Читать книгу The Everyday Life of the Romans - Harold Whetstone Johnston - Страница 6

REFERENCES: Marquardt, pp. 1–6; Voigt, 307–311, 386–388; Göll, II. 1–4, 61–65, 187; Pauly-Wissowa, under adfīnitās, agnātiō, cognātiō; Smith, under cognātī, familia, patria potestās; Seyffert, under agnātiō, cognātiō, familia, manus; Lübker, under agnātiō, cognātiō, familia, manus, patria potestās.

Look up the word familia in Harper's lexicon and notice carefully its range of meanings.

See also Muirhead, "Roman Law," pp. 24–33, and the paragraph on the Quiritian Family in the article on Roman Law by the same writer in the "Encyclopaedia Britannica," Vol. XX.

17 The Household.—If by our word family we usually understand a group of husband, wife, and children, we may acknowledge at once that it does not correspond exactly to any of the meanings of the Latin familia, varied as the dictionaries show these to be. Husband, wife, and children did not necessarily constitute an independent family among the Romans, and were not necessarily members even of the same family. Those persons made up the Roman familia, in the sense nearest to its English derivative, who were subject to the authority of the same Head of the House (pater familiās). These persons might make a host in themselves: wife, unmarried daughters, sons real or adopted, married or unmarried, with their wives, sons, unmarried daughters, and even remoter descendants (always through males), yet they made but one familia in the eyes of the Romans. The Head of such a family—"household" or "house" is the nearest English word—was always suī iūris ("independent," "one's own master"), while the others were aliēnō iūrī subiectī ("dependent").

18 The authority of the pater familiās over his wife was called manus, over his descendants patria potestās, over his chattels dominica potestās. So long as he lived and retained his citizenship, these powers could be terminated only by his own deliberate act. He could dispose of his property by gift or sale as freely as we do now. He might "emancipate" his sons, a very formal proceeding (ēmancipātiō) by which they became each the Head of a new family, though they were childless themselves or unmarried or even mere children. He might also emancipate an unmarried daughter, who thus in her own self became an independent family. Or he might give her in marriage to another Roman citizen, an act by which she passed by early usage (§61) into the family of which her husband was Head, if he was suī iūris, or of which he was a member, if he was still aliēnō iūrī subiectus. It must be carefully noticed, on the other hand, that the marriage of a son did not make him a pater familiās or relieve him in any degree from the patria potestās: he and his wife and their children were subject to the same Head of the House as he had been before his marriage. On the other hand, the Head of the House could not number in his familia his daughter's children: legitimate children always followed the father, while an illegitimate child was from the moment of birth in himself or herself an independent family.

19 The Splitting Up of a House.—Emancipation was not very common and it usually happened that the household was dissolved only by the death of the Head. When this occurred, as many new households were formed as there were persons directly subject to his potestās at the moment of his death: wife, sons, unmarried daughters, widowed daughters-in-law, and children of a deceased son. The children of a surviving son, it must be noticed, merely passed from the potestās of their grandfather to that of their father. A son under age or an unmarried daughter was put under the care of a guardian (tūtor), selected from the same gēns, very often an older brother, if there was one. The following diagram will make this clearer:

20 It is assumed that Gaius is a widower who has had five children, three sons and two daughters. Of the sons, Faustus and Balbus married and had each two children; Balbus then died. Of the daughters, Terentia Minor married Marcus and became the mother of two children. Publius and Terentia were unmarried at the death of Gaius, who had emancipated none of his children. It will be noticed:

1. The living descendants of Gaius were ten (3, 7, 8, 10, 11, 12, 13, 14, 15, 16), his son Balbus being dead.

2. Subject to his potestās were nine (3, 4, 6, 7, 8, 11, 12, 13, 14).

3. His daughter Terentia Minor (10) had passed out of his potestās by her marriage with Marcus (9), and her children (15, 16) alone out of all the descendants of Gaius had not been subject to him.

4. At his death are formed six independent families, one consisting of four persons (3, 4, 11, 12), the others of one person each (6, 7, 8, 13, 14).

5. Titus and Tiberius (11, 12) have merely passed out of the potestās of their grandfather Gaius to come under that of their father Faustus.

21 Other Meanings of Familia.—The word familia was also very commonly used in a slightly wider sense to include in addition to the persons named above (§17) all the slaves and clients and all the property real and personal belonging to the pater familiās, or acquired and used by the persons under his potestās. The word was also used of the slaves alone, and rarely of the property alone. In a still wider and more important sense the word was applied to a larger group of related persons, the gēns, consisting of all the "households" (familiae in the sense of §17) who derived their descent through males from a common ancestor. This remote ancestor, could his life have lasted through all the intervening centuries, would have been the pater familiās of all the persons included in the gēns, and all would have been subject to his potestās. Membership in the gēns was proved by the possession of the nōmen, the second of the three names that every citizen of the Republic regularly had (§38).

