PATRO´NUS
PATRO´NUS The act of manumission gave birth, as it
were, to a free person, and created a new relation between the manumissor
and the slave, which was analogous to that between father and son. In
respect of this new relation the manumissor was called
patronus (from
pater), and the
manumitted person
libertus or
liberta. If the manumissor was a woman, she became
patrona; and the use of this word instead
of
matrona appears to be explained by the want
of a special word to distinguish her position in respect of her freedmen.
Viewed with reference to the early ages of Rome, this patronal relation must
be considered a part of the ancient
clientela;
but from the time of the Twelve Tables at least, which contained legislative
provisions generally on the subject of patronal rights, we may consider the
relation of patronus and libertus as the same both in the case of patrician
and plebeian manumissores.
The libertus was attached to the family, and adopted the gentile name of his
manumissor (Lactant.
Inst. 4.3, “servus liberatus
patroni nomen accipit tamquam filius” ). Cicero's freedman Tiro
was called M. Tullius Tiro. [
NOMEN] The patronus and libertus owed reciprocal duties to one
another, the one being bound to afford protection and support (cf. Twelve
Tables, “Patronus si clienti fraudem fecerit, sacer est” ), the
other to show loyalty (
obsequium et reverentia）
to and render such other services as were due. In early times it is probable
that the libertus was represented by his patronus in courts of justice,
suits being maintained by the latter on his behalf. The patron was the
statutory guardian (
tutor legitimus) of his
freedman who was under age. It was the duty of the patron to support his
freedman in case of necessity, and, if he did not, he lost his patronal
rights: the consequence was the same if he brought a capital charge against
him.
The libertus owed respect and gratitude to his patron, and had to perform all
services which were regarded as tokens of this duty (
operae officiates). In ancient times he was subject to a kind of
domestic imperium, and might be punished in a summary way by his patron, who
frequently made a tyrannical use of his authority. In later times the patron
had the power of relegating an ungrateful freedman to a certain distance
from Rome, under a law probably passed in the time of Augustus (
Tac. Ann. 13.26;
D. C.
55.13). In the time of Nero it was proposed to pass a
senatusconsultum which should give a patron the power of reducing his
freedman to slavery, if he misconducted himself
[p. 2.357]towards his patron. The measure was not enacted, but this power was given
by a constitution of Commodus, A.D. 180-192.> (
Dig.
25,
3,
6.1:
“Cum probatum sit, contumeliis patronos a libertis esse violates,
vel illata manu atroci esse pulsates, ant etiam paupertate vel corporis
valetudine laborantes relictos: primum eos in potestatem patronorum
redigi et ministerium dominis pracbere cogi; sin autem nec hoc modo
admoneantur, vel a Praeside emptori addicentur, et pretium patronis
tribuetur.” ) The right of a patron to prosecute his freedman for
ingratitude (
ut ingratum accusare), and so to
revoke his manumission, appears to have been recognised by the Lex Aelia
Sentia (
Dig. 40,
9,
30: cf. Inst. 1.16, 1). An ingratus was also called
libertus impius, as being deficient in
pietas. If the libertus brought an action
against the patronus (
in jus vocavit) without
the leave of the praetor, he was himself liable to a special action on the
case; and he could not, as a general rule, institute a capital charge
against his patron. Disputes between patrons and freedmen were subject to
the extraordinary jurisdiction of the praetor. [
JURISDICTIO] The libertus was bound to support the
patron and his children in case of necessity, and to undertake the
management of his property and the tutela of his children; if he refused, he
was
ingratus (
Dig. 37,
14,
19). If a slave
were the property of several masters, and were manumitted by all of them and
became a Roman citizen, all of them were his patroni.
In early times freedmen were instruments of acquiring property for their
patrons, like slaves. P. Rutilius Rufus provided that in cases of dispute
between them as to property they should be regarded as co-proprietors of it
(
Dig. 38,
2,
1); but the oath of a freedman by which he bound
himself to share his property with his manumissor was subsequently declared
void. The manumissor could, however, secure to himself certain rights over
his libertus by taking an oath from him (see H. Brocher,
de Operis Libertorum, pp. 38-42), and by
stipulationes. The subjects of such promises were gifts from
the libertus to the patronus (
dona et munera）
and services (
operae). The oath was not legally
valid, unless the person was a libertus when he took it. If then he took the
oath as a slave, he had to repeat it as a freeman, which seems to be the
meaning of the passage of Cicero, in which he speaks of his freedman
Chrysogonus (
ad Att. 7.2; compare
Dig.
