The Roman notion of personhood, the persona, had a long development, ultimately culminating at the height of the classical Roman law in a sophisticated set of rules, usages and institutions that regulated everything from status in civil society to familial relationships. For the Roman, the person and his or her function within the extended family was pivotal to the entire system of law that Rome bequeathed to the Western and to a large extent also the Middle Eastern World. It must be remembered that the family included also slaves of the household, which (as is explained elsewhere in Slaves as things) category of persons was very important within the Roman system of not only family life, but also commerce and industry. This node does not deal with the notion of personhood in respect of slaves.
Only people, i.e. homo sapiens were regarded as personae by Romans. Classical Roman law never developed the idea of a company or corporation that can function in the commercial reality as an individual legal entity. In the post classical period certain organisations or bodies were vested with rights and obligations as entities outside of the individual persona, but not in the sense we moderns understand it.1
The persona originated at birth of the individual, and ceased to exist at death. From the moment the child was born, it was vested with legal capacity but as discussed elsewhere in Suing for prenatal injuries, legal capacity could be conferred upon the unborn in instances where it would be to the advantage of the unborn child, on the express understanding that the child must eventually be born and live (even if only for a moment).
The status or condicio (= place, standing in society) of an individual was determined with reference to the totality of rights and capacities vested in the individual. In other words, a Roman individual was not necessarily vested with all the rights and capacities available. The more rights and capacities an individual had, the higher his or her status or condicio. The most important factors that influenced status in Rome were liberty or bondage, citizen or not and family.
All persons in Rome were classified as free (liberi) or slaves (servi). A person became a slave in various ways, the most important being by virtue of birth (from a mother in bondage) or imprisonment (usually prisoners of war, although for certain offences loss of freedom was the prescribed punishment). In principle a slave had no capacity in the legal sense of the word, and effectively the only thing a slave was legally capable of doing, was to accumulate a peculium, being the money he received from his or her master or other persons and which his or her master allowed him or her to keep. A slave could be freed by his or her master, in which case he or she obtained status of his or her own, but not necessarily citizenship.
In order to be born free (= ingenui, free born as opposed to freed = libertus, libertinus) for purposes of Roman law, both a child’s parents had to be Roman citizens who had the ius conubii (= right to conclude a Roman marriage). This right was not exclusive to citizens, but could under certain circumstances be obtained by foreigners (peregrini). It was not also required that the parents be married to one another. A child born out of wedlock to parents not married, was still free, provided the one or both parents were free citizens or if either was not a citizen, had received the ius conubii.
Being free and a citizen gave the person the following rights in Roman law:
· The ius suffragii or right to vote in the popular assemblies (limited to men in most instances, although in all probability women were allowed to vote on certain (limited) issues in certain assemblies).
· The ius honorum or right to be elected to civic office (again only men).
· The right to enter the army and serve as an officer (men only again).
· The ius conubii or right to conclude a Roman marriage.
· The right to litigate in the law courts.
· The ius commercii or right to commercial activity, e.g. conclude contracts and other acts necessary to engage in trade or business.
Age also influenced personhood. Infants (infantes) had no capacity to act, older children had limited capacity, and only after puberty (fourteen for boys and twelve for girls) did the person acquire full legal capacity. Women were limited in their capacity, initially severely so if they were under the manus ( = hand, i.e. the power) of their husbands, but during the principate women were granted much more freedom and independence, to such extent that marriages cum manu disappeared in the post classical period.
Insanity had much the same effect on status as in our modern society, and insanes or furiosi were divested of their capacity to the degree of their affliction.
Roman citizenship or the lack thereof determined in the first instance whether, and in the second, how much, of the capacities an individual had. In principle, a citizen had full capacity after puberty (subject to other factors, e.g. sex or class). This is dealt with in another node.
Familial relationship was another strong factor which determined the capacity of an individual. The head of the family was the paterfamilias, usually the eldest male who in principle wielded great power over all the members of his family (including slaves) who fell under his patriapotestas (patriarchal power). These would usually be his wife in the case of a marriage cum manu, their children and their issue, inclusive of adopted children and also children born out of wedlock, slaves and all other persons who were in some relationship of dependence to the paterfamilias. Effectively, everything belonged to the paterfamilias, who was vested with the ius vitae necisque, the right of life and death in respect of all his family. This right entailed that he could kill any member of his household, or even sell any of them into slavery trans Tiberim(= across the river Tiber where the slave markets were – slaves could for religious reasons not be sold inside of the city of Rome). Practically such drastic measures would normally only be taken after the paterfamilias had consulted his adult male family members (or consilium domesticum).
While no person under the patriapotestas could legally own his or her own assets, the sons (filiifamilias) were also allowed to accumulate a private fund, much like the peculium of a trusted slave. In the same vein, the paterfamilias was liable for the delicts (torts) committed by his family members, although later the filiusfamilias was held personally liable.
Lastly, status was influenced by an occurrence peculiar to Roman law, called capitis deminutio, literally the lessening of the head. Three forms were recognised, being maxima, media and minima. Capitis deminutio maxima occurred when a Roman was deprived of his or her citizenship, which also entailed the loss of all capacities and rights citizenship brought. This could be the result of being found guilty of treason, or some other serious crime against the state. When a citizen lost his or her freedom (e.g. through being sold into slavery to pay a debt), it was called capitis deminutio media, while a change in family relationship was called capitis deminutio minima (e.g. adoption or marriage).
1 See Kaser, Das Römische Privatrecht, vol II (1975) 112.