22 Theoretically this gēns had been in prehistoric times one of the familiae, "households," whose union for political purposes had formed the state. Theoretically its pater familiās had been one of the Heads of Houses who in the days of the Kings had formed the patrēs, or assembly of old men (senātus). The splitting up of this prehistoric household in the manner explained in §19, a process repeated generation after generation, was believed to account for the numerous familiae who claimed connection with the great gentēs in later times. The gēns had an organization of which little is known. It passed resolutions binding upon its members; it furnished guardians for minor children, and curators for the insane and for spendthrifts. When a member died without leaving natural heirs, it succeeded to such property as he did not dispose of by will and administered it for the common good of all its members. These members were called gentīlēs, were bound to take part in the religious services of the gēns (sacra gentīlīcia), had a claim to the common property, and might if they chose be laid to rest in the common burial ground.

Finally, the word familia was often applied to certain branches of a gēns whose members had the same cognōmen (§48), the last of the three names mentioned in §21. For this use of familia a more accurate word is stirps.

23 Agnati.—It has been remarked (§18) that the children of a daughter could not be included in the familia of her father, and (§21) that membership in the larger organization called the gēns was limited to those who could trace their descent through males. All persons who could in this way trace their descent through males to a common ancestor, in whose potestās they would be were he alive, were called agnātī, and this agnātiō was the closest tie of relationship known to the Romans. In the list of agnātī were included two classes of persons who would seem by the definition to be excluded. These were the wife, who passed by manus into the family of her husband (§18), becoming by law his agnate and the agnate of all his agnates, and the adopted son. On the other hand a son who had been emancipated (§18) was excluded from agnātiō with his father and his father's agnates, and could have no agnates of his own until he married or was adopted into another familia. The following diagram will make this clearer:

24 It is supposed that Gaius and Gaia have five children (Faustus, Balbus, Publius, Terentia, and Terentia Minor), and six grandsons (Titus and Tiberius the sons of Faustus, Quintus and Sextius the sons of Balbus, and Servius and Decimus the sons of Terentia Minor). Gaius has emancipated two of his sons, Balbus and Publius, and has adopted his grandson Servius, who had previously been emancipated by his father Marcus. There are four sets of agnātī:

1. Gaius, his wife, and those whose pater familiās he is, viz.: Faustus, Tullia the wife of Faustus, Terentia, Titus, Tiberius, and Servius, a son by adoption (1, 2, 3, 4, 8, 11, 12, 15).

2. Balbus, his wife, and their two sons (5, 6, 13, and 14).

3. Publius, who is himself a pater familiās, but has no agnātī at all.

4. Marcus, his wife Terentia Minor, and their child Decimus (9, 10, 16). Notice that the other child, Servius (15), having been emancipated by Marcus is no longer agnate to his father, mother, or brother.

25 Cognati, on the other hand, were what we call blood relations, no matter whether they traced their relationship through males or females, and regardless of what potestās had been over them. The only barrier in the eyes of the law was loss of citizenship (§18), and even this was not always regarded. Thus, in the table last given, Gaius, Faustus, Balbus, Publius, Terentia, Terentia Minor, Titus, Tiberius, Quintus, Sextius, Servius, and Decimus are all cognates with one another. So, too, is Gaia with all her descendants mentioned. So also are Tullia, Titus, and Tiberius; Licinia, Quintus, and Sextius; Marcus, Servius, and Decimus. But husband and wife (Gaius and Gaia, Faustus and Tullia, Balbus and Licinia, Marcus and Terentia Minor) were not cognates by virtue of their marriage, though that made them agnates. In fact public opinion discountenanced the marriage of cognates within the sixth (later the fourth) degree, and persons within this degree were said to have the iūs ōsculī. The degree was calculated by counting from one of the interested parties through the common ancestor to the other and may be easily understood from the table given in Smith's "Dictionary of Antiquities" under cognātī, or the one given here (Fig. 1). Cognates did not form an organic body in the state as did the agnates (§22), but the 22d of February was set aside to commemorate the tie of blood (cāra cognātiō), and on this day presents were exchanged and family reunions probably held. It must be understood, however, that cognātiō gave no legal rights or claims under the Republic.

