In several write ups reference has been made to the Roman notion of free persons (= liberi) being regarded as either sui iuris (emancipated, free of another’s familial power or patriapotestas) or alieni iuris (under the power of a paterfamilias). In this write up we look more closely at the intricate system of family and familial relationships.
Family played a pivotal role in the Roman communal and legal relationships. As is also the case in our modern society, family formed the core of the community, and central to the family was the paterfamilias (= literally the father of the family, patriarch). A large number of persons resorted under the patriapotestas (= literally the power of the father). In this respect the familia referred to both the family as we know it being a set of cognate relationships, and the patrimony of the paterfamilias as well as all those who resort under his power.
The persons resorting under the patriapotestas were normally the wife (uxor) married cum manu (= under the “hand” of the paterfamilias, i.e. formally under his power),1 the children born from the marriage and their descendants inclusive of all legitimate and illegitimate offspring and adopted children, as well as all the slaves and other dependants such aunts or uncles etc. who for whatever reason were dependant upon the paterfamilias. The latter would also include persons who were regarded as in mancipio,2 being citizens who had been transferred into the power of a paterfamilias and thereafter fall into servitude without officially being slaves.
The patriapotestas was a thing truly awesome to behold. Needless to say, the paterfamilias himself was a completely independent individual (sui iuris = dependent in law only upon himself) in the sense that he had no male predecessor on the paternal side. All those falling in his patriapotestas were regarded as alieni iuris (i.e. dependent in law upon another). The paterfamilias was in principle vested with the full complement of personal capacities that Roman law could afford any individual (see Roman personhood). This entailed that he also had extensive capacities in respect of his family.
Originally his power included the ius vitae necisque (= the right of life and death) which meant that it was possible as a matter of law for the paterfamilias to actually decide whether any particular family member would live or not (this power was later abolished under influence of the christian church), ought to be sold into slavery trans Tiberim (free persons could by sacral law not be sold inside the pomerium (city boundaries) of Rome, and therefore were taken outside the city limits and sold in the slave market on the other side of the Tiber river). In practice, however, these powers were sparingly exercised and only in extreme situations, usually after consultation with the family council. It follows that the paterfamilias was capable of unilaterally deciding upon marriage or divorce of any of the persons in the family. He could also claim the return to him of any of his alieni iuris family members from the unlawful control of another, much as if such family member was an object capable of being owned.
Obviously the paterfamilias had full control of all assets of the family, and in principle no alieni iuris was capable of acquiring his or her own property. Everything received became the property of the paterfamilias. The filiusfamilias (son) was allowed, however, in practice to acquire a peculium much like a trusted slave would. This was practically regarded as his property. The filiusfamilias could incur liability, but this would normally only be capable of recovery by his creditor upon the filius attaining sui iuris status himself at the termination of the patriapotestas. Originally the paterfamilias was liable in delict (tort) for the acts of the son, but later the action was allowed directly against the son himself.
The patriapotestas terminated upon death of the paterfamilias, or if he lost his citizenship (= capitis deminutio maxima). The patriapotestas over a person terminated upon emancipation, adoption by another, or where a daughter married cum manu into the patriapotestas of her husband or his paterfamilias. Upon termination of the patriapotestas, the alieni iuris fell into the patriapotestas of the elder son, or if no son succeeded, the eldest male in the paternal line.
1 In Roman marriage we discussed the possibility of a woman marrying sine manu thereby avoiding falling under the formal marital power of her husband.
2 We will discuss the process of mancipation in another write up. Essentially it was a formal procedure in terms of which a Roman citizen could effect transfer of his rights in something to another.