Imperium & the Law
(Primary references: Will Durant, The Story of Civilization: Part III, Caesar and Christ, A History of Roman Civilization and of Christianity from their beginnings to A.D. 325, Simon and Schuster, NY c1944; John Crook, Law and Life of Rome, Cornell University Press, c1967.)
In ancient Rome, only the Roman citizen could avail himself of the "nexum" or mode of contract and conveyance necessary to transfer property, (the object as well as the exclusive right to use it.) The original Roman concept of citizenship included all males above 15 years who had been accepted into one of the three original tribes of Roman tribe by birth, adoption, emancipation, or governmental grant.
Within this franchise of citizenship, there were 3 grades:
Full citizens who enjoyed the right of voting (ius suffragii) of holding office (ius honorum) of marriage with a freeborn person (ius connubii) and of engaging in commercial contracted protected by Roman law (ius commercii);
Citizens without suffrage, who had the rights of marriage and contract, but not of voting or office; and
Freedmen who had the rights of voting and contract, but not of marriage or office.
The most precious privilege of a Roman citizen was the safeguarding by the law of his person, property and rights; and his immunity from torture or violence in the trying of any his case against him.
The "imperium" is the authority (force) to govern, regulate or control the actions of citizens in respect to each other (e.g. "police powers.") In Rome, the Curial (later Centurial ) Assembly "delegated authority" or empowered the magistrate with the authority to govern the actions of Rome's citizens to comply with the laws. (Delegation - to empower another to act as a representative or agent for the empoweror.) The Curial Assemblies were comprised of male patriarchs (pater familias) from the 30 curiae or wards into which the three clans of Rome had been divided.
Participation of the patriarch in the Assembly through his vote was his voluntary act of consent or delegation. It signified the ongoing affirmation of delegation of authority. A citizen had to be actually present at the Assembly to vote; but even if he did not vote because he was away, he still had the right to vote as part of his citizenship and therefore was bound to the social compact, laws, decisions and institutions to which the Curial Assembly delegated the power of government.
The precepts of the Roman law were described in the "Institutes" of Justinian as: "to live honestly, to injure no one, and to give every man his due." Written law was composed of "ius civile" - the "law of [Roman] citizens" and "ius gentium" - "the law of nations." Civil law was "public law" (publici juris) when it related to the state or official worship, and "private law" (juris privati) when it dealt with the legal interrelations of the citizens.
The imperium (police powers) controlled the action of the citizen in using his private property on the basis of his equal relationship with other citizens - that he not cause personal injury to them or their property, or harm to their right of exclusive use of private property. [Sic utere tuo ut alienum non laedas = Use your own so as not to injure another's property. 1 Bl. Com. 306; Broom's max. 160; 4 McCord, 472; 2 Bouv. Inst. n. 2379..) (See Loeb edition: Remains of Old Latin, vol. III Lucilius and Laws of the XII Tables translated by E.H. Warmington, Harvard University Press, Cambridge, 1938, pp. 467ff.]
Roman Jurisprudence recognized crimes against the individual, the state, and social or business groups considered as juridical persons.
PUBLIC LAW: Against the state, one could be found guilty of crimes such as "maiestas" (treason by act or word,) "vis publica" (sedition,) "sacrilegium" (offenses against the state religion.) "ambitus" (bribery,) "crimen repetundarum" (extortion or corruption in public administration,) "peculatus" (embezzlement of state funds,) and "corruptio judicis" (bribery of a judge or juryman.)
PRIVATE LAW: Against an individual, one could commit crimes of "iniuria" (physical injury,) "falsum" (deception,) "stuprum" (indecency,) and "caedes" (murder.) Cicero also mentions a "lex Scantinia" against pederasty. The "Law of Obligations" concerned the rights and duties that rose from delict or contract. "Obligation" was any compulsion by law to the performance of an act. Delict (or torts) were non-contractual wrongs committed against a person or his property - which in many cases was punished by an obligation to pay the injured person a compensatory sum of money. The chief crimes against property were damage, theft and rapine - theft with violence.
A contract was an agreement enforceable at law. It did not have to be written. The words "spondeo" - I promise- said before a witness was considered more sacred than a written contract. Debt was contracted by loan, mortgage, deposit or trust. Loans for consumption were usually secured by a mortgage on realty or moveable goods. A default in principal entitled the mortgagee to take over the property. In early republican law, default entitled the lender to attach the person of the borrower as a bondsman. The "lex Poetelia" (326 BC) allowed the debtor to work off the obligation, while retaining his freedom. Commercial defaults were mitigated by a law of bankruptcy which sold the property to pay the debts, but allowed the debtor to retain as much as his subsistence required.
The full citizen had certain exclusive rights in private law; the power of a father, (pater familias or patriarch,) over his children (patria potestas), of the husband over his wife (manus), of an owner over his property - including slaves (dominium,) and of a freedman over another by contract (mancipium.) In the early Republic, only the pater familias - oldest male ascendant of the familia, had rights before the law to buy, hold or sell property. The patriarch owned as agent and trustee all the property of the extended family and held most absolute power over persons within his extended household. He held the power of life, death, enslavement (servitus) and bondage (mancipium.) The father and mother, their house and land and property, their children, married sons; grandchildren by these sons; daughters-in-law, slaves and clients constituted the Roman familia - an assembly of "owned" persons and things subject to the pater familias' exclusive right of use or disposition (dominium.).
On the level of the "familia," wives, grown sons, daughters-in-law, children, grandchildren, slaves of the patriarch were his property. These "properties" had no voice in the Curiae, yet were subject to its decisions and laws, as well as to the decisions and laws made on the family level by the patriarch. A non-citizen, female, child, slave, etc., when accused of a crime would be brought to the pater familias for judgement and punishment.