CASE 4: The Household (Familia) and the Pater Familias

D. 50.16.195.1-5 (Ulpianus libro quadragensimo sexto ad Edictum)

(1)     “Familiae” appellatio qualiter accipiatur, videamus.

miliam dicimus omnium adgnatorum: nam etsi patre familias mortuo singuli sin­gulas familias habent, tamen omnes, qui sub unius potestate fuerunt, recte eiusdem familiae appellabuntur, qui ex eadem domo et gente proditi sunt. (3) Servitutium quoque solemus appellare familias, ut in edicto praetoris ostendimus sub titulo de furtis, ubi praetor loquitur de familia publicanorum.... (4) Item appellatur familia plurium personarum, quae ab eiusdem ultimi genitoris sanguine proficiscuntur (si- cuti dicimus familiam Iuliam), quasi a fonte quodam memoriae. (5) Mulier autem familiae suae et caput et finis est.

(Ulpian in the forty-sixth book on the Edict)

(1)     Let us examine how the word familia is used.

(2)     The word familia is also employed to signify a sort of body (corpus) de­fined either by a rule particular to its members or by the common rule of general relationship.

By a particular rule, we describe a familia as a number of persons who, either by nature or by law, are subjected to the power (potestas) of one person: for ex­ample, a pater familias (male head of a household), a mater familias (here, a wife if she is subject to her husband’s manus), a son or daughter in their father’s power, and those who then follow them in turn, for example, grandsons and grand­daughters (from sons), and so on. The person called the pater familias has mas­tery (dominium) in the home, and he is correctly so called even if (in fact) he has no son; for we refer not only to his person but to his legal right. And so even a young ward (pupillus) is called a pater familias. And when the pater familias dies, all the individuals who were subject to him start to have their own households; for they each assume the status of pater familias....

By a common rule, we use familia for all agnates. For although, when the pater familias dies, they each have their own familiae, still all those who were once under one person’s power are properly described as belonging to the same fa­milia, since they stem from the same home and lineage.

(3)     We also customarily describe slaves as familiae. We see this in the prae­

tor’s Edict in the title on theft, where the praetor speaks of the familia of public contractors.............................

(4)     Likewise, familia is used of many persons who descend from the blood of the same original ancestor; for example, we speak of the Julian familia, as it were, from some wellspring of memory.

(5)     But a woman is both the beginning and the end of her familia.

lang=EN-US style='font-size:8.0pt; line-height:120%;font-weight:bold'>1.      Familia. This is an exceptionally important Case, which you should not leave until you understand it fully. As Ulpian states, the Latin word familia is used in several different senses. For instance, it can describe a “family relationship” between free persons who share a common, even if ultimately untraceable, descent from a single ancestor (a “clan”); and it can also designate all the slaves in a single household or under a single owner. But by far the most sig­nificant usage for our purposes is the one described in section 2: the familia as household.

2.      The Household. Ulpian describes the household as a kind of collective, a cor­pus, over which one person (prototypically a male, the pater familias) has “mastery” (dominium) in the home. What this means is that the paterfamilias owns all the property (including slaves) belonging to the household. All other free persons in the household are “subjected to the power of one person,” the pater familias. With some exceptions, these persons are all agnatically related descendants of the pater familias, no matter how old they may be. Thus, in Roman law it is possible (although demographically unlikely) for a familia to consist of a pater familias aged seventy-five; his son aged fifty; his son's son aged twenty-five; and his son's son's newborn son.

3.      Daughters and Wives. The hypothetical family described above consists solely of males. What about women? Within the household structure of the early Roman Empire, the daughter of a paterfamilias is in much the same legal position as a son; and so too for his agnatically related female descendants generally. What may seem truly extraordinary is that this legal position does not change when the daughter marries; that is, in a classical marriage, she re­mains within the familia of her pater familias and subject to his patria potestas so long as he lives, even though, as would normally be the case, she is now re­siding in her husband's house. By the early Empire, this classical form of mar­riage had largely replaced an earlier form of marriage, called manus marriage, in which a bride passed from her fathers household to that of her husband; in manus marriage, she became subject to the power of her husband, although to a lesser extent than his children (see Case 37). By contrast, classical mar­riage is “free” in the sense that a wife does not enter into her husbands familia, nor does he have any legal power over her actions. As we shall see, however, this simplified legal portrait does not entirely correspond to social reality.

4.      Exceptions. The familia usually comprises blood kin, but there are some ex­ceptions: the paterfamilias may adopt children (Chapter III.C.2) or may eject them from the familia by emancipating them (Chapter III.C.3) or by giving them in adoption.