SubjectIv. Family and family relations in ancient Rome. Family Law in Ancient Rome
Roman family law
§ 1. Roman family
§ 3. Paternal authority, the position of subject persons.
§ 4. Guardianship and guardianship.
§ one. Roman family
Roman family (family) was a collection of persons and property united by the power of the householder - Paterfamilias. Under the rule of the householder (patria potestas), the following were united in the family:
his wife, children, daughters-in-law, grandchildren, adopted persons,
slaves, livestock,
inanimate objects - land, residential building, outbuildings, etc.
Note that having subordinates was not a requirement for being a householder. Possession of power ( dominium, potestas) made the face master ( dominus) or "father of the family" (paterfamilias). The Romans said: "Also, the father of the family is called the one who has power in the house, and he is correctly called that, even if he did not have a son."
The householder was considered the subject of all property rights of the family, and only he alone in the family was a fully legal person ( persona sui juris).
The head of the family - the householder had the same absolute power ( manus- literally - “fist”) over all family members, over slaves, family property. The Romans made no distinction between them. With a vindication claim, the householder could claim children, slaves, and things from someone else's illegal possession. At an early stage in the development of Roman society, the power of the householder was unlimited over all subjects.
Gradually, in the course of the historical development of the Roman family, there was some limitation of the power of the householder, and the Romans began to distinguish between the power of the householder over:
wife - conjugal power ( manu mariti),
children - paternal power ( patria potestas),
slaves - the master's power ( dominica potestas).
opentest1Agnate (agnatic) kinship(legal relationship) was determined by the power of the householder and is characterized as -
legal relationship, based not on kinship, but on the legal connection of persons subordinate to a common householder.
kinship only through the male line, since only a man could be paterfamilias (Novitsky I. B. Fundamentals of Roman civil law. M. 1956. S. 59-60).
All persons subject to the householder were considered relatives - agnates ( agnati or adgnati). Agnates could be
blood relatives cognati) brothers under the authority of their father,
persons who are not related to each other by ties of consanguinity, for example, wives of subordinate sons in marriage cum manu mariti.
A person who got out of the power of the householder ceased to be a relative - an agnat. closetest3 When a daughter got married and passed into her husband’s family, under his authority or under the authority of his householder, she became an agnat in her husband’s family and ceased to be a relative - an agnat of her siblings, her parents (mother and father), became for them legally someone else's face.
The daughter-in-law, coming to the house of paterfamilias, became an agnathic relative of all other persons subject to him - sisters, other daughters-in-law, etc.
The meaning of agnatic kinship was manifested:
when inheriting, only agnates were called to inherit, even if they were not related by blood to the testator. The daughter-in-law of the deceased householder inherited, while his married daughter was removed from the inheritance,
when appointing a guardian, who was supposed to be a relative - an agnat.
opentest2Cognate kinship(genetic kinship) was determined not by the power of the householder, but by blood relationship. Therefore, the exit from the power of the householder did not lead to the termination of family ties between blood relatives, for example, brothers and sisters.
Kinship was determined by lines And degrees. (Digests of Justinian / Translated from Latin / Editor-in-chief L.L. Kofanov. T. VI. Polutom 1. M. 2005. S. 285-315)
opentest3Affinity related to the descent of one person from another was called kinship by straight line which were subdivided into:
opentest4descending relatives in a straight line, i.e. descending from one person - son, grandson, great-grandson,
opentest5ascending relatives in a straight line, i.e., from which this person came - father, grandfather, great-grandfather.
opentest6Kinship associated with descent from a common ancestor, but not one person from another, was called kinship by sideline- brothers, sisters, uncles, aunts, nephews, nieces.
The degree of kinship should be determined by the number of births that separate one person from another (Efimov V.V. Essay on ancient Roman kinship and inheritance. St. Petersburg 1885. S. 5-9):
|
degree of relationship |
In a straight line (ascending and descending) |
along the lateral line |
|
1 degree of relationship |
parents and children, | |
|
2nd degree of relationship |
Grandfather, grandmother and grandchildren |
brothers and sisters |
|
3rd degree of relationship |
great-grandfather, great-grandmother and great-grandchildren |
uncles, aunts and nephews |
|
4th degree of relationship |
great-great-grandfather, great-great-grandmother and great-great-grandchildren |
cousins |
Roman family (gens).
closetest4 In the Roman clan united, persons who in the past had a common paterfamilias, but for the prescription of time had already forgotten about him, but retained the memory of the unity of their ancestors under his rule (Roman private law / Edited by I. B. Novitsky, I. S. Peretersky, Moscow 1948, pp. 134-135).
Genus members:
have a common name nomen gentilicum / gentile),
have a common family cult sacra gentilicia),
may be called upon to inherit and guardianship over members of the clan (in the absence of agnates).
Belonging to the genus could be determined by the name of the Roman. The personal name of a Roman citizen consisted of three parts - for example, Marcus Tullius Cicero (Marcus Tullius Cicero) (Bartoszek M. Roman law: (Concept, terms, definitions) / Translated from Czech. M. 1989. S. 224):
own name - Mark ( praenomen),
generic name - Tuliy, i.e. from the genus Tuliev ( nomen gentilicum),
the name of one of the branches of the family or a generic nickname - Cicero ( cognomen).
The proper name of the person changed, but the generic name and nickname remained unchanged. A citizen could get another nickname, which complemented the generic one. For example, the nickname "African" was added to the name of Publius Cornelius Scipio Africanus.
mashtest4Roman women didn't have their own name. As a personal name, the woman received the family name of her father - Julia (from the Julius clan), Claudia (from the Claudian clan), etc. If the father had two daughters, then the definition "Younger" (Minor) was added, if several daughters, then to an ordinal number was added to the generic name - Julia the Second (Secunda), Julia the Third (Tertia).
family- Roman family, family property
Paterfamilias- house owner, the only owner of power in the family
dominium- power, domination, property.
potestas- power
dominus- mister
persona sui juris- a person of his right, i.e. a person without the power of the householder
manus- power
manu mariti- matrimonial power
patria potestas- paternal power over children, depriving them of legal capacity in property relations and in the archaic period of the history of Roman law is not limited.
dominica potestas- power over slaves
agnati or adgnati- Agnates, relatives united by the power of one householder
cognati- cognates, blood relatives
Cum manu mariti- Husband's power over his wife
gens- Roman family
nomen gentilicum / gentile
sacra gentilicia- common tribal cult
praenomen- person's own name
nomen gentilicum / gentile- relatives who share a common family name
cognomen- the name of one of the branches of the genus or a generic nickname
1. The concept of Roman types of kinship and family
kinship- this is a blood connection between people, with the presence of which the law associates certain legal consequences.
Roman law differed two types of relationship:
Agnate relationship. The submission to the power of the head of the family determined the agnatic kinship, on the basis of which the Roman family was based. The daughter of the pater familias, who married, came under the authority of the new householder. She became the agnatic relation of the new family and ceased to be the agnatic relation of her own father and the members of her former family. “Agnates are those who are connected by legal kinship. The legal relationship is that which is formed through males ”(Gai. Inst. 3. 10).
Agnathic kinship could be close or distant. Close relatives were considered to be persons under the authority of a certain householder. Distant agnatic relatives are persons who were once under his authority.
With the development of the economy, the transformation of Rome from a society of producers into a society of consumers, the power of the householder began to take on more definite boundaries; kinship by blood (cognatic kinship) became increasingly important.
Cognatic kinship. Cognatic relatives are persons who have at least one common ancestor. Blood relatives are:
a) relatives in a direct or lateral line:
Relatives in a straight line (linea recta) - persons descending from one another (grandfather, father, son). A straight line can be ascending (linea ascedens) or descending (linea descedens), depending on whether it is drawn from offspring to an ancestor or from ancestor to offspring;
Lateral relatives (linea collaterales) - persons who have a common ancestor, but are not related in a straight line (brothers, sisters, cousins, nephews, etc.);
b) marriage (legitimi) and illegitimate (spurn) relatives;
c) full or half relatives:
Full relatives (germani) are descended from the same ancestors;
Half relatives (consanguinei and uterini) are descended from the same father and different mothers (consanguinei), or vice versa, from the same mother and different fathers (uterini).
Property(affinitas) is the relationship between the spouse and the cognatic relatives of the second spouse (for example, the property was between the husband and the wife's cognatic relatives).
The degree of kinship was calculated by the number of births by which the compared persons are separated from one another: in a straight line - the number of births directly between these persons in ascending or descending order, and along the lateral line - the number of births from a common ancestor. The degree of properties was calculated in the same way as the relationship of the spouse (for example, the husband is a relative of the father-in-law of the 1st degree in a straight line).
Family types:
Roman history went through the development of families from agnatic to cognatic kinship:
- consortium(consortium) was the very first type of family - this is a family community based on agnatic kinship and arose after the breakdown of the clan into separate groups. At the head of the community was an elder, adult men decided the fate of the community at a general meeting;
- patriarchal family(familia) changed consortium;
- cognatic family appeared later with the improvement of the legal status of persons who do not have full legal capacity (alieni iuris). The cognatic family was a union of close, only blood relatives living together. The cognatic family usually included the head of the family with his wife, children and other close relatives. The power of the householder was no longer unlimited and was limited to prudent punishment (“ad modicam castigationem”).
With the advent of the cognatic family, it began to be recognized that slaves could also have family ties (cognatio servilis); this position was new to the Romans. With a developed patriarchal family, when slaves were only a “talking tool”, slaves could only cohabit and their family ties were not recognized.
The consistent limitation of the power of the householder in all its manifestations: in relation to his wife, children and their offspring, and the parallel gradual displacement of agnatic kinship by cognatic kinship constitute the main content of the process of development of Roman family law. This development was carried out on the basis of profound changes in the economic life of Rome, under the influence of the course of its political history, simultaneously with a consistent change in the forms of ownership, the liberation of the contractual law of obligations from its original formalism.
2. The concept and types of marriage. concubinage
Roman legal marriage, in turn, was also divided into two types:
-marriage with husband's power (cum manu)
- marriage without male authority (sine manu).
Marriage with husband's power was concluded through three methods. The first is religious, in the presence of ten witnesses from different provinces of the Roman Empire at the statue of Jupiter - "the rite of eating cakes." This marriage was especially necessary for those Roman citizens who were training themselves to be priests. Such a marriage was widespread among the wealthy, wealthy part of Roman society, future civil servants. The second way to marry is to buy a wife from her father according to the rules of mancipation with the help of copper and weights. The third way - usus - according to this marriage, the wife at the end of the next year had to leave her husband's house for three days in order to interrupt the statute of limitations for her husband's possession of her. If the wife did not use her right to leave her husband's house for three nights, the sine manu marriage was terminated and turned into a cum manu.