38,
1,
7). These
operae were of two kinds:
officiales, which consisted in customary tokens of
respect and affection, which were due apart from contract; and
fabriles, which are explained by the term itself,
and which required an express stipulation. The
officiales determined by the death of the patronus unless there
was an agreement to the contrary; but the
fabriles, being of the nature of money or money's worth, passed
to the heredes of the patronus, like any other property. The patronus, when
he commanded the
operae of his libertus, was
said
ei operas indicere or
imponere (Gaius, 4.162;
Dig. 38,
2,
29).
The patron could not command any services which might have the effect of
imposing a burden on the liberty of the slave (
Dig.
38,
2,
1.1; 38, 1,
2.1), or any services which were disgraceful (
turpes) or dangerous to life, such as prostitution or fighting in
the amphitheatre; but if the libertus exercised any art or calling (
artificium), even if he learned it after his
manumission,
operae in respect to it might be
reserved for the benefit of the patron. The Lex Julia et Papia Poppaea
released freedmen (except those who followed the
ars
ludicra, or hired themselves to fight with beasts) from all
obligations as to gifts or
operae (imposed
libertatis causa), who had begotten two
children and had them in their power, or one child five years old (
Dig. 38,
1;
de Operis Libertorum, 1.37).
If liberty was given directly by a testament, the testator was the
manumissor, and his patronal rights would belong by the law of the Twelve
Tables to his children; if it was given indirectly--that is,
per fideicommissum--the person who performed the act
of manumission was the patronus. In those cases where a slave obtained his
freedom under the S. C. Silanianum for having discovered his master's
murderer, the praetor could assign him a patronus; and if this was not done,
that person was the patron of whom the libertus had last been the slave
(
Dig. 38,
16,
3).
The patronal rights were somewhat restricted, when the act of manumission was
not altogether the free act of the manumissor. For instance, a person under
a trust to manumit [FIDEICOMMISUM] had all the
patronal rights, except the power to prosecute for ingratitude, the right to
be supported by the libertus, and to stipulate for
munera and special
operae; his
rights against the property of the libertus were, however, the same as those
of any other manumissor. (
Frag. Vat. § 225;
Dig. 38,
2,
29.) If a slave had given money to another person in order that
this other person might purchase and manumit him, the manumissor had no
patronal rights, and he lost even the name of patron, if he refused to
perform the act for which he had received the money, and allowed the slave
to compel him to perform his agreement, which the slave could do by a
constitution of M. Aurelius and L. Verus (
Dig. 40,
1,
4 and 5). If a master
manumitted his slave in consideration of a sum of money, he retained all
patronal rights, but he could not stipulate for special
operae. A person who purchased a slave, and on the occasion
of the purchase agreed to manumit him, had all patronal rights, except the
right of prosecuting for ingratitude, in case the slave compelled him to
manumit pursuant to the constitution of M. Aurelius and L. Verus (
Dig. 40,
9,
30).
A capitis deminutio, either of the patron or the
libertus, dissolved the relation between them [
CAPUT]. (See
Tac. Hist.
2.92, where “jura libertorum” means
jura patronorum or
jura in
libertos.) The relation was dissolved when the libertus
obtained
ingenuitas by the
natalium restitutio, but not when he merely obtained the
jus aureorum anulorum [
INGENUUS]. Justinian gave
jus anulorum and the
natalium restitutio to all freedmen (
Nov. 78,
1, 2, 5.) The children of a freedman were
ingenui.
The most important of the patronal rights related to the property of liberti
who died intestate or having made a will. The subject, so far as concerns
the ante-Justinian period, may be distributed under the following heads:--1.
The rules of the old civil law (Jus Civile); 2. The rules of praetorian law,
comprehending
[p. 2.358]the
bonorum
possessio intestati and the
bonorum
possessio contra tabulas; and 3. The rules of the Lex Papia
Poppaea relating to the rights of patrons.
1. By the law of the Twelve Tables, if a freedman died intestate, without
sui heredes, the patronus was his heir. A
freedman could have no agnates except children, but his patron was in the
position of an agnate as regards his succession. The
legitima patronorum tutela was not expressly mentioned in the
Twelve Tables, but it was a legal consequence of the rule as to inheritance
(Ulp.
