CLIENS
CLIENS contains the same linguistic element as cluere
(
κλύειν), “to hear” or
“obey:” cf. the affinity in German of
Gehorsam,
gehorchen, angehörig, Höriger, with
hören,
“to hear.”
For the origin of clientes and clientela we must go back to the period of
Roman history anterior to the incorporation of the plebs in the state. The
populus, which alone comprised that state, consisted of the patres familias
united in a compact aggregate by the tie of gens, curia, and tribe; but,
besides these, there were many other free persons dwelling on Roman
territory (mostly refugees from neighbouring tribes, or foreigners who
resorted thither for purposes of trade) who possessed no civil rights
whatever. As these increased in number, it was found desirable to bring them
in some way into connexion with the state organisation; and this was
effected by allowing them to attach themselves as
clientes to a civis, who was called their
patronus. They became members of his gens ( but apparently
without any right of voting in the comitia), thereby acquiring the gentile
name, and incurring the obligation of military service. The rights of the
patronus were modelled on those of the pater over his filius familias: if
the cliens committed an offence against him, it was
perduellio (
Dionys. A. R.
2.10), and the only law which protected him against a too harsh
exercise of the patron's authority was that of the gods ( “patronus si
clienti fraudem fecerit sacer esto,” XII. Tables in Serv.
ad
Verg. A. 6.609; cf. Festus, s. v.
Sacer). It is apparently of
clientele in this original form that Dionysius is speaking
(
Antiq. Rom. 2.9); when he tells us that Romulus gave to
the
εὐπατρίδαι the care of religion, the
honores (
ἄρχειν) the administration of
justice and all executive authority. The
δημοτικοὶ (whom in the preceding chapter he explains
[p. 1.457]to be the
πλήβειοι) had none of these privileges, and were also poor:
husbandry and the necessary arts of life were their occupation. Romulus thus
entrusted the
δημοτιλοὶ to the safe keeping
of the
πατρίκιοι (who are the
εὐπατρίδαι), and permitted each of them to
choose his patron. And these remarks may be read in the light of Becker's
conjecture (
Handbuch der römischen
Alterthümer, ii. p. 125) that the
clientela was an old Italian institution, which existed among
the original stock from which the Roman populus sprung. When Tatius and his
Sabines settled in Rome, their clients came there with them (
Dionys. A. R. 2.46); and Attius Clausus
brought to Rome a large body of clients (ib. 5.40;
Liv.
2.16).
The tie of patron and client survived the incorporation of the plebs in the
state, though doubtless it now implied a less absolute dependence (
Liv. 5.32;
6.18); it was
created by the old applicatio and by the manumission of slaves (
clientem libertum,
Liv. 43.16), to denote the latter of which
relations the term
patronus was in later times
so much specialised, and the status of cliens was (at least in some cases)
hereditary. The plebeians also apparently could now have clientes no less
than members of the old populus or patricians. (Hugo,
Lehrbuch, vol. i. p. 458.) When the Roman dominion extended
itself to the provinces, the meaning of the word
clientela became wider. Provincial towns and civitates, and
even those which were friendly but independent, took to placing themselves
under the
hospitium or
clientela of some distinguished citizen (
Dionys. A. R. 2.11; Cic.
in Pison. 41;
pro
Balbo, 8; Suet.
Octav. 17;
Serv. ad Aen. 3.20), who in this respect
might be compared to colonial agents, or persons among us who are employed
to look after the interests of the colony in the mother country, except that
among the Romans such services were never remunerated directly. (
Cic. Div. in Caecil. 20,
66;
Liv. 40.44;
Tac.
Dial. 36.)
At the end of the republic and under the earlier empire a person might be
cliens of a
patronus in at least three senses:
(1) much in the sense of our “client” in relation to a legal
adviser, protector, or advocate (Ovid,
Art. Am. 1.88; Hor.
Sat. 1.1, 10;
Ep. 1.5, 31;
2.1, 104); (2) through having attached himself (whether a Roman citizen or a
foreigner sojourning at Rome) to a distinguished or powerful civis (for this
relation, see Becker's
Gallus, sc. 1, Excursus
4); (3) as libertus or freedman. In all cases the relation was expressed by
the word
clientela (
Cic. Att. 14.1. 2), which also denoted the whole body of a man's
clients (
Tac. Ann. 14.61).
