160 THE ROMAN EMPIRE
servile population in de facto or de iure marriages, but more often freeborn
and servile lived with partners of their own rank.^33
Parents and children
The characteristic feature of relations between the generations in Roman
families was authoritarianism, or such is the impression conveyed by the
law, in which the paterfamilias enjoyed sweeping powers over his direct
descendants. As Gaius wrote in his second- century textbook of law, patria
potestas ‘is the special characteristic of Roman citizens; for virtually no
other men have over their sons a power such as we have’ ( Inst. 1.55).
Though the father’s powers were modifi ed during the Principate, most
remained essentially intact.^34
Perhaps the most striking was the power of life and death ( vitae necisque
potestas ). The legitimacy of the use of this power to punish adult children
was affi rmed by Augustus, but was later denied by Hadrian and then the
jurist Ulpian ( Digest 48.8.2). Roman fathers continued until the late fourth
century to exercise the power of life and death in choosing whether their
newborn children were to be exposed or raised.^35 If a father decided to bring
up a child, he had considerable legal control over it until his death. For
instance, his consent was required for the legitimate marriage of a son or
daughter, and only in the second and third centuries was his power to break
up his children’s marriages restricted.^36
The power that would seem to have been most awkward and oppressive
from day to day was the father’s sole right to own property in his familia. 37
Sons could be given an allowance or, more formally, a peculium , but
according to the legal rules the paterfamilias had the rights of formal
ownership over all this property, including any accruing to his children
through labour, gifts or bequests. Again, the rules were modifi ed in minor
respects by the emperors, notably, Augustus’ grant of a fund to soldiers into
which the income from military service was paid and over which the soldier
had control ( peculium castrense ).^38 Because the law did not set an age of
majority, this incapacity to own property extended to all adults, whatever
their age or rank, whose fathers were still alive and who had not been freed
from their father’s power by the special legal process of emancipation.
The paterfamilias also had a good deal of latitude in disposing of the
family property upon his death. In cases of intestacy the civil law called for
partible inheritance in equal shares among all legitimate children (male and
female), but Romans with property typically made wills that could alter the
equal shares.^39 Some restraints on the testator’s freedom came to be enforced.
If a Roman chose not to institute his children as heirs, he had to disinherit
them explicitly in the will. By the end of the fi rst century BC such a disherison
could be challenged in court (by the querela inoffi ciosi testamenti procedure)
on the grounds that there was not adequate cause for depriving the children