PATRIA POTESTAS
PATRIA POTESTAS Potestas in its original meaning signified
“mastery,”
“dominion” (Curtius,
Gr. Etym. 3.265), and hence
it came to mean a legal power or authority to which a person was entitled.
“Potestas,” says Paulus (
Dig. 50,
16,
215), “has
several significations: when applied to magistratus, it is imperium; in
the case of children, it is the patria potestas; in the case of slaves,
it is dominium.” According to Paulus, then, potestas, as applied
to magistratus, is equivalent to imperium. Thus we find potestas associated
with the adjectives
praetoria, consularis. But
potestas is applied to magistratus who had not the imperium [
IMPERIUM], as, for instance, to
quaestors and tribuni plebis (
Cic. Clu. 27,
74); and potestas and imperium are often
opposed in Cicero. Both the expressions
tribunicium
jus and
tribunicia potestas are used
(
Tac. Ann. 1.2,
3). Thus it seems that this word
potestas, like many other Roman terms, had both a wider
signification and a narrower one. In its wider signification it might mean
all the power that was delegated to any person by the state, whatever might
be the extent of that power. In its narrower signification, it was on the
one hand equivalent to imperium, and on the other it expressed the power of
those functionaries who had not the imperium. Sometimes it was used to
express a magistratus as a person (Sueton.
Claud. 13;
Juv. 10.100); and hence in the Italian language
the word
podestà signifies a magistrate.
Potestas is also used to express the authority of the head of a family over
his children and slaves, which was an authority analogous in some respects
to that of a magistrate. The potestas is
dominica, as exhibited in the relation of master and slave [
SERVUS]; or
patria, as exhibited in the relation of father and child.
The earliest and most comprehensive term for the patriarchal power of the
head of a Roman family appears to have been
manus, which came to be more specially applied to express the
power to which a married woman might be subject in her husband's family. The
mancipium, or power over persons in a
semi-servile state, was framed after the analogy of the dominica potestas.
The tutela, in its origin an offshoot of the patria potestas, was itself a
kind of potestas (Inst. 1.13, 1;
Cic. pro
Mur. 12, 21, “mulieres--majores in tutorum
potestate esse voluerunt” ). Patria potestas, then, signifies the
power of a Roman paterfamilias over his children and descendants through
males in his familia (
filiifamilias,
filiaefamilias). [
FAMILIA]
It is to be borne in mind that grown--up children were subject to this power
as well as those who were of tender years. The government of the family was
[p. 2.352]concentrated in the hands of its head, whose
powers were originally more like those of a supreme magistrate than of a
father at the present time. Thus the paterfamilias had originally absolute
power over the persons of filiifamilias, having the right of inflicting on
them the punishment of death (
jus vitae
necisque) or any lesser punishment. It was customary for him only
to inflict capital or other serious punishment on a filiusfamilias after the
latter had been condemned by a family tribunal (
judicium
domesticum). (Cf. Münster,
de
domestic. familiarum judicio; v. Walree,
de
antiq. juris parricidi, &c.; Geib,
Cr. Pr.
82, &c.; Zumpt,
Crim. Recht, 1.349). F. Voigt
(
Zwölf Tafeln, 2.94) enumerates the following
instances of persons being punished in this way:--
a. 245 A.U.C. L.
Junius Brutus put his sons to death (Plut.
Popl. 6, 7).
b. 531-536 A.U.C. M.
Fabius Bruteo put his son to death as a punishment for theft (
Oros. 4.13).
c. 651 A.U.C. Q. Fabius
Maximus Eburnus punished his son by sending him into exile (
Oros. 5.16;
V. Max.
6.1,
5).
d. 691 A.U.C. A. Fulvius
Nobilior inflicted the punishment of death on his son for taking part in the
Catiline conspiracy (
V. Max. 5.8,
5; Sal.
Cat. 39;
D. C. 37.36).
e. Julius Arnus banished his son for attempted
parricide (Sen.
de Clem. 1.15, 2).
f. Pontius Aufidianus put his daughter to death for
immorality (
V. Max. 6.1,
3); as did also
g. P. Alilius Philiscus (
V.
Max. 6.1,
6).
h. A father, named Tricho, put his son to death (Sen.
de Clem. 1.15, 1).
i. 752 A.U.C. Augustus
punished the immorality of his daughter Julia by sending her into exile
(
Suet. Aug. 65;
D.
C. 55.10).
The paterfamilias> was not criminally responsible on account of the
abuse of his powers. But though the power of the father over the persons of
his children was almost unlimited in early law, the
nota
censoria and religious censure being the only sanctions to
prevent its tyrannical exercise, custom and public opinion kept it within
due bounds. As has been frequently remarked, it would be a mistake to infer
from the legal absolutism of the head of a Roman family, that his children
were treated like slaves. The fact of the long continuance of the patria
potestas without complaint seems to show that this could not have been the
case.
