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p519 Familia

An article by George Long, M.A., Fellow of Trinity College
on pp519‑520 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

FAMI′LIA. This word contains the same element as "famulus," which is said to be the same as the Oscan famul or famel, which signified "servus." The conjecture that it contains the same element as the Greek ὁμιλία, and is the same as ὁμ or ἁμ, is specious, but somewhat doubtful. In its widest sense Familia comprehends all that is subjected to the will of an individual, who is sui juris, both free persons, slaves, and objects of property. In this sense it corresponds to the Greek οἶκος and οἰκία. But the word has various narrower significations (familiae — appellatio et in res et in personas diducitur, Dig. 50 tit. 16 s195 § 1). In the third kind of testamentary disposition mentioned by Gaius (II.102), the word "familia" is explained by the equivalent "patrimonium;" and the person who received the familia from the testator (qui a testatore familiam accipiebat mancipio) was called "familiae emptor." And in the formula adopted by the "familia emptor," when he took the testator's familia by a fictitious sale, his words were: "Familiam pecuniamque tuam endo mandatam tutelam custodelamque meam recipio," &c.

In the passage of the Twelve Tables which declares that in default of any heres suus, the property of the intestate shall go to the next agnatus, the word "familia" signifies the property only: "Agnatus proximus familiam habeto." In the same section in which Ulpian (Frag. tit. 26.1) quotes this passage from the Twelve Tables, he explains agnati to be "cognati virilis sexus per mares descendentes ejusdem familiae," where the word "familia" comprehends only persons (Dig. 50 tit. 16 s195; 10 tit. 2).

The word "familia" sometimes signifies only "persons," that is, all those who are in the power of a paterfamilias, such as his sons (filiifamilias), daughters, grandchildren, and slaves, who are strictly objects of dominium, but are also in a sense objects of potestas. In another sense "familia" signifies only the free persons who are in the power of a paterfamilias; and, in a more extended sense of this kind, all those who are agnati, that is, all who are sprung from a common ancestor, and would be in his power if he were living. With this sense of familia is connected the status familiae, by virtue of which a person belonged to a particular familia, and thereby had a capacity for certain rights which only the members of the familia could claim. A person who changed this status, ceased to belong to the familia, and sustained a capitis diminutio minima. [Adoptio; Caput.] Members of the same family were "familiares;" and hence familiaris came to signify an intimate friend. Slaves who belonged to the same familia were called, with respect to this relation, familiares. Generally, "familiaris" might signify any thing relating to a familia.

Sometimes "familia" is used to signify only the slaves belonging to a person (Cic. ad Fam. XIV.4, ad Quint. Fr. II.6); or to a body of persons (societas), in which sense they are sometimes opposed to liberti (Cic. Brut. 22), where the true reading is "liberti" (Cic. ad Fam. I.3).

The word familia is also applied (improperly) to sects of philosophers, and to a body of gladiators: in the latter sense with less impropriety. In a sense still less exact, it is sometimes applied to signify a living, a man's means of subsistence (Ter. Heauton. V.1.36).

paterfamilias and a materfamilias were respectively a Roman citizen who was sui juris, and his wife in manu (Cic. Top. 3; comp. Ulp. Frag. IV.1, and Böcking, Instit. I. pp217, 229). A filiusfamilias and a filiafamilias were a son and daughter in the power of a paterfamilias. The familia of a paterfamilias, in its widest sense, comprehended all his agnati; the extent of which term, and its legal import, are explained under Cognati. The relation of familia and gens is explained under Gens.

The notion of Familia as a natural relation consists of Marriage, the Patria Potestas, and Cognatio (kinship). But Positive Law can fashion other relations after the type of these natural relations. Of these artificial family relations the Roman law had five, which are as follow:— (1) Manus, or the strict marriage relation between the husband and wife; (2) Servitus, or the relation of master and slave; (3) Patronatus, or the relation of former master to former slave; (4) Mancipii causa, or that intermediate state between servitus and libertas, which characterized a child who was mancipated by his father [Emancipatio]; (5) Tutela and Curatio, the origin of which must be p520traced to the Patria Potestas. These relations are treated under their appropriate heads.

The doctrine of representation, as applied to the acquisition of property, is connected with the doctrine of the relations of familia; but being limited with reference to potestas, manus, and mancipium, it is not co-operative nor identical with the relations of familia. Legal capacity is also connected with the relations of familia, though not identical with, but rather distinct from them. The notions of liberi and servi, sui juris and alieni, are entirely unconnected with the relations of familia. Some of the relations of familia have no effect on legal capacity, for instance, marriage as such. That family relationship which has an influence on legal capacity, is the Patria Potestas, in connection with which the legal incapacities of filiusfamilias, filiafamilias, and a wife in manu, may be most appropriately considered. (Savigny, System des heutigen Röm Rechts, vol. 1 pp345, &c., 356, &c. vol. II Berlin, 1840; Böcking, Institutionen,º vol. I p213, &c.)


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