The paterfamilias and his household

(Inst.Gai.1.48., Inst.1.8., D.1.6.)

5.1.1 Basic notions

Roman family law was based on the fundamental concept that each family had a paterfamilias—the head of the household.

Ulpian, Institutes, hook 1: Heads of households are those who are in their own power (potestas), whether they are over or under the age of puberty... (D.1.6.4.)

It seems absurd that the head of a household could be under the age of puberty, but this was the logical consequence of the rules. A child became sui iuris on the father's death, assuming that the father had been the paterfamilias. If the child was male, he himself became a paterfamilias, whatever his age, although if he was under puberty, he would have to have a guardian. The Roman household could consist in some circumstances of only one person:

Ulpian, Edict, hook 46: Someone is called the head of the household if he holds sway in a house, and he is rightly called by this name even if he does not have a son... we can even call a pupillus a head of a household. And when the head of the household dies, all the individuals who were subjected to him begin to hold their own households for as individuals they enter into the category of heads of households. (D.50.16.195.2.)

(Pupillus: a ward below the age of puberty.)

The previous text needs qualification. It was not strictly accurate to say that all the individuals previously subject to the paterfamilias would themselves take that status on his death. Suppose that Balbus, a paterfamilias, dies leaving two sons, each with children of his own.

Everyone who was in the power of a paterfamilias was related to him and to one another. This form of relationship was known as agnatio. The agnates remained in this relationship even if the paterfamilias died. Thus, the test of agnatio was sub­jection to a common potestas, whether actual or hypothetical, i.e. all those who

were in the power of a paterfamilias, or would have been if he had been alive, were agnatically related. Another way of describing the agnatic relationship is to define agnates as those tracing their descent through males to a common male ancestor. Most agnates were blood relations (i.e. cognates) but there were some exceptional cases. For example, a child adopted from another family became the agnate of his adoptive family. Conversely, a child given in adoption, or emancipated, lost his agnatic ties with his natural family.

The agnatic system dated from Rome’s earliest days and remained important as the basis of family legal relationships for much of Rome's history. Being an agnate had vital consequences in the law, especially as regards rights of inheritance and guardianship. It was important to know to whom one was agnatically related. In later law, the importance of cognatic relationships was increasingly recognized, hardly surprising given the artificiality of the agnatic relationship. For a useful over­view of the complexities surrounding agnatic relationships, see the texts collected in Frier and McGinn, Casebook, 16-17. See also Lewis, A.D.E., 'Slavery, Family, and Status’, in Cambridge Companion, 151-74, as well as Dixon, S., 'Family', in OHRLS, 461-72 for good recent surveys.

5.1.2 Potestas

Gaius, Institutes, book 1: Also in our potestas are our children whom we have begotten in lawful wedlock.

Gaius is not quite accurate here. The concept that the family was in the power of the eldest male ancestor was not unusual in ancient societies. What was 'peculiar' was the rigid, structured manner in which Roman law embraced this concept, see Gardner, Roman Citizen, 52-84. As a general rule, all legitimate descendants (as well as wives in mami) were in the power of the paterfamilias, whatever their age. The child’s public standing in the world was irrelevant: a father may have had very dis­tinguished children, and yet they were in his potestas. There were some exceptions, e.g. a paterfamilias did not have power over a daughter who had become a Vestal virgin (priestess in the cult of Vesta, Rome's goddess of the hearth). Vestal virgins were legally independent although subject to the discipline of the chief pontiff. If a Vestal retired after the compulsory thirty years' service, she would return to the potestas of her paterfamilias or, if he was dead, she would require a guardian: see Gardner, Women in Roman Law, 22 ff. It deserves mention that the powers of the paterfamilias over his children did not extend to public affairs:

Pomponius, Quintus Mucins, book 16: A filiusfamilias is held to have the same position as a paterfamilias in public matters, so he can, for example, hold magisterial office or be appointed as tutor. (D.l.6.9.)

We must now consider the various powers that were comprised in potestas.

5.1.2.1 Rights over the person

(a) Exposure The paterfamilias had the right in early law to expose newborn infants if he wished to reject them. Exposure entailed abandoning them to their fate. This could result in the infant's death but often it would be left at a place where it was likely to be picked up by strangers. Such a child would normally be reared as a slave although in theory it remained free. Some restrictions were later placed on the right to expose children. Eventually, exposure was totally prohibited in AD 374:

Everyone should nourish his own offspring.

