CHAPTER I

THE FAMILY

REFERENCES: Marquardt, pp. 1-6; Voigt, 307-311, 386-388; Göll, II. 1-4, 61-65, 187; Pauly-Wissowa, under _adfīnitās_, _agnātiō_, _cognātiō_; Smith, under _cognātī_, _familia_, _patria potestās_; Seyffert, under _agnātiō_, _cognātiō_, _familia_, _manus_; Lübker, under _agnātiō_, _cognātiō_, _familia_, _manus_, _patria potestās_.

Look up the word _familia_ in Harper's lexicon and notice carefully its range of meanings.

See also Muirhead, "Roman Law," pp. 24-33, and the paragraph on the Quiritian Family in the article on Roman Law by the same writer in the "Encyclopaedia Britannica," Vol. XX.

§17. The Household.--If by our word family we usually understand a group of husband, wife, and children, we may acknowledge at once that it does not correspond exactly to any of the meanings of the Latin _familia_, varied as the dictionaries show these to be. Husband, wife, and children did not necessarily constitute an independent family among the Romans, and were not necessarily members even of the same family. Those persons made up the Roman _familia_, in the sense nearest to its English derivative, who were subject to the authority of the same Head of the House (_pater familiās_). These persons might make a host in themselves: wife, unmarried daughters, sons real or adopted, married or unmarried, with their wives, sons, unmarried daughters, and even remoter descendants (always through males), yet they made but one _familia_ in the eyes of the Romans. The Head of such a family--"household" or "house" is the nearest English word--was always _suī iūris_ ("independent," "one's own master"), while the others were _aliēnō iūrī subiectī_ ("dependent").

§18. The authority of the _pater familiās_ over his wife was called _manus_, over his descendants _patria potestās_, over his chattels _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 family, though they were childless themselves or unmarried or even mere children. He might also emancipate an unmarried daughter, who thus in her own self became an independent family. Or he might give her in marriage to another Roman citizen, an act by which she passed by early usage (§61) into the family of which her husband was Head, if he was _suī iūris_, or of which he was a member, if he was still _aliēnō iūrī subiectus_. It must be carefully 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 same Head of the 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 always followed the father, while an illegitimate child was from the moment of birth in himself or herself an independent family.

§19. 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 the Head. When this occurred, as many new households were formed as there were persons directly subject 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 diagram will make this clearer:

1Gaius (_pater familiās_) = (†)2Gaia (_māter familiās_) | --------------------------------------------------------------- | | | | | 3Faustus = 4Tullia (†)5Balbus = 6Licinia 7Publius 8Terentia | | | 9Marcus = 10Terentia Minor ----------- ------------ | | | | | ------------ 11Titus 12Tiberius 13Quintus 14Sextius | | 15Servius 16Decimus

§20. It is assumed that Gaius is a widower who has had five children, three sons and two daughters. Of the sons, Faustus and Balbus married and had each two children; Balbus then died. Of the daughters, Terentia Minor married Marcus and became the mother of two children. Publius and Terentia were unmarried at the death of Gaius, who had emancipated none of his children. It will be noticed:

1. The living descendants of Gaius were ten (3, 7, 8, 10, 11, 12, 13, 14, 15, 16), his son Balbus being 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 are formed six independent families, 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) have merely passed out of the _potestās_ of their grandfather Gaius to come under that of their father Faustus.

§21. 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 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) who 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_, the second of the three names that every citizen of the Republic regularly had (§38).

§22. 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 who in the days of the Kings had formed the _patrēs_, or assembly of old men (_senātus_). The splitting up of this prehistoric household in the manner explained in §19, a process repeated generation after generation, was believed to account for the numerous _familiae_ who claimed connection with the great _gentēs_ in later times. 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 for spendthrifts. When a member died without leaving natural heirs, it 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 the common burial ground.

Finally, the word _familia_ was often applied to certain branches of a _gēns_ whose members had the same _cognōmen_ (§48), the last of the three names mentioned in §21. For this use of _familia_ a more accurate word is _stirps_.

