Patria Potestas (paternal power) meant the power exercised by the head of a family (paterfamilias) over the members of that family. They and their property, with some few exceptions, were subjected to this power until it was ended by the death of the paterfamilias or by some other special circumstances. Only the Roman citizen had the right to wield this power; to lose one's citizenship was to lose one's potestas over a family.
- The Roman Family
Under Roman Law, the basis of the family was the absolute power of the paterfamilias. He was the representative of the family, e. g. he alone possessed the right of suing upon a contract made with a member of the family. The family was organised as a monocracy –a close community under the rule of one person– and has been described as "living under one roof, with one purse, one altar and one worship."
The family was based on agnatic relationship derived from the authority of the paterfamilias. It consisted of agnates, i. e. blood relations traced solely through males, excluding all those males and females who had left the family, and those who had come into the family, e. g. by adoption. The term cognates referred to blood relations only, whether agnates or not. As the law developed cognation became of more importance than agnation.
The power exercised by the paterfamilias was, in early times, absolute and included the right to inflict capital punishment. It continued even after the children had reached their majority; thus the consent of the paterfamilias was needed by a son (filiusfamilias) who wished to marry, no matter what his age.
Because of the importance attached to the preservation and perpetuation of the family and its name, the institution of adoption was of great importance.
- Patria Potestas as it affected members of the family
In early times the paterfamilias had the power of life and death (ius vitae necisque) over the children. This extreme power disappeared gradually. The Censor was able to punish a paterfamilias who had abused his power. An author of Hadrian's time makes the plea, "Patria Potestas in pietate debet, non atricitate consistere." ("Paternal power must consist of love and not of cruelty.") Ius vitae necisque was had killed his son suffered the dreadful death meted out to a parricide.
The power of noxal surrender belonged at one time to the paterfamilias, who was liable for a delict committed by those in his power. A noxal action allowed him the alternative of surrendering the wrongdoer or paying damages. The power of noxal surrender of sons was abolished by Justinian.
Those in potestas had no proprietary rights, hence, that which they acquired belonged, in general, to the paterfamilias.
Although children in potestas were considered to be free, the paterfamilias alone had the right to give them in adoption and marriage, to emancipate and, under the early law, to control divorce.
The power of selling children into slavery could be exercised in early times by the paterfamilias, but was virtually obsolete in the time of Justinian. The sale of children had been forbidden by Diocletian, and this prohibition was continued under Constantine who made an exception in the case of very poor parents, to whom he gave the right to sell a newly-born child. This exception, with the right of redemption, continued under Justinian, but he prohibited a creditor's receiving a child in pledge.
- Patria Potestas as it affected the property of the family
Because children in potestas lacked proprietary rights, the family's property was owned absolutely by the paterfamilias and administered by him for the common benefic of the family. This absolute ownership was modified by the creation of rights to peculium (i. e. property a son might hold independently).
+ Peculium Profecticium
This included property given to the son in contemplation of a benefic to be received by the father, and gifts made to the son by his father.
+ Peculium Castrense (Castrensis = pertaining to a camp)
Augustus allowed a son to keep that which he had obtained on military service, e.g. gifts for military equipment, pay, property captured from the enemy. Property so acquired could be disposed of by the son's will and was available in satisfaction of contracts into which he had entered or delicts he had committed. Before Justinian, this property reverted to the father on the son's intestacy. Justinian gave the children and brothers and sisters of the son a rights of succession on intestacy.
+ Peculium Quasi-Castrense
Constantine extended the privileges of peculium to property acquired by certain officials in patria potestas, e.g. officials of the Imperial Palace, keepers of records, advocates of the Praetorian Court, bishops, deacons and presbyters. Justinian allowed the disposition by will of this property.
+ Bona Materna
Constantine allowed a son to inherit bona materna (property left by the mother). The son owned the property subject to a usufruct held by the paterfamilias. In such a case the paterfamilias had the duty of diligently administering the property; he could not alienate the property in any way and, on his death, his interest passed directly to the son.
+ Bona Adventicia
In A.D. 395 bona materna was extended so as to include any property coming to the son from a maternal ancestor beyond the mother, including gifts inter vivos or acquisitions by will. Such property was known as bona adventicia. Where a son was emancipated by his father, Justinian allowed the father to retain a usufruct in one-half of the bona adventicia.
----------
Source:
Roman Law, L. B. Curzon, pages 32 - 34.