(b) Power of life and death Even if a child was accepted by the paterfamilias, it was subject to a general power over life and death, similar to that of a master over his slave, see Yaron, R., ‘Vitae Necisque Potestas’ (1958) 30 TR, 243-51. On the early history of this power and its similarity to forms of control in other legal systems of the ancient world, see also Westbrook, R., 'Vitae Necisque Potestas' (1999) 48 Historia, 203-23. The Twelve Tables described the power as absolute—it included the right to flog, to imprison, or to put children to death, however distinguished their rank. However, instances of children being killed by virtue of these powers were infrequent—the causeless killing of one's children would result most prob­ably in infamia. When death was imposed, it was usually as a form of punishment for serious misconduct. For example, unchastity in daughters was considered as particularly reprehensible. The lex Julia de adulteriis c. 18 BC allowed a father to kill his married daughter if she was found committing adultery in his house or that of her husband. However, it seems that the daughter could not be killed unless her seducer was killed as well: if only one of them was killed, the paterfamilias would be open to a charge of homicide.

The power over life and death was gradually curtailed. Killing a child, even with cause, came to incur serious consequences:

Marcian, Institutes, book 14: It is said that when a certain man had killed in the course of a hunt his son, who had been committing adultery with his stepmother, the deified Hadrian deported him to an island [because he acted] more [like] a brigand in killing him than as [one] with a father's right; for paternal power ought to depend on compassion, not cruelty. (D.48.9.5.)

In addition to the imposition of such ad hoc sanctions, a more general rule was introduced later in the second century AD:

Ulpian, Adulterers, book 1: A father cannot kill his son without giving him a hearing but must accuse him before the prefect or the provincial governor.

Under Constantine, the killing of a child was declared to be the equivalent of the heinous crime of parricide; this provision effectively ended the power over life and death. By the time of Justinian, the right of the paterfamilias was no more than the power to inflict reasonable chastisement, the same rule that was applied in the master-slave relationship. For a summary of cases, see Frier and McGinn, Casebook, 193-210.

(c) Sale, surrender, and recovery In early law the paterfamilias could sell children into slavery, a power that became obsolete during the Republic, but which was revived by Constantine as an aid to impoverished parents. And there was a right in early law to place or sell children into civil bondage (see 4.4.2.4). For example, children who had committed delicts could be noxally surrendered to the victim. They did not revert back into the power of the paterfamilias on working off the damages but became sui iuris (on release by the victim of the delict). Noxal surren­der of daughters became obsolete in the Republic but continued for sons until its abolition by Justinian.

The impression that children were to some extent treated as belonging to the Paterfamilias is strengthened by the fact that he had available to him the standard proprietary remedies of an owner. Thus, if a child was kidnapped, it was regarded as 'stolen', which enabled the paterfamilias to recover it through a vindicatio and to sue for damages under the action for theft (see 10.3.1.3). Further, the praetors allowed an interdict to compel the production of a child-in-power (if unlawfully held). Proof that the child was subject to the legal power of the claimant would lead to the grant of a further interdict, authorizing the removal of the child and its restoration to lawful potestas. This became the normal method in the Empire for the recovery of kidnapped children.

(d) Marriage and divorce The paterfamilias had important rights concerning the marriage of his child.

Paul, Edict, book 35: Marriage cannot take place unless everyone involved consents, that is, those who are being united and those in whose power they are. (D.23.2.2.)

Augustus allowed consent to be dispensed with if it was refused without good cause, but it is not clear whether the dispensation was made available to sons as well as daughters. It is possible that sons could not obtain a dispensation until Justinian's time. The marriage of a son (who one day would himself be a paterfa­milias) had potentially more serious legal consequences than that of a daughter. An absolute veto over a son's marriage, but not that of a daughter, would be under­standable within the context of Roman society. However, the better view is that Augustus's dispensation provision did apply to sons since it refers to the wrongful prevention of children from marrying (D.23.2.19.). There were other circumstances, apart from unreasonable refusal, in which dispensation from consent could be sought, e.g. where the paterfamilias was insane; or where he was absent, his wherea­bouts unknown (Justinian insisted that the absence must have been of at least three years' duration).