In cum manu marriage, the husband's power over the woman was essentially unlimited. The husband had the right to kill his wife not only in case of adultery, but also in case of violation of the ban on drinking wine, for stealing the keys to the wine cellar. Roman women in the classical era took only the name of their kind (nomen). For example, a woman of the Yuliev clan was named Julia. If there were several daughters, then the eldest was called Julia the first (Maior), the next sister - Secunda - the second or Minor (younger), the third - Tersia, etc.
In sine manu marriage, the wife comes out of the unlimited power of the householder. The husband retained the right to choose the place of residence and methods of raising children. In this marriage, independence appears, the freedom of divorce for a woman. The latter at times concentrated enormous wealth, since the property relations in this marriage were based on the principle of separation of property. Increasing divorces and marriages of convenience had a negative effect on the moral foundations of Roman society.
In an effort to paralyze the instability of marital relations and the abuse of freedom of divorce, Augustus introduced a number of significant changes in family law. Criminal liability was established for violation of marital fidelity, some property restrictions were introduced for men aged 25 to 60 years and for women aged 20 to 50 who were not married and had no children. These and some other measures did not shake the basic concept of marriage sine manu as a freely established and freely terminated union of husband and wife. The displacement of the ancient cum manu marriage by this concept is one of the most interesting features of Roman marriage law.
The Romans know of two types of marriage: legal Roman marriage and marriage between peregrines and other free people who did not have the right to enter into Roman legal marriage (iustum matrimonium). In fact, the marital relationship of people who could not enter into a Roman legal marriage was called concubine. So, concubinage - stable cohabitation with the aim of starting a family. The latter distinguished marital cohabitation from casual or temporary sexual intercourse. Concubinage practically did not give rise to any legal consequences:
1. Children from this barque could not become the heirs of their father.
2. They were not subject to paternal authority, alimony.
3. The woman did not take the name of the man who lived with her.
Despite the fact that the Roman family as a whole was monogamous, a man in the Republican era could be legally married to one woman and simultaneously in concubinage with another.
The worst kind of marriage is the marriage of a married woman to an unmarried man, in which the woman bears the main responsibility for having an affair with a man.
There was another type of marital relationship - marriage between slaves - contourburnium.
Marriage is characterized by:
1. Reciprocity: two partners enter into it, and the unconditional equality of the parties is not a prerequisite for marriage;
2. The state of physical maturity and the presence of certain sexual qualities of partners. It cannot be considered as such a "marriage" between people of the same sex, as well as between partners of an age that does not correspond to traditional ideas. The marriageable age was set at 14 for men and 12 for women.
3. Consent of the partner;
4. The presence of sexual relations between partners in marriage. That marriage, in which sexual relations are excluded in advance, cannot be considered valid;
5. The desire of the partners to enter into a marriage union;
6. Permanent joint life of spouses: partners in marriage run a common household, live together, etc.
The absence of any of the above conditions calls into question the legal meaning of the marriage union, transfers the relationship between a man and a woman to a different quality, or serves as a basis for declaring a marriage invalid.
3. Conditions for marriage.
1. Reciprocity of the desire of the bride and groom, preferably with the consent of the householder. If there was no consent, then such permission could be obtained through the magistrate.
2. Reaching the age of marriage (14 years for a man, 12 for a woman).
3. Marriage was not allowed: for persons already in an undissolved marriage; between persons of different religions; between senators and freedmen; senators and actresses; between stepfather and stepdaughter; between father-in-law and ex-daughter-in-law; between uncle and niece; between aunt and nephew; the younger brother of the deceased could not marry a widow.
4. A prerequisite is the absence of kinship in a straight line up to the sixth degree of kinship. Marriage between relatives was a criminal offense (incest).
4. The procedure for concluding and terminating a marriage
Marriage in Roman law
Marriage was usually preceded by betrothal (sponsalia). In ancient times, the betrothal of persons alieni iuris was performed by their patresfamilias without the participation of the spouses. Later, the betrothal was performed by the bride and groom with the consent of the paterfamilias of both. The betrothal took place in the form of two stipulations (paragraph 433): according to one, the paterfamilias of the bride was obliged to transfer her to the groom, and on the other, he was obliged to accept the bride as his wife, and in the most ancient times it could be in the form of one-sided stupulation, according to which only the paterfamilias of the bride undertook to transfer it to the groom, who did not assume any duties and then had the right to terminate the marriage by a unilateral will.
Marriage in Rome was concluded informally: it was enough to express the consent of the spouses (no doubt, in the presumption that all the conditions for a legal marriage were present) and take the bride to the groom's house. If the marriage was concluded cum manu mariti, then certain formal acts were required to establish the power of the husband (at the same time, ancient Roman law knew three ways to establish manus: confarreatio, coemptio, usus).
The main moment of the marriage itself, which gave rise to all the consequences of a personal and property nature provided for by law, was the removal of the wife to the husband's house; all other ritual procedures only symbolized marriage, but were not considered formal conditions for the onset of marriage. With the development of law, there was a process of withering away or weakening of the role of the old forms of marriage. Parallel to it was the establishment of an informal marriage by means of a simple agreement, which, however, had to be followed by a deductio feminae in domum nuptias.
Ways to establish the manus.
The most ancient Roman law knew three ways of establishing a manus, which at that time was inseparable from marriage:
a) confarreatio
b) comptio
c) usus.
1) Confarreatio, which a number of historians consider a patrician form of marriage, according to some (Girard, Post) never became available to the plebeians, was a religious rite. The name of the ceremony comes from panis farreus, a special bread that was eaten during the marriage ceremony by the spouses. And then sacrificed to Jupiter. The ceremony was performed certis verbis in the presence of priests - pontifex maximus and flamen Dialis and 10 witnesses, representing, perhaps. The oldest 10 curiae (of this tribe). Only human. born from marriage. Prisoner reg confarreationem, and being in such a marriage. Could hold positions of rex sacrorum and flamen Dialis.
2) Comptio is secular and thought to be a predominantly plebeian form of marriage. This "imaginary" purchase of a wife by a husband was. Probably. A relic of a genuine purchase. It was carried out in the same forms in which the most valuable things were bought, namely land and slaves, and rights were established for persons in mancipio, namely in the form of mancipatio. True, the words that are pronounced at the same time are different from words. Pronounced when buying in the proper sense, however, otherwise it is in the form of a purchase. According to the description that Gaius gives to this form of marriage, as well as to individual remarks by Cicero and other writers, the coemptio is as follows:
In the presence of five witnesses and a weigher. Libripens, who participated in every mancipatio (n. 196), as well as the paterfamilias of the bride, as well as the groom, if he is persona alieni iuris, the groom asks the bride: an tu mihi materfamilias esse veils and, having received an affirmative answer, he himself answered with the established words on her corresponding question, also posed in precisely defined words. The bride's answer must have been: ubi tu Gaius, ibi ego Gaia (Cicero, Pro Murena. 12.27). Then the bridegroom uttered the words established for making any purchase by means of mancipatio and handed over the paterfamilias of the bride, in the form of a purchase price, an ingot of metal, allegedly weighed by a weigher.
3) Usus represented a peculiar application of the institution of acquisitive prescription to the field of marital relations.
Of these three forms of marriage, the usus fell away earlier than the others. If usus still existed in the time of Cicero, then Gaius already speaks of it as a form, partly abolished by law, partly simply forgotten. Apparently, at the beginning of the 1st c. AD marriages per confarreationem were already rare. At least Gaius, as well as Tacitus, report that in 23g. AD a law was passed by virtue of which, in order to encourage marriages per confarreationem, not a secular, but only a religious manus (the unity of the cult) began to be associated with them, which was sufficient for persons descended from such a marriage to be high priests ( Tacitus, Annales 4.16). However, with such a limited scope, confarreatio continued to exist until the fall of paganism.
Coempptio, apparently, existed in the time of Gaius (1. 113. 114). It is less certain that it was considered an active institution by lawyers of the 3rd century, despite the mention of it by Papinian and Paul (Girard).
In parallel with the withering away or weakening of the role of the old forms of marriage, there was a process of establishing an informal marriage through a simple agreement between the spouses (consensus facit nuptias - marriage is made by agreement) (D. 35.1. 15), which should, however. The deduction feminae in domum mariti must be followed. That is why he pointed out: vir absens nubere potest, femina absens nubere non potest (Sent. 2.19.8).
Circumstances that end a marriage
Marriage was considered null and void: between relatives in a straight line, as well as between those lateral relatives, of which at least one stands in the first degree of kinship to a common ancestor. Similar rules applied to relatives. In addition to the stated conditions for the legality of marriage, some more specific requirements were presented. For example, a provincial magistrate could not marry a citizen of that province.
A marriage concluded according to all legal requirements was terminated, also only on legal grounds. Thus, except for the death of one of the spouses, the marriage was terminated:
1) Capitis deminutio maxima of one of the spouses, i.e. by turning him into slavery, for the slaves did not have ius conubii. Moreover, if the husband taken prisoner and enslaved then returned to Rome, then by virtue of postliminium (n. 108) it was believed that the manus never ceased. Marriage, on the other hand, sine manu, as some only factual, but not legal connection, was considered terminated, because postliminium was applied to res iuris; however, the marriage was considered to continue all the time if both spouses were together in captivity.
2) Capitis deminutio media, that is, the loss of the right to citizenship, because non-citizens, except for latini veteres, also did not have ius conubii.
3) Capitis deminutio minima, i.e. a change in the marital status of one of the spouses, which established such a degree of his agnatic relationship with the other spouse, in which marriage would be impossible, for example, paterfamilias adopted his daughter's husband without first freeing her from patria potestas.
4) By the will of the husband or his paterfamilias in marriage cum manu; by the will of the husband or wife, or by their agreement in marriage sine manu.
Marriage sine manu could be terminated by the will of one of those persons whose consent was required for the marriage to take place (paragraph 139). Freedom of divorce was, as already mentioned, one of the fundamental principles of Roman marriage law. And, despite the multitudes and divorces at the end of the republic period and during the period of the empire, despite the fact that divorces were contrary to the teaching of the Christian church on marriage, the freedom of divorce was never abolished, or even limited, except for the unfavorable property consequences of divorce for the spouse. , on the initiative or through whose fault the marriage was terminated by divorce.
