Roman Legal Personhood: Status, Capacity, and Associations
Shame De Facto (Turpitudo)
Also called “Turpitudo.” It was regarded as “bad reputation” in society, but no specific causes or consequences were assigned. Sometimes, individuals who committed such acts of infamy were declared unfit to be witnesses. Regardless of specific causes, individuals in certain professions (actors, gladiators, prostitutes, etc.) were considered infamous de facto. Women who remarried before completing their first year of widowhood, individuals convicted in a public trial for slander, and those convicted of certain private crimes (theft, slander) were also considered infamous de facto. The duration of infamy was lifelong unless the Senate or Emperor declared restitutio in integrum (restoration to the original state), for example, for state officials.
End of Slavery
An individual was considered a slave due to specific circumstances. There were situations with an affinity to slavery: Mancipi in person: If the “pater familias” or guardian sold a family member (mostly daughter or wife) through mancipatio (delivery to settle debts) or gave them in noxa (delivery to cover an event or crime). Individuals subjected to the “pater familias” without specific information about them were also considered in mancipi. Dominium ex iure Quiritium (property in civil law held by a Roman citizen).
Pleventes ab hostibus: A citizen rescued from captivity by a third party who paid a ransom. In such cases, the rescued individual was considered a slave of the liberator until the ransom was repaid. The liberator could hold the rescued individual for a maximum of five years, as the services provided during this time were considered payment for the ransom. Auctoratus: A free individual who leased their services to an employer (e.g., gladiators). Upon doing so, the individual swore an oath of loyalty (to burn, kill, and be struck with any weapon). This was a situation of a free citizen in a slavery-like condition.
Settlers: Free individuals tied to the land. This status arose from land cultivation. Settlers were subject to the land and its owners, belonging to the free class. From the 4th century AD, settlers were prohibited from abandoning the land and were obligated to cultivate it. The obligations of the colonus included: paying rent, delivering a portion of the harvest to the bishop (during the Christian era), cultivating land given by the landowner, or providing sacerdotal or military services.
B) Change: Capacity to Act
Age: Pubertal and Prepubertal.
a) Puber: Individuals under and over 25 years old.
b) Prepubertal:
Infants: Children from birth to age 7.
Toddlers: Individuals from 7 to 14 years old. Romans believed that sexual development was linked to intellectual development and the capacity to act.
Prepubertal
Individuals who had not reached the psychological maturity to procreate. For infants, their capacity to act was ineffective, and they could not be held responsible for criminal acts. Older infants could perform acts leading to economic benefits, but for all other legal acts, they required representation by a guardian. They could not make a will or marry, even with the guardian’s authorization.
Puber
Individuals who had reached the psychological development for procreation. Two major legal schools of thought existed: The Sabinians believed capacity depended on individual maturity, while the Proculians referred to specific ages for each sex (12 for women, 14 for men). Impuberis Tutor: The first choice for a guardian was the legitimate, intestate heirs of the minor, typically the closest agnatic relatives, and failing them, the gentiles. In the Justinian era, more importance was given to cognatic relatives. Testamentary Guardian: Appointed by the pater familias in their will. Dative Tutor: Appointed if there was no testamentary or legitimate guardian. The tutor’s functions included: Business Management: Managing the minor’s assets. In imperial times, mortgaging property was prohibited. Filing of Authority: Assisting the minor in legal actions, providing efficiency for prepubescent individuals to take legal action.
Actio de Rationibus Distrahendis: An action against a guardian for stealing from the ward at the end of the guardianship. The penalty was double the amount stolen. Acusatio Suspecti Tutoris: An action against a guardian for fraudulent or intentional acts. Actio Tutelae: Action concerning the guardian.
Disease
Physical illnesses could create gaps in the capacity to act, especially in business, where physical presence was necessary. Deaf and dumb individuals could not perform legal acts because these were solemn and required oral pronouncements (until writing was implemented by Justinian). Mental Illness
Individuals with mental illnesses were considered incapable of acting because they did not understand their actions or bear responsibility for them. They were placed under the care of a tutor or the pater familias. If these were unavailable, they were entrusted to their agnatic family or gens. In other cases, a curator furiosi was appointed to manage their interests. Schizophrenics were considered mentally ill during periods of lucidity. Prodigal
A person who squandered their wealth lost ius commercii and was placed under guardianship. This institution primarily aimed to protect the prodigal’s family. The law did not consider the prodigal insane but restricted their ability to dispose of assets, not acquisitions (donations), thus assimilating them to a ward. Sex
Especially in the early period, under the patriarchal order of Roman power, the pater familias dominated, and women were subordinate to men in public and private life. Women could not have custody, be witnesses in wills, or borrow money. A woman was under the power of her pater familias or the manus of her husband. If unmarried and without a pater, she was subject to a tutor who managed her interests. She could not acquire heritable property. Gradually, the original family structure evolved, and the law began to equate men and women, primarily in property relationships. Women were protected as inexperienced in business and legal matters, always having a tutor.
2 – Termination of Personality
Termination could be natural or civil.
Natural: The death of a person. Death had to be proven by the party claiming rights dependent on it. Roman law had presumptions regarding simultaneous death when two people died together, affecting inheritance rights. In classical law, if two people died together and it was impossible to determine who died first, they were presumed to have died simultaneously. In Justinian’s law, if a father and a prepubescent son died, the son was presumed to have died first. If the son had reached puberty, the father was presumed to have died first. These presumptions applied when it was impossible to determine the order of death.
Civil or Capitis Deminutio: The termination or variation of any of the three statuses. Maxima Capitis Deminutio: Loss of liberty, leading to the loss of the other two statuses and the destruction of the legal person. Media Capitis Deminutio: Loss of Roman citizenship, also leading to the loss of status familiae. Minima Capitis Deminutio: Loss of status familiae.