18. Other Meanings of Familia. The word familia was also
very commonly used in a slightly wider sense to include, in addition to the persons named above
(§17), all the slaves and clients (§§176-182) and
all the property real and personal belonging to the pater familiās, or acquired and
used by the persons under his potestās. The word was also used of the slaves alone,
and, rarely, of the property alone. In a still wider and more important sense the word was
applied to a larger group of related persons, the gēns, consisting of all the
“households” (familiae in the sense of §17) that
derived their descent through males from a common ancestor. This remote ancestor, could his
life have lasted through all the intervening centuries, would have been the pater
familiās of all the persons included in the gēns, and all would have been
subject to his potestās. Membership in the gēns was proved by the
possession of the nōmen (§§46-47), the second of the three names that
every citizen of the Republic regularly had (§38).
19. Theoretically this gēns had been in prehistoric times
one of the familiae, “households,” whose union for political purposes had formed the
State. Theoretically its pater familiās had been one of the Heads of Houses from
whom, in the days of the kings, had been chosen the patrēs, or assembly of old men
(senātus). The splitting up of this prehistoric household in the manner explained
in §27, a process repeated generation after generation, was believed to account for the
numerous familiae that, in later times, claimed connection with the great
gentēs. There came to be, of course, gentēs of later origin that
imitated the organization of the older gentēs. The gēns had an
organization of which little is known. It passed resolutions binding upon its members; it
furnished guardians for minor children, and curators for the insane and spendthrifts. When a
member died without leaving heirs, the gēns succeeded to such property as he did
not dispose of by will and administered it for the common good of all its members. These
members were called gentīlēs, were bound to take part in the religious
services of the gēns (sacra gentīlīcia), had a claim to the common
property, and might, if they chose, be laid to rest in a common burial ground, if the
gēns maintained one.
Finally, the word familia was often applied to certain branches of a
gēns whose members had the same cognōmen (§§48-50), the last
of the three names mentioned in §38. For this sense of familia a more accurate word
is stirps.
20. Patria Potestās. The authority of the pater
familiās over his descendants was called usually patria potestās, but also
patria maiestās, patrium iūs, and imperium paternum. It was
carried to a greater length by the Romans than by any other people, so that, in its original
and unmodified form, the patria potestās seems to us excessive and cruel. As they
understood it, the pater familiās, in theory, had absolute power over his children
and other agnatic descendants (§30). He decided whether or not the new-born child should
be reared; he punished what he regarded as misconduct with penalties as severe as banishment,
slavery, and death; he alone could own and exchange property—all that those subject to him
earned or acquired in any way was his; according to the letter of the law they were little
better than his chattels. If his right to one of them was disputed, he vindicated it by the
same form of action that he used in order to maintain his right to a house or a horse; if one
of them was stolen, he proceeded against the abductor by the ordinary action for theft; if for
any reason he wished to transfer one of them to a third person, it was done by the same form of
conveyance that he employed to transfer inanimate things. The jurists boasted that these powers
were enjoyed by Roman citizens only.
21. Limitations. But however stern this authority was theoretically, it
was greatly modified in practice, under the Republic by custom, under the Empire by law. King
Romulus was said to have ordained that all sons and all first-born daughters should be reared,
and that no child should be put to death until its third year, unless it was grievously
deformed. This at least secured life for the child, though the pater familiās still
decided whether it should be admitted to his household, with the resultant social and religious
privileges, or be disowned and become an outcast. King Numa was said to have forbidden the sale
into slavery of a son who had married with the consent of his father. But of much greater
importance was the check put by custom upon arbitrary and cruel punishments. Custom, not law,
obliged the pater familiās to call a council of relatives and friends
(iūdicium domesticum) when he contemplated inflicting severe punishment upon his
children, and public opinion obliged him to abide by its verdict. Even in the comparatively few
cases when tradition tells us that the death penalty was actually inflicted, we usually find
that the father acted in the capacity of a magistrate happening to be in office when the
offense was committed, or that the penalties of the ordinary law were merely anticipated,
perhaps to avoid the disgrace of a public trial and execution.
22. So, too, in regard to the ownership of property the conditions were
not really so hard as the strict letter of the law makes them appear to us. It was customary
for the Head of the House to assign to his children property, pecūlium (“cattle of
their own”), for them to manage for their own benefit. Furthermore, although the pater
familiās theoretically held legal title to all their acquisitions (§20), yet practically all property was acquired for and belonged
to the household as a whole, and the pater familiās was, in effect, little more
than a trustee to hold and administer it for the common benefit. This is shown by the fact that
there was no graver offense against public morals, no fouler blot on private character, than to
prove untrue to this trust (patrimōnium prōfundere). Besides this, the long
continuance of the potestās is in itself a proof that its rigor was more apparent
than real.