§23. Agnati.--It has been remarked (§18) that the children of a daughter could not be included in the _familia_ of her father, and (§21) that membership in the larger organization called the _gēns_ was limited to those who could trace their descent through males. All persons who could in this way trace their descent through males to a common ancestor, in whose _potestās_ they would be were he alive, were called _agnātī_, and this _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 the wife, who passed by _manus_ into the family of her husband (§18), becoming by law his agnate and the agnate of all his agnates, and the adopted son. On the other hand a son who had been emancipated (§18) 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 clearer:

1Gaius (_pater familiās_) = 2Gaia (_māter familiās_) | ---------------------------------------------------------------- | : | | | | 3Faustus = 4Tullia : 5Balbus = 6Licinia 7Publius 8Terentia | | : [Emancipated]| [Emancipated] | ----------- : ------------ 9Marcus = 10Terentia Minor | | : | | | 11Titus 12Tiberius : 13Quintus 14Sextius ------------- : | | :[Servius adopted by Gaius] 15Servius 16Decimus :.........................[Emancipated]

§24. It is supposed that Gaius and Gaia have five children (Faustus, Balbus, Publius, Terentia, and Terentia Minor), and six grandsons (Titus and Tiberius the sons of Faustus, Quintus and Sextius the sons of Balbus, and Servius and Decimus the sons of Terentia Minor). Gaius has emancipated two of his sons, Balbus 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, viz.: Faustus, Tullia the wife of Faustus, Terentia, Titus, Tiberius, and Servius, a son by adoption (1, 2, 3, 4, 8, 11, 12, 15).

2. Balbus, his wife, and their two sons (5, 6, 13, and 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.

§25. Cognati, on the other hand, were what we call blood relations, no matter whether they traced their relationship through males or females, and regardless of what _potestās_ had been over them. The only barrier in the eyes of the law was loss of citizenship (§18), and even this was not always regarded. Thus, in the table last given, Gaius, Faustus, Balbus, Publius, Terentia, Terentia Minor, Titus, Tiberius, Quintus, Sextius, 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 Sextius; Marcus, Servius, and Decimus. But husband and wife (Gaius and Gaia, Faustus and Tullia, Balbus and Licinia, Marcus and Terentia Minor) were not cognates by virtue of their marriage, though that made them agnates. In fact public opinion 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 degree was calculated by counting from one of the interested parties through the common ancestor to the other and may be easily understood from the table given in Smith's "Dictionary of Antiquities" under _cognātī_, or the one given here (Fig. 1). Cognates did not form an organic body in the state as did the agnates (§22), but the 22d of February was set aside to commemorate the tie of blood (_cāra cognātiō_), and on this day presents were exchanged and family reunions probably held. It must be understood, however, that _cognātiō_ gave no legal rights or claims under the Republic.

§26. Adfines.--Persons connected by marriage only were called _adfīnēs_, as a wife with her husband's cognates and he with hers. There were no formal degrees of _adfīnitās_, as there were of _cognātiō_. Those adfīnēs for whom distinctive names were in common use were: _gener_, son-in-law; _nurus_, daughter-in-law; _socer_, father-in-law; _socrus_, mother-in-law; _prīvignus_, _prīvigna_, step-son, step-daughter; _ritricus_, step-father; _noverca_, step-mother. If we compare these names with the awkward compounds that do duty for them in English, we shall have additional proof of the stress laid by the Romans on family ties: two women who married brothers were called _iānītrīcēs_, a relationship for which we do not have even a compound. The names of blood relations tell the same story: a glance at the table of cognates will show how strong the Latin is here, how weak the English. We have "uncle," "aunt," and "cousin," but between _avunculus_ and _patruus_, _mātertera_ and _amita_, _patruēlis_ and _cōnsōbrīnus_, we can distinguish only by descriptive phrases. For _atavus_ and _tritavus_ we have merely the indefinite "forefathers." In the same way the language testifies to the headship of the father. We speak of the "mother country" and "mother tongue," but to the Roman these were _patria_ and _sermō patrius_. As the _pater_ stood to the _fīlius_, so stood the _patrōnus_ to the _cliēns_, the _patriciī_ to the _plēbēiī_, the _patrēs_ (=senators) to the rest of the citizens, and _Iūpiter_ (Jove the Father) to the other gods of Olympus.

§27. The Family Cult.--It has been said (§23) that _agnātiō_ was the closest tie known to the Romans. The importance they attached to the agnatic family is largely explained by their ideas of the future life. They believed that the souls of men had an existence apart from the body, but not in a separate spirit-land. They conceived of the soul as hovering around the place of burial and requiring for its peace and happiness that offerings of food and drink should be made to it regularly. Should these offerings be discontinued, the soul would cease to be happy itself, and might become perhaps a spirit of evil. The maintenance of these rites and ceremonies devolved naturally upon the descendants from generation to generation, whom the spirits in turn would guide and guard.