FIGURE 1. TABLE OF RELATIONSHIP

26 Adfines.—Persons connected by marriage only were called adfīnēs, as a wife with her husband's cognates and he with hers. There were no formal degrees of adfīnitās, as there were of cognātiō. Those adfīnēs for whom distinctive names were in common use were: gener, son-in-law; nurus, daughter-in-law; socer, father-in-law; socrus, mother-in-law; prīvignus, prīvigna, step-son, step-daughter; ritricus, step-father; noverca, step-mother. If we compare these names with the awkward compounds that do duty for them in English, we shall have additional proof of the stress laid by the Romans on family ties: two women who married brothers were called iānītrīcēs, a relationship for which we do not have even a compound. The names of blood relations tell the same story: a glance at the table of cognates will show how strong the Latin is here, how weak the English. We have "uncle," "aunt," and "cousin," but between avunculus and patruus, mātertera and amita, patruēlis and cōnsōbrīnus, we can distinguish only by descriptive phrases. For atavus and tritavus we have merely the indefinite "forefathers." In the same way the language testifies to the headship of the father. We speak of the "mother country" and "mother tongue," but to the Roman these were patria and sermō patrius. As the pater stood to the fīlius, so stood the patrōnus to the cliēns, the patriciī to the plēbēiī, the patrēs (=senators) to the rest of the citizens, and Iūpiter (Jove the Father) to the other gods of Olympus.

27 The Family Cult.—It has been said (§23) that agnātiō was the closest tie known to the Romans. The importance they attached to the agnatic family is largely explained by their ideas of the future life. They believed that the souls of men had an existence apart from the body, but not in a separate spirit-land. They conceived of the soul as hovering around the place of burial and requiring for its peace and happiness that offerings of food and drink should be made to it regularly. Should these offerings be discontinued, the soul would cease to be happy itself, and might become perhaps a spirit of evil. The maintenance of these rites and ceremonies devolved naturally upon the descendants from generation to generation, whom the spirits in turn would guide and guard.

FIGURE 2. LUCIUS JUNIUS BRUTUS

28 The Roman was bound, therefore, to perform these acts of affection and piety so long as he lived himself, and bound no less to provide for their performance after his death by perpetuating his race and the family cult. A curse was believed to rest upon the childless man. Marriage was, therefore, a solemn religious duty, entered into only with the approval of the gods ascertained by the auspices. In taking a wife to himself the Roman made her a partaker of his family mysteries, a service that brooked no divided allegiance. He therefore separated her entirely from her father's family, and was ready in turn to surrender his daughter without reserve to the husband with whom she was to minister at another altar. The pater familiās was the priest of the household, and those subject to his potestās assisted in the prayers and offerings, the sacra familiāria.

29 But it might be that a marriage was fruitless, or that the Head of the House saw his sons die before him. In this case he had to face the prospect of the extinction of his family, and his own descent to the grave with no posterity to make him blessed. One of two alternatives was open to him to avert such a calamity. He might give himself in adoption and pass into another family in which the perpetuation of the family cult seemed certain, or he might adopt a son and thus perpetuate his own. He usually followed the latter course, because it secured peace for the souls of his ancestors no less than for his own.

30 Adoption.—The person adopted might be either a pater familiās himself or, more usually, a fīlius familiās. In the case of the latter the process was called adoptiō and was a somewhat complicated proceeding by which the natural parent conveyed his son to the other, the effect being to transfer the adopted person from one family to the other. The adoption of a pater familiās was a much more serious matter, for it involved the extinction of one family (§29) in order to prevent the extinction of another. It was called adrogātiō and was an affair of state. It had to be sanctioned by the pontificēs, the highest officers of religion, who had probably to make sure that the adrogātus had brothers enough to attend to the interests of the ancestors whose cult he was renouncing. If the pontificēs gave their consent, it had still to be sanctioned by the comitia curiata, as the adrogation might deprive the gēns of its succession to the property of the childless man (§22). If the comitia gave consent, the adrogātus sank from the position of Head of a House to that of a fīlius familiās in the household of his adoptive father. If he had wife and children, they passed with him into the new family, and so did all his property. Over him the adoptive father had potestās as over a son of his own, and looked upon him as flesh of his flesh and bone of his bone. We can have at best only a feeble and inadequate notion of what adoption meant to the Romans.

31 The Patria Potestas.—The authority of the pater familiās over his descendants was called usually the patria potestās, but also the patria maiestās, the patrium iūs, and the imperium paternum. It was carried to a greater length by the Romans than by any other people, a length that seems to us excessive and cruel. As they understood it, the pater familiās had absolute power over his children and other agnatic descendants. He decided whether or not the newborn child should be reared; he punished what he regarded as misconduct with penalties as severe as banishment, slavery, and death; he alone could own and exchange property—all that his descendants earned or acquired in any way was his: according to the letter of the law they were little better than his chattels. If his right to one of them was disputed, he vindicated it by the same form of action that he used to maintain his right to a house or a horse; if one was stolen, he proceeded against the abductor by the ordinary action for theft; if for any reason he wished to transfer one of them to a third person, it was done by the same form of conveyance that he employed to transfer inanimate things. The jurists boasted that these powers were enjoyed by Roman citizens only.

