Potestas

Potestas means power, and in this context it refers to the absolute control the one with potestas wields over the subordinate. As already noted, in classical law it is used in what appear to us - and must indeed in most contexts have appeared to the Romans - to be two very different social situations: slaves are said to be in the potestas of their master, and children in the potestas of their paterfamilias (their father or older male ascendant).

Slaves³

Slaves in Roman law were regarded as the property of their masters.

The earliest slaves were those enemies captured in war.⁴ The Romans acknowledged as a general principle that prisoners of war lost their previous status, making provision for the case where a Roman was captured by the enemy. Such a prisoner lost his Roman citizenship until such time as he was able to regain it on returning to Roman territory, a process known as postliminium. Slaves captured by the Romans in war were the property of their captors. Those born to slave mothers in Rome were also slaves. As no personal relationships were recognized within slavery it did not matter who the child’s father was. Additionally, by legislation under Claudius, the SC Claudianum of AD 53, the offspring of a freewoman who was living with a slave without the slave owner’s permission were born slaves, and the woman herself reduced into slavery.

In the early Republic it was possible for a Roman citizen to be reduced to slavery as a punishment for manifest theft, although it also appears that they were sold to foreigners out of Rome, across the Tiber (trans Tiberim). Later, those condemned to death or to work in the mines became slaves from the moment of condemnation, their property for­feited to the state. These were not the property of individual masters but rather of the state, and are sometimes referred to as public slaves.

In some cases apparent free persons could be reduced to slavery. Those who gained their freedom from their masters, as a result of processes to be discussed shortly, might in certain circumstances have this freedom revoked for ingratitude. During the Republic this might occur by the simple will of the master, but the formalizing of hitherto informal manumission meant that in the Empire it required an imperial decree, although efforts were made to create a formal process of recall.⁶ A free person who arranged to have himself sold into slavery fraudulently, hoping subsequently to recover his freedom and to share in the profits, was held to have become a slave: Hadrian held that if the purchase price were returned he might recover his freedom without express manumis­sion. Where free children were sold into slavery the general principle was that this could not change their status, but it was later ruled that in the case of the newborn the purchaser was entitled to have the child redeemed for whatever he was worth as a slave. In effect this made the child a slave, though on redemption he was recognized as freeborn rather than a freedman.

The effects of slavery were, to the modern eye, considerable.

Manumission A slave could be released from slavery by his master. It must always have been open to a master to treat his slave more generously and give him a measure of independence, but until the praetor intervened towards the end of the Republic to restrict masters’ profligacy the slave who was informally released at his master’s will was always liable to be reduced once again to slavery. From an early date, however, devices existed whereby a slave might acquire independence: a striking character­istic of these legal devices is that the slave thereby acquired full Roman citizenship. In later times this almost miraculous transition from the least of beings to the most important of citizens was curious; when Rome was but one small city-state amongst other Latin city-states it was perhaps not so surprising. Even during the Republic, however, a freedperson (some­one who had acquired citizenship on release from slavery) was distinguish­able from a free person, born into that status.

The earliest method for releasing a slave seems to have been incor­poration in the census list. This list (or, rather, lists), created every five years or so, determined those entitled as Roman citizens to exercise their vote in one of the various voting categories of the Republican assemblies.

Latin status conferred rights somewhat greater than those exercised by foreigners. It had its origin in the shared culture of the Latin city-states of which Rome was originally one. By the end of the Republic the former Latin city-states had all acquired rights of Roman citizenship, but there continued a number of Latin colonies, founded elsewhere in the Mediterranean, whose citizens continued to enjoy only Latin status. It was open to Latins to acquire Roman citizenship in various ways. The lex Aelia Sentia of AD 4 borrowed the notion in order to create a class of freedpersons for whom Roman citizenship was a goal to be achieved. This they could do by serving in the fire service or performing other public duties, or, alternatively, by marrying another Latin and producing a child, at which point all three persons, parents and child, could apply for citizenship.⁸

Those slaves whose masters did not arrange to free them formally by census, will, or vindicta could nevertheless, as we have seen, be allowed an informal measure of freedom. Such liberty was initially enjoyed only until the master chose to revoke it, the slave having no legal standing to object. Towards the end of the Republic, and possibly only in the early Empire, the praetor began to offer legal protection to former slaves who could show that they had been granted freedom before the master’s friends or in a similar public manner. Such slaves were said to be free under the protection of the praetor (in libertate tuitione praetoris). By granting or refusing actions the praetor could ensure that they retained their inde­pendence. The status was, however, fragile, and a lex Junia of unknown date formalized their status as Latins: they were known as Junian Latins to distinguish them from others.⁹