Entering into a second marriage after the termination of the first did not meet any restrictions either during the period of the republic or during the period of the principate.
Divorce in the classical era was free and was allowed both by mutual consent of the spouses (divortium) and by unilateral declaration of renunciation of married life (repudium). Freedom of divorce was one of the beginnings of Roman marriage law. And, despite the many divorces at the end of the period of the republic and during the period of the empire, despite the fact that divorces were contrary to the teachings of the Christian church on marriage, the freedom of divorce was never abolished or even limited, except for a number of property consequences for the spouse. , on the initiative or through whose fault the marriage was terminated by divorce.
5. Personal and property relations of spouses.
Free marriage corresponded to the freedom of the legal regime of the property of the spouses, based on its division. Marriage did not create a community of property of the spouses, on the contrary, their property was isolated and constituted two separate independent masses. All the property of the wife, both acquired before marriage and during it, was her property (if she is persona sui juris). The principle of the integrity of the property masses of the spouses was preserved even after their death: they did not inherit each other. Only a needy widow received a certain part of the property of the deceased spouse, interpreted as alimony. Subsequently, the praetor granted the spouses the right to inherit each other, but subject to the absolute absence of heirs. Spouses' gifts to each other were recognized as insignificant, which was intended to guarantee the independence of their property rights. However, the material support of the wife, children, household expenses, etc., were the duties of the husband.
Spouses could enter into any legal relations of a property nature with each other: conclude contracts, etc. Accordingly, lawsuits could also arise against each other. At the same time, due to the unusual nature of potential subjects of legal relations, some exceptions to the general rules were identified. So, the spouses were responsible to each other for negligence not according to an abstract measure (when the measure of care inherent in the most caring owner is not shown), but according to a specific one (when the measure of care that is manifested in their own affairs is not observed): suits for dishonor (infamia). When recovering from the property of a spouse in favor of the other spouse, they adhered to a certain limit so as not to bring the debtor to distress.
The outlined scheme of property relations between the spouses was not formed suddenly and, moreover, it was not unchanged. The interaction of positive law and social practice resulted in a clash of interests not mediated by law; the practice of social development did not always fit within the framework of law. The testimonies of ancient authors give grounds to assert that as early as the 4th-3rd centuries. BC e. a model of the Roman family was formed, in which the position of the wife was determined by her active participation in the joint management of property and economic activities with her husband, with the allocation of some male and female activities. During this period, the idea of the Roman family as based on the community of property of the spouses was established. From the speech of Cato the Elder; uttered in 169 BC. e. regarding the Voconia law, which forbade the appointment of women as heirs of citizens, owners of property over 100 thousand sesterces, it follows that Roman women had significant property and managed it themselves. Cato spoke of a woman who kept a large fortune, which she lent to her husband, and then, angry, ordered her slave to follow her husband's heels and demand the return of the debt. Cato lamented that the woman's behavior undermined the Roman model of marriage based on the community of property. On the other hand, it is clear from the Digest that there was a presumption in favor of the husband regarding the wife's acquisitions, that is, it was assumed that the acquisitions were made by him (D.24.1.51). Practice has developed another presumption: it was assumed that things in the possession of one of the spouses constitute the property of the husband.
Dos, a special dowry from the bride, and donatio ante nuptias, a premarital gift from the groom, were peculiar guarantees of the property interests of the spouses. Dos is property allocated by the bride, her paterfamilias, or a third party to relieve her husband of the burden of family expenses. In the era of cum manu marriage, as well as before the widespread use of sine manu marriage, it was the property of the husband and was not subject to return under any circumstances. Apparently, there were many cases when unscrupulous husbands, having received dos, divorced their wives. Therefore, a rule was developed, according to which the husband was obliged to return the dowry in the event of his death or at the dissolution of the marriage. Compliance with this rule was ensured by a special claim, which over time began to be used to return the dowry and in the absence of the husband's obligation, if the divorce took place on his initiative. As a result of various modifications of the legal regime given by the law of August 18, the husband was forbidden to alienate property received as a dosi without the consent of his wife, and under Justinian, the alienation of such property was not allowed even with the consent of the wife. The established legal regime of dowry corresponded to the aphorism: "Although the dowry is in the property of the husband, it belongs to the wife." The husband becomes the owner of the dowry only if the divorce occurred at the initiative or through the fault of the wife, as well as in the event of her death. However, after the wife's death, the dowry is returned to her father, if it was established by him.
The groom's premarital gift or his paterfamilias was equivalent to a dowry and, in accordance with its name, was presented (in connection with the prohibition of gift acts between spouses) to the bride before marriage. In practice, these were values intended for the wife in the event that a divorce occurs through the fault of the husband. Under Justinian, a gift could also be made after marriage, but regardless of this, the property conditioned by the gift became the property of the wife only when the divorce was caused by the initiative of the husband or his fault.
In essence, dowry and donation performed a penal function in the interests of one or the other spouse. If the marriage continued, then the entire mass of property, conditioned by both dowry and donation, was in the possession of the husband. Both remained with the husband if the wife was at fault in the divorce. If the husband was guilty, then both dos and donatio passed to the wife.
6. Personal and property relations of children and parents
In terms of property, being subject, the children, although they had civil legal capacity (had ius commcrcii and ius conubii), everything that they acquired on the basis of their rights became the property of the father. They had legal capacity not for themselves, but for their father. Moreover, the father was not liable for obligations from transactions of subordinate sons, answering only for the delicts of children.
Later, however, the praetor began to grant claims against the paterfamilias for transactions of subordinates. Responsibility began to be assigned to the subordinates themselves when they became persona sui iuris. Gradually, the absolute nature of power weakens: in the field of personal relations, the rights of paterfamilias are limited, and in the field of property, subject children become more independent in connection with the recognition of some legal capacity and capacity for them.
The position of dependent children has been changing since the end of the republic. First, the right to throw away newborn children was banned, then the right to sell children (there are cases of extreme need and only newborns). According to the Laws of the XII Tables, the right to sell sons into bondage was limited to a threefold sale, after which the sons were released from paternal authority. The murder of children began to be sharply limited, they began to punish him, and Emperor Constantine excluded this right.
Emperor Trajan issues a decree according to which, in case of abuse by the father of his rights, the son could be released from paternal authority. Over time, the property independence of sons expands. For economic activities, the fathers began to allocate property to their sons - peculium (peculium), the owner of which remained paterfamilias. Gradually, the property began to be assigned to the sons in the property. The property that the son acquired in military service or in connection with military service (military booty, salaries, gifts) became known as military peculium.
The son could freely use and dispose of it, including bequeathing it. If the son did not bequeath it, then in the event of the death of the son, the military peculium was inherited by the father. During the imperial period, the rules on military peculia began to apply to all property received in the state or ecclesiastical service, from legal activity as a lawyer and the so-called quasi-military peculia.
Later, property began to pass into the ownership of the children by inheritance from the mother, which the father could not dispose of, but had only the right to use for life. According to the Justinian law, the father owned only the property that the son acquired using the property of the father. All other property was the property of the son, to which the father had only the right to use for life (although he could be deprived of this as well).
7. guardianship and guardianship
guardianship and guardianship- this is a legal institution that serves to fill the missing or limited legal capacity of a person through the appropriate actions of other specially appointed persons capable of conscious volitional acts - guardians or trustees.
In modern legal systems, the difference between guardianship and guardianship is that the former is appointed over the incapacitated, and the latter - over those with limited legal capacity. In Roman law, the criterion for the use of these funds was age: guardianship (tutela) was established over minor children and women equivalent to them, guardianship (whitefish) - over young men (from 14 to 25 years old), the mentally ill and wasteful. In addition, the guardian and trustee differed in the nature of their functional duties: the guardian (if the ward is under 7 years old) himself performed the necessary actions aimed at the transaction; in other cases, the guardian expressed his will in a certain form at the time of the conclusion of the contract by the ward; the trustee could give informal consent to the transaction before and after it was made. As you can see, these functions were not adequate to the actual volitional capabilities of women and the mentally ill.
However, guardianship of women early lost its practical significance. By the end of the republic, women independently participated in business relations, and only some acts of civil law (participation in the legalization process, alienation of res mancipi) needed the consent of the guardian. But even these restrictions are perceived as superfluous by the beginning of the classical period, in particular Guy believed that they have no basis (Guy. Institutions I. 190). In the first half of the 1st c. the main type of guardianship over women was noted - the guardianship of the closest agnates, and then - practically not used guardianship under the will of a husband or father.
With regard to custody of children, in this case, we mean minor children (under the age of 12 or 14) who, due to the death of their father, are not subject to patria potestas. During the life of the latter, the children did not need guardianship over them, for the paterfamilias was their "natural" guardian.
In the most ancient period of Roman history, guardianship was established in the interests of preserving family property, that is, in the interests of the heirs. Protecting the interests of the directly ward was not meant. Therefore, the procedure for establishing guardianship coincided with the civilized procedure for calling to inherit: the closest agnate of the ward became the guardian; This type of guardianship was called tutela legitima. Guardianship, in which the identity of the guardian was indicated in the will, was called tutela testamentaria. Accordingly, the guardian had more rights than duties, and his position in relation to the ward and his property resembled that of the paterfamilias.
Over time, guardianship began to be seen as a public duty, public duty (munus publicum), and the guardian's rights - as a means of exercising his duties, the implementation of which was controlled by the state. As one of the consequences of the new approach to the role of guardianship, its third type arises - tutela dativa, when, in the absence of relatives to a person in need of guardianship, a guardian was appointed by a state body. The freedom of the guardian to dispose of the property of the ward was also limited. Some transactions (for example, gifts) the guardian could not conclude at all, while others required prior permission from the state (for example, transactions with land).
There has long been a claim for compensation for the value of the wasted property of a ward by an unscrupulous guardian. However, this claim did not always achieve its goal, since it was personal and did not extend to the heirs of the guardian. Over time, the praetor introduced special claims (actiones tutelae), one of which (actio tutelea directa) was directed not only against the unscrupulous guardian, but also against his heirs, the other (actio tutelae contraria) served the interests of the guardian (for reimbursement of costs associated with guardianship).
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In addition to the clan, deep Roman antiquity also knew a family. The institute familia Romana was in the republican and imperial eras the main social unit, closely connected with the developing and asserting private property, and therefore was under the scrutiny of Roman jurists. Thanks to their testimonies, modern scientists have at their disposal a wealth of material. Historians of law have described in detail the structure and functions of the Roman surname.
