Patria Potestas

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His decisions should be obtained through counsel, consultation and consent within the familia, which were decisions by committee consilium. The family consilia probably involved the most senior members of his own household, especially his wife, and, if necessary, his peers and seniors within his extended clan gens.

Augustus 's legislation on the morality of marriage co-opted the traditional potestas of the pater familias. Augustus was not only Rome's princeps but also its father pater patriae. As such, he was responsible for the entire Roman familia. Rome's survival required that citizens produce children.

That could not be left to individual conscience. The falling birth rate was considered a marker of degeneracy and self-indulgence, particularly among the elite, who were supposed to set an example. Lex Julia maritandis ordinibus compelled marriage upon men and women within specified age ranges and remarriage on the divorced and bereaved within certain time limits. The Lex Julia de adulteriis coercendis severely penalised adulterous wives and any husbands who tolerated such behaviour.

The Lex Papia Poppaea extended and modified the laws in relation to intermarriage between social classes and inheritance. Compliance was rewarded and exceptional public duty brought exemption, but dictatorial compulsion was deeply unpopular and quite impractical. The laws were later softened in theory and practise, but the imperial quaestio perpetua remained.

Its public magistrates now legally over-rode the traditional rights of the family concilium and pater familias.

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The principate shows a clear trend towards the erosion of individual patria potestas and the increasing intrusion of the state into the juridical and executive independence of the familia under its pater. The domestic responsibilities of the pater familias included his priestly duties sacra familiae to his "household gods" the lares and penates and the ancestral gods of his own gens. Genius has been interpreted as the essential, heritable spirit or divine essence, or soul and generative power that suffused the gens and each of its members.

As the singular, lawful head of a family derived from a gens , the pater familias embodied and expressed its genius through his pious fulfillment of ancestral obligations. The pater familias was therefore owed a reciprocal duty of genius cult by his entire familia. He in his turn conferred genius and the duty of sacra familiae to his children—whether by blood or by adoption.

Roman religious law defined the religious rites of familia as sacra privata funded by the familia rather than the state and "unofficial" not a rite of state office or magistracy, though the state pontifices and censor might intervene if the observation of sacra privata was lax or improper.

The responsibility for funding and executing sacra privata therefore fell to the head of the household and no other. As well as observance of common rites and festivals including those marked by domestic rites , each family had its own unique internal religious calendar—marking the formal acceptance of infant children, coming of age, marriages, deaths and burials.

In rural estates, the entire familia would gather to offer sacrifice s to the gods for the protection and fertility of fields and livestock. All such festivals and offerings were presided over by the pater familias. The legal potestas of the pater familias over his wife depended on the form of marriage between them. In the Early Republic, a wife was "handed over" to the legal control of her husband in the form of marriage cum manu Latin cum manu means "with hand". If the man divorced his wife, he had to give the dowry back to his wife and her family.

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Patria potestas

Women emancipated from the potestas of a pater familias were independent by law sui iuris but had a male guardian appointed to them. A woman sui iuris had the right to take legal action on her own behalf but not to administer legal matters for others.


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The laws of the Twelve Tables required the pater familias to ensure that "obviously deformed" infants were put to death. The survival of congenitally disabled adults, conspicuously evidenced among the elite by the partially-lame Emperor Claudius , demonstrates that personal choice was exercised in the matter.

The pater familias had the power to sell his children into slavery ; Roman law provided, however, that if a child had been sold as a slave three times, he was no longer subject to patria potestas. The pater familias had the power to approve or reject marriages of his sons and daughters; however, an edict of Emperor Augustus provided that the pater familias could not withhold that permission lightly.


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The filii familias children of the family could include the biological and adopted children of the pater familias and his siblings. Because of their extended rights their longa manus , literally "long hand" , the patres familias also had a series of extra duties: duties towards the filii and the slaves, but some of the duties were recognized not by the original ius civile but only by the ius gentium , specially directed to foreigners, or by the ius honorarium , the law of the Magistratus , especially the Praetor , which would emerge only in a latter period of Roman law.

Adult filii remained under the authority of their pater and could not themselves acquire the rights of a pater familias while he lived. Legally, any property acquired by individual family members sons, daughters or slaves was acquired for the family estate: the pater familias held sole rights to its disposal and sole responsibility for the consequences, including personal forfeiture of rights and property through debt. Those who lived in their own households at the time of the death of the pater succeeded to the status of pater familias over their respective households pater familias sui iuris even if they were only in their teens.

Both the expressions tribunicium jus and tribunicia potestas are used Tac. 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.

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. Patria potestas, then, signifies the power of a Roman paterfamilias over his children and descendants through males in his familia filiifamilias, filiaefamilias.

The government of the family was [p. 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. Walree, de antiq. Recht, 1. Junius Brutus put his sons to death Plut. Fabius Bruteo put his son to death as a punishment for theft Oros. Fabius Maximus Eburnus punished his son by sending him into exile Oros.

Fulvius Nobilior inflicted the punishment of death on his son for taking part in the Catiline conspiracy V. Julius Arnus banished his son for attempted parricide Sen. Pontius Aufidianus put his daughter to death for immorality V. Alilius Philiscus V. A father, named Tricho, put his son to death Sen.

Augustus punished the immorality of his daughter Julia by sending her into exile Suet. 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.


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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 A. 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.

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.

Meaning of patria potestas

The father might sell his son into slavery or mancipium Cic. 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.

But Justinian abolished the noxae datio in the case of a filius-or filiafamilias Inst. According to early custom, the father had the right of repudiating a new-born child. 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.

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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.

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.

What is PATRIA POTESTAS? definition of PATRIA POTESTAS (Black's Law Dictionary)

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.