Under the Empire the occasional cruelty of fathers was punished, and the
powers of the father over the persons of his children were curtailed. Thus,
in 112 A.D., Trajan compelled a father who had
treated his son with cruelty to emancipate him (
V.
Max. 5.8), and Hadrian banished a father for killing a son out
hunting, who had committed adultery with his stepmother ( “patria
potestas in pietate debet non in atrocitate consistere” ).
It became the rule that a father could not kill his son unless the latter had
been tried before the praefectus or praeses and convicted (
Dig. 48,
8,
2).
Under Constantine a father was punished for killing a son, as if he had
committed parricide. The power of the father was limited in the later period
of Roman law to moderate chastisement. The father might sell his son into
slavery or mancipium (
Cic. de
Or. 1.4. 0, 181;
pro Caec. 34, 98). The
provision of the Twelve Tables, that a son sold by his father three times
should be free, was directed against the abuse of this-power. The sale of
children was obsolete in the time of the classical jurists, except as a mere
formality, and in the case of children surrendered by the paterfamilias on
account of their delicts (
noxae datio); for, in
the case of delict by a filiusfamilias,
noxales
actiones were allowed against the father (Gaius, 4.75). But
Justinian abolished the
noxae datio in the case
of a filius-or filiafamilias (Inst. 4.8, 7;
Dig.
43,
29,
3.4).
According to early custom, the father had the right of repudiating a
new-born child. The child was placed at the feet of the father immediately
after birth; and if, instead of being lifted up by the father (
liberum tollere, suscipere, recipere), he was left
on the ground, he was excluded from the familia (Voigt, § 97). Even
under the legislation of Justinian, it was lawful to sell new-born children
“propter nimiam paupertatem egestatemque” (Cod. 4, 43, 1,
2). The father was a party to the betrothal, marriage, or divorce of his
children in early times, and the consent of the father was always an
essential condition of a valid marriage [
MATRIMONIUM]. If a marriage was accompanied with the
in manum conventio, his wife came into the
power of the father and not into the power of the son. The father could
substitute another person as heir to his son, if the latter died before
attaining puberty, [
HERES], and
he could by his will appoint him a tutor. The father could give his child in
adoption and emancipate him. The father could recover possession of the
person of his son by
vindicatio in patriam
potestatem, or by
interdictum de liberis
exhibendis.
The patria potestas did not interfere with the public rights and duties of
filiifamilias. Thus a son could vote at the Comitia Tributa; he could fill a
magistratus; and he could be a tutor, for the tutela was considered a part
of jus publicum (
Dig. 6,
9;
Liv. 24.44;
Gel.
2.2).
The child had conubium and commercium like any Roman citizen who was
sui juris, but these legal capacities brought to him
no power or ownership. Thus, although he had commercium, and so could be
witness to a transaction
per aes et libram, he
could not hold property, being a mere instrument of acquiring for his
paterfamilias. A conveyance to him, or an inheritance acquired by him, or an
obligation in his favour, would give rights, not to himself, but to the
person who had potestas over him, just as in the case of a slave. The
property of which the filiusfamilias had actual enjoyment was his peculium,
and of this the paterfamilias was owner. Having no property, the
filiusfamilias could maintain no actions which implied that he was owner of
property, e.g.
vindicatio; there were, however,
some exceptions to this rule, probably introduced by the praetor under the
form of
actiones in factum [
ACTIO]. But a filiusfamilias could
maintain actions, such as the
actio injuriarum,
which were not based on proprietary claims. A filius pubes could incur
obligations and be sued like a paterfamilias, though perhaps this was not so
till about the time when the principle of giving him independent rights in
his peculium was first established. Between the paterfamilias and
filiusfamilias,
[p. 2.353]or between filiifamilias of the
same familia, no actionable obligations could exist; neither of them could
have a right of action against the other. But natural obligations could be
established between them. [OBLIGATIO.]
The rule as to the incapacity of a filiusfamilias for acquiring property was
first varied about the time of Augustus, when the son was allowed to dispose
of by will whatever he had acquired in active military service, and after a
time to treat such acquisitions as his own for all purposes. This was the
castrense peculium, with respect to which
the son was treated as a person
sui juris
(
Juv. 16.51; Gaius, 2.106). But if the
filiusfamilias died without making any disposition of this peculium, it came
to the father as peculium, i. e. as his own property, and not as
inheritance: this continued to be the law till Justinian altered it
(
Nov. 118). The privileges of a filiusfamilias miles as
to the acquisition of property were extended under Constantine to his
acquisitions made during the discharge of civil and ecclesiastical offices;
and as this new privilege was framed after the analogy of the
castrense peculium, it was designated by the name
quasi-castrense peculium.