23. Manus. The subject of marriage will be considered later; at
this point it is necessary only to define the power over the wife possessed by the husband in
its most extreme form, called by the Romans manus. By the oldest and most solemn form of
marriage the wife was separated entirely from her father's family (§35) and passed into
her husband's power or “hand” (conventiō in manum). This assumes, of course, that
he was suī iūris; if he was not, then she was, though nominally in his "hand,"
really subject, as he was, to his pater familiās. Any property she had of her
own—and to have had any she must have been independent before her marriage—passed to
her husband's father as a matter of course. If she had none, her pater familiās
furnished a dowry (dōs), which shared the same fate, though it must be returned if
she should be divorced. Whatever she acquired by her industry or otherwise while the marriage
lasted also became her husband's (subject to the patria potestās under which he
lived). So far, therefore, as property rights were concerned, manus differed in no
respect from the patria potestās: the wife was in locō fīliae, and
on the husband's death took a daughter's share in his estate.
24. In other respects manus conferred more limited powers. The
husband was required by law, not merely obliged by custom, to refer alleged misconduct of his
wide to the iūdicium domesticum (§21), and this
was composed in part of her cognates (§32). He could put her away for certain grave
offenses only; Romulus was said to have ordained that, if he divorced her without good cause,
he should be punished with the loss of all his property. He could not sell her at all. In
short, public opinion and custom operated even more strongly for her protection than for that
of her children. It must be noticed, therefore, that the chief distinction between manus
and patria potestās lay in the fact that the former was a legal relationship based
upon the consent of the weaker party, while the latter was a natural relationship independent
of all law and choice.
25. Dominica Potestās. Whereas the authority of the
pater familiās over his descendants was called patria potestās, his
authority over his chattels was called dominica potestās. So long as he lived and
retained his citizenship, these powers could be terminated only by his own deliberate act. He
could dispose of his property by gift or sale as freely as we do now. He might “emancipate” his
sons, a very formal proceeding (ēmancipātiō) by which they became each
the Head of a new House, even if they were childless themselves or unmarried or mere children.
He might also emancipate an unmarried daughter, who thus in her own self became an independent
familia, or he might give her in marriage to another Roman citizen, an act by which she
passed, according to early usage (§§ 23, 35, 62), into
the House of which her husband was Head, if he was suī iūris (§ 17), or into that of which he was a member, if he was still
aliēnō iūrī subiectus. It must be noticed, on the other hand, that
the marriage of a son did not make him a pater familiās or relieve him in any
degree from the patria potestās: he and his wife and their children were subject to
the Head of his House as he had been before his marriage. On the other hand, the Head of the
House could not number in his familia his daughter’s children; legitimate children were
under the same patria potestās as their father, while an illegitimate child was
from the moment of birth in himself or herself an independent familia.
26. The right of a pater familiās to ownership in his
property (dominica potestās) was complete and absolute. This ownership included
slaves as well as inanimate things, for slaves, as well as inanimate things, were mere chattels
in the eyes of the law. The influence of custom and public opinion, so far as these tended to
mitigate the horrors of their condition, will be discussed later (§§ 156-158, 162-163). It will be sufficient to say here that, until imperial times, there was nothing to
which the slave could appeal from the judgment of his master. That judgment was final and
absolute.
27. The Splitting Up of a House. Emancipation was not very common, and
it usually happened that the household was dissolved only by the death of its Head. When this
occurred, as many new households were formed as there were persons directly subjected to his
potestās at the moment of his death: wife, sons, unmarried daughters, widowed
daughters-in-law, and children of a deceased son. The children of a surviving son, it must be
noticed, merely passed from the potestās of their grandfather to that of their
father. A son under age or an unmarried daughter was put under the care of a guardian
(tūtor), selected from the same gēns, very often an older brother, if
there was one. The following diagram1 will make
this clearer:
28. It is assumed that Gaius was a widower who had had five children,
three sons and two daughters. Of the sons, Aulus and Appius had married and each had two
children; Appius then died. Of the daughters, Terentia Minor had married Marcus and become the
mother of two children. When Gaius died, Publius and Terentia were unmarried. Gaius had
emancipated none of his children. The following points should be noticed:
(1) The living descendants of Gaius were ten (3, 7, 8, 10, 11,
12, 13, 14, 15, 16); his son Appius was dead.
(2) Subject to his potestās were nine (3, 4, 6, 7, 8,
11, 12, 13, 14).
(3) His daughter Terentia Minor (10) had passed out of his
potestās by her marriage with Marcus (9), and her children (15, 16) alone out of
all the descendants of Gaius had not been subject to him.
