The Roman Empire by Garnsey Peter Saller Richard

Author:Garnsey, Peter, Saller, Richard [Garnsey, Peter, Saller, Richard]
Language: eng
Format: epub
ISBN: 9780520285989
Publisher: University of California Press
Published: 0101-01-01T00:00:00+00:00

Parents and children

The characteristic feature of relations between the generations in Roman families was authoritarianism, or such is the impression conveyed by the law, in which the paterfamilias enjoyed sweeping powers over his direct descendants. As Gaius wrote in his second-century textbook of law, patria potestas ‘is the special characteristic of Roman citizens; for virtually no other men have over their sons a power such as we have’ (Inst. 1.55). Though the father’s powers were modified during the Principate, most remained essentially intact.34

Perhaps the most striking was the power of life and death (vitae necisque potestas). The legitimacy of the use of this power to punish adult children was affirmed by Augustus, but was later denied by Hadrian and then the jurist Ulpian (Digest 48.8.2). Roman fathers continued until the late fourth century to exercise the power of life and death in choosing whether their newborn children were to be exposed or raised.35 If a father decided to bring up a child, he had considerable legal control over it until his death. For instance, his consent was required for the legitimate marriage of a son or daughter, and only in the second and third centuries was his power to break up his children’s marriages restricted.36

The power that would seem to have been most awkward and oppressive from day to day was the father’s sole right to own property in his familia.37 Sons could be given an allowance or, more formally, a peculium, but according to the legal rules the paterfamilias had the rights of formal ownership over all this property, including any accruing to his children through labour, gifts or bequests. Again, the rules were modified in minor respects by the emperors, notably, Augustus’ grant of a fund to soldiers into which the income from military service was paid and over which the soldier had control (peculium castrense).38 Because the law did not set an age of majority, this incapacity to own property extended to all adults, whatever their age or rank, whose fathers were still alive and who had not been freed from their father’s power by the special legal process of emancipation.

The paterfamilias also had a good deal of latitude in disposing of the family property upon his death. In cases of intestacy the civil law called for partible inheritance in equal shares among all legitimate children (male and female), but Romans with property typically made wills that could alter the equal shares.39 Some restraints on the testator’s freedom came to be enforced. If a Roman chose not to institute his children as heirs, he had to disinherit them explicitly in the will. By the end of the first century BC such a disherison could be challenged in court (by the querela inofficiosi testamenti procedure) on the grounds that there was not adequate cause for depriving the children of their patrimony. Yet the father could preempt this procedure by leaving a mere fraction of his estate, a quarter, to his primary intestate heirs.40 This latitude in disposition of

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