By changes in the law carried out by Constantine and his successors, a
filiusfamilias became capable of acquiring property for himself in ordinary
cases. It was first enacted that a filiusfamilias should acquire the
inheritance of his mother (
bona materna) for
himself and not for his father; this rule was then extended so as to apply
to property derived from the maternal line (
bona materni
generis), and finally under Justinian to property derived from
any one except the paterfamilias himself, which was not
peculium castrense or
quasi-castrense. According to this new law, property which a
filiusfamilias derived from third parties, called
bona
adventicia, belonged to him, but his paterfamilias had a
life-interest (
ususfructus) in it, and the
administration of it. The filiusfamilias could not dispose of it by will,
and thus his rights in
bona adventicia were
subject to restrictions which did not apply to
peculium
castrense and
quasi-castrense.
The person from whom the filiusfamilias acquired, might exclude the
paterfamilias from the usufruct and administration of his property by an
express provision to that effect. In property derived from his paterfamilias
(
ex re patris), the filiusfamilias had no
independent rights; such property is called
peculium
profectitium.
Thus by the imperial legislation, and especially by that of the early
Christian emperors, the extent of the patria potestas was much reduced. The
patria potestas was acquired by the birth of a child in a Roman marriage
(
justae nuptiae). Children born of parents
who had not conubium, i. e. the capacity of entering into a Roman marriage
with one another, were not subject to patria potestas; but in the time of
the classical jurists, if a Roman had by mistake married a woman with whom
he had no conubium, thinking that conubium existed, he was allowed to prove
his case (
causae erroris probatio), upon doing
which the child that had been born and the wife also became Roman citizens,
and from that time the son was in the power of the father (Gaius, 1.67).
Other instances of the
causae probatio are
mentioned by Gaius.
Patria potestas could be acquired by either of the modes of adoption [
ADOPTIO]. Patria potestas could
be acquired under the Christian emperors by legitimation of children born
out of lawful wedlock.
- 1. Per subsequens
matrimonium.--Constantine introduced the rule that children
born in concubinage [CONCUBINA], whose parents might have been lawfully
married at the time of the birth of such children, should be
legitimated by the subsequent marriage of the parents. Even at an
earlier time it seems to have been the fashion for the emperor as an
act of grace to place such children on the same footing as
legitimate children.
- 2. Per oblationem curiae.--In the time of
Theodosius II. the rule was established by which a child was
legitimated who was made a member of a municipal senate by his
father [DECURIO].
- 3. Per rescriptum principis.--To these
two modes of legitimation, Justinian added that of imperial
rescript.
The patria potestas was dissolved in various ways. It was dissolved by the
death of the father, upon which event the grandchildren, if there were any,
who had hitherto been in the power of their grandfather, came into the power
of their father, who was now
sui juris. It
could also be dissolved in various ways during the life of the father. A
maxima, media, or
minima
capitis deminutio, either of the pater-or filiusfamilias,
dissolved the patria potestas; though in the case of either party sustaining
a
capitis deminutio by falling into the hands
of an enemy, the relation might be revived by
postliminium. A father who was arrogated, and consequently
sustained a
minima capitis deminutio, came,
together with children who had hitherto been in his power, into the power of
his adoptive father. [
ADOPTIO]
The commonest mode of dissolving the patria potestas was by emancipation,
which was a
capitis deminutio minima, having
the effect of making the emancipatus the head of a new familia distinct from
that of his father's. It is probable that in early Roman law the
emancipation of children was not possible, but in course of time a
circuitous mode of effecting it was established by the ingenuity of lawyers.
For an account of the forms of emancipating a filiusfamilias, which
consisted of three mancipations, followed by vindicta, see Gaius, 1.132. The
process was simplified by the law of Justinian (Inst. 1.12, 6). The parent
could emancipate his child at his pleasure, and thus deprive him of the
rights of agnation without his own consent; but the law in this respect was
altered by Justinian (
Nov. 89, 100.11), who made the consent
of the child necessary. The child had no means of compelling his father to
emancipate him.
(Savigny,
System, 2.49, &c.; Mommsen,
Röm. Gesch. 1.59, &c.; Ihering,
Geist des Röm. Rechts, 2.1, 151-155;--Voigt,
Jus Naturale, 2.228;
Zwölf
Tafeln, 2.93;--Mandry,
Fam. Güterrecht;
Rossbach,
Röm. Ehe, 1-41; Lange,.
Röm. Alterthüm. § §
29, 30; Kuntze,
Inst. 1. § § 741-747, 2.
§ § 505-507;--Maine's
Ancient. Law, ch. v.;
Early Law and Custom, ch. vii. and p. 122, note a.)
[
G.L] [
E.A.W]