T. Mommsen was the first specialist in the history of Rome to restore the Roman surname as a patriarchal family from the fragments of the stories of ancient authors and legal monuments. But he considered it as an element of the state era and at the earliest stages of history saw in family communities the rudiments of a state system. I. Marquardt described in great detail in the "Directory of Roman Antiquities" (where a special, 7th volume is devoted to the family) the structure of the family and the legal position of its head - pater familias, as well as the wives who were in his power - in manu, children - in patria potestate , slaves - in dominicia potestate.
In more modern times, the Roman family aroused the special interest of R. Paribeni. But he focused his attention on the moral foundations that, in his opinion, distinguish it favorably from the family of others, including the Indo-European peoples. In the image of R. Paribeni, familia Romana looks idealized as the basis of human virtues. Simultaneously with this book, a multi-volume work by K.U. Westrup. It occupies a special place in the historiography of the problem. Its sources are not only ancient tradition and legal monuments, but also extensive material on the ethnography of ancient and modern primitive peoples. However, the significance of Westrup's work is not limited to this. The Roman surname is studied by him in many ways - as a manifestation of the community of worship, community of property and paternal authority - patria potestas. It is also important that Westrup considered the Roman surname historically, in development, revealing the initial ancient cores in later legal formulas that characterized the family of the era of classical Roman law.
Being a scientist with an idealistic worldview, Westrup considers the common cult and the sacred solidarity of generations to be the primary, constitutive factor of the Roman surname. He opposes the idea of I. Bachofen about matriarchy as a universal stage in the development of mankind and against the understanding of matriarchy as a system in which a woman occupied a dominant position. At the same time, he recognizes the existence of a matrilineal system of kinship as a consequence of promiscuity, but categorically refers these phenomena to non-Indo-European peoples. This thesis, of course, cannot be accepted, because it has been repeatedly refuted by modern studies that have shown the unity of the development of human society, regardless of the ethnicity of people. But Westrup's specific study of the Roman family with paternal right deserves attention. First of all, it should be noted his analysis of family property in early Roman law, to which the entire II volume of his monograph is devoted. Vestrup speaks in favor of the fact that initially there was a common Roman land and curial or gentile ownership of the land. Private landed property appeared only under Servius Tullius, and was established by the time of the laws of the XII tables. Westrup associates the development of property relations with economic and geographical conditions, and considers the family to be the bearer of these relations. Using the comparative method, he shows that among the Germanic and Slavic tribes, grain farming and expanses of fields led to the long existence of common ownership of the land, while the individual family turned out to be the owner of the crop. In contrast, in the southern countries (Greece and Italy), viticulture and olive cultivation were cultivated. This required securing plots for a long time for the same families. Under these conditions, the right of private property of an individual family - domus - began to be embodied.
The term heredium, i.e. paredium parvulum, found among ancient authors, is considered by Westrup to be the designation of inherited family property, while the land allocated from ager to individual families, probably, after a certain period of time, was initially returned to the community (curia or gens) for redistribution. Westrup makes a very important observation: in contrast to the pecunia, the wealth of the family produced by the personal labor of its members, that is, the property that the pater familias disposed of freely, the heredium, as the basis of the family, was originally an inalienable patrimony. In early Roman law, this latter usually appears in the term ercto non cito. The researcher does not agree with the often encountered understanding of this expression as "inherited or hereditary property." Such a translation is based on the etymology of erctum<(h)erectum, связанной с heres (наследник) или, может быть, herus(?) (господин), что он считает неудовлетворительным. Citum Westrup also takes into account other attempts to interpret the above expression. (H)erectum was associated not with heres, but with (h)ercisci, and in this case also explained as "something divided", or division (inheritance). The verb ciere can be translated, taking into account the use of Cicero, not only by the word "move", but also "demand". Then erctum citum must mean "the required division [of the inheritance]", and erctum non citum - "the not required division [of the inheritance]", or the undivided property of the family. This formula, according to Westrup, suggests that originally there was an undivided or undivided family property. This conclusion seems to us quite legitimate and very important. Westrup sees another proof of the existence of primary undivided family property in a fragment of the manuscript of Guy's Institutions (III, 154). This manuscript dates from the 4th or early 5th c. Therefore, it is older than the well-known version of the "Institutions" from the Verona palimpsest. But she is fuller than him. The new fragment contains additional information regarding communities (societates) taken into account by Roman law. It mentions one ancient type of community, which consisted of the heirs (sui heredes) of the deceased head of the family, who had common property (ercto non cito). Then Westrup makes another argument: the laws of the XII tables (V, 10) recognize the right to bring an action demanding the division of the inheritance (actio familiae erciscundae) after the death of the father of the family. Indeed, it follows from this law that such claims were not practiced before, i.e., the inheritance was not divided between co-heirs. Finally, the researcher pays special attention to the passage from the Digest (XXVIII, 2, 11), which says that once the sons of the house (sui heredes) during the life of the head of the family were a kind of co-owners of family property, so that after the death of the latter, the transfer of property from hand-to-hand was not carried out, but it seemed to continue its existence (continuatio dominii). The only change was that the son took over the real management of the family property, family property. This observation seems to us very important. It throws light on the position of the pater familias in ancient times, testifies to the fact that in ancient times he could not arbitrarily dispose of property, characterized by the term familia. This word, as you know, has many meanings. Indeed, in the Digests (L, 16, 195, § 1) it is said that by it are understood both property (res) and people (personae), as coming from the same house (i.e. wife) and the same kind (i.e. children, grandchildren), and slaves. According to Paul the Deacon (Famili), the word familia itself comes from Oscan famel, which corresponds to the Latin servus (slave). Even if the dependence of words is reversed, it does not cross out the belonging of the slaves to the family. Comparing the data on societates and on the action for the division of inheritance, it can be said that in the early period the despotic power of the pater familias over family members did not yet exist. We emphasize that this thesis of Westrup is of great importance for characterizing the early Roman familia, and at the same time the whole society. An important place in a number of works interpreting the problem of the Roman surname is occupied by the works of P. De Francisci, which have been mentioned more than once, although they are not specifically devoted to this problem. As mentioned above, De Franchis does not see a fundamental difference between a large and a small, individual family, since in Rome both of them have a similar structure and patriarchal character. At this point, he objects to F. De Martino, who quite rightly considers the small family to be a later family species associated with a more intensive type of economy. De Franchis paid particular attention to the cult of the ancestors and the Parentalia festival. Since, according to Festus, according to legal norms, parens is not only a father, but also a grandfather and great-grandfather, which received living confirmation in the inscription (CIL, IV, 1679) “habeas propitios deos tuos tres”, the researcher came to the conclusion that di parentes for the Romans, they were limited to three generations (father, grandfather, great-grandfather), although more distant ancestors were revered. From this, De Franchisi made the witty conclusion that the criterion of three generations should have determined the group of closest relatives among the living, i.e., the familia, which constituted the group of agnates. Note that the natural boundary of the familia was indeed 3-4 generations, and it was probably this “earthly” circumstance that created the idea of especially close paternal gods from three ascending generations. But in itself the fact of honoring di parentes in the composition of the father, grandfather and great-grandfather, noted by De Franchis, is significant. Another observation of his is also important, namely, in the Roman religious calendar, after the Parentals, there was a day dedicated to Charistia, related to the cult of the dead, in which, according to Valery Maximus (II, 1, 8), only cognates and relatives took part. From this, the scientist made a logical conclusion that the cult of the dead took into account the cognate group, so to speak, “sobrino terms”, that is, including the sixth degree of kinship along the lateral line. Thus, De Franchischi came to the conclusion that the agnatic group of 3 generations venerated di parentes, as well as the cognate group, up to the 6th degree. In other words, each of the groups had certain boundaries. We would like to emphasize the importance of this conclusion, because it allows us to isolate two structural units in Roman society. An attempt to reconstruct an early Roman surname belongs to D. Lotze. He does not agree with De Franchis, who does not see the difference between an individual and a large patriarchal family. D. Lotze rightly considers the early familia Romana as a patriarchal family, comprising married sons and even grandchildren with children and wives, subordinate to the patria potestas of a single master. However, D. Lotze objects to the possibility of understanding this Roman institution as a house community, in which equal relatives are united along the lateral line; i.e., as a kind of fratriarchy. At this point, he argues with G. Brogini, who in his reasoning is based on the mentioned new fragment of Guy's "Institutions" (III, 154). One cannot but agree with Lotze that Brogini's comparison of the Roman consortium with the Irish fine is justified only within certain limits. While among the Irish in a large family one of the brothers is the head, in the Roman association of brothers they are all equal, and each of them, becoming pater familias, receives an equal share of the inheritance. Thus, Lotze's conclusion that the Roman extended family, as a rule, did without collateral relatives deserves unconditional recognition. Recently, another special work dedicated to the Roman family has appeared. It belongs to the famous linguist Emilio Peruzzi. Peruzzi's work is interesting primarily because it deals with the very beginning of the tsarist era. The author proceeds from the fact that the onomastic system is connected with the social structure, therefore he studies Roman proper names. Among the Romans of Albanian, i.e., Latin origin, known according to ancient tradition, he finds one name. The binomial names, in his opinion, belong to the Sabines, so that Proculus Julius or Mettius Fufetius, people of the Alban family, are an example of Sabin cultural influence. The introduction of a third name, that is, a cognomen, Peruzzi explains by a limited number of personal names (praenomina) among the ancient Romans, which led to many namesakes. For the sake of convenience and in order to avoid confusion, a person was given an additional element denoting him .. Such an interpretation does not seem sufficient. After all, the cognomen began to be inherited, that is, it was assigned to the closest descendants. It is known that at a later time the cognomen denoted a branch of the genus, or surname, while the fourth component of the name, usually in the form of an adjective, was used to denote a particularly distinguished person. But this personal nickname was no longer passed on to children, remaining a distinctive feature of one person. T. Mommsen noted that the cognomens, established behind the whole house, that is, behind the related branch, are lost in the darkness of centuries, but cannot belong to the deepest antiquity. He associates this institution with the process of colonization, in which part of the genus was evicted and had to receive a special designation. The researcher calls the patricians - Cornelii, with branches - Malugipense, Scipio, Cossa, Sulla, etc., the oldest carriers of cognomens. Thus, the earliest cognomens appear in the 4th century BC. from the founding of Rome. The fixing of the cognomen for subsequent generations of direct relatives in the descending line meant the isolation of this entire related group, i.e., the surname. Therefore, the emergence of inherited cognomens reflects an important fact in the history of Roman society. As can be seen