Bryn Mawr Classical Review 1999.02.10
Jane F. Gardner, Family and Familia in Roman Law and Life. Oxford: Clarendon Press, 1998. Pp. 305. ISBN 0-19-815217-5. $85.00.
Reviewed by Marilyn B. Skinner, University of Arizona (firstname.lastname@example.org)
Word count: 2703 words
In her preface Gardner states, "This is a book about Roman law, for Roman social historians, although I hope that it will be of some interest also to social historians in other fields and to specialists in Roman law" (v). Its aim, she informs us in a brief introduction, is to examine the interrelationships between actual families and the legal construct of the familia. Taking as her starting point the model of the individual household governed by a paterfamilias found in the legal sources, Gardner studies the ways in which real families exploited this abstract concept in order to achieve their own ends. She approaches her subject from the periphery, as it were, through consideration of three groups viewed as external in the strict sense to the familia itself: emancipated children, adoptees, mothers and maternal kin. For each class of persons, Gardner contends, the rules of civil law, especially in the area of inheritance, were modified over time to respond to the desires of individuals primarily interested in taking care of family members as opposed to preserving the legal integrity of the familia.
The first chapter, "Out of the Familia: The Practice of Emancipation," analyzes the voluntary release of a child from paternal potestas. Following a law of the Twelve Tables prescribing freedom for a son sold into bondage three times by his father, it involved a complicated process of repeated purchase and manumission by a notional buyer. The situation of the emancipated child was analogous to that of the manumitted slave: children already born to him remained in his father's potestas, and his father could inherit from him if he died intestate, just as a patron retained title to a freedman's children born in slavery along with the right to inherit from his former slave. From Polybius' account of Scipio Aemilianus' financial transactions with his natural kin (31.26-28), Gardner draws the important conclusion that emancipated or adopted children who had left the familia were nevertheless still family members both socially and emotionally. This point may seem too consequential to rest on just one example, but further discussion bears it out.
Conscious distinction between the legal and the social status of the emancipated child explains the gradual modification of the rules of intestate succession to grant him or her a share of the paternal estate. While the Twelve Tables allowed virtually no opportunity for this, the praetorian edict permitted emancipati to inherit -- first, according to Gardner, as blood relatives under the category unde cognati, introduced between the later 70s and 66 B.C.E.,1 and then, probably by the time of Augustus' accession, as liberi, a category that comprised both children still in potestate and emancipated siblings (p. 39). Other changes occurring at this time include extension of the right to refuse the inheritance to sui herides (automatic heirs) and the provision that emancipated children making a claim on the estate must contribute from their own goods to the common property. Gardner plausibly associates these new developments with efforts to protect patrimonies and counteract the depletion of the ruling classes caused by decades of proscriptions and civil wars. Hence the Julian legislation on marriage and inheritance originally excluded emancipated children from the number of offspring needed to qualify fathers for electoral preference or exemption from exercising tutela, though the rules were later relaxed.
Though emancipated, a son or daughter was not without resources, as Gardner clearly establishes in the last sections of this opening chapter. Pietas imposed a general obligation upon fathers and emancipated sons to support each other in case of need; the peculium could be retained on emancipation unless the father actively prevented it; emancipated daughters and not fathers had the right to recover dowries upon dissolution of the marriage, although the legal situation was an intricate one; emancipation and strategic adoption could be used to insure bequests to favored individuals even in the event of failure of the will. Emancipation was frequently stipulated as a condition of inheritance in a mother's will to prevent the legacy from coming under the control of the paterfamilias. Thus, Gardner concludes, it was not a punitive measure, but instead served as a legal mechanism to enhance the well-being of the family as a whole, qualified by awareness that the interests of the emancipated child must still be protected. Modifications in the laws of succession and inheritance responded to the latter sentiment.
The second chapter, "Into the Familia," deals with the corollary practice of adoption. By comparing the provisions of adoption laws in England and Wales, Gardner establishes that Roman adoption served a far different purpose: it was not concerned with the welfare of children but was instead "about property entitlement" (116). Adoption of those still in potestate followed the same general procedure as emancipation. As a legal outcome, a person's agnatic ties with his natal family were dissolved and he passed into the potestas of his adopting pater with the same inheritance rights as a natural child. Marriage between the adoptee and those who had become related as ascendants and descendants was prohibited, as was marriage by adoptive siblings, unless one or the other had been emancipated. The provision of the Julian law on adultery concerning the paterfamilias' right to punish his daughter with death applied in cases of adoption, since that involved his legal authority, but expectations of behavior grounded upon pietas were occasionally modified for adoptive children and parents "because of the artificial origin of their relationship" (124).
