daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughter's children could never as such be members of the family of their maternal grandfather; for children born in lawful marriage followed the family of their father, while those who were illegitimate ranked from the moment of birth as patresfamilias and matresfamilias.
With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty a man owed alike to his ancestors Marriage. and to himself. Believing that the happiness of the dead in another world depended on their proper burial and on the periodical renewal by their descendants of prayers and feasts and offerings for the repose of their souls, it was incumbent upon him above all things to perpetuate his race and his family cult. The Romans were always strictly monogamous. In taking to himself a wife, he was about to detach her from her father's house and make her a partner of his family mysteries. With the patrician at least this was to be done only with divine approval, ascertained by auspicia. His choice was limited to a woman with whom he had connubium (ἐπιγαμία) or right of intermarriage. This was a matter of state arrangement; and in the regal period Roman citizens could have it outside their own bounds only with members of states with which they were in alliance, and with which they were connected by the bond of common religious observances. A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a fellow-patrician or a woman who was a member of an allied community. In either case it was essential that she should be outside his sobrinal circle, i.e. more remote in kinship than the sixth degree. The ceremony was a religious one, conducted by the chief pontiff and the flamen of Jupiter, in presence of ten witnesses, representatives probably of the ten curies of the bridegroom's tribe, and was known as farreum or confarreatio. Its effect was to dissociate the wife entirely from her father's house, and to make her a member of her husband's; for confarreate marriage involved in manum conventio, the passage of the wife into her husband's “hand” or power, provided he was himself paterfamilias; if he was not, then, though nominally in his hand, she was really subject like him to his family head. Any property she had of her own—which was possible only if she had been independent before marriage—passed to him as a matter of course; if she had none, her paterfamilias usually provided her a dowry (dos), which shared the same fate. In fact, so far as her patrimonial interests were concerned, she was in much the same position as her children; and on her husband's death she had a share with them in his inheritance as if she had been one of his daughters. In other respects manus conferred more limited rights than patria potestas; for Romulus is said to have ordained that, if a man put away his wife except for adultery or one or two other grave offences, he forfeited his estate half to her and half to Ceres, while if he sold her he was to be given over to the infernal gods.[1]
Patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potestate, Patria potestas. over the issue of such justae nuptiae. 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 perhaps among the Latin race from which they had sprung, did the paternal power 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 in the course of centuries; 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 ownership of his field or his house: if they were stolen, he proceeded 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 adoption known as adrogation, he had over them the power of life and death, jus vitae necisque.
It might happen that a marriage was fruitless, or that a man saw all his sons go to the grave before him, and that Adrogation and adoption. the paterfamilias had 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 adoption, so common in India and Greece. If it was a paterfamilias that he adopted, the process was called adrogation (adrogatio); if it was a filiusfamilias it was simply adoptio. The latter, unknown probably in the earlier regal period, was, as we first know it, 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 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 relatives of the adrogatee to attend to the manes 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 and possible prejudice to creditors through capitis deminutio. If it was sanctioned, then 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 children 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 over the adopted child exactly as if he were the issue of his body; while the latter enjoyed in his 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 masterful aspects of the patrician's domestic establishment. Its conjugal Domestic relations. and parental ones, however, though not so prominent in the pages of the jurists, are not to be lost sight of. The patrician family in the early history of the law was governed as much by fas as by jus. 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, δέσποινα, 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 potestas 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
- ↑ See Plutarch, Rom. 22; Marquardt, Röm. Altert. v. 7. The question whether a husband could in early law sell his wife is one on which modern writers are not agreed. The better opinion is that he could not do so if the marriage was by confarreation. Apart from the lex regia above mentioned, it would have been inconsistent with her dignity as materfamilias. There is certainly no trace of its having been done. In marriages by coemption and usus, on the other hand, it is not improbable that it was allowed, though here also there is no evidence of it.
- ↑ 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.