§28. The Roman was bound, therefore, to perform these acts of affection and piety so long as he lived himself, and bound no less to provide for their performance after his death by perpetuating his race and the family cult. A curse was believed to rest upon the childless man. Marriage was, therefore, a solemn religious duty, entered into only with the approval of the gods ascertained by the auspices. In taking a wife to himself the Roman made her a partaker of his family mysteries, a service that brooked no divided allegiance. He therefore separated her entirely from her father's family, and was ready in turn to surrender his daughter without reserve to the husband with whom she was to minister at another altar. The _pater familiās_ was the priest of the household, and those subject to his _potestās_ assisted in the prayers and offerings, the _sacra familiāria_.

§29. But it might be that a marriage was fruitless, or that the Head of the House saw his sons die before him. In this case he had to face the prospect of the extinction of his family, and his own descent to the grave with no posterity to make him blessed. One of two alternatives was open to him to avert such a calamity. He might give himself in adoption and pass into another family in which the perpetuation of the family cult seemed certain, or he might adopt a son and thus perpetuate his own. He usually followed the latter course, because it secured peace for the souls of his ancestors no less than for his own.

§30. Adoption.--The person adopted might be either a _pater familiās_ himself or, more usually, a _fīlius familiās_. In the case of the latter the process was called _adoptiō_ and was a somewhat complicated proceeding by which the natural parent conveyed his son to the other, the effect being to transfer the adopted person from one family to the other. The adoption of a _pater familiās_ was a much more serious matter, for it involved the extinction of one family (§29) in order to prevent the extinction of another. It was called _adrogātiō_ and was an affair of state. It had to be sanctioned by the _pontificēs_, the highest officers of religion, who had probably to make sure that the _adrogātus_ had brothers enough to attend to the interests of the ancestors whose cult he was renouncing. If the _pontificēs_ gave their consent, it had still to be sanctioned by the _comitia curiata_, as the adrogation might deprive the _gēns_ of its succession to the property of the childless man (§22). If the _comitia_ gave consent, the _adrogātus_ sank from the position of Head of a House to that of a _fīlius familiās_ in the household of his adoptive father. If he had wife and children, they passed with him into the new family, and so did all his property. Over him the adoptive father had _potestās_ as over a son of his own, and looked upon him as flesh of his flesh and bone of his bone. We can have at best only a feeble and inadequate notion of what adoption meant to the Romans.

§31. The Patria Potestas.--The authority of the _pater familiās_ over his descendants was called usually the _patria potestās_, but also the _patria maiestās_, the _patrium iūs_, and the _imperium paternum_. It was carried to a greater length by the Romans than by any other people, a length that seems to us excessive and cruel. As they understood it, the _pater familiās_ had absolute power over his children and other agnatic descendants. He decided whether or not the newborn 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 his descendants 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 to maintain his right to a house or a horse; if one 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.

§32. 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 should be reared and also all firstborn daughters; furthermore 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 implied 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 upon arbitrary and cruel punishments by custom. 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 their verdict. Even in the comparatively few cases where 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.

§33. 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, _pecūlia_ ("cattle of their own"), for them to manage for their own benefit. And more than this, although the _pater familiās_ held legal title to all their acquisitions, yet practically all property was acquired for and belonged to the household as a whole, and he 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.

§34. Extinction of the Potestas.--The _patria potestās_ was extinguished in various ways:

1. By the death of the _pater familiās_, as has been explained in §19.

2. By the emancipation of the son or daughter.

3. By the loss of citizenship by either father or son.

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 (§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 and private, while holding the magistracy.

§35. Manus.--The subject of marriage will be considered later; at this point it is only necessary 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 (§28) 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 though nominally in his "hand" she was 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 him as a matter of course. If she had none, her _pater familiās_ furnished a dowry (_dōs_), which shared the same fate. Whatever she acquired by her industry or otherwise while the marriage lasted also became her husband's. So far, therefore, as property rights were concerned the _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.

§36. 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 wife to the _iūdicium domesticum_, and this was composed in part of her cognates (§25). He could put her away for certain grave offenses only; if he divorced her without good cause he was 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 antecedent to all law and choice.

§37. Dominica Potestas.--The right of ownership in his property (_dominica potestās_) was absolute in the case of a _pater familiās_ and has been sufficiently explained in preceding paragraphs. This ownership included slaves as well as inanimate things, and 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 mitigating the horrors of their condition, will be discussed later. It will be sufficient to say here that there was nothing to which the slave could appeal from the judgment of his master. It was final and absolute.