CASE 93: Disciplining a Troublesome Son
C. 8.46.3 (Imp. Alexander A. Artemidoro)
Si filius tuus in potestate tua est, res adquisitas tibi alienare non potuit: quem, si pietatem patri debitam non agnoscit, castigare iure patriae potestatis non prohiberis, artiore remedio usurus, si in pari contumacia perseveraverit, eumque prae- sidi provinciae oblaturus dicturo sententiam, quam tu quoque dici volueris.
(The Emperor Alexander Severus to Artemidorus; A.D. 227)
If your son is in your power, he could not alienate (i.e., transfer ownership of) property that he had (previously) acquired for you. If he (now) fails to display the pietas that is owed to a father, you are not prevented from punishing him by exercising the right of a father’s power (ius patriaepotestatis). You may resort to a harsher remedy if he persists in such defiance, and you may hand him over to the provincial governor for issuance of the verdict that you also wish to be issued.
1. The Dispute. The first sentence suggests a dispute between father and son over the ownership of property. Sons-in-power cannot own property (see below, Part B.1), and a paterfamilias owns any property that they acquire; further, only in limited circumstances can sons alienate their fathers property (see Part B.2 below). Try to reconstruct the dispute, to the extent that this brief allusion allows. It may center on alienation of property the father owns indirectly, through the son's management of a peculium (see below, Part B.3). On this theory, does the son have a legitimate claim? What exactly is the father, Artemidorus, requesting from the emperor? What role does pietas play in Alexanders decision? Is it similar to that in Case 92?
2. Paternal Discretion.
What punishments may Artemidorus inflict on his son and for what must he rely on the provincial governor? Does this Case suggest that corporal punishment short of killing could be routinely visited by fathers upon children, even adult children, with the express sanction of the state and without consultation of a consilium? What inferences can be drawn from the enforcement of paternal discretion by the Roman government? According to Ulpian (D. 1.16.9.3), among the matters a provincial governor can dispose of routinely and without a formal hearing (!) are the issuance of orders that proper respect be shown to parents and the admonishment and instilling of fear in a son whose misbehavior is reported by his father. This seems to indicate that the magistrates power is largely supplemental to the fathers and deployed only when the father seeks help. Is that consistent with the present Case? No classical source indicates that magistrates ordinarily monitored corporal punishment by fathers, much less that they had to approve it in advance.3. Judicial Discretion. How broad is the governors discretion in terms of assessing the nature of the offense? Must the son be found guilty of an actual criminal law offense before the governor imposes a penalty?
4. A Nonassertive Father. Is it clear what the emperor is threatening at the end of this Case? Does his language suggest that Artemidorus himself had asked about the capital penalty? If it does not, what does this allow us to conclude about Roman attitudes toward the exercise of the vitae necisque potestas? Is there a development traceable over time?
5. Excessive Punishment. How bright is the line between ordinary discipline and child abuse? According to Papinian (Case 158), the Emperor Trajan compelled a father who had maltreated his son “contrary to family duty” (contra pietatem) to emancipate the boy, thereby releasing him from the fathers power.
This suggests a degree of governmental oversight at least in extreme cases of cruelty. How do you suppose that such a case would come to the emperor's attention?6. “Honey, I Sold the Kids.” If discipline doesn't work, can you at least sell your son into slavery? Some evidence suggests that this may have been possible in archaic law; but except in peculiar circumstances (e.g., see below, Part B.4) it is missing from classical law, which usually treats the sale of free persons as void (e.g., Paul, D. 18.1.34.2). The Emperor Caracalla (reign: 211-217) describes a father's sale of freeborn sons as “an illicit and dishonest act” (C. 7.16.1); and a postclassical source takes a similar view of a father who gave his son as security for a debt (Paul, Sent. 5.1.1 = D. 20.3.5). As this source observes: “No price can be put on a free person.” Is this a purely formal objection, or does it reflect a deeper principle of public policy?
7. What about Mothers? In a rescript of A.D. 259 (C. 8.46.4), the Emperors Valerian and Gallienus write to a woman who is disputing with her sons. The emperors prefer the quarrel to stay “within the home” style='font-style:italic'>(intra domum); but if it becomes necessary, she is allowed to approach a provincial governor, who “will force the sons to display the reverence owed to their mother and, if he discovers that their wickedness has reached the point of more brutal indignities, will more strictly punish this breach of pietas.” What do you make of the extension of help to mothers? How does it change the character of earlier remedies?