from these narrative sources and from Mommsen's observation of fasts, cognomens are not characteristic of the tsarist era. And this circumstance seems to us very significant. It sheds light on the position of the familia within the gens: it is not yet opposed to the genus, although it has already been identified as an important cell of it. All of the above allows us to consider the appearance of cognomens not so much as a fact indicating the numerical growth of the Roman population, as can be deduced from the mentioned remark by E. Peruzzi, but as an indicator of the socio-political development of Rome. Further, studying Roman names, E. Peruzzi put forward the thesis that nomen in the early era was associated with familia, and not with gens, and indicated belonging to the family, and not to the genus. In general, in his opinion, Roman onomastics, in which a certain social structure is visible, developed in a direction directly opposite to that which is supposed for society. Based on this statement, we can conclude that the familia preceded the genus, which cannot be accepted. So, much has been done in science to reconstruct the Roman family in the early era, including the royal period. But unity of opinion even on such cardinal issues as its character - small or large, if large, then like a phratriarchy or led by a pater, an older relative in a straight line - has not yet been achieved. In addition, in most works, with the exception of E. Peruzzi, the surname at the level of the beginning of royal Rome is not specially considered. Meanwhile, our sources contain material that allows us to focus on the time of the first kings. And it is important to compare this data with what can be gleaned from later legal sources. First, we should dwell on the personal, so to speak, composition of the family (personae). This is reported by the Digests (50, 16, 195, § 1) with reference to the laws of the XII tables. The latter circumstance is of significant importance, because in this way the character of the family of the early republican time is restored. § 2 lists the members of the proprio iure family. They are many (plures), all under the authority of one head of the family, either by nature or by right. At the head of the family - pater familias, it includes - mater familias, their sons with children, that is, grandchildren and granddaughters, and daughters. This enumeration ends with the word "deinceps", which means that the series can be continued further, at least up to great-grandchildren. Moreover, children and grandchildren can be adopted. This follows from Verona's scholia to Virgil's Aeneid (I, 237): “A parent (genitor) is better than a father (pater), because [a person] becomes a father after adoption, and a parent is no other than the one who who begets." The Digests (50, 16, 51) indicate that the word "parens" refers not only to the father (pater), but also to grandfather and grandmother, and great-grandfather and great-grandmother, and all those following in the ascending line. Fest’s definition of the word “parens” is also based on this provision: “In everyday life, a father or mother is called that, but lawyers believe that both grandfather and great-grandfather and grandmother and great-grandmother are called by this name.” Undoubtedly, these texts, which give an idea of the phenomena and concepts that arose in the deepest antiquity, testify to the many generations and vastness of the Roman family. kings. Sharing this point of view, it is necessary to dwell on this layer of ancient evidence of the activities of the first rulers in Rome. A significant part of the Romulus laws concerns family matters. This very fact speaks of the importance of the surname in society. In Festus (plorare), in a rather corrupted text, it appears that one of the laws of Romulus and Tatius concerned the punishment of a young woman. The law speaks of punishment, apparently for violating family norms, because the guilty person is sacrificed to the stepfather gods (dus parentum). Since this law is mentioned by Festus as if in a thematic selection, that is, along with the establishment attributed to Servius Tullius, on initiation to the same gods of a son or grandson (puer), who offended his father so that he wept, one can think that the sin of the daughter-in-law was similar. The above law clearly testifies in favor of the fact that the family was patriarchal with the subordination of the younger to the elders. But this is not enough. Since Festus uses the word "nurus", which means both the wife of the son and the wife of the grandson or great-grandson equally (Dig. L, 16, 50), the text serves as an additional argument in favor of the large family character of the Roman familia. Indirectly, the large number of members of the Tatsia family indicates the participation of his household, however, together with relatives, in a robber attack on the Lavinian ambassadors (Plut, R, XXIII). It is permissible, in the connection that interests us, to also draw on these traditions about Numa. He was the fourth son of his father and, having married Tatia, remained in the house of his elderly parent (Plut., N., 3). According to one of the versions transmitted by Dionysius (II, 76) and Plutarch (N., 21, 1-3), Numa had a daughter Pompilius and four sons from two marriages - Pompon, Pin, Kalp and Mamerk. Thus, the family was large, and there are no hints that already under Numa it broke up into small ones. It can be thought that this disintegration occurred much later, after several generations. After all, the republican time also knew examples of large patriarchal families with undivided property and a common household. In the II century, BC. e. this, apparently, was already a rarity, because two authors mention the same case, namely the family of Elias. True, both of them cite this family as an exemplary example of kindred friendship, in which there was no contention due to inheritance. Nevertheless, the facts transmitted by both Plutarch (Aem. Paul., V) and Valery Maximus (IV, 4, 8) indicate that the Elii, who were 16 people, lived all together in one cramped house with their numerous offspring, jointly owned a small estate in the Veyent region, had one place of honor at performances in the Circus Maximus and in Flaminiev. It is known that one of these Elias was married to the daughter of Aemilius Paulus, a two-time consul and a two-time triumphant, not ashamed, according to Plutarch, of her husband's poverty. An analogy for such a large family, which includes 16 heads of small families, was found by Lambert in the Irish fine. This organism included 4 groups of relatives, i.e. 4 generations, starting from a certain head of the family, his father, his grandfather and great-grandfather. Fine owned a certain amount of land - baile. Each of the four groups that made up the fine disposed of 1/4 of the baile, which was called tate (about 16 or 32 hectares, depending on the quality and location of the land), as well as 1/4 of the house. Each quarter of the house, in turn, was divided into 4 parts in accordance with the four generations of its descendants. Thus, 16 families gathered under a common roof and around one hearth. Lambert, following Hubert, translates the word fine into the French words famille and maison, since fine occupied one large dwelling (treb) fortified with a stone fence, which is a shelter and center of 16 menage, that is, households. This means that Lambert understands fine as a large family, in which, however, smaller families are already crystallizing, each cultivating its own section of tate. In other words, the Irish version is rather a group of closely related families with the allocation of land holdings for the use of smaller families included in it, or a large patriarchal family already without full industrial unity, that is, the beginning of patronymy. As for the Roman Aelias, they were only one of the fragments of the family, only one of its branches, because one member of this family, who just married the daughter of Aemilius Paul, was Aelius Tubero. He wore a special cognomen, while Elia Peta, Lamia, and others lived in Rome. BC e. consular position (in 337, 286, 201, 198 BC). As for the branch of the Tuberons, although it was considered respected, it lived in poverty and did not reach the highest magistracies. Unlike the Irish, the Elias survived as vestiges even into the 2nd century BC. BC e. a type of classical large-family community with a common production and consumption, that is, they reflected its more archaic stage. And their example, with even more right than the Irish, can be used to reconstruct the social structure of ancient Rome. Thus, the large-family life of the Elias can be projected into the beginning of the royal era. In addition to the law on the punishment of the daughter-in-law, as discussed above, tradition attributes three more laws to Romulus. One of them establishes a marriage of the confarreatio type and the position of the wife as the mistress of the house and the husband's heiress along with the children. According to the same law, a sinful wife is judged by her husband together with relatives. As crimes punishable by death, our sources call the drinking of wine, which entails the loss of virtue (Dionys., II, 25; Plin., N. H., XIV, 3, 89; Serv. Aen., I, 737). Confarreatio, judging by the use of barley in this type of marriage, is a very ancient norm. Interestingly, Guy (I, 112), describing such a marriage ceremony, mentions ten witnesses. According to the witty assumption of J. Franciosi, these were five witnesses from each of the two exogamous genera, where the spouses come from. It is noteworthy that in this ancient marriage, the wife is determined by the heiress. If in the later edition of the legal monument the dignity of the wife is somewhat exaggerated, nevertheless she does not look like a domestic slave, and the husband does not seem to be an absolute despot. The fate of an immoral wife is not decided by the husband alone, but together with the members of the clan. This gives an additional reason to believe that the family was and was realized precisely as a unit of the clan. According to the second law, transmitted by Plutarch (R., XXII), Romulus forbade his wife to leave her husband and at the same time forbade the sale of his wife on pain of sacrificing the husband who had acted in this way to the underground gods. This law allows us to consider that the family in society is clearly marked and the king seeks to strengthen it, in particular, depriving a woman of the freedom to control her own destiny. But the husband's rights to her, as in the previous case, are not unlimited. Exceeding power over a wife is punishable by death. According to the third law, which was mentioned in another connection, the murder of children who lived up to 3 years was limited, except for obvious deformities, which was again confirmed by the testimony of five, this time neighbors (Dionys., II, 15). This was due not only to the increased level of productive forces, as we have discussed, but also testified to the control over the development of the family by the ruler of the emerging Roman community. Hence, this establishment also confirms the absence of unlimited patria potestas. The mention of neighbors in the law is also significant, since it shows the importance of the family not only within the tribal community, but also in a settlement of a neighboring type. Thus, the Romulian laws, i.e., texts dating back to authentic institutions, and not just analogies, make it possible to present the Roman surname of the second half of the 8th century. BC e. not as an individual family, but as a large, multi-generational patriarchal household community, or a family with by no means so unlimited power pater familias, as later. And this is not contradicted by archaeological materials, i.e. traces of huts of that time on the Palatine. Let these be small dwellings, about 30 square meters, but they are located close to each other. In addition, the conditions of the terrain did not allow the construction of extensive houses. Ethnographic data also suggests that the whole extended family does not always live under the same roof. Consider now the laws of Numa concerning the familia. There are four of them. Dionysius (II, 27) reports the emancipation of his son after his father sold him three times ex arcaiV, that is, from time immemorial. This norm was later fixed in the laws of the XII tables (IV, 2). The same text by Dionysius states that Numa issued a law forbidding the sale of a married son. A similar law is attributed to Numa and Plutarch (N., XVII). The Rome of the first kings already knew slavery. Society was already burdened by wealth inequality, so the sale of a wife, as we mentioned earlier, or a son does not seem unbelievable. But the threefold sale of a son suggests deeper economic differences among the Romans than is conceivable at the beginning of the king's time, so "time immemorial" does not necessarily have to refer to the end of the 8th-beginning of the 7th century. BC e. However, the mention of this measure is probably not accidental along with the laws of the second king. All the establishments enumerated here do not seem to speak of a limitation on the power of the pater familias, but of his lack of unlimited power as yet. Another law is associated with the name of Numa, which Paul the Deacon tells about under the word "Pelices". It forbade the concubine to touch the altar of Juno. For non-compliance with the ban, the violator had to sacrifice a sheep to the goddess. The epitomator explains that pelices were actually called those who married a married man. This is a curious piece of evidence that allows us to speak of actual polygamy, i.e., a survival of group marriage during the reign of the first kings. The memory of this kind of marriage relationship among the Romans is contained in Plutarch in the Comparison of Lycurgus and Numa (III). The writer says there that “although the