A paterfamilias had the power also to compel his child to terminate a marriage through divorce (see 5.2.4). If the paterfamilias was a grandfather he was entitled to the children of his son's marriage on the divorce of the son, i.e. there was no change of potestas. If the husband was sui iuris, and therefore a paterfamilias, he retained potestas over the children of the marriage on his divorce. As a general rule, the wife had no rights to the custody of the child. However, in practice, children often continued to live with their mother after her divorce, particularly where the father was involved in affairs of State.

5.1.2.2 Rights over property

Children originally could not own property; anything that they acquired belonged absolutely to their paterfamilias:

Anything received by children in our potestas or our slaves... is acquired for us, because a person in potestas can have nothing of his own.... (Inst.Gai.2.87.)

However, as in the case of slaves, children were often allowed to keep and enjoy a certain amount of property as peculium. Its extent depended on their age and circumstances. The peculium of a child-in-power of mature years, from a wealthy family, could obviously be of considerable size. cf. Frier and McGinn, Casebook, 240-50, 265-91.

In the Empire, there were a number of reforms that improved the position of sons-in-power. Augustus, aiming to encourage recruitment to the army, allowed sons legal rights in property acquired during military service (peculium castrense):

Pomponius, Rules from Marcellus's Notes, sole book·. It is agreed that nothing is owed to fathers from the military property of their sons. [Macer, Military Law, book 2[11]]: The peculium cast­rense is that which is given by parents or blood relations to a man engaged in military service, or that which a son-in-power has himself acquired in the army, and which he would not have acquired had he not served. (D.49.17.10-11.)

Military property came to comprise a wide category of things, including gifts on entering service, military pay, captured booty and enemy personnel, and legacies from army colleagues. What could the son-in-power do with this property? He could dispose of it inter vivos or by will, although before Hadrian the son had to make the will while on military service (see lnst.2.12pr.J.

Constantine considerably extended the category of property in which a son could have rights. First, he included earnings acquired in State service (peculium quasi cas­trense). The son's position in respect of such acquisitions was similar to that applica­ble to military property, the main difference being that they could not be disposed by will until Justinian's reign. Further, Constantine provided that gifts or legacies acquired by sons and daughters on their mother's death (peculium adventitium) should be regarded as a separate fund that the paterfamilias did not own but could use, retaining any resulting profits. In practice, this meant that he was entitled to the income from the fund, but not to the capital. On the other hand, the child could not dispose of the property while the paterfamilias was alive. If the child was emancipated, the paterfamilias could retain one-third of the property absolutely, the child taking the remainder; but Justinian altered this rule, allowing the paterfamilias to use half the property (and retain the profits) but not to retain any of the capi­tal. By Justinian's reign, the category of peculium adventitium had been widened so considerably that it included virtually all property acquired by the child other than peculium castrense or quasi castrense. Thus, in its final form, Roman law allowed sig­nificant proprietary interests to children-in-power (see Daube, D., 'Actions between Paterfamilias and Filiusfamilias with Peculium Castrense', in Studi Albertario 1,433-74 on whether a paterfamilias could sue a filiusfamilias with a peculium castrense on the basis of contract, delict, or a right in rem in classical Roman law). See Johnston, D., 'Suing the Paterfamilias: Theory and Practice', in Beyond Dogmatics, 173-84.

5.1.2 3 Contracts

A child-in-power could make contracts for itself on reaching the age of puberty. Benefits under the contract passed to the paterfamilias, but not liabilities. Although a son was in theory bound by the contract—daughters probably were not until the late Empire—the other party could not enforce it until the son became suiiuris (see Lewis, 'Slavery, Family, and Status'. 157-8). And even then, the contract was enforceable only to the extent of the son's assets. Frankly, contracting with children-in-power was not an attractive proposition. A party would be more willing to contract with a son-in-power if the latter had peculium castrense or quasi castrense, since in these cases the son was treated as owning assets out of which his obliga­tions could be satisfied.