Effects of Slavery The slave was regarded as lacking all capacity, even to form personal relationships.

lang=EN-US style='font-size:9.0pt;line-height:115%'>Slaves were used to manage property and goods belonging to their masters — for example, being put in charge of a shop or a ship. For this and other purposes it was usual for masters to grant slaves rights over part of their property, called the slave’s peculium. Strictly speaking, this was a private arrangement between master and slave which could be reviewed at any time without legal restriction. But in practice it gave rights to third parties in dealings with the slave and to this extent the master was bound. The praetor permitted actions to be brought in effect against a slave-manager either on the basis of the peculium or on the master’s express or implied authority. In either case it was the master’s economic interests which were at stake, although in the former case there was a form of limited liability, the limit being the size of the slave’s peculium.

If a slave committed an act which in a citizen would have amounted to a wrong inviting legal redress, theft, or damage to property, then the master was in principle liable. However, in some circumstances he was able to escape by the expedient of handing the offender over to the victim in expiation - the so-called noxal surrender.

Freedmen (Libert ini)'

Those citizens who had been freed from slavery did not enjoy full equality with the freeborn Roman. Most of the restrictions were matters of public or constitutional law, limiting their voting rights and preventing their standing for office. But they also continued to owe duties to their former master, now their patron. During life this involved showing respect (obsequium), which limited their rights to sue the patron and obliged them to perform certain agreed services. The former master could punish them with impunity as the praetor would decline to allow a complaint ‘from one who was but yesterday a slave and is now free’.¹³ There was a mutual obligation to provide for each other in time of need. On death the patron was a freedman’s intestate heir if there were no children. If the freedman made a will then the patron took shares with all but children under the praetorian scheme of succession.

Those freed as Junian Latins were in a similar situation during their life, but on death their property reverted to their former master. This was not succession, and any family of the deceased was wholly excluded, a situation which troubled Justinian who abolished the status (‘in their last breath they lost both life and liberty’).¹⁴ Slaves who had been seriously punished by their masters were on manumission placed in a special class of dediticii, assimilated to conquered peoples not granted a constitution by reason of their treachery. Unlike Latins they were debarred from ever becoming citizens and were required to live at least 100 miles from Rome.

Children

A peculiarity of Roman law, recognized as such by the Romans,¹⁵ was that the subordination of members of the family to the paterfamilias, or eldest male progenitor, was life-long, being in principle ended only by the death of the paterfamilias. All those who were born of a valid Roman marriage were in patria potestas (paternal power), and indeed the jurists discuss the institution of marriage principally from this perspective. Although most were in the potestas of their natural relatives, it was possible to create such subordination artifilang=EN-US>cially by process of adoption. Conversely, those who were freed from potestas (typically through the death of their paterfamilias) before they came to maturity were free from subordination but required the assistance of tutors in order to manage their property.

The subordination of paternal power (patria potestas) applied only in private law and did not restrict capacities in public office. The Romans enjoyed stories which pointed up the potential conflicts this could create, as when a consul meeting his father on horseback in the street ordered him to dismount in deference to his status as chief magistrate.¹⁶

(i) Sons Although many of the features of subordination affected both males and females equally, the social restrictions imposed upon women in Rome ensured that most are discussed only in the case of sons. Additional legal restrictions upon daughters are dealt with separately below.

Although a paterfamilias exercised extensive powers of control over his subordinates, he was expected to exercise power in the context of a family council and not arbitrarily. In classical times the paterfamilias was not able to punish disobedience with death. Ulpian says that a father should not kill his son unheard, but rather accuse him before the gover­nor; Hadrian deported a father who killed his son, observing that paternal power should be expressed in mutual respect not violence:¹⁷ the some­what restrained manner in which this limitation on paternal power was expressed reveals the extent of its residual force on the Roman mind.

Legal Capacity Subordinate members of the Roman family, even though freeborn, lacked basic legal capacity in private law. In this they were little different from slaves. Correspondingly, any capacity attributed to them belonged to their paterfamilias: any property they acquired was acquired for him and any benefits under contract accrued to him. Like slaves, they could be accorded a peculium with which to deal. From the time of Augustus this came more and more to be regarded as the property of the son. In particular, Augustus permitted property acquired whilst serving with the legions to be kept separate from paternal property (the peculium castrense): it could be disposed of by military will.¹ Under Constantine these rights were extended to property acquired in any public service, quasi castrense and to property acquired from the mother (bona maleriia).¹' These differences from the peculium of slaves reflect the free status of sons and the expectation that they will eventually acquire full legal status.

