The law of the family and of succession at the time of the XII Tables (II): Patria potestas

The complete power of the Roman father over his children has become proverbial, and the Romans knew that it was an institution peculiar to themselves. It extended not only over all sons and daughters (so long as they had not passed into the manus of a husband), but also over the children of the sons and more remote descendants through males, without any limit other than that imposed by the span of human life.

The oldest male ancestor not only has complete control over the persons of his descendants, even to the extent of inflicting the death penalty on them in the exercise of his domestic jurisdiction, but he alone has any rights in private law. No subordinate member of the family can own any property, and any acquisition that they make go straight to their pater, just as the acquisitions that they make go straight to their pater, just as the acquisitions of a slave become the property of his master. No person, male or female, in potestate can marry without the consent of the pater, and if the sons marry with manus it is the pater who obtains authority over their wives. One limitation there was, presumably from the earliest times: patria potestas has no concern with public law, and a son under power could vote and hold a magistracy just as freely as a paterfamilias. In private law the only limitation, if it can be called one, which we know to have existed at the time of the XII Tables, was the rule that if a father sold his son three times the son was to be free from the father. This rule, as we have seen, was used to make emancipation possible, but it is not known whether emancipation existed already at the time of the XII Tables. It could, clearly, only have existed if the provision concerning the three sales was a restatement of a customary rule.

Patria Potestas (III): Its termination

- By death

Death of a paterfamilias ended his potestas. Where a father died, those in his power became sui iuris; where a grandfather died, unemancipated grandchildren became sui iuris only where they did not fall, as a result, into the potestas of their father.

- By variations in status

+ Where the paterfamilias or son was reduced to slavery patria potestas came to an end.

Patria Potestas (II): Its creation

- By legitimate birth

Where a father and child were subject to the ius civile and the child had been conceived in lawful wedlock, potestas was created at birth.

- By marriage

The marriage had to be under the civil law. As a result of manus marriage the wife passed into the power of her husband's paterfamilias. In free marriage the wife remained under the potestas of the head of her own family.

Patria Potestas (I): Its meaning and significance

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."