It is doubtful whether the account of
clientela
given by Dionysius (
Antiq. Rom. 2.10, and elsewhere) can be
regarded as in all respects true, nor is it always clear to what period of
Roman history it is intended to refer. As has been already remarked, there
was in the earliest time a close analogy between the relation of patron and
client, and that of pater and filius familias; the patron was the client's
guardian and protector, as he was the guardian and protector of his own
children: “
patrem primum,
deinde putronum proximum nomen habere . . .
neque clientes sine summa infamia deseri possunt” (
Gel. 5.13). Ihering (
Geist des
römischen Rechts, i. p. 237) conjectures that the
principal end of the relation was to enable the patron to bring suits on the
client's behalf(attorneys in the conduct of actions being at that time
practically unknown: “cum olim in usu fuisset alterius nomine agere
non posse,”
Inst. 4.10, pr.); and that if the client committed a wrong,
the patron had (as in the case of slaves and children in power) the option
of paying damages or surrendering the wrongdoer in a noxal action to the
person injured. The latter assumption further necessitates the view that,
like the filius familias, the client had originally in law no independent
proprietary capacity: in fact, Ihering supposes that the terms
precarium and
peculium
(of both of which the later jurists say, “magis facti sunt quam
juris” ) both originated in
clientela;
the one in the patron's habit of allowing the client the use and occupation
of a plot of land which he could resume at will (compare the English
villeinage and copyhold tenure), the other in the small acquisitions of
cattle (
pecus, peculium) and other means of
husbandry which the client made for himself, and which in law belonged to
the patron. If this ingenious conjecture is correct, much that Dionysius
tells us can be true only of the
clientes of a
later period: for instance, that the cliens must contribute to the marriage
portion of his patron's daughter, to his ransom, or that of his children, if
taken captive; must pay the costs and damages of suits which the patron lost
in his interest, and bear a part of the patron's expenses incurred in the
discharge of public duties, or in filling honourable places in the state.
Dionysius adds that neither party could accuse or bear testimony against the
other. But it seems certain that the relation, as at first established, was
hereditary: it was the glory of illustrious families to have many clients,
and to add to the number transmitted to them by their ancestors.
The attainment by the plebs of a civil and political status seems, by
sweeping away the old tradition that the populus alone could enjoy rights
under the aegis of Roman law, to have raised the status of
clientela. It would not be inconsistent with
Dionysius's statements to believe that from that time onward the clients
were often, if not always,
cives non optimo
jure [
CIVITAS],
though there is little or no evidence, except perhaps the passage of Livy
referred to below, in support of such a theory, nor is there much proof that
the
clientela in which
liberti stood was hereditary, like that of the old clientes
proper, except
Suet. Cl. 24.
It is stated by Niebuhr that, if a client died without heirs, his patron
succeeded him, and that the analogous rule in respect of
liberti cives was derived from the original right of the
patronus to inherit the client's property
under the primitive system. Mommsen (
Abhandlung über das
römische Gastrecht und die römische Clientel,
römische Forschungen, vol. i. pp. 319
sq.) is of opinion that the general rules of
intestate succession (the property going in the first instance to
sui heredes, in the second to the
agnates, and in the last resort to the
gentiles) were applied to clientes from the outset: but this is
irreconcilable with Ihering's hypothesis as to the proprietary relations of
patron and client, and requires us to suppose that the client
[p. 1.458]had
conubium, which
in the earlier period seems incredible. Ihering himself thinks that the
devolution of the cliens' property, such as it was, was at first regulated
by agreement made at the time when the tie between him and his patron was
created. Livy tells us (2.56) that the
clientes
had votes in the comitia centuriata, which implies
commercium, so that on ordinary principles of law they could
dispose of their property by will. But we can hardly believe this to be true
except of the
clientes who existed after the
incorporation of the plebs in the state: and then (as has been already
remarked) it is possible that they were regarded as belonging to the first
group of
cives non optimo jure (see
CIVITAS), i. e. manumitted
slaves and their children, who had
commercium
and
conubium, and could vote in the comitia
centuriata.
The whole subject of the rights and duties
of
clientes at different periods of history is in fact one of great
obscurity, which it is almost impossible to remove, owing to the difficulty
of fixing the precise time of which our authorities (e. g. Dionysius,
Gellius, and Livy) are speaking when they touch upon the topic. Fuller
information may be obtained from Becker,
Handbuch der
römischen Alterthümer, vol. ii.; Walter,
Geschichte des römischen Rechts,
§§ 13, 114, 247, 358 ; Ihering,
Geist des
römischen Rechts, vol. i. pp. 236-245; and the essay of
Mommsen already referred to.
[
J.B.M]