Fragm. 11.3). In the case of an intestate liberta, as
she could not have a
suus heres, the patron was
her heres in any event. The Senatusconsultum Orfitianum, which was passed
after Gaius wrote his Institutes (3.51), and in the last year but one of the
reign of Marcus Aurelius, made an alteration in this respect, since it gave
children a right to the succession of their mother, whether the latter was
ingenua or libertina (
Dig. 38,
17,
1). These patronal rights belonged both
to a patronus and a patrona, and to the liberi of a patronus (Ulp. xxvii.),
whether natural or adoptive. It seems that the children of a patrona had not
by the Twelve Tables the same rights as the children of a patronus, since
they were not in her power; but the Lex Papia Poppaea probably made some
change in this respect (Unterholzner,
Zeitsch.
f. R. G. p. 43, &c.). The succession to the property
of a freedman belonged to the liberi of a patronus according to proximity of
degree, as in the agnatic order of succession. Thus a son of a patron
excluded a grandson. If there were several patroni or patronae, they divided
the inheritance equally, though their shares in the libertus, when a slave,
might have been unequal, These patronal rights resembled a joint tenancy in
English law, for the survivor or survivors of the patroni had all the
patronal rights to the exclusion of any children of a deceased patronus. If
the patroni were all dead, leaving several children, the hereditas was
divided among all the children equally (
in
capita), pursuant to the law of succession in the case of agnation
(Gaius, 3.16, 59, &c.). If the patron left no liberi, and the
freedman died intestate without
sui heredes,
the inheritance of the latter probably devolved on the gens of the patronus.
A freedman had free power of disposing of his property by will, according to
the Twelve Tables, and so of excluding his patron from the succession
(Gaius, 3.40). A patron could not transfer his interest in the patronatus by
will or otherwise, except that by a senatusconsultum, which was passed in
the time of Claudius, he was entitled to assign his patronal rights to the
inheritance of a libertus, to any of his children he had in his power, to
the exclusion of the rest (
Dig. 38,
4,
de assignandis
libertis). In order that the above patronal rights should exist,
it was necessary that the libertus should have been made free by a Roman
citizen, and have become a Roman citizen by the act of manumission.
Accordingly, if a free person obtained the citizenship, it was necessary
that he should have a special grant of the
jus
patronatus, in order that he might have these patronal rights
against his freedmen who had been previously manumitted, and it was
necessary that they should have become Roman citizens at the time of
manumission (
Plin. Ep. 10.6). A
capitis deminutio, loss of citizenship or change of
familia, either of the patron or the libertus, destroyed the patronal rights
to the inheritance, as already observed (Gaius, 3.51).
2. The law regulating the succession to the property of deceased freedmen was
supplemented and amended by the edict of the praetor, who extended the
rights of patrons. The edict called to the succession (
bonotrum possessio) of liberti who died intestate: (1) the liberi
of the deceased freedman (
bonorum possessio unde
liberi) [but if the deceased only left adoptive children or a wife
in manu, the patron had
bonorum possessio to one-half the property against these
sui heredes]; (2) the patron and his
agnatic descendants (
bonorum possessio unde
legitimi); (3) the cognatic descendants of the deceased freedman
(
bonorum possessio unde cognati); (4) the
agnates of the patronus and patrona (
bonorum possessio
tamquam ex familia); (5) the patronus, patrona, liberi,
et parentes patroni patronaeque, i.e. the
patron of the patron, in case the patron was himself a freedman, the
children of the superior patron, and the parents of the immediate patron, if
the latter had been manumitted from their mancipium; (6) the husband or wife
of the freedwoman or freedman (
unde vir et
uxor); (7) the cognates of the patronus or patrona to the sixth,
or in one case to the seventh, degree (
bonorum possessio
unde cognati manumissoris).
A manumissor of a person
ex causa mancipii was
quasi-patronus of the manumissus and had the same rights of succession to
his property as a patronus; but if a filiusfamilias was manumitted by an
extraneus manumissor instead of by his own father, the praetor postponed the
claims of the manumissor, giving a. preference to the father and certain
other near relations of the manumissus (
bonorum possessio
unde decem personae). [
MANCIPII CAUSA]
We have seen that by the law of the Twelve Tables, if the freedman made a
will, he could pass over his patron altogether. But by the edict, unless he
left his patron as much as half of his property, the patron or his male
children could obtain
bonorum possessio contra
tabulas of one-half of the property, from any persons instituted
heirs by him, other than children of his own blood (
naturales). An adopted child of the freedman or his wife in
his manus could not defeat this claim of the patron. The patron was not
excluded if the children of the freedman were exheredated (Gaius, 3.40;
D. C. 51.15, and the note of Reimarus).
3. The Lex Papia Poppaea further extended the rights of patrons by providing
that, if a freedman had a property amounting to a hundred thousand sestertii
and fewer than three children, the patronus should have an equal share with
the children, whether the freedman died testate or intestate. A patrona,
before the Lex Papia was passed, had only the same rights as a patronus
under the Twelve Tables, not having been allowed by the praetor the
bonorum possessio dimidiae partis contra suos non
naturales in case of intestacy, or the
bonorum
possessio contra tabulas. By this lex a patrona ingenua who
had two children, or a patrona libertina having three children, were given
nearly the same
[p. 2.359]rights as a patron had under the
edict: and a patrona ingenua having three children, was given the same
privileges as belonged to a patron under the statute. The lex also gave to
patrona filia, mother of three children, the same rights as the patron had
by the edict; that is, a right to half the property of the freedman against
any heirs except
naturales liberos. The son of
a patrona who had a child was put in almost the same position as a patronus
(Gaius, 3.42, &c.).
