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patria potestas

Patria potestas was the power of a Roman male ascendant, normally father or grandfather (paterfamilias), over descendants through males (liberi), provided that his marