Chapters
The Roman family was an institution sanctified by tradition and law. The Romans took pride in the strength of their families that had not faded over the centuries. The most important function of the family was to raise children in accordance with their welfare and social interest. However, the Roman family was legally different from the modern family. The main differences were: the existence of a very strong paternal authority, known as patria potestas, concluding an informal, private marriage certificate, as well as the recognition of legal equality between the father and children born of a rightful marriage, known as iustum matrimonium.
In Roman law, the family was a social union based on legal kinship. Father kinship was called paternal kinship (linea paterna), and maternal kinship (linea materna). Another relationship in the family was affinity (adfinitas), which was defined as the relationship that arose between one of the spouses and the spouse’s close cognitive relatives. Free persons who were members of the same family and had the same surname were called gentiles (gentiles).
Pater familias was the head of the house and a symbol of the endurance of the family. He had supreme power over free persons, related legal ties, and also slaves. People who were subordinate to him shared a social and political position with him, and after his death, they inherited his property and cult. The power of pater familias during the law of the XII tables was divided into: manus – power over the wife, patria potestas – over the children and dominica potestas – over the slaves.
The father of the family had many responsibilities toward his children. He had to provide them with an appropriate level of maintenance and education in accordance with good morals (bonae mores). Already at the end of the republic, the relationship between father and child called pietas began to take shape. It was about mutual, voluntary service and support. During the principate, the father’s tasks also included educating the child adequate to his birth and property, as well as instilling appropriate moral principles in him.
The content of the paternal authority
Pater Familias exercised his power for life and had many powers. They were primarily the right to life and death (ius vitae necisque), the right to abandon newborns (ius exponendi), the right to sell children (ius vendendi).
He had unlimited power over all persons and things within the family. He was even entitled to life and death (ius vitae necisque) over free family members. The law of life and death was an extremely extreme example of regulating family relations. At the beginning of the Roman state, the pater familias had the right to kill his children, for which he could face minimal sacred or censorship sanctions. During the principality, this right was limited. The law of life and death was abolished in the 4th century CE. In Justinian law, the father had only the right to discipline.
In exercising its right to discipline in disputes, pater familias had to take into account the decision of the domestic court (iudicium domesticum), which was composed of the closest relatives and neighbours. However, grave offences were brought under judicial authority.
On the other hand, the law of abandonment of newborns (ius exponendi) concerned mainly sick and weak children. The Act of XII tables ordered the death of failed fetuses. Newborn abandonment was also practised, which was not treated as a homicide. The sons and daughters born as the first child were not included in the law of abandonment. During the principate, mostly extra-marital children and female newborns were abandoned. Since the time of Diocletian, this law has been restricted. The introduction of Christianity contributed to the legal prohibition of these practices, although social tolerance continued until the fall of the Western Roman Empire in 476 CE Constantine the Great who took the abandoned child and treated it as his own, acquired the right of paternity over him.
Another law of pater familias was the right to sell children (ius vendendi), whereby he could sell his child even outside the Roman state (trans Tiberim), which was equivalent to enslavement. On the other hand, the sale of the child within the state borders led to the status of in mancipio, which was a temporary state, as the son returned to his father’s authority after liberation. After the third sale, the paternal authority would expire. The law of XII tables, however, limited the right to sell to no more than two people. Its total prohibition was introduced in 294 CE by Diocletian, however Constantine the Great in 329 CE allowed the sale of newborns in a situation of special poverty of the parents.
In addition to power over persons, with the extreme form of deciding their life and death, pater familias also had power over property. He was the sole owner, manager and administrator of the family’s property, and all purchases made by the children were transferred to his property. It was not a favourable situation for the economy, as the development of the property was slowing down, therefore efforts were made to keep the property in the hands of family members.
The methods of dividing property in ancient Rome were: peculium, peculium castrense, bona materna, bona adventicia.
Peculium consisted in separating individual elements from the family property (eg cattle, money, profit-making enterprises) and then transferring them to separate management. This method of separation was practised for sons and slaves, and less frequently for wives and daughters. Pater familias remained the owner of peculium and had the right to liquidate it. The son did not have the right to diminish the property, even if he exercised free administration over it, he only had the option of increasing it. The benefits were mutual – the father expanded the range of purchasing possibilities of the family, and the son used the family’s achievements and learned the rules of management, which was often the basis for legal emancipation.
The second way of allocating wealth was peculium castrense, meaning what the soldier was given by parents or relatives, or what was acquired during military service. This was to persuade people alieni iuris to perform professional military service, and during the dominion period, it was extended to acquisitions obtained in public, secular and clergy service. It was peculium “as if a camp (peculium quasi castrense), which was a separate property of the son and it was granted to the father if the father did not decide otherwise in his will before his death.
Later, the son was able to keep the property from his mother’s inheritance (bona materna), to which the father had limited rights. He was entitled to use the property unless it was stipulated that only his son could use it. The father did not have the right to sell or pledge this type of property.
The assets owned by the son did not necessarily have to come from the mother, but could also come