community (koinwnia) of wives and children wisely and for the good of the state banished the feeling of jealousy” both in Rome and in Sparta, nevertheless, these legislators resolved the issue of the relationship between husband and wife in different ways. In Sparta, practically polyandry was allowed, in Rome, a husband could give up his wife for the sake of having children to other men, but by marrying her off, and not leaving her in his house. In comparison with the law of Romulus, which forbade the wife to leave her husband, one can draw the following conclusion: the remnants of group marriage relations still existed, but both rulers tried to limit their effect, thereby strengthening the patriarchal family. Such an idea of the family situation in Rome at that distant time can be confirmed to a certain extent by the testimony of Aulus Gellius (XXIII, 1, 9), repeated almost word for word by Macrobius (Sat., I, 6, 19). Gellius, referring to Cato, reports that from ancient times in Rome there was a custom according to which senators took their sons of adolescence (praetextati filii) with them to meetings. No one was supposed to talk about the Senate debate before the decision was made. However, the lad's mother Papiriya found out from him that the meeting was discussing the question of what is more beneficial for the state for one to have two wives or for one to be the wife of two. Upon learning of this, the curious woman immediately made this Senate secret the property of all the matrons. The matrons were especially horrified at the prospect of becoming wives of two men at once and went with prayers to the curia. After this, the son of Papirius received the nickname Pretextatus, and children were no longer allowed to enter the senate with their fathers. The reference to Cato establishes the terminus ante quern and allows the Senagi debate to be dated to the Early Republic. But the point of discussion is remarkable. This means that even at that time, which is known as the heyday of a large monogamous family with the omnipotence of the father, in principle the possibility of both polygamy and polyandry was allowed, which, however, did not find legislative confirmation. Moreover, such phenomena are possible for the early tsarist era. Sources allow us to assume the existence of survivals and other primitive forms of family and marriage relations. They have attracted the attention of modern researchers. Erica Mager-Pirnath revealed a very ancient version in the saga of Horace and Curiatii, which was not taken into account by Livy, who spoke of Horace only as the sister of Roman heroes and as the bride of one of the Albanians. Dionysius notes that the Horaces and the Curiatii were related because their mothers were sisters. Zonara and Columella, regardless of Dionysius, speak only of the kinship of the participants in the tournament. The motive of kinship, in the fair opinion of the researcher, reflects a very ancient layer of primitive relations among the Latins. The material testifying to the marriages between close relatives that existed in early Latium was collected and analyzed in detail by G. Franciosi. The researcher, not without reason, sees the remnants of phenomena characteristic of deep primitiveness in the legend recorded by pseudo-Plutarch (N., 22), about a certain Valeria from Tusculum, seized with an impious passion for her own father, in the messages of Dionysius and Plutarch about Amulius and Rhea-Sylvia . Another, also very ancient layer of marriage norms is the engagement of Lavinia with Thurn, who, according to the most common version, was the nephew of Amate, the wife of Latina (which means that Lavinia and Thurn were maternal cousins); the engagement of Horace with Curiatius and the marriage of the daughters of Servius Tullius with the sons of his wife's sister Tarquinia, daughter of Tarquinius Prisca. All these cases speak of marriages between cousins on the mother's side and are rightly regarded by Franciosi as traces of relationships that existed before the creation of exogamous marriage classes, while the episode of the kidnapping of the Sabine women testifies to the custom of exchanging brides, i.e., is included in the picture of duality known to ethnographers. exogamous systems. As can be seen from the given data of tradition, the period under consideration is characterized by such remnants of an early tribal society as the assessment of matrilineal kinship as especially close and significant. This can be judged by Amata's reaction to Turnu's refusal to marry Lavinia to him (Amata went mad with grief), by the preference in the family of Servius Tullius for the marriages of royal daughters with their cousins from the maternal side, and also by the already noted fact of revenge for the dishonored Lucretia by her brother, not by her husband. Traces of similar representations are found in Rome and at a later time. An example of them is the story of Cecilia, the wife of Metellus, told by Valery Maxim (I, 5, 4). It was she, and not her sister, according to the ancient custom (more prisco), who asked the gods about a sign regarding marriage for the daughter of the latter, that is, for her niece. Cecilia was so preoccupied with the fate of a girl who had entered marriageable age that she said that she was ready to give up her own husband to her. The words, dictated by tender love for her sister's daughter, were not in vain. Soon after Caecilia died, Metellus married her niece. Another convincing example is the Matralias. They are celebrated in honor of Mater Matuta, identified with Ino-Leucothea (Ov., F., VI, 479-506; Plut. Cam., V). In the ritual of the festival, a ceremony is performed in which women embrace their sisters' children instead of their own (Plut., Cam., V; Qu est Rom, 17). In Ovid (F., VI, 559-562), this is explained by the fact that Ino turned out to be more useful to Bacchus, that is, to her nephew by sister Semele, than to her children. The especially close relationship between a maternal aunt and nephews is a vestige of that phase of social development when even a patriarchal clan and a large family had not yet taken shape and group marriages were in effect. In republican times, the genus, albeit in a transformed form, was exogamous, which makes it possible to project the marriage prohibition within the gens into the depths of the tsarist era. At the same time, we know that later legal monuments declared a ban on marriages up to the 7th cognatic degree. Therefore, if relatives beyond the 7th degree did not fall out of the genus, it was in fact not completely exogamous. The survivals of group marriage, which we mentioned above, allow us to believe that the border of marriage relations, i.e., the 6th-7th degree of kinship, could well be determined precisely in the original Rome. Under the conditions of the existence of survivals of more primitive forms, it was a phenomenon social progress. From the “Comparison” of Numa and Lycurgus, which we have already considered, Plutarch reveals one more establishment of Numa regarding. families. The Roman king, unlike the Spartan legislator, gave parents the freedom to raise their children as they pleased. The father could, at his own discretion, send his son to the occupation of a farmer, physician, flutist, etc. Plutarch condemns such an order, considering it the basis of fragility. However, through the moralization of Plutarch, a certain feature is visible that is characteristic of the Roman family at the beginning of the reign of kings: it is more independent than the Spartan one within the framework of broader social communities, primarily within the clan. Throws light on the state of the surname in Rome under Numa yet another law that belonged to this king. According to the commentator Virgil Servius (Ecl., 4, 43), the laws of Numa provided punishment for manslaughter. It consisted in the fact that the guilty person had to give in the national assembly a ram for the murdered person to his agnates. This message is interesting from various points of view. It shows the progress of Rome of that time in various aspects of its being - the limitation of blood feud, which was still in use under Romulus, as can be seen from the episode of the contention of Titus Tatius with the inhabitants of Lavinium, as well as the development of legal thought, i.e., the allocation of manslaughter. At the same time, Servius's commentary is also remarkable for the mention of agnates. The term itself, as is found when reading the legal texts of the laws of the XII tables, Gaius' Institutions, or texts placed in the Digests, always accompanies relations that develop within a family or between closely related families, and is used in connection with the inheritance of family property. In this case, we are talking about compensation, more precisely, about the penalty for the murder, which did not go to the clan, but to the family, which indicates an increase in its share. So, despite the fragmentary and fluent messages of ancient authors, one can still form a fairly holistic view of the Roman family at the beginning of the royal era, supported by ethnographic and historical analogies. The family of the time under study was a large house community, which was an integral part of the tribal community, gens, i.e., it was a community of a lower order, which was included in a higher-order gentile community. Both the surname and the gens were based on collective ownership or ownership of the main means of production, the land, while the family received the land from the gens. The cementing element of both communities was joint work, in the gens, primarily military, and in the family - productive. Consumption was also common in the family. The Roman surname probably also existed in the form of a consortium of brothers with their descendants, but mainly as the family type that received the name paternal family in science. This large family consisted of several, 3-4 generations of direct descendants, headed by a father, or grandfather, or great-grandfather. There is still no absolute omnipotence of the father in it, which corresponds to the dominance of the collective and the weak development of private landed property. But the importance of the head of the family is already emphasized in the institutions of the first kings. Such a family contains a series of closest agnates, a son, a grandson, while a large family, headed by the sibling of a given pater familias, is included in the same agnatic group, but already with the rights, so to speak, of agnates of the second category. To characterize the early Roman surname, it is necessary to clarify its relationship to the agnatic group. Judging by the “Institutions” of Guy (I, 156; III, 10), we can say that the agnatic group consisted of the head of the family with his wife, his sons and grandchildren with their wives, who lived as a single large paternal family, and after the death of the head - separate large paternal families headed by siblings. At the death of one of them, his property passed to his direct heirs, and in the absence of them - to the surviving brothers. This means that the agnatic group initially included a large paternal family with many generations. It covered patronymy later, when the patronymic association began to include small, individual families formed during the division of a large surname. But such a situation at the beginning of tsarist times, with many survivals of the most primitive social forms, could not have developed. A similar agnatic group, descended from the second head of the family, the brother of the first, headed after the death of the second by his sons, that is, cousins of the sons of the first, formed with the first group, using modern terminology, patronymy. Agnate groups similar to these, descended from cousins of the first and second heads of families, were part of the same gens. Agnate heterogeneous groups form a heterogeneous community. In the vertical direction, the genus, gens, is in principle unlimited, but in the horizontal direction it did not ideally exceed the 7th degree of kinship. This position was determined by two circumstances: 1) empirically, people realized that marriages within six degrees of blood proximity had a negative effect on offspring, so that this group of relatives was singled out as exogamous and at the same time as the backbone of the genus existing at a certain moment; 2) economic conditions dictated the need for the clan, denoted by the word gens and representing a heterogeneous community, to limit the number of large families included in it in order to guarantee their existence. The terms gentiles and cognati are not identical. Among the gentiles were the paternal cognati, both in the direct and collateral lines, and, moreover, their wives. The paternal cognati included all his descendants, including daughters and granddaughters in the direct line, as well as his blood relatives, including aunts and nieces in the lateral line. Belonging to the gentiles was based only on relations with the heads of the large paternal families that make up the gens, and belonging to the cognati was based on relations of kinship both on the paternal and maternal lines. Gentiles are members of a community organization, a cognati is a kindred one. The ethnic composition of the Roman gentes under the first kings, as we have seen, was not homogeneous. Their main mass was made up of Latin and Sabine genera. But some of them had a Liguro-Siculian, as well as an Illyrian origin. Perhaps a slight interspersing of Greek Achaean and individual Etruscan elements in them. The ethnic diversity of gentes, which follows from these traditions, does not seem to allow us to consider ancient Rome as either an Albanian, or a Sabine, or, even more so, an Etruscan colony. The Roman hills, with their complex population, the lower layer of which were the Liguro-Siculi, experienced the surf of several colonization waves, the most significant of which flowed from the Latin