Roman: Persons

• The three elements of legal status in Roman Law: liberty, citizenship, family
• When a person became a slave, it extinguished both citizenship and family relationships
• When a person lost citizenship, they would also lose membership of family
• Upon loss of family status, a person would be a free citizen; This typically happened through emancipation or when adopted into a family
• Within membership of a Roman family, there were two categories: Sui Iuris and Alieni Iuris
• Sui iuris meant that the individual had control over their own property and could make decisions about marriage without parental consent
• Alieni iuris meant that an individual was under the authority of another (usually parents)
• Conubium was the right to enter into a Roman marriage
• Testamenti factio was the right to participate in the making of a will under Roman law
• Commercium was the right to enter into transactions falling into the ius civile eg. certain methods of acquiring ownership, only those w/ right of commercium could use these
• The three private law citizenship rights were commercium, testamenti factio, and conubium
• The Romans made a distinction between the ius gentium (‘law of nations’), which applied to everyone, and the ius civile (‘civil law’), which was special to those with Roman citizenship rights
• The rule of the ius gentium was that a child followed its mother’s status, and so the child of a citizen mother would itself be a citizen. Where, though, the parents were married in a Roman marriage, the ius civile rule was that the child followed the father’s status
• Where a Roman woman married a non-citizen who had conubium, the child would be a non-citizen (because it would follow the father’s status, the marriage being a Roman one)
• Potestas ('power’) is held by the senior male in the family over his descendants; More specifically, this was power exercised over all descendants in the male line, the term for which is ‘agnatic descendants’
• Potestas only arose in relation to the offspring of a valid Roman marriage; Children of an invalid marriage were not in their father’s potestas
• The paterfamilias was the oldest living male and was the agnatic, direct ascendant of the people in which he held potestas
• The paterfamilias was sui iuris and those subject to his potestas were alieni iuris. When a person had no agnatic male ascendants, for example because of the death of the paterfamilias, that person was sui iuris and, if male, he was considered to be a paterfamilias
• The paterfamilias had extensive rights:

  • power of life and death over those in his potestas
  • To inflict punishments
  • in principle, entitled to physical custody of his children, or to regulate their residence
  • entitled to support from them (as were they from him)
  • rights over their marriages
• Constantine provided that the killing of one’s own child, or of any other close relative, was to be criminally punished as parricide
• The right of the paterfamilias to expose newborn children was declared unlawful in AD 374
• If the paterfamilias' right of punishment is abused, they may be compelled to emancipate the child and forfeit normal rights of succession of an emancipating father
• In later law, the right of punishment was restricted to reasonable chastisement. If a more severe punishment was considered necessary, this could be imposed by a judge
• A child in potestas was considered capable of being stolen, and could be recovered as stolen property
• The praetor would provide interdicts to compel the production of a child who was in another’s keeping involuntarily, or to prohibit anyone from preventing the paterfamilias recovering him or her
• Where a paterfamilias sought to recover a prepubescent child, the judge could decide to defer a decision until the child reached puberty. The relative characters of the parties would be relevant here:

  • If both parties were of bad character, it might even be considered appropriate to appoint a third party to take responsibility for the child’s upbringing until puberty
  • Similarly, the mother might be preferred to the father where the father was of poor moral character
• Parents and children had mutual obligations of support; extended to all ascendants and descendants, children born outside marriage, and those released from potestas by emancipation
• This obligation of support only existed to the extent it was necessary, however, so nobody was entitled to support who had sufficient means of his or her own; Support could be refused on other grounds as well. For example, a father could refuse to support a son who had informed against him
• Where the party to a marriage was alieni iuris, the consent of his or her paterfamilias was necessary to the validity of the marriage
• The paterfamilias could also compel those in his potestas to divorce
• Those who wrongfully prevented those in their potestas marrying could be compelled by a magistrate to arrange a marriage
• Similar to capacity of slaves, nobody subject to potestas could own any property. Any property acquired became acquired on behalf of the paterfamilias; Where the filiusfamilias acted on behalf of the paterfamilias, he could benefit him but NOT bind him
• Emancipation was carried out by triple conveyance (sons) or single conveyance (daughters) and required the consent of the child
• Unless the paterfamilias was emancipating the child as a punishment, usually the child took any peculium that had been accrued, and this would be implied unless expressly withheld
• Paterfamilias could choose to emancipate his son, but to keep that son’s own children in his potestas
• Guardianship of a sui iuris child ceased at puberty for boys, who would then be able to manage their own affairs. Guardians had the duties to administer the child’s property and to give authorisation (auctoritas) to the child’s transactions
• Testamentary guardian — appointed by the paterfamilias in his will for those becoming sui iuris on his death
• Anyone with no surviving agnatic ascendants would become sui iuris upon the death of the paterfamilias
• A person could become a slave either by birth or by imposition of slavery on a free person
• In terms of being born into slavery, a child followed its mother's status; This applied even when the biological father was free.