FAMILIA

In modern law, a child is subject to parental authority. This authority lasts until a particular age, at which point the child is considered an adult and the parental authority ends.

The authority of the paterfamilias was known as patria potestas, or simply potestas. Those who were subject to the potestas of a paterfamilias were said to be alieni iuris (subject to another’s right). Those not subject to the potestas of a paterfamilias were said to be sui iuris (of their own right, i.e. independ­ent). The authority of the paterfamilias extended to all those of legitimate birth descended from him in the male line. Such a relationship is called an “agnatic” relationship. Illegitimate children (i.e. those not born of a valid Roman marriage) were, by contrast, not subject to this authority.

Consider the family tree below, headed by a paterfamilias with two children and two grandchildren:

Paterfamilias

I I

Son Daughter

I I

Grandchild 1 Grandchild 2

Assuming the son is married, he, his sister and his own child will all be in the potestas of the paterfamilias. The daughter is in her father’s potestas even if she is married, as long as her marriage is the more common marriage sine manu (see below). Grandchild 2, on the other hand, will be in the potestas of its father or the father’s paterfamilias. If any of the children are born of unmarried parents, they will be in no one’s potestas, for potestas arises only in the case of offspring of valid civil law marriages.

When the paterfamilias in the diagram dies, the son and the daughter will become sui iuris. Only a direct ascendant can be a person’s paterfamilias.

Adoption

The rules on potestas applied equally to adopted children as to natural children. Equally, adopted children had the same rights of succession to the estate of the paterfamilias as did natural children. This was, however, changed by Justinian so that where a child was adopted by someone other than a natural ascendant (whether in the male or female line), there was no change ofpotestas, though rights of succession were acquired in the adoptive family.

There were two forms of adoption, adoptio and adrogatio. Adoptio was the adoption of a person alieni iuris, and would involve a formal transfer of potestas from the original paterfamilias to the adopter. Greater formality was required in the case of adrogatio, which was the adoption of a sui iuris person. The reason for this is that a sui iuris male was a paterfamilias, and so his adoption meant the extinction of a Roman family. Accordingly, the adoption would be preceded by an investigation by the pontifex maximus (chief priest), and would require to be ratified by the comitia curiata, one of the citizen assemblies (see Chapter 1).

The powers of the paterfamilias

Gaius and Justinian both noted that the powers of the Roman paterfamilias were more extensive than those given to fathers elsewhere, both in their extent and in their duration, being lifelong. Originally, a paterfamilias had absolute power of life and death over those in his potestas, though this power was gradually restricted. As with slaves, those in potestas had no power to own property, and contracts they entered into could not be enforced against them unless and until they became sui iuris. Again as with slaves, though, a child in power could have a peculium containing money or property which was treated as belonging to the child, although in fact belonging to the paterfamilias.

Leaving aside for now the question of the peculium, the position of children in potestas in respect of property ownership was improved in the Empire. Augustus introduced the peculium castrense, allowing sons ownership of any property acquired on military service. The peculium quasi castrense of Constantine extended this to all earnings in public service. During the Empire, children also gained the right on their father’s death to anything received from the mother or her family, though the property would of course belong to the paterfamilias until his death. This property was known as bona adventicia, and was eventually extended to include anything received from anyone other than the paterfamilias.

The powers of the paterfamilias were, moreover, restricted to private law matters. A magistrate could be alieni iuris, but had no duty to obey his pater­familias in respect of his public functions.