time a woman sui iuris appointed her freedman as her tutor. I’m sure there were objections from all the decent people. But Roman history has some formidable women in it — the stare-down must have been epic.
On the other hand, it’s possible that by the time someone appointed her own freedman, so many women had appointed their own client that having it be a freedman rather than a free born client wasn’t considered a big deal.
I’ve wondered how “client” came to mean something different in the modern world versus Rome. Is a lawyer’s client the missing link?
“Client” and “patron” mean completely opposite things in certain contexts now depending on language, or perhaps context in the same country. The relationship between shopkeeper/business and a buyer… how to term it? Some modern people call the buyers in a bar “patrons” and then it would mean that the merchant is the client. Other modern merchants call their BUYERS “client”, thereby claiming to be their “patron”.
As for the claim that demographically all Roman women married and Roman law effectively assumed it…
The Vestal Virgins were 6 at any time doing 30 year terms so one per 5 years… which would make around 100 vestals in 500 years of Roman republic. They were discharged around age 40 and legally free to marry then. We are told that “a few”, thus several did but found it disappointing, and most ex-Vestals remained voluntarily virgins. With life expectancy of around 65 at age 40, we could count around 5 living ex-Vestals at any time. 10 Vestals and ex-Vestals (the youngest Vestal would have been preteen, so the laity not married either at her age) in a society of 100 000 adult men is not important demographically.
But we are told that Vestals were high profile and picked from the daughters of most important families. Unlike later nuns (who are sworn not only to celibacy but to poverty, and only the collective of nunnery owns anything), the Vestals were allowed to own individual property, buy and sell. We also hear that Vestals were sui juris, already in father´s lifetime.
How much does Roman law address legal position of current and former vestals?
Vestals were given large sums to induce them (their families) to accept. This was more money than needed to be a senator.
But they were basically no longer members of their own families. They could not inherit without being left the inheritance in a will, and no one could inherit from them except by will. Furthermore, there was a reputation that marrying a former Vestal was unlucky, the bridegroom would die soon.
Their legal position was pretty extraordinary. They were sacrosanct, had lictors, could attend events generally closed to women, and were generally exceptions to rules.
Am I reading this right? Did Rome have no law against perjury?
“Perjury” means “lying under an oath (to not lie)” and what I am reading here is: Cicero, like modern US lawyers, was not required to take such an oath. Unlike modern courts, it was likewise admissible to have a third party testify without oath.
Possibly one could introduce sworn testimony and it stands to reason that would carry more weight, since everyone then believed in their gods, and that their gods cared about oaths. I would be interested to hear what the sources have to say about how often Roman trials heard testimony backed by a sworn oath.
So, it’s a little off-topic, but the short section on women raised a couple questions in my head:
1) How legally disadvantaged were women in a practical sense? In other words, if you put aside all of the rights that were really only relevant for elites (like the ability to hold office), would a non-elite citizen woman have basically the same rights as her male peers, or would there still have been glaring holes in her rights and privileges?
2) How involved were women in the formal patron/client network? I’m specifying “formal” because I’d imagine that there’d be plenty of social contact between women and their husband’s clients/patron, and it’d probably be a very bad idea to make enemies with your amicus’ wife…
(I can’t wait for you to get to the series on women, Bret.)
The vital reason for keeping the institution of guardians in case adult women could be actual protection against being coerced by the husband into doing something not preferred by the woman.
In that way it would actually increase indepedence of women.
I’m reading this and I’ve come to believe that what our nation needs is a Steamy, Period Accurate, Romance Novel set in the late Roman Republic involving a love triangle with a wealthy middle-aged sui iuris woman, her husband, and her tutor. A court case involving the lady should definitely be there.
Ooh, that would be good stuff!
> No Roman tort
court?
“Tort” is a legal term. Google says, “a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.”
“Tort” is a legal term. Google says, “a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.”
‘What the judge did not do was in anyway constrain the parties arguing to anything like ‘truth’ or ‘standards of evidence’
Which of course is what makes Cicero’s speeches so very entertaining.
> some cases of homicide (usually those involving close relatives or the use of poison).
