Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/696

Rh 672 ROMAN LAW [REGAL PERIOD. The Roman jurists boasted that it was a right enjoyed by none but Roman citizens; and it certainly was peculiar to them in this sense, that nowhere else, except among the Latin race from which they had sprung, did the paternal }X)wer attain such an intensity. The omnipotence of the paterfamilias and the condition of utter subjection to him of his children in potestate became greatly modified under the empire ; but originally the children, though in public life on an equality with the house father, in private life, and so long as the potestas lasted, were subordinated to him to such an extent as, according to the letter of the law, to be in his hands little better than his slaves. They could have nothing of their own : all they earned was his ; and, though it was quite common when they grew up for him to give them peculia, "cattle of their own," to manage for their own benefit, these were only de facto theirs, but de jure his. For offences committed by them outside the family circle, for which he was not prepared to make amends, he had to surrender them to the injured party, just like slaves or animals that had done mischief. If his right to them was disputed he used the same action for its vindication that he employed for asserting his owner- ship of his field or his house : if they were stolen, he pro- ceeded against the thief by an ordinary action of theft ; if for any reason he had to transfer them to a third party, it was by the same form of conveyance that he used for the transfer of things inanimate. Nor was this all ; for, according to the old formula recited in that sort of adop- tion known as adrogation, he had over them the power of life and death, jus vitae necisque. This power was subject to certain restrictions during the infancy of a child; but, when he had grown up, his father, in the exercise of his domestic jurisdiction, might visit his mis- conduct, not only in private but in public life, with such punishment as he thought fit, even banishment, slavery, or death. idroga- It might happen that a marriage was fruitless, or that ion and a man saw gjj y g sons g ^ o j^e g rav e before him, and op ion. ^^ ^ pafgrfajftjiiag h a( j thus to face the prospect of the extinction of his family and of his own descent to the tomb without posterity to make him blessed. To obviate so dire a misfortune he resorted to the practice of adop- tion, so common in India and Greece. If it was a pater- familias that he adopted the process was called adroga- tion (adrogatio) ; if it was a filiusfamilias it was simply adoptio. The latter, unknown probably in the earlier regal period, was a somewhat complicated conveyance of a son by his natural parent to his adopter, the purpose of course being expressed ; its effect was simply to transfer the child from the one family to the other. But the former was much more serious, for it involved the extinction of one family 1 that another might be perpetuated. It was therefore an affair of state. It had to be approved by the pontiffs, who probably had to Satisfy themselves that there were brothers enough of the adrogatee to attend to the interests of the ancestors whose cult he was renouncing ; and on their favourable report it had to be sanctioned by a vote of the curies, as it involved the deprivation of his gens of their possible right of succession to him. The result was that the adrogatus, from being himself the head of a house, sank to the position of a filiusfamilias in the house of his adopting parent ; if he had had wife or child- ren subject to him, they passed with him into his new family, and so did everything that belonged to him and that was capable of transmission from one person to another. The adopting parent acquired potestas and power of life and death over the adopted child exactly as if he were the issue of his body ; while the latter ejijoyed in his 1 A pfiterfamilias who had no person subject to him constituted a " family " in his own person. new family the same rights exactly that he would have had if he had been born in it. The manus and the patria potestas represent the master- Don* f ul aspects of the patrician's domestic establishment. Its rel ation conjugal and parental ones, however, though not so pro- minent in the pages of the jurists, are not to be lost sight of. The Roman family in the early history of the law was governed as much by fas as by jus. It was an associa- tion hallowed by religion, and held together not by might merely but by conjugal affection, parental piety, and filial reverence. The purpose of marriage was to rear sons who might perpetuate the house and the family sacra. In entering into the relationship the wife renounced her rights and privileges as a member of her father's house ; but it was that she might enter into a lifelong partnership with her husband, and be associated with him in all his family interests, sacred and civil. The husband was priest in the family, but wife and children alike assisted in its prayers, and took part in the sacrifices to its lares and penates. As the Greek called his wife the house-mistress, Seo-iroiva, so did the Roman speak of his as materfamilias, 2 the house-mother. She was treated as her husband's equal. As for their children, the jwtestas was so tempered by the natural sense of parental duty on the one side and filial affection on the other that in daily life it was rarely felt as a grievance ; while the risk of an arbitrary exercise of the domestic jurisdiction, whether in the heat of passion or under the impulse of justifiable resentment, was guarded against by the rule which required the paterfamilias to consult in the first place the near kinsmen of his child, maternal as well as paternal. Even the incapacity of the subject members of the family to hold property of their own cannot in those times have been regarded as any serious hardship ; for, though the legal title to all their acquisitions was in the house -father, yet in truth they were acquired for and belonged to the family as a whole, and he was but a trustee to hold and administer them for the common benefit. In Greece the patria potestas never reached such dimensions as in Rome, and there it ceased, de facto at least, when a son had grown up to manhood and started a household of his own. But in Rome, unless the pater- familias voluntarily put an end to it, it lasted as long as the latter lived and retained his status. The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not release him from it, nor did his children become subject to him so long as he himself was in potestate. On the contrary, his wife passed on marriage into the power of her father-in-law, and their children as they were born fell under that of their paternal grand- father ; and the latter was entitled to exercise over his daughters-in-law and grandchildren the same rights he had over his sons and unmarried daughters. But there was this difference, that, when the paterfamilias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), whereas grandchildren by a surviving son simply passed from the potestas of their grandfather into that of their father. The acquisition of domestic independence by the death Guai of the family head frequently involved the substitution of " sl the guardianship of tutors (tutela) for the potestas that had come to an end. This was so invariably in the case of females sui juris, no matter what their age : they remained under guardianship until they had passed by marriage in manum mariti. It was only pupil males, however, who re- quired tutors, and their office came to an end when puberty 2 Materfamilias is used in the texts in two distinct senses, (1) as a woman sui juris, i.e., not subject to any family head, and (2) as a wife in manu mariti.