On Roman citizenship
A person according to Roman law, was either free (liber = a free person), or a slave (servus (m), -a (f) = a male or female slave).1 The distinction was for a Roman of the utmost importance, not simply because it indicated servitude or freedom, but most importantly because only free people (and not all of them) were entitled to the Roman citizenship.2 It was the actual citizenship which was for every Roman his (or in some cases her) most prized attribute.
Citizenship was acquired in Rome principally by way of birth from parents married according to Roman law. Not every “marriage” gave rise to children from the union being free born (= ingenui). Both parents had to be vested with the ius conubii, the right to contract a legal Roman marriage, in order for their union to produce free born children. Therefore, a Roman man married to a non-citizen woman, did not father children who automatically became free born Roman citizens.3 In principle, every Roman had the ius conubii, bar exceptions in respect of consanguinity or affinity by way of Roman adoption4 or marriage, servitude, or certain condemned criminals, despite their citizenship. It must also be remembered that marriage between members of certain classes was forbidden: The nobility were precluded from contracting marriages with plebs, unless the noble had first been adopted into a plebeian family, or the pleb, for that matter, into a noble family.
Having citizenship entailed several important rights:
- The right to vote (ius sufraggii) (men only) in the popular assemblies.
- The right to be elected a state official (ius honorum) (again men only).
- The right to obtain rank in the army when serving under the colours.
- The right to litigate in the Roman courts against other citizens.
- The ius conubii, i.e. to contract Roman marriage in your own turn.
- The right to join in commerce (ius commercii).
Certainly the most important of these capacities was the ius commercii, as it was not possible for a non-citizen to obtain ownership of certain assets in pre-classical times if he did not have the ius commercii. Land in Roman Italy5 could only be transferred by way of a process called mancipatio,6 a highly formal procedure which was in fact also used for purposes of contracting certain forms of Roman marriage, sale and purchase of goods etc. Initially all Roman land, the original praedial servitudes important to an agricultural people, beasts of burden and agricultural tools, as well as slaves were subject to transfer of ownership only by way of mancipatio and were referred to as res mancipi.7
Mancipatio was an old and highly formal juristic act by way of which one person would transfer to another those things called res mancipi. Initially only Roman citizens with the ius commercii were capable of availing themselves of this procedure. Later as the empire expanded and included more and more non-Romans (=peregrini), non-citizens were also admitted to the ius commercii and after 212 CE, the necessity for the distinction between res mancipi and res nec mancipi (things that do not have to be transferred by way of mancipatio)8 fell away when the emperor Caracalla conferred citizenship on all inhabitants of the empire.
The process of mancipatio was an abstract one, in the sense that even where the underlying cause for the act was illegal or flawed (e.g. induced by fraud or mistake) the transfer remained valid. In this way, mancipatio created legal certainty in respect of what had been transferred by who to whom. This certainty was ensured by the highly formal and ritualistic procedure.
Initially the process of mancipatio was probably sacral in origin, with a priest officiating. At all times at least five (male) citizens above the age of puberty had to witness the act. Formulae were spoken and mistakes in the formula gave rise to an invalid act of mancipatio. The priest held scales (libra), and the transferor and transferee would tap the scales in turn with bronze ingots (aes) which originally served as currency before minted money came into fashion. Thus the transferor would tap the scale with the bronze and formally declare that he was transferring to the other the thing in question. The transferee would respond by tapping the scales in turn and speaking the formal words, accepting the transfer.
Five witnesses were required to ensure that later on there would be no difficulty in tracing at least one person who had witnessed the transfer. This was obviously necessary in an age where these transactions involving important objects like land, slaves, and agricultural necessaries, were not recorded on paper and archived, and ensured that the entire community received knowledge of what transpired.
1 Gaius, Institutiones 1.9; Justinian’s Institutiones 1.3 pr.
2 And citizenship should not for this purpose be equated with the franchise. Although every citizen in theory had a vote, it did not necessary translate to much in practice. If you want more information on this, read my write up under Roman class system.
3 Gaius, 1.67.
4 And here it must be mentioned that a woman or a man could be freed from the prohibition adoption may place on her or his proposed marriage to a man or woman (against whom there was no other prohibition), if she or he were emancipated from the patriapotestas of her or his family head.
5 Bear in mind that all of what we know as Italy today was not part of the land that comprised Roman Italy.
6 From where the word emancipation, as slaves had to be freed using mancipatio.
7 Mancipatio was also used for certain adoption procedures, and the making of a particular type of will, the testamentum per aes et libram (literally “the will made by way of the bronze (currency, money) and the scales”).
8 Res nec mancipi could be bartered and bought and sold freely between Roman citizens and non-citizens.