What was the position where the child was allowed a peculium by the paterfamil­ias or made contracts with his authorization? In such a case, the paterfamilias was

liable under the same actions that the praetors allowed against masters to enforce contracts made by slaves (cf. Frier and McGinn, Casebook, 251-64). Moreover, a paterfamilias was normally bound by non-contractua] acts that he had authorized. For example, if he allowed his son to manumit slaves, the manumission was prima facie valid, according to Paul:

Paul, Questions, hook 12: A father wrote to his son in the knowledge that he was at Rome, permitting him to free by vindicta anyone of his choice among the slaves in his actual service; thereafter the son manumitted Stichus before the praetor; I ask if he thus made him free. I replied: Why should we not think that the father is allowed to permit his son to manumit one of the slaves in his service? In fact, it was only the choice that he allowed to the son, but it is he himself who manumits. (D.40.2.22.)

5.1.2.4 Emancipation

(Inst.Gai.1.124.-6., Inst.1.12., D.I.7., C.8.48.)

This was the formal release of a child-in-power from potestas by the paterfamilias. The child became sui iuris: the agnatic ties between the child and its natural family were broken. Originally, the child lost the right to inherit on the intestacy of the paterfamilias, but the praetors allowed emancipated children a claim (see 8.3.2.1). As for peculium, the child would retain it on emancipation if there were an entitle­ment to it, e.g. peculium castrense; otherwise, the paterfamilias could retain it since he was its legal owner. However, in practice, a child would often be allowed to keep the peculium as a means of financial assistance on becoming independent. Unless the peculium was expressly taken away, there was a virtual presumption that the child could keep it.

What if the emancipated child had children of his own? Were they automatically emancipated?

Gaius, Institutes, book 1: A man who has in his potestas a son and through him a grandson has a free choice as to releasing the son from his power while retaining the grandson or vice versa as to keeping the son in power while manumitting the grandson or as to making them both suijuris. (D.l.7.28.)

Emancipation could be used as a sensible family arrangement where a child was of mature years and in need of legal independence. Such an emancipation would be amicable: the child would be provided with a sizeable peculium, if possible, and would be made an heir or legatee in the will of the paterfamilias, thus rendering unimportant the loss of the right to succeed on intestacy. However, emancipation could be a disaster for the child when used as a punishment. Becoming legally independent was scant recompense for being thrown out on to the streets without any peculium by an angry paterfamilias. Emancipation could thus be a hostile act, the threat of it used by the paterfamilias to control unruly children. Of course, the paterfamilias had to be careful in case his actions incurred infamia. Under Justinian (possibly earlier) the consent of the child became necessary for a valid emancipa­tion. As a general rule, the paterfamilias lost his rights over the child when it was emancipated. However, Constantine allowed the recall of a child into potestas for gross ingratitude; and any property given to the child on emancipation would have to be returned. If the child was below puberty when emancipated, the paterfamilias became the child's guardian (see 5.4.1.1).

How was emancipation effected? Imaginative use was made of the rule of the Twelve Tables that three sales of a son into bondage by a paterfamilias freed the son from potestas (one sale sufficed for a daughter or grandchild). (See, in general, Stoop, B. C., 'The Sins of their Fathers: Si Pater Filium Ter Venum Duit' (1995) 42 RIDA 3, 331-92, for a particularly gruesome hypothesis concerning the origin of this practice.) A convoluted process was used whereby the son was sold three times to a 'purchaser' (acting in collusion), who manumitted the son after the first two sales. Emancipation by imperial rescript was made possible in the late Empire if the child was absent. Under Justinian, the standard process for emancipation required an appropriate declaration by the paterfamilias and the son before a magistrate, see Frier and McGinn, Casebook, 315-19 as well as Lewis' Slavery, Family, and Status', 158-9.

5.1.2.5 Miscellaneous rights

The paterfamilias had a number of rights which cannot easily be classified under the headings dealt with so far. For example, he had the important right to appoint guardians for his children should he die before they attained puberty (see 5.4.1.1). Moreover, the paterfamilias was regarded as the representative of his family for liti­gation purposes—actions were brought or defended by him on behalf of his family, as a general rule. If a delict was committed against his child, it was the paterfamilias who normally took action, although there were some exceptional cases where the child could sue personally, e.g. for personal insults.

