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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]

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