I may have mentioned this here before- until the 1950s, the British Attorney General was required to personally act as prosecutor in cases of murder by poisoning, in the same way as in cases of treason. Not sure if this is a survival of the Roman idea that poisoning was a crime against the state not just the individual victim, or a separate evolution of a similar idea.
(The UK didn’t get a full-scale state prosecution service until the 1980s)
One notes that there was not a sharp difference between poisoning and witchcraft. Poisons work by hidden — that is, occult — ways.
That last point is news to me. Can you elaborate? (Also the UK still doesn’t have a state prosecutor service. England has one. Scotland has a different one, and indeed a whole different legal system.)
Slightly on a tangent, but role of the judge and jury aren’t quite distinct outside the US. Many criminal systems are judge alone, or reserve juries for the most serious of offences. Civil or private law actions are almost entirely judge alone in most jurisdictions. The prominent role of the jury has largely been an anomaly solely in the US system. As such, judges often find themselves in a fact finding role. In addition, even where the jury returns a verdict, for sentencing, the judge may have to find additional facts beyond the minimum nesscary for the conviction, or in some cases, sort out what those minimum facts were.
This is even the case in countries like India whose legal system is largely (not completely) based on inheritance from English law. India got rid of jury trials gradually over the course of the 1960s and 1970s on the grounds (I think) that juries were more likely to be biased, prejudiced and lack the educational qualifications to make fair decisions.
So the imperial government of India had more confidence in the random Indian citizen than the modern democratic government? I admit that is a bit of a surprise.
Israel specifically got rid of juries at independence on the grounds that in such a divided society, they wouldn’t be able to rule impartially. Tellingly, in the contemporary Southern US, segregationists fought to increase the scope of jury trials, for the same reason – an all-white jury would be guaranteed to acquit any election official who refused to register black voters.
“Israel specifically got rid of juries at independence on the grounds that in such a divided society, they wouldn’t be able to rule impartially. ”
i would guess that logic holds 10-fold for India. By some measures it’s one of the most “divided” countrys on earth (although I guess maybe Papua New Guinea and a few others might give India a run for her money), divided not just on lines of ethnicity, language, religion, economic status and gender, but also, unusually, among hundreds or thousands of different castes and subcastes.
I think “democratic” vs. “nondemocratic” really matters less here than “traditionalist” vs. “modernizers”. The center and left (and even certain portions of the right) in India post-independence were interested in building a modern, industrialized society where traditional prejudices and institutions played a much reduced role. In a highly traditional and, for lack of a better word, culturally “backwards” society, a modernizing government is almost by definition going to have to take a dim view of the *judgment* of the random citizen even though they might be very much dedicted to their *interests*.
I doubt the British cared as much about overturning traditional institutions and modernization, as long as the country was peaceful and British rule was unchallenged.
Rather, their opinion of the random citizen’s interests.
Which leads rapidly to the point where the government acquits officials where random citizens would justly convict.
Juries are vulnerable to exactly the kind of rhetorical skill that Cicero was famous for, at the expense of things like facts and expert judgement. On the other hand, juries are supposed to more fairly represent the interests of ordinary people, make it harder to use bribes to purchase an outcome, and bring a sense of civic participation to the general public. So, a little of this, a little of that.
I’ve read that New Zealand for some years now has been toying with the idea of moving towrds more bench trials (as opposed to jury trials) specifically in rape cases, on the grounds that juries are more susceptible to victim blaming, “sl*t shaming” arguments etc. and are less likely to convict.
The case that seems to have played a big role in abolishing juries for criminal trials in India was a case where a military officer murdered his wife’s lover, and the jury acquitted. That seems like exactly the kind of case where a jury might be particularly sympathetic to emotional appeals instead of the facts.
I, too, am upset by Patreon calling me a member. They’re attempting to encourage me to produce my own works, thus I believe why everyone is a “member” now. However, I LIKE being a patron of the humanities, thank you very much for asking. . . 😊
> it means something in iure, ‘unjust, unlawful
(missing closing quote but that’s not what the question is about) vs
> the case was in iure – ‘at law.’
Are there just two different meanings of “in” here or something more tricky?
An iniuria (in iuria) is a thing which could be brought in iure – that is, an illegal thing is something that could be brought at law.