Creation of Potestas

(1) Birth

As already stated, a child born of a valid Roman marriage would be subject to the potestas of its father (or of the father's paterfamilias, if there was one), this being judged according to whether the parents were married at the moment of concep­tion.^[538] This was the case even if the paterfamilias exercised his right to expose the child at birth: the texts seem to indicate that the abandoned child nonetheless remained in hispotestas^[539] at least until Justinian provided that such a child was free and could not be recovered by the paterfamilias or held by anyone as a slave.^[540]

It is one thing to state the rule.

Paternity, however, is much more difficult to demonstrate, and it must have been the case that, at any period of human history, some people have been raised by men they believed to be their biological fathers, but who were not. The rule adopted by the Romans, and received also by Scots law through the canon law, was pater est quem nuptiae demonstrant: he is the father whom the marriage demon­strates.^[542] In other words, the mother's husband was presumed to be the father, and would be considered to be so until the contrary was proved.

In part, this is a simple reflection of the fact that the mother's husband is likely to be the man who most obviously had sexual access to her. He can therefore be presumed to have done so, and to be the child's father, unless contrary evidence is produced.

Quite how far Roman law went with this is unclear. Certainly, the presump­tion could be rebutted by proof that the mother's husband was absent at the time of conception. Even then, though, Roman law was very flexible with the determination of when conception happened. Gestation periods of as long as ten months^[547] or as short as 182 days^[548] were accepted. Elsewhere, a period of seven months was accepted.^[549] There seems to have been some dispute as to whether a husband who had lived with the child's mother at any possible time of concep­tion could deny paternity. Ulpian tells us that this is permissible where it can be proved that no intercourse occurred at the relevant time.^[550] He gives two examples of reasons why this might have happened (infirmity and impotence) but it is not clear whether these are intended to be exhaustive.

A special case was provided for by a senatusconsultum where, following a divorce, a woman claimed to be pregnant by her ex-husband. Either she or, if she was alieni iuris·, her paterfamilias could give notice of this to the ex-husband within thirty days of the divorce. The ex-husband had a choice of either sending observers (to prevent substitution of another child) or giving notice that he denied paternity. If he did neither, he would be obliged to accept the child as his own.^[551] The praetor provided a similar procedure for the case where a woman claimed to be pregnant after her husband's death.^[552]

(2) Adoption

Potestas could also be created by adoption.

Although these two forms of adoption were distinct, they did have some com­mon features. For example, adoption was taken to imitate nature, so the adopter had to be old enough to be the adoptee's biological father.^[553] This was taken to mean that the adopter had to be at least eighteen years older.^{[554] [555] Most importantly, both forms of adoption had the effect of subjecting the adoptee to the adopter's potestas.66 For this reason, only a man could adopt, as a woman did not hold potestas over even her biological children.[556] In post-classical law, it is true, a woman whose children had died was allowed to enter into an adoptio, but this did not create potestas. Instead, the legal effect was simply to give the adoptee rights to succeed to the adopter's estate on the latter's intestacy.[557] [558] [559]}

(a) Adrogatio

As stated above, adrogatio was the adoption of a sui iuris person. As it involved the extinction of a Roman family (at least, as was more usual, if the adoptee was male, as he would be a paterfamilias), it was a serious matter. It involved the parties appearing before the comitia calataf presided over by thepontifex maximus⁷ who would investigate whether the proposed adoption should be allowed. If he was satisfied, he would then ask the parties and the comitia calata whether they agreed to the adoption. This procedure came in the post-classical period to be super­seded by a new procedure of adoption by imperial rescript.^[560]

Whereas the aim of modern adoption is to provide for the welfare of the adoptee, who will always be a child and usually a young one, Roman adoptions had a different purpose. Their primary function was to secure the succession to the adopter's estate.

The effect of adrogatio was to subject the adoptee to the adopter'spotestas, with all that that implies.^[562] For example, any property owned by the adoptee would pass to the adopter.^[563] This was also true of anyone who had been in the adoptee's potestas. Suppose, for example, A adopted B, who had a son (C) in his potestas, by adrogatio. After the adrogatio had taken place, B would be in the potestas of A, in the position of A’s son. C would likewise be in A's potestas, in the position of A’s grandson.

(b) Adoptio

Adoptio was, as already noted, the adoption of an alieni iuris person. This was car­ried out under the authority of a magistrate, and took advantage of a provision in the Twelve Tables that allowed a paterfamilias to sell his son into bondage up to three times.^[564] After the third time, the child was permanently freed from the potestas of the original paterfamilias. Because the Twelve Tables only mentioned sons, it was decided that one sale would do for daughters or grandchildren.

The procedure for adoptio was simplified by Justinian, who required simply a declaration before a magistrate by the three parties involved.^[567] Unlike the posi­tion with adrogatio, it seems always to have been accepted that a woman^[568] or a boy under puberty^[569] could be adopted by adoptio.Justinian also provided that adoptio did not subject the adoptee to the adopter’spotestas, instead acquiring only rights on succession to the adopter. The exception to this was where the adopter was an ascendant of the adoptee, such as the adoptee’s maternal grandfather. In such a case, adoptio affectedpotestas as it had in earlier law.^[570]

(3) Legitimation

In classical law, legitimacy of a child wasjudged as at the date of conception (although, as we have seen, the Romans were prepared to stretch biological plau­sibility in determining when that happened). A child conceived when his or her parents were unmarried was not in the potestas of the father (or of his paterfamilias'). The only possibility of changing this would lie in the father adopting his own child. As the child would be sui iuris, this would be by adrogatio.

An alternative option became available under Constantine,^[571] namely legiti­mation by subsequent marriage.^[572] The precise rules varied over time. However, the essential idea was that, where a man had children by a concubine,^[573] and they subsequently married, the children became legitimate and subject to the father's potestas. The parents had to have been legally able to marry at the time of concep- tion.^[574] Because the child would lose the status of sui iuris, the child's consent was necessary.Justinian required that the marriage be evidenced by a written mar­riage settlement.^[575] Abolishing an earlier rule to the contrary,Justinian allowed legitimation even where the father had existing legitimate children.^[576] Justinian also abolished the previous rule that legitimation could not operate when the mother was a freedwoman.^[577] If the children had been born in slavery, the mar­riage freed them without need for any special manumission.^[578]

The possibility of legitimation by subsequent marriage was adopted by the canon law, in a more expansive form.

C.