CASE 143: Paternal Power and Status
D. 1.6.4 (Ulpianus libro primo Institutionum)
Nam civium Romanorum quidam sunt patres familiarum, alii filii familiarum, quaedam matres familiarum, quaedam filiae familiarum.
patres familiarum sunt, qui sunt suae potestatis sive puberes sive impuberes: simili modo matres familiarum: filii familiarum et filiae, quae sunt in aliena potestate. nam qui ex me et ex uxore mea nascitur, in mea potestate est: item qui ex filio meo et uxore eius nascitur, id est nepos meus et neptis, aeque in mea sunt potestate, et pronepos et proneptis et deinceps ceteri.(Ulpian in the first book of his Institutes)
Some Roman citizens are patres familiarum, others are sons-in-power; some women are matres familiarum, others are daughters-in-power. Patres familiarum are males who are of independent legal status (suae potestatis), whether they have reached the age of legal majority or not. The same holds for matres familiarum.
Sons- and daughters-in-power are those (Roman citizens) in someone else’s power. For a person born to myself and my wife is in my power. Likewise, a person born to my son and his wife, that is, my grandson and granddaughter, is just as much in my power as are my great-grandson and great-grandaughter, and so on.
1. Offspring from a Legitimate Marriage. This point is central. As Gaius (Inst.
1.55) says: “In our power are our children who are the offspring of a legitimate marriage (iustae nuptiae).” On the requirements for legitimate marriage, see Chapter II.A.
A marriage is legitimate if it involves a union between two citizens or one between a male citizen and a woman, such as a Latin, possessed of conubium, the right of intermarriage with Roman citizens (Case 9). In the latter form of marriage, children follow their fathers status and are in his power. Why is this not true when a female citizen marries a man who is not a citizen but has conubium?2. Mater Familias. In what sense is the status of a materfamilias, as described in this Case, analogous to that of a pater familias? In what ways is it not? Mater familias is not a technical term (unlike pater familias); it is used sometimes as a synonym for “wife” (uxor), sometimes to mean an upright woman, sometimes to mean a sui iuris woman. Which sense does Ulpian use?
3. Grant of Citizenship. A grant of citizenship to a veteran who had a noncitizen wife had to be accompanied by the award of conubium if the marriage was to be legitimate and so give him patriapotestas over their children (Gaius, Inst. 1.57). In the same way, a grant of citizenship to a foreign family had to be augmented by a separate grant of potestas over their children (ibid. 1.93). Do you see why?
D. 2.4.4.3 (Ulpianus libro quinto ad edictum)
Parentes etiam eos accipi Labeo existimat, qui in servitute susceperunt: nec, ut Severus dicebat, ad solos iustos liberos, sed et si volgo quaesitus sit filius, matrem in ius non vocabit,
D. 2.4.5 (Paulus libro quarto ad edictum)
quia semper certa est, etiam si vulgo conceperit: pater vero is est, quem nuptiae demonstrant.
(Ulpian in the fifth book on the Edict)
Labeo thinks that persons who have produced children while in slavery are also considered “parents.” Nor (does the term apply) only in the case of legitimate children, as (the jurist Valerius) Severus used to claim; but even when a child is illegitimate, he will not (be able to) summon his mother into court (i.e., sue her),
(Paul in the fourth book on the Edict)
since even if she conceives a child illegitimately, her identity (at least) is always known. But it is a legitimate marriage that shows who the father is.
1. Summoning the Father. These decisions were made in a discussion of the rules for summoning persons to court. The praetors Edict forbade children to sue their parents. As Ulpian and Paul say, an illegitimate child cannot sue his mother. Does this mean the father is unknown or unknowable? If he is known, can a child sue him? Does Labeo's point about slave parents clarify the issue? See also, for example, Paul, D. 2.4.6: “No one can summon his natural (biological) parents into court; for the same reverence (reverentia) is owed to all parents.”
2. Paternity Problems. Is the last part of the Case convincing? In a society without DNA testing, can we be that certain of paternity? What does Paul seem to be getting at? Is he primarily concerned with the welfare of the child? Should modern courts resort to DNA to settle such questions rather than relying on the presumption that Paul makes?
3. The SC Plancianum. This decree of the Senate, passed, it is thought, during the reign of Vespasian (A.D. 69-79), contained a provision requiring a woman who believed herself to be pregnant to notify her ex-husband within thirty days of a divorce; he could then either send attendants to protect his interest in the child's birth or declare himself not to be the father (see Case 47). If he neglected to do either, he could be compelled to accept the child as his own (Ulpian, D. 25.3.1.4). Is the law consistent with Paul's assertion that “it is a legitimate marriage that shows who the father is”?