Like slaves, sons-in-power were formally incapable of being sued in the case of wrongdoing for lack of legal capacity. The paterfamilias could and was made liable, however, and at least in theory retained the liberty of surrendering the offender in discharge of his responsibility. Justinian, in stressing how unlikely it seems to him that one could surrender a son let alone a daughter in such circumstances, merely serves to indicate the potency of the idea.²⁰

The paterfamilias’ consent was required for a child’s valid marriage, and until the end of the second century AD he could compel a divorce without reason: imperial legislation merely imposed a requirement that it be not exercised capriciously, and even under Justinian it remained available for substantial cause.²¹

Emancipation Whilst under patria potestas a child of whatever age remained subordinate to the pater until he died. At that point his children would acquire independence, becoming (in the untranslatable legal phrase) sui iuris. It was possible in some circumstances for a father to free his son or daughter from his power during his own lifetime. A conse­quence was that the child so emancipated left its birth family, losing any inheritance rights or likelihood of support. To bring this about the jurists of the mid-Republic utilized a rule of the Twelve Tables: ‘If a father sell his son three times the son is to be free from the father.’²² It is plausibly suggested that the rule was originally intended to restrain, or at least minimize, the capacity of the father to abuse his power by selling his son’s labour by mancipatio, the formal sale and conveyance required for res mancipi which included slaves. We may suppose that in an agricultural society such labour might be in demand at harvest time but at other times the son’s buyer might not wish to carry the extra expense of his keep and so return him to his father. Whilst in the hands of the purchaser, the son was in effect in a state of slavery (in mancipio), and a formal manumission vindicta would be needed to release and return him to his father’s power. Under the Twelve Tables rule repeated sales would result in a situation where, if so released by the purchaser, the son became independent, although as a formally released slave he would owe his former master a duty of obsequium. The jurists’ scheme simply consisted in having the father sell his son to a friend who would release him, returning him to the power of his father, and having this repeated three times. A twist was provided at the end, however, to avoid the father losing his rights com­pletely: after the third sale, the son being in mancipio to the purchaser, the latter would convey him formally back to his father, to whom he was now said to be in a position of subordination as a slave, in mancipio but not, owing to the rule of the Twelve Tables, in potestate. Now, when the father manumitted his son vindicta the latter acquired his independence but continued to owe respect to his (former) paterfamilias.

Legitimation Other than by birth within a Roman marriage, to be dis­cussed below (165), children could enter paternal power by being legitimated or through adoption. We only hear of legitimation by the subsequent marriage of the parents in the late Empire. Constantine permitted it for existing situations, prohibiting it for the future; only under Justinian was it made generally available in cases where the parents might have been married at the time of conception, thereby excluding cases of adultery.²³

Adoption and Adrogation Adoption was a common event in Roman families of high status. It was often utilized as an inheritance strategy by those who lacked natural descendants who could inherit as a matter of civil law. At civil law those who were adopted left their family of origin and became fully and exclusively members of their adopted family. Roman religion was in origin a series of family cults; responsibility for maintaining the family’s worship and memorialization of its ancestors fell on the paterfamilias as head of the family. Each independent Roman citizen, a person sui iuris, was in principle the head of his own family; in consequence, his adoption into another family raised a religious question, balancing the termination of his existing family against the possible prolongation of the cult of the family into which he was to be adopted. Adoption in these circumstances - strictly speaking, adrogation - required both religious and legislative scrutiny.

In the Republic adrogation was effected by means of private legis­lation in one of the popular assemblies, the comitia curiata. This consisted of the members of the comitia centuriata presided over by the chief priest, the pontifex maximus. Both parties, the adopter and the adoptee, had to be present in the assembly, so it was not possible to adrogate persons below

the age of puberty or women, who could not attend. The religious investigation, to establish the propriety of the adoption, once perhaps rigorous, became a formality as the importance of the ancestral religion diminished. The proposal - the formal question or rogatio - was put to the assembly, and on its passing the adoptee became a member of his new family.²⁴