Following Gaius 1.99-107, Gardner distinguishes between "private" adoptions of those in potestate and adrogations, which she designates "public" adoptions. In the latter case, the individual was already legally independent. Thus adrogation had far-reaching consequences: the adoptee's children also went into potestas with him, his property was absorbed, the familia he himself had governed was terminated and its sacra extinguished. Consequently, adrogatio in the Republican period required an inquiry by the college of pontiffs to determine appropriateness, followed by an enabling vote of the curiate assembly. This procedure, notoriously used by P. Clodius Pulcher to become eligible for the tribuneship, must have been uncommon, Gardner argues, because of its drawbacks and its difficulty. Hence she firmly rejects belief in the legal existence of so-called "testamentary adoption" as a form of posthumous adrogatio, the case of C. Octavius notwithstanding: in this and other alleged instances, she explains, a heir is merely instituted by will on the condition that he take the testator's name. After the first century C.E., adrogation was accomplished by imperial rescript, which may have increased its frequency.
Roman law imposed restrictions on both capacity to adopt and adoptability. Conventionally, the adopter had to be older by eighteen years. Gardner surveys the debate between those who defined legal adulthood for males as merely reaching the age of 14 and those who postponed it to the point at which the person had achieved full physical development. Men naturally incapable of fatherhood were allowed to adopt; on the controversial point of whether castrati could do so, Gardner argues that in classical law they indeed had this right and were only denied it under Justinian. She also examines Justinian's other adoption reforms, which confined the imposition of potestas and loss of agnatic inheritance rights in the natal family to those who were being adopted by biological male ascendants. Women, on the other hand, could not adopt because women did not have potestas over other free persons.2 Since, in addition, they could not participate in meetings of a voting assembly, they were not eligible for adrogation except by imperial rescript. Adrogation of impuberes (persons not yet adult) with due protection for their economic interests began to be allowed under Antoninus Pius; this, Gardner suggests, may have been a direct response to the social problem of providing for orphaned children. On the question of whether a son in potestate was able to object to his own adoption, she sides with the majority who believe that his consent was not necessary; sons could, however, refuse consent if their fathers wished them to adopt third parties. Restructuring the familia in order to favor particular persons, achieved through a combination of emancipation and adoption within the immediate family, is envisioned in the Digest and seems to be based on real-life incidents, usually involving a grandfather changing the status of his grandsons. Although it came into being, then, "as a device securing the continuance of the familia, its property and its sacra" (202), adoption began to be used by patres with living children as a strategy for playing favorites. Such manipulative practices as moving adoptive sons into and out of potestas and collusive arrangements for temporary adoptions are subject to legal disapproval in the Digest and finally result in the greater strictness evident in Justinian's modifications of the rules of adoption.
The final chapter, "Outside the Familia: Mothers and Children," spells out the complicated legal ramifications of changes in relations between the child's maternal and paternal lines. Originally, a woman passed upon marriage into the manus of her husband or husband's father and became a member of her marital familia, having the legal status and the inheritance rights of one of her own children. When marriage sine manu became the prevailing form of marriage, the woman remained a member of her own familia; her agnates, and not her children, inherited from her. The latter system worked well, Gardner argues, only as long as there were siblings in each generation who could keep the woman's property within the agnatic line of descent (210). She analyzes the consequences, both economic and religious, of a lack of direct male heirs and argues that legislation already in place by the third and second centuries B.C.E. addresses the problem of men dying without direct heirs and breaking up the estate through bequests to friends. The only alternative was to bequeath to heirs in the female line, daughter's children or sister's sons. Social attitudes also promoted the expectation that parents of either sex should be able to inherit substantially from children and vice-versa; children were even permitted to bring a "complaint of unduteous will" against a mother's testamentary arrangements, though few instances are known. Finally, the senatusconsultum Tertullianum allowed women to inherit from children in the category of legitimi upon intestacy, and the senatusconsultum Orphitianum of 178 C.E. put children, including illegitimate children, first in order of succession to their mothers' estates. Thus blood relationship finally became as important as familia in determining inheritance rights on the maternal side.
Males in the maternal line were also called upon to serve as tutors for children left fatherless before puberty. Widows did not have the power to act as tutors for their children nor to assign tutors themselves, who instead had to be appointed by a magistrate. Since the senatusconsultum Tertullianum denied the right of intestate inheritance to mothers who had not sought tutors for their children, some mothers were clearly attempting to manage their children's property independently. On the other hand, mothers, along with other female relatives, could bring a charge of malpractice against tutors who mismanaged children's estates.