(4) At his death were formed six independent familiae, one
consisting of four persons (3, 4, 11, 12), the others of one person each (6, 7, 8, 13, 14).
(5) Titus and Tiberius (11, 12) merely passed out of the
potestās of their grandfather, Gaius, to come under that of their father, Aulus.
(6) If Quintus (13) and Sextus (14) were minors, guardians were
appointed for them, as stated above (§ 27).
29. Extinction of the Potestās. The patria
potestās was extinguished in various ways:
(1) By the death of the pater familiās, as has been
explained in § 27.
(2) By the emancipation of a son or a daughter.
(3) By the loss of citizenship of a son or a daughter.
(4) If the son became a Flāmen Diālis or the
daughter a virgō vestālis.
(5) If either father or child was adopted by a third party.
(6) If the daughter passed by formal marriage into the power
(in manum) of a husband, though this did not essentially change her dependent condition
(§§ 23, 35).
(7) If the son became a public magistrate. In this case the
potestās was suspended during the period of office, but, after it expired, the
father might hold the son accountable for his acts, public or private, while he held the
magistracy.
30. Agnātī. It has been remarked (§ 25) that the children of a daughter could not be included in
the familia of her father, and (§ 18) that membership
in the larger organization known as the gēns was limited to those who could trace
their descent through males to a common ancestor, in whose potestās they would be
were he alive. All persons related to one another by such descent were called
agnātī, “agnates.” Agnātiō was the closest tie of
relationship known to the Romans. In the list of agnātī were included two
classes of persons who would seem by the definition to be excluded. These were (1) the wife,
who passed by manus into the family of her husband (§§ 23, 25), becoming by law his agnate and
the agnate of all his agnates, and (2) the adopted son. On the other hand a son who had been
emancipated (§ 25) was excluded from agnātiō
with his father and his father’s agnates, and could have no agnates of his own until he married
or was adopted into another familia. The following diagram will make this clear:
31. It is supposed that Gaius and Gaia have five children (Aulus,
Appius, Publius, Terentia, and Terentia Minor), and six grandsons (Titus and Tiberius, the sons
of Aulus, Quintus and Sextus, the sons of Appius, and Servius and Decimus, the sons of Terentia
Minor). Gaius has emancipated two of his sons, Appius and Publius, and has adopted his grandson
Servius, who had previously been emancipated by his father, Marcus. There are four sets of
agnātī:
(1) Gaius, his wife, and those whose pater familiās
he is: Aulus, Tullia, the wife of Aulus, Terentia, Titus, Tiberius, and Servius, a son by
adoption (1, 2, 3, 4, 8, 11, 12, 15).
(2) Appius, his wife, and their two sons (5, 6, 13, 14).
(3) Publius, who is himself a pater familiās, but has
no agnātī at all.
(4) Marcus, his wife, Terentia Minor, and their child Decimus (9,
10, 16). Notice that the other child, Servius (15), having been emancipated by Marcus, is no
longer agnate to his father, mother, or brother, but has become one of the group of
agnātī mentioned above, under (1).
FIG. 11
MAN AND WIFE
From a grave relief, now in the Metropolitan Museum of Art, New York.
32. Cognātī. Cognātī, on the other hand,
were what we call blood relations, no matter whether they traced their relationship through
males or through females, and regardless of what potestās had been over them. The
only barrier in the eyes of the law was loss of citizenship (§
29), and even this was not always regarded. Thus, in the table last given, Gaius, Aulus,
Appius, Publius, Terentia, Terentia Minor, Titus, Tiberius, Quintus, Sextus, Servius, and
Decimus are all cognates with one another. So, too, is Gaia with all her descendants mentioned.
So also are Tullia, Titus, and Tiberius; Licinia, Quintus, and Sextus; Marcus, Servius, and
Decimus. But husband and wife (Gaius and Gaia, Aulus and Tullia, Appius and Licinia, Marcus and
Terentia Minor) are not cognates by virtue of their marriage, though that made them agnates.
Public opinion strongly discountenanced the marriage of cognates within the sixth (later the
fourth) degree, and persons within this degree were said to have the iūs
ōsculī, “the right to kiss.” The degree was calculated by counting from one of
the interested parties through the common kinsman to the other. The matter may be understood
from this table in Smith’s Dictionary of Antiquities under cognātī, or
from the one given here (Fig. 12) Cognates did not form an organic body in the
State as the agnates formed the gēns (§§
18-19), but the twenty-second of February was set aside to commemorate the tie of blood
(cāra cognātiō. On this day presents were exchanged and family reunions
were probably held. It must be understood, however, that cognātiō gave no
legal rights or claims under the Republic.
Fig. 12
TABLE OF RELATIONSHIPS