Having been independent (sui iuris) before his adoption, on being adrogated the adoptee fell under the patria potestas of his adoptive father. All of his property became the property of his new father and hence­forward, until he should regain his independence on his father’s death, he ceased to have a separate legal personality in private law. Cicero’s enemy Clodius, born into the patrician family of the Claudii, arranged his own adrogation (and subsequent emancipation) by a plebeian, so as to be qualified to stand for election as a tribune of the plebs.²⁵

In the case of those who were still under patria potestas in their family of birth, the formal barriers to adoption were different. It was considered necessary to first break the power of the birth father before creating a new potestas link in the new family. To this end the jurists implemented a strategy which made use of the legal device already utilized to permit emancipation. The patria potestas of the birth father was broken by means of three sales to a friend, after the third of which the son was in mancipio to the friend. At this point it was open to the adoptive father to claim him as his son but Gaius, our main source for this procedure, says that it was more convenient (commodius) for the birth father to receive him in mancipio as in the case of emancipation and for the adoptive father to make his claim from him.²⁶ This is done by commencing a formal legal action before the praetor claiming that he is his son. There is a plausible basis for such a claim in a case where someone’s son is being improperly and mistakenly held as another’s slave: in such a case the matter might need to go before a judge for determination. In this fictive version of the lawsuit the claim before the praetor goes undefended, with the result that the praetor awards the suit to the claimant and with the effect that the adoptee becomes his son. The formal legal result is the re-establishment of a paternal bond but all are aware that this is a new, rather than a recovered, status. It became the practice of such adopted sons to add to their new name a cognomen indicative of their origin. The emperor Augustus was born Gaius Octavius Thurinus: on adoption by Julius Caesar he became Gaius Julius Caesar Octavianus.

Because the adoptee by adoptio as opposed to adrogatio was already under another’s power, the legal effects of the adoption process were less marked. But the adopted person still changed families, lost all rights of inheritance in the birth family, and became legally unrelated to members of the previous family. These effects were moderated in the later Empire as family relationships were recognized as surviving these legal moves.

Tutelage In the case of sons, tutelage applied to those under puberty who lacked a paterfamilias, normally because of the death of their father follow­ing the grandfather’s death.

At civil law, by a rule attributed to the Twelve Tables, in the absence of a paterfamilias a son fell under the tutelage of his nearest male agnate, typically an uncle. Agnates are those related by descent through males only. The original explanation of this institution, known as tutela legitima, was to protect the family inheritance. On the death of the son below the age of puberty, before he could procreate legitimate offspring and before the age at which he was allowed to make a will, the property would pass to the nearest agnate. In the meantime, therefore, the agnate was permitted to ensure that his pupil did not dissipate the estate.

When a paterfamilias contemplated the possibility of his dying leaving a son under the age of puberty, he was permitted to make provision in his will for a tutor to the son. Such a tutor took precedence over the tutor legitimus, whose rights on intestacy were in any case compromised by the provisions of the will.

If a person below puberty had no identifiable agnates and no testamentary tutor had been appointed, the lex Atilia (of unknown date before 186 BC, when it is mentioned in Livy) authorized the praetor to make an appointment.²⁷ Originally the praetor acted in concert with the tribunes of the plebs, but under the Empire the praetor tutelaris acted alone following an examination (cognitio).

Conditions and Duties As a general rule, a tutor had to act when appointed: this reflects the earlier notion that he was in effect acting in his own interest. An agnatic tutor was required to give security that he would protect the pupil’s property: one that would not was in effect excluded from acting. A person appointed by the praetor had the right to nominate another more suitable. Soldiers were exempt, as were — by imperial legislation - teachers, orators, and doctors. Otherwise, testamen­tary and Atilian tutors could advance various excuses for not serving: poverty, illiteracy, public office, or holding three existing tutorships.²⁸ In addition, a testamentary tutor could escape if he could show that he had only been appointed out of dislike! Only men could be tutors before the postclassical period: thereafter a mother could be appointed if there were no testamentary or agnatic tutor and she undertook not to remarry.²⁹ Justinian forbade those under 25 to be tutors: apparently, though we only know this from this passage, it had earlier been a reason to be excused.³⁰

The tutor had two basic functions: to administer the pupil’s property where he was incapable of doing so, and to provide authority for certain transactions undertaken by the pupil.