FIGURE 3. PUBLIUS CORNELIUS SCIPIO AFRICANUS

32 Limitations.—But however stern this authority was theoretically, it was greatly modified in practice, under the Republic by custom, under the Empire by law. King Romulus was said to have ordained that all sons should be reared and also all firstborn daughters; furthermore that no child should be put to death until its third year, unless it was grievously deformed. This at least secured life for the child, though the pater familiās still decided whether it should be admitted to his household, with the implied social and religious privileges, or be disowned and become an outcast. King Numa was said to have forbidden the sale into slavery of a son who had married with the consent of his father. But of much greater importance was the check put upon arbitrary and cruel punishments by custom. Custom, not law, obliged the pater familiās to call a council of relatives and friends (iūdicium domesticum) when he contemplated inflicting severe punishment upon his children, and public opinion obliged him to abide by their verdict. Even in the comparatively few cases where tradition tells us that the death penalty was actually inflicted, we usually find that the father acted in the capacity of a magistrate happening to be in office when the offense was committed, or that the penalties of the ordinary law were merely anticipated, perhaps to avoid the disgrace of a public trial and execution.

33 So, too, in regard to the ownership of property the conditions were not really so hard as the strict letter of the law makes them appear to us. It was customary for the Head of the House to assign to his children property, pecūlia ("cattle of their own"), for them to manage for their own benefit. And more than this, although the pater familiās held legal title to all their acquisitions, yet practically all property was acquired for and belonged to the household as a whole, and he was in effect little more than a trustee to hold and administer it for the common benefit. This is shown by the fact that there was no graver offense against public morals, no fouler blot on private character, than to prove untrue to this trust, patrimōnium prōfundere. Besides this, the long continuance of the potestās is in itself a proof that its rigor was more apparent than real.

34 Extinction of the Potestas.—The patria potestās was extinguished in various ways:

1. By the death of the pater familiās, as has been explained in §19.

2. By the emancipation of the son or daughter.

3. By the loss of citizenship by either father or son.

4. If the son became a flāmen diālis or the daughter a virgō vestālis.

5. If either father or child was adopted by a third party.

6. If the daughter passed by formal marriage into the power (in manum) of a husband, though this did not essentially change her dependent condition (§35).

7. If the son became a public magistrate. In this case the potestās was suspended during the period of office, but after it expired the father might hold the son accountable for his acts, public and private, while holding the magistracy.

FIGURE 4. LUCIUS CORNELIUS SULLA

35 Manus.—The subject of marriage will be considered later; at this point it is only necessary to define the power over the wife possessed by the husband in its most extreme form, called by the Romans manus. By the oldest and most solemn form of marriage the wife was separated entirely from her father's family (§28) and passed into her husband's power or "hand" (conventiō in manum). This assumes, of course, that he was suī iūris; if he was not, then though nominally in his "hand" she was really subject as he was to his pater familiās. Any property she had of her own, and to have had any she must have been independent before her marriage, passed to him as a matter of course. If she had none, her pater familiās furnished a dowry (dōs), which shared the same fate. Whatever she acquired by her industry or otherwise while the marriage lasted also became her husband's. So far, therefore, as property rights were concerned the manus differed in no respect from the patria potestās: the wife was in locō fīliae, and on the husband's death took a daughter's share in his estate.

36 In other respects manus conferred more limited powers. The husband was required by law, not merely obliged by custom, to refer alleged misconduct of his wife to the iūdicium domesticum, and this was composed in part of her cognates (§25). He could put her away for certain grave offenses only; if he divorced her without good cause he was punished with the loss of all his property. He could not sell her at all. In short, public opinion and custom operated even more strongly for her protection than for that of her children. It must be noticed, therefore, that the chief distinction between manus and patria potestās lay in the fact that the former was a legal relationship based upon the consent of the weaker party, while the latter was a natural relationship antecedent to all law and choice.

37 Dominica Potestas.—The right of ownership in his property (dominica potestās) was absolute in the case of a pater familiās and has been sufficiently explained in preceding paragraphs. This ownership included slaves as well as inanimate things, and slaves as well as inanimate things were mere chattels in the eyes of the law. The influence of custom and public opinion, so far as these tended to mitigating the horrors of their condition, will be discussed later. It will be sufficient to say here that there was nothing to which the slave could appeal from the judgment of his master. It was final and absolute.