It is evident from the previous outline of the rights of the paterfamilias that the extent of his potestas was all-embracing, at least in theory. To what degree the theo­retical position obtained in practice is, however, not clear. For example, it is difficult to see how the Roman economy could have thrived if the paterfamilias was the only male with legal rights. It may well be that the rules on potestas were not strictly applied and were confined to the Roman upper classes. See Crook, J. A., 'Patria Potestas' (1967) 17 CQ, 113-22, and Daube, Roman Law, 76 ff.

5.1.2.6 Illegitimacy and legitimation

Ulpian, Sabinus, book 27: This is a law of nature: that a child born without lawful wedlock belongs to his mother unless a special statute provides otherwise. (D.1.5.24.)

There could be no potestas over an illegitimate child. It followed that a paterfamilias had no right (in theory at least) to expose a newborn illegitimate child, nor did he have any other of the rights associated with potestas. The illegitimate child was thus in a more favourable position (sui iuris) than the legitimate one in some respects—a curious consequence of the rigid rules of potestas. Nor could an illegitimate child be agnatically related to anyone since such a relationship depended on subjection to a common potestas. The child 'belonged' to the mother, but in a practical rather than a legal sense since a mother could not have potestas over anyone. Nevertheless, their relationship had legal consequences: the child took the mother's status, was recognized as her blood relation, acquired the right to succeed on her intestacy (and vice versa), and could not sue her.

The general test of legitimacy was whether the child had been conceived within a lawful marriage. Certain presumptions and inferences were applied: e.g. a child was presumed to be legitimate if born within ten months of the death of the mother's husband, or if born as early as the seventh month of a marriage:

Paul, Replies, book 19: That a child can be born fully formed in the seventh month is now a received view due to the authority of that most learned man Hippocrates. Accordingly, it is credible that a child born in the seventh month of a lawful marriage is a lawful son of the marriage. (D.l.5.12.)

Conception within marriage normally led to an inference that the child was legiti­mate, but everything depended on the circumstances, as the following passage by Ulpian vividly illustrates:

Ulpian, Sabinas, book 9: But if we suppose that a husband has been away for a spell, let us say, ten years, and has on his return found a year old boy in his house, we agree with Julian's opin­ion that this child is not the son of the husband. Julian, on the other hand, says that we should not listen to someone who has stayed constantly with his wife but who refuses to recognize her child as his own. But on this my opinion, which Scaevola also holds, is that a child born in a man's house even with full knowledge of the neighbors is not that man's son if it is proved that the husband for some time has not slept with his wife... (D. 1.6.6.)

Legitimation of illegitimate children was generally not possible until the reign of Constantine. However, the adoption of an illegitimate son by his father by adrogatio (see 5.3.1.2) had the effect of making him a filiusfamilias. Constantine's reforms, and those of subsequent Emperors, were applicable only to the children of con­cubines. Concubinage was a settled union, normally involving cohabitation but falling short of marriage because of the absence of the necessary marital intent (see further 5.2.6.2). Constantine decreed that children of such a union would be legitimated if their parents married, the decree applying only to existing children. Several conditions had to be satisfied: e.g. the child had to consent since legitima­tion would result in a change of status, i.e. the child would become alieni iuris; the father must have no legitimate children; and the mother must be freeborn. Legitimation by subsequent marriage was later extended to future births within concubinage; but more conditions were added—the parties must have been capable of marrying each other at the time the child was conceived (i.e. children born in adultery were excluded), and a written marriage settlement had to be drawn up. However, the requirements that the mother should be freeborn and that the father must not have legitimate children were dropped.

Justinian introduced another form of legitimation—by imperial rescript. It applied where marriage to the concubine was impossible for some reason, or unde­sirable because of her 'unworthiness'. The father could apply to the Emperor (by petition or will) for the legitimation of the child, provided that the father was without legitimate issue. Additionally, children born in concubinage could be legitimated by oblatio curiae ('an offering to a municipal council'), an imagina­tive method, introduced in the late Empire, in an attempt to encourage persons to become municipal councillors (decurioiies), an office normally to be avoided like the plague. Legitimation occurred if a man (without legitimate children) gave his son sufficient property to qualify the son to become a decurio or if the father married off his daughter to one. Such children acquired rights on their father’s intestacy but did not come under his potestas. It was not true legitimation, until Justinian decreed that potestas did result in such a case. Further, he allowed oblatio curiae, even if the father had legitimate children.