The administration required of the tutor was of the pupil’s property, not of his person. There was no obligation to educate the pupil. A tutor administering the pupil’s property acted on his own account and not as agent for the pupil, but he could be held liable subsequently for acting fraudulently or for not showing the diligence of a good paterfamilias. In later law, restrictions were placed upon his ability to alienate property: an oratio of Severus in AD 195 forbade alienation of property in the country, extended to all property after Constantine.³¹ As soon as a pupil became capable of making decisions, then the administration of his property became his own responsibility. But there remained some actions which required the authorization of his tutor.

The tutor was required to provide authorization for all civil law transactions performed by the pupil. It is likely, but uncertain, that the pupil was required to be present at such transaction, at whatever age, so that it was the joint participation of both tutor and pupil which created a valid act. If able to speak (not an infans) the pupil performed the spoken words. A failure to provide authorization by the tutor might in some circumstances lead to his being liable for fraud or negligence in his management.

If a pupil acted without authority then his actions could benefit but not harm his interests. So if he received a payment of a debt without authority this did not discharge the debtor, but if he bought goods he could sue for delivery of the goods though he was not liable to pay the price. However, a pupil was not permitted to take advantage of his position, and an attempt to reclaim the loan or actually obtain the goods without payment could be defeated by an appeal to good faith.³²

Ending of Tutelage, Curatorship, and Liability of Tutor Tutelage of boys ended on their entering puberty. This was in origin a matter of fact, although the Proculian school of jurists advanced the notion that this was presumed to occur at the age of 14. Thereafter the youth acquired full capacity to deal with his own property without scrutiny or assistance; however, the praetor could be asked to intervene in a case where a person aged under 25 had been taken advantage of, requiring the other party to restore the youth’s position to the status quo ante. As a consequence, those under 25 found it difficult to enter into commercial transactions with others without some independent scrutiny. This was provided by a curator, who would be appointed by the praetor at the youth’s request in order to validate his transactions.³³ Although in principle voluntary, the insti­tution became regularized. Meanwhile, as noted, the tutor could be called to account for his stewardship of the tutelage. Earlier remedies were absorbed in the classical period by the praetorian actio tutelae which held the tutor liable for fraudulent and negligent acts, being later extended to cover cases of inaction - for example, failure to provide authorization, to the pupil’s loss.³⁴

(ii) Daughters The position of daughters within the household was similar to that of sons, save for two matters in which she was in a worse position.³⁵ We are told that she was incapable of acquiring anything, even for the benefit of her paterfamilias.³⁶ This limitation on her ability to act as an agent for her father did not add to the restrictions imposed in practice (although not in law) upon her social engagement outside the family and is probably to be regarded as a reflection of it.

More significantly, a daughter who lacked a paterfamilias fell under perpetual tutelage. This was originally designed to protect the interests of those who would inherit from her. As she was incapable, as a woman, of making a will, and was unrelated at civil law to her own children, her property could be lost only through her marriage in manu or prodigality. Both were controlled by placing her under the tutelage of her nearest male agnate, her natural heir. The agnate’s rights were abolished under Claudius (except in the case of patrons of freedwomen).³⁷ lang=EN-US>Thereafter a woman might have a tutor appointed in her pater’s will (though she might be offered the right to choose one), failing which she had one appointed by the praetor. In either case the woman might apply to the praetor for a replacement, in effect giving her control.³⁸

Tutors of women in perpetual tutelage were not expected to administer, but only to provide the auctoritas interpositio which was neces­sary to enable her to dispose of landed property or make a will once this became possible under Hadrian.³⁹ In the pre-classical period auctoritas would also have been required for marriage in manu (at least by confarreatio and coemptio, but arguably also for usus).

The jurists of the classical age invent spurious explanations for the phenomenon of perpetual tutelage, the basis of which they little under­stood: hence Gaius’s ‘weakness of mind’ and Ulpian’s ‘ignorance of legal matters’.⁴⁰ Gaius has the grace to add that ‘this seems more specious than true’.⁴¹

It is perhaps worth emphasizing that, although women were socially disadvantaged in Rome, as in nearly all pre-modern societies, the major limitations upon their legal capacity stemmed from the common subordi­nation of all children to their paterfamilias. Although, unlike their male siblings, they remained subject to perpetual tutelage on their father’s death, this was limited to the requirement for auctoritatis interpositio, a restriction which was of minimal importance with the diminution in importance of formal conveyance by mancipatio and the availability of mechanisms for selecting a complacent tutor. This apart, single women in Rome in theory possessed the full range of capacities to deal with their own property, and the disappearance of manus from the late Republic meant that marriage imposed no additional legal restraints.

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