and Sabine regions. But these newcomers, apparently, were localized in different places of the future Rome. Thus, one can think that Roman Sinoikism was the Sinoikism of the Latin and Sabine colonies, which did not arise from scratch and adsorbed the previous population. If we keep in mind the Latin character of the Aborigines, as well as the victory of the Latin language in the emerging Roman community, it should be concluded that the Latin element was numerically predominant in Rome of the first kings. An important feature of the social development of Rome at the beginning of the royal era was that the gentes were living organisms, consisting of large paternal families. But the family at that time was a well-functioning unit not only within the gentes, but also within the settlements, in which both relatives and neighbors were grouped. They have accompanied the history of Rome throughout its republican phase, and even the emperors owe a great deal to them. Let's talk about the "gentes", the most ancient and most aristocratic families of the Eternal City, those who could accurately trace their noble origin. Some have argued that the Roman "gentes" were the direct descendants of the semi-legendary tribes that the 3rd century AD. e gathered around the seven hills, on the banks of the Tiber. Despite all the efforts of modern science, until now, scientists have not fully been able to figure out the generic theory of the Romans. It is reliably known that in the Roman "gentes" the recognition of origin and belonging to the genus through the male line dominated. So, only those persons who could prove that they descended from a recognized ancestor in the male line were considered family members. If a person could, with absolute accuracy, build his entire pedigree, from which it followed that he was a descendant of the ancestor in the male line, he was called "agnato"; those who were not able to prove kinship, but admittedly descended from one of the alleged ancestors of the genus, were called "gentiles". The most ancient Roman clans and families were exclusively patrician, since initially the plebeians, who were considered the alien population of Rome, did not have a tribal structure. Therefore, it was the patricians who made up the ancient Roman nobility. Each ancient Roman clan included several families - "Familiae". The Roman family was built according to an extended type: it included the "household lord", his wife, children and his relatives, as well as servants, slaves and clients (clientes) - people absolutely alien to the family, connected with it by certain obligations. In ancient Rome, the presence of a family and children was the main goal of the existence of any citizen, with all this, family relations were not regulated by any republican laws, but were subject to ancient traditions. What kind of members did the Roman family of patricians consist of? The head and breadwinner of the family was called the "homeowner". He was the undisputed authority of the Roman patriarchy, all family members, from children and wife to other relatives, had to obey his will. The power of the owner of the house was unlimited: he could, according to his own calculation and desire, give his daughters in marriage (and in ancient Rome, marriages were concluded, for the most part, only out of political or financial interests), and then also, if desired, divorce them, he was allowed to sell children into slavery , among other things, he had the opportunity to decide whether or not to recognize his children. Sons in Roman families were just as discriminated against as their sisters, because the power of the householder - Patria potestas - extended to adult sons and their families only when their father died. Sons became full heads of their families. The householder single-handedly owned all the immovable and movable property of the family, while even getting married, his sons remained powerless in their main family. During the life of the father, no one, even sons, had the right to own and dispose of any property. It was the householder in patrician families who passed on membership in the family. As for marriages, before the period of the late Republic in Rome, the type of marriage "cum manu" was practiced: it consisted in the fact that the girl, entering into marriage, fell under the authority of the head of the husband's family. Later, this form of marriage was changed to "sine manu": here the wife did not belong to the husband's family, but remained in the power of the father. A matron (matrona) was the householder's wife, often in fact more powerful than her husband. The matron had greater rights than her own children and other family members, as she was entrusted with household duties. The dependence of the matron on her husband was limited to property relations: she could not own and dispose of property without the permission of the owner of the house. Roman matrons were respected and well received around: they were well received in society, went to visit, took part in celebrations and receptions. As for the girls for marriage - daughters - they had their own dowry, but, as daughters and sisters, they had to obey the will of the householder. Women, even after marriage, remained a member of their kind, and marriage in our concept in ancient Rome did not exist. The marriage of the Romans was similar to modern cohabitation: the wife at any time, at the behest of her father, could leave her husband and return to her home. Before the formal conclusion of marriage in ancient Rome, the young were betrothed, and it was at this moment that the bride and groom uttered their marriage vows. The oath in ancient Rome was similar to the modern one: "Do you agree ..." at the church altar: the bride and groom were asked if they promised to enter into a legal marriage, to which each of them answered in the affirmative. At this moment, the groom gave his future wife a ring, putting it on the same finger where it is worn by modern Italians - the nameless left hand, as well as a coin. At Roman weddings, one of the main roles was played by the organizer of the celebration - a noble lady, who was respected by the families of the spouses. She brought the bride to the "painting room", and then handed her over to the groom. Wedding ceremony. Corrillasi Photos After marriage, the newlyweds went to the house of the girl's parents for a feast. At the end of the feast, the hostess again gave the young wife to her husband, the same, according to tradition, had to moan and cry theatrically, which symbolized the girl’s reluctance to leave her home, where her father treated her so well. Even relatives of the head of the house could be family servants, but most often they were the offspring of servants who had served the family for several generations, or freedmen (freed slaves). They were completely dependent on the Pater Familias. Clients belonging to Roman families had no blood ties to the family. These were people in need of patronage (impoverished or lost ancestral ties), whom rich patricians were drawn into family affairs. By virtue of the favors received from the heads of families (surnames), clients fulfilled certain obligations important for influential patricians: they accompanied their patron to the Forum, provided votes in elections and served in the war under his command. No wonder the patricians wanted to attract as many clients as possible. As for the latter, their obligations to the patron of the surname were transferred even by kinship - after the death of the father, his children became clients of the patronizing family. Clients and Pater. Circolo dei Saggi Photos Celebrations associated with the birth of a new family member opened on the eighth day after his birth and lasted three days. After childbirth, her father (patron) came to the woman in labor and determined the fate of the baby: he recognized him as a member of the family, ordered him to be killed or left him to the mercy of fate. If the homeowner accepted the baby, the father accepted him: it was he who named the baby. After a happy event, guests were invited into the house who brought gifts to the baby: as a rule, these were various amulets that protected from evil spirits. For a long time, until the reign of Octavian Augustus, Roman births were not registered. Only when the children reached the age of majority and received the right to wear a white toga, they became citizens of Rome and fell into the list of citizens. Octavian introduced the law to register newborns within a month from the date of birth in the temple of Saturn, in the Roman office. Until the reign of Justinian, Roman law distinguished between legal Roman marriage (matrimonium iuris eiviles), i.e. marriage between persons who had ius eonubii, and marriage between persons who did not have ius eonubii (the right to enter into a Roman marriage). It was defined as matrimonium iuris gentium. Concubinage differed from marriage, i.e. permitted by law, and not an accidental cohabitation of a man and a woman, but not meeting the requirements of legal marriage. The concubin did not share the social status of her husband, the children of the concubina were not subject to paternal authority. Despite the monogamous nature of the Roman family, a man in the Republican era could, along with a legal Roman marriage with one woman, be in concubinage with another. But any cohabitation of a woman with another man gave the husband the right to kill his wife. Forms of marriage. In ancient Rome, up to the reign of Justinian, two forms of marriage were distinguished. The marriage of cum man and mariti was characterized by the establishment of the power of the husband, by virtue of which the wife came under the authority of the husband or householder if the husband himself was a subject. Marriage sine manu left the wife subject to the former householder or made her an independent person. Over time, sine manu marriage completely supplanted the cum manu mariti form of marriage. As already mentioned, the last form of marriage was characteristic only of the most ancient period of Roman history. Initially, the power of the husband was unlimited, the legal personality of the wife was constantly absorbed by the legal personality of the husband. Her legal status was similar to the status of children: in relation to her husband, she was legally in the position of a daughter, being absolutely powerless. This lack of rights equally concerned both the personal and property status of the wife. In a personal sense, the very fate of his wife depended on the husband, in respect of which he had the right of life and death (ius vitae ac necis). He could sell his wife into slavery if she left the house without his knowledge, recover her from any person in a claim securing the return of property from someone else's illegal possession. The demand for the return of a wife could be made even to her parents, since the marriage was accompanied by a rupture of agnatic ties with her blood relatives and the emergence of agnatic kinship between her and her husband's family. The idea of the unlimited power of the husband permeated the property relations of the spouses. There was only one subject of property rights in the family - the husband, who owned not only the property acquired in marriage, but also previously owned by the wife, if before marriage she was an independent person (persona sui iuris), as well as property donated to her by the father on the occasion getting married. The reason for the wife's lack of property rights was that upon marriage, she became a subject (persona alieni iuris) and, as such, could not have her own property. Even if the husband gave her something for her own disposal, it was considered a peculia. Only after the death of the husband, the property could pass to the wife and children. Marriage sine manu was the exact opposite of marriage cum manu mariti. Entering into such a marriage did not entail a change in the legal personality of a woman. Blood family ties with her family were not interrupted, there was no agnatic relationship between her and her husband's family. The husband no longer had the former power over the personality of his wife. Nevertheless, the primacy of the husband also manifested itself in sine manu marriage. The wife received the name and status of her husband, the place of residence of the husband was also obligatory for the wife, the consequences of adultery were much more difficult for the wife than for the husband. In any form of marriage, only the husband had authority over the children. The property of the spouses during marriage sine manu remained separate. The husband did not have any rights to his wife's property, not only belonging to her before marriage, but also acquired by her during the period of family life (inheritance, donation, etc.). Even the simple management of the wife's property could be carried out by the husband only in those cases when the wife herself transferred the property to him for this purpose. At the same time, the relationship between the spouses was determined on the basis of a commission agreement. In order to avoid usurpation by one spouse of the rights to the property of the other, donation between spouses was prohibited. However, it was allowed to conclude any other agreements between husband and wife, as well as to bring claims against each other in case of property disputes. In the event of a dispute between spouses regarding any things, the presumption was applied that each thing belongs to the husband until the wife proves her ownership of the said thing. The legal regime of dowry (dos) also developed in the direction of strengthening the guarantees of the property interests of the wife. Dowry (dos) covered things or other parts of the property provided to the husband by the wife, her householder or a third party to alleviate the material difficulties of family life. In the early republican period, when almost all marriages were cum manu, there was no