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.)