In each of the above areas, the status of freedmen presents a special case, insofar as the manumitting patron and patron's children were given inheritance rights over the freed person's estate, sometimes even when direct heirs existed. Gardner therefore devotes a section of each chapter to explaining how the legal developments she studies affected freedmen:
a. Emancipation: The Augustan laws on marriage and inheritance released freedmen with two or more natural children in potestate from the obligations of performing operae stipulated as a condition of manumission. Furthermore, while freedmen of modest means could will their entire estates to offspring, those worth 100,000 sesterces could only exclude patrons from claiming a share of the property if they had three or more children. Noting that this provision effectively decreased further social mobility, Gardner identifies several legal strategies by which, through emancipation and gifts, fathers attempted to maximize their children's legacies. For freedwomen, whose patrons exercised control over their property as tutors, providing for children was even more difficult.
b. Adoption: Could children born to a slave prior to his manumission be adopted after he and his partner, their mother, gained freedom, and would that strategy have been in the best interests of all concerned? Gardner enumerates the reasons why adoption could not be readily used to reconstitute freedmen's families. Although illegitimate children could be made legitimate by being taken into potestas, they were not Roman citizens and could not themselves exercise potestas if their natural fathers had not been properly freed under the requirements of the lex Aelia Sentia of 4 C.E. Again, a slave's child was legally fatherless and therefore sui iuris, so adoption could be accomplished only by adrogation, which created practical difficulties. Female children could not be adopted except through imperial rescript. Since former owners exercised patronal rights over their ex-slaves, bringing a freed child under someone else's potestas created a conflict of interest (although, under the Empire, special permission might be granted in the case of a child being adopted by his own biological father). While natural children legitimated by adoption could count toward relief from the penalties of childlessness, and perhaps toward attainment of the ius liberorum, adoption did not change civil status and an adopted ex-slave suffered social disabilities. Lastly, the benefits of adrogating illegitimate children were greatly reduced when, probably before the end of the second century B.C.E., the praetor's edict granted the patron at least half the estate, surmounting the claims of all but fully legitimate children or grandchildren even in the face of a valid will. Because the evidence of inscriptions is unclear, as Gardner demonstrates, we do not know whether adrogation was, in spite of all that, a common practice.
c. Maternal Relationships: Augustan legislation on manumission, especially the lex Aelia Sentia, increased the numbers of children technically born illegitimate -- who, belonging to no familia, legally could not inherit from anyone. These children benefited from later Hadrianic and post-Hadrianic rulings allowing illegitimate children to succeed as cognates both to their mother and to illegitimate siblings born of the same mother. Insofar as most illegitimate children came from the poorer classes, their inheritance rights would seem irrelevant. Gardner finds it extraordinary, then, that Roman jurists by the third century C.E. were interpreting the senatusconsultum Orphitianum to allow illegitimate as well as legitimate children to exclude patrons from inheriting their freed mother's estate. She explains this phenomenon as a further result of processes studied earlier: given the progressive extension of the inheritance rights of legitimate children over their mother's property, the social sentiment that mothers should make testamentary provision for their children, and Hadrian's ruling allowing illegitimate children a right to inherit from mothers, the undeniable fact of blood relationship allowed the rights of children, including illegitimate children, to supersede those of patrons.
For the social historian interested in gaining broad insights into the workings of Roman family law, Gardner's book offers many valuable conclusions. She demonstrates, first of all, that family and familia are not the same thing. Hence the fundamental legal structure of the familia was not affected by modifications of inheritance law giving additional weight to blood relationship. Second, she shows that "family affections persisted across familia boundaries," and that preserving the original structure of the familia was not as important a consideration as providing for the welfare of family members. Third, and perhaps most important, she reveals how Roman civil law based upon the familia rested upon demographic assumptions at odds with reality -- the continued existence of agnatic heirs in each generation and transfer of wives into manus -- and that the legal developments specified in each chapter were driven by a perceived lack of fit between the familia, as a construct, and real family circumstances.
The author's grasp of the complexities of her subject matter is impressive. Still, this is not an easy book to read and digest, even though Gardner's analysis of cases cited in the Digest offers insight into social realities by giving brief glimpses of real families caught up in complicated legal and personal scenarios. Nevertheless, historians of the Roman family will definitely wish to keep the volume in their home libraries as a reference tool.
1. The argument for dating the category unde liberi involves a discussion of Catullus 68.119-24 that sheds new light on the entire Laudamia exemplum (pp. 32-34) by clarifying the legal situation postulated by the simile of the late-born heir.
2. In exceptional circumstances, during the later Empire, a woman without surviving children could be granted permission to establish a "fictitious parenthood" (156) between herself and an unrelated person for inheritance purposes only.