special regulation of the legal status of dowry. Therefore, if there was no special agreement on this issue, then the dowry was not separated from all the other property brought by the wife, and completely became the property of the husband. But in the event of a divorce on the initiative of the spouse, it was considered fair to return this property to the woman who brought it. So the divorce formula according to the law of the XII tables sounded: "Res tuas tibi habeto" - "take your things with you." When sine manu marriages entered into practice, a special legal regime was established for dowry. Approximately at the turn of the III-II century. to i. e. the rule of concluding an oral agreement with the husband was established, according to which the husband assumed the obligation to return the dowry in the event of termination of the marriage. In the absence of such an agreement, the dowry legally remained in the property of the husband forever, but due to domestic traditions, the husband considered himself obliged to transfer it by will in favor of his wife. In case of an unjustified divorce, a praetor's claim for a partial return of the dowry as a fine began to be granted to the wife. In the classical period, dowry receives special regulation. During the marriage, the husband is the owner of the dowry, having the right to dispose of this property. However, he could not, without the consent of his wife, alienate land brought as a dowry. In the event of the termination of the marriage due to divorce or the death of the husband, the dowry was returned in full. In the event of the death of the wife, the dowry remained with the husband. By returning the dowry, the husband was entitled to keep a certain share for the maintenance of the children who remained with him, to cover the costs incurred in maintaining the property included in the dos, as a fine if the divorce was due to the fault of the wife. Under Justinian, both the wife herself and her heirs received the right to return the dowry. The dowry was returned in full, minus the costs incurred by the husband. Even in the imperial period, a custom developed according to which the husband, receiving a dowry, for his part, made an appropriate contribution to the family property in the form of a gift in favor of his wife. At first, this gift was made before marriage, since donation between spouses was forbidden, and was called a premarital gift. Justinian allowed this gift to be made during marriage as well. In size, this property corresponded to the dowry. During the marriage, it remained in the ownership and control of the husband. In the event of a divorce due to the fault of the husband, it passed to the wife. In the presence of a special agreement, the wife could not demand the issuance of this property even in the event of the death of her husband. In ancient Rome, there were three forms of marriage with the establishment of the power of the husband: through a long stay in marriage (usus); through a religious marriage ceremony (conferratio) and through the alleged purchase of a bride (coemptio). A wife fell under the authority of her husband if the spouses were continuously married for one year. The laws of the XII tables contained a provision according to which a spouse who did not want to pass into the power of her husband should leave his house for three consecutive nights every year. The religious form of marriage was important in the ancient era of Rome, since only persons born in this marriage could become the high priests of Jupiter, Mars and Quirinus. A number of historians consider it a privilege of patrician families. The symbolic purchase of a wife was par excellence a plebeian form of marriage. It was performed through mancipation, after which the wife became a member of the family. Conditions for marriage. The marriage was preceded by an engagement (sponsaliae). In antiquity and at the beginning of the classical period, the parties entered into a contract in the form of an oath promise to marry. Then the engagement turned into only a moral obligation, the principle of freedom of marriage was considered paramount. However, under the influence of Christianity, the engagement again acquires a binding meaning and is accompanied by a deposit, which was lost by the groom in case of refusal to marry. The father of the bride answered in case of refusal four times, and from 472 AD. e. double the amount received. The conclusion of two engagements, as well as polygamy, was not allowed. Marriage was preceded by the presence of certain conditions. First, reaching marriageable age. For boys it was 14 years, for girls it was 12 years. The consent of the bride and groom was necessary, and if they were also under the authority of the householder, then his consent. If the householder did not give consent to the marriage without sufficient reason, it could be obtained by coercion on the part of the magistrate. The marriage of a person who was in an ongoing marriage was not allowed. In addition, the bride and groom should not have been in close degrees of kinship or property among themselves and should have had ius conubii, that is, the right to enter into a legal Roman marriage. Thus, the conclusion of a "correct" marriage was not allowed between blood relatives in a straight line, regardless of the degree of kinship; between collateral relatives within the fourth degree of kinship. Marriage between the guardian or his son and the ward was not allowed. Marriage between relatives was considered a criminal offence, with the offense itself considered mutual. Marriage was dissolved in case of death, loss of freedom or citizenship of one of the spouses. Marriage was also terminated by the will of the spouses through divorce (devortium) or by a unilateral declaration of renunciation of married life (repudium). For a long time, the principle of Roman law was the recognition of freedom of divorce. However, during the reign of the emperor Augustus, serious restrictions were made on this freedom, and under the emperor Justinian, divorce by mutual consent of the spouses was prohibited. Unilateral applications for divorce were allowed in the event of a violation of fidelity by one of the spouses or an attempt on the life of the other spouse. Divorce was also allowed without the fault of the other spouse, but for a good reason, for example, inability to have sex or a desire to enter a monastery. A unilateral divorce without good reason was accompanied by a fine, but the marriage was still considered annulled. The patriarchal nature of the Roman family was also manifested in the power of the householder (patria potestas) in relation to children. Only the father was an independent person in the family; daughters and sons were persons of another's right (personae alieni iiiris). A subservient son had the status of liberty and citizenship. In the field of public law, upon reaching the age of 25, he stands next to his father, can hold public positions, except for the senatorial one. But in the family he was completely subordinate to his father's authority, regardless of age, even when he was married and had children himself. Moreover, the power over the children belonged to the father, and not to both parents. The basis for the emergence of paternal power (patria potestas) was the birth of children from these parents who are legally married, the legitimization of children born out of wedlock, and the adoption of other people's children. Any child born to a married woman was considered the son or daughter of her husband until proven otherwise. Legalization was the recognition of the legitimate children of these parents, born by them out of legal marriage, for example, children of concubines. Legalization could be carried out by entering into a legal marriage with the parents of an illegitimate child, by obtaining the appropriate imperial rescript, or by enrolling the son as a member of the municipal senate (curia), and the daughter by marrying a member of the municipal senate. Adoption established paternal authority over an outsider. If a person was adopted who was not under paternal authority (persona sui iuris), then this was called arrogatio; if the adoption was carried out in relation to a person under paternal authority, then it was called adoptio. As a result of arrogation, an independent person came under paternal authority with all its consequences, including the mutual right of inheritance. The consequence of the adoptio was the termination of the parental authority of one householder and the establishment of the authority of the adopter. Adoption must meet the following conditions: With regard to arrogatio, it was also required that the magistrate investigate the circumstances of the case and find out whether the adoption would not adversely affect the interests of the adoptee. In different historical periods, the specific forms of arrogatio and adoptio were different. Under Justinian, it was established that arrogatio is accomplished by obtaining an imperial rescript, and adoptio by entering into the court record the agreement of the former householder of the adoptee with the adopter in the presence of the adoptee himself. The grounds for the termination of paternal power were: Emancipation. Paternal power was also terminated by the emancipation (emancipatio) of the subject, i.e. liberation from power at the will of the householder and with the consent of the most subject. At the beginning, it was expressed in the fictitious triple sale of a son or a single sale of a daughter to a buyer who immediately freed the subject. As a result, the latter became an independent person (persona sui iuris), and the father lost his patria poteslas over him, being entitled to use half of his property. In the law of Justinian, emancipation took place: In a number of cases, for example, when inflicting grave insults, etc., emancipation could be canceled. Initially, the father disposed of the life and death of his children, being entitled to throw away the newborn, regardless of age, sell into slavery or take life. However, over time, these powers began to be limited. By the end of the existence of the Roman Empire, paternal authority was reduced to the right to apply domestic punishments, and children were allowed to complain to the magistrate about the excessive severity of their father, and if the complaint was confirmed, the father was obliged to release the children from his authority. The subordinate son had the right to make transactions with property (commercium), but everything that he acquired automatically went into the property of the father, since the subordinate had nothing of his own. In the event of the commission by the subject of a private offense, a tort, the victim had the right to a special action of actio noxalis. And the father had to either pay the victim the amount of damage suffered, or transfer the subject into bondage for the period necessary to work out the amount of damage. With the development of trade and economic relations, there was an expansion of the property legal capacity of the subject. Even in the republican period in Rome there was a practice to allocate part of the property to the son under his control for independent management. Such property was called peculium. On this basis, the same relations developed as with regard to the slave peculia. In connection with the development of the institution of peculia, some other changes occurred in family and property relations. If in ancient Roman law the general principle was the inadmissibility of transactions between the householder and the subordinates, as well as between the subjects of the same householder, then in connection with the practice of allocating a peculium to the subordinate, it was recognized that it was possible to establish obligations between members of the same family, but they were not provided with legal protection, but were only "natural". Over time, the number of types of peculia expands, the property independence of subordinate persons and their participation in civil circulation increases. At the beginning of the principate, the so-called military peculium (peculium castrense) appears, i.e. property acquired in military service or in connection with military service (salary, military booty, gifts received when entering military service, etc.). The military peculium was in the actual management of the subject and belonged to him on property rights, but with one limitation: if the subject died without leaving a testamentary disposition regarding the military peculium, then the property went to the householder on the same basis as an ordinary peculium. From the beginning of the 4th c. n. e. the legal status of the military peculia extends to all acquisitions of the son made in the state, court, spiritual service, as well as in the service as a lawyer. The so-called quasi-military peculium is being issued. During the period of absolute monarchy, the subject was recognized as the right of ownership of property inherited from the mother and generally acquired from the maternal side. The son's right of ownership to the mother's property was limited only by the fact that the father had a lifelong right to use and manage this property. Under Justinian, a rule was established according to which the son owned all the property acquired by him, with the exception of the property bought at the expense of his father. The latter became the property of the pater familias, and in relation to the property of the children, he had only the right to use.
An important part of the tradition about the original Rome is the royal laws. As we have already noted, now in place of the complete denial of their historicity by hypercritics in science, the attitude towards them as fundamentally reliable, at least as ascending to genuine establishments, is being affirmed.
1. Homeowner (Pater Familias)
2. Women and Matrons
3. Servants
4. Clients
5. Children
paternal authority
Legal status of children