According to the old law, as the liberta was in the legitima tutela of her
patron, she could make no disposition of her property by will without his
sanction (
patrono auctore). The Lex Papia freed
a liberta from this tutela, if she had four children, and she could
consequently then make a will without the sanction of her patronus, but the
law provided that the patronus should have an equal share (
pars virilis) with her surviving children. In the
case of a liberta dying intestate, the Lex Papia gave no further rights to a
patrona who had children (
liberis honoratae）
than she had before; and therefore if there had been no capitis deminutio of
the patrona or the liberta, the patrona inherited the property, even if she
had no children, to the exclusion of the children of the liberta. If the
liberta made a will, the Lex Papia gave to the patrona, who had the number
of children required by that law, the same rights which the edict gave to
the patronus
contra tabulas liberti. It is to
be noticed that though rights of patronatus under the Twelve Tables were put
an end to by capitis deminutio, this was not the case with rights given by
the Lex Papia Poppaea (Inst. 3.4, 2).
By the actio Fabiana or Faviana and actio Calvisiana the claims of patrons to
the succession of their freedmen were protected against alienation
inter vivos on the part of freedmen. Under the later
emperors the above rules as to the succession of freedmen were considerably
changed, more especially by Justinian. According to his legislation, if a
freedman or freedwoman died intestate, their natural children succeeded to
the entire exclusion of the patron. In default of children of the freedman
or freedwoman, came (1) the patron or patroness, (2) their children, (3)
their collateral relations to the fifth degree.
If a freedman left a will, and had property of less value than 100 aurei, his
power of passing ever his patron was unrestricted. If he had property of
this amount and was childless, or had disinherited his children, the
patronus or patrona and their descendants to the fifth degree had a right to
a third of his property.
The rules of law as to the succession of the patronus to the property of
Latini liberti differed in various respects from those that have been
explained respecting liberti cives. Their property was regarded as peculium
on their death, and so belonged to the patron as if he had previously been
owner of it, and not by title of inheritance. Hence it came to his extranei
heredes, not to his exheredated children, who would have taken it if the
freedman had been civis Romanus. If there were several patrons, it came to
them in proportion to their interests in the former slave, and it was
consistent with this doctrine that the share of a deceased patronus should
go to his heir. A Latinus Junianus could not make a will (
tamquam servus moritur). The Senatusconsultum Largianum,
which was passed in the time of Claudius, assimilated to some extent the
devolution of the property of Latini with that which took place in the case
of cives liberti. It enacted that the property of Latini should go first to
those who had manumitted them; then to their liberi who were not expressly
disinherited, according to proximity; and then, according to the old law, to
the heredes of the manumissor. The only effect of this senatusconsultum was
to prefer liberi who were not expressly disinherited to extranei heredes.
As to the lowest class of freedmen, called
dediticii, there were two rules. The property of those who on
their manumission would have become Roman citizens but for their having
suffered some infamous punishment, came to their patroni as if they had been
Roman citizens. The property of those who on their manumission would have
become Latini but for the impediments thereto, came to their patroni as if
they had been Latini. In the time of Justinian all freedmen were cives
Romani.
As to the other meanings of patronus, see CLIENS,
COLONUS, ORATOR. (Gaius, 3.39-76; Ulpian,
Frag.
xxvii., xxix.;--
Dig. 37,
14,
15;
38,
1,
2,
3;--Institutes, 3.8; Unterholzner,
Ueber das patronatische
Erbrecht. Zeitsch.; Huschke,
Studien des Röm.
Rechts, 1.59, and in
Rhein. Mus.
6.95, &c.; A. Schmidt,
Das Pflichttheilsrecht des
Patronus, &c.; Walter,
Geschichte des Röm.
Rechts, § § 494-500; Rein,
Das
Röm,. Privatrecht, 597, &c.; Kuntze,
Cursus des Röm. Rechts, 1. § §
801-805, 2. § § 531-533; Keller,
Inst.
§ 254; Puchta,
Inst. 2.215, 3.296.)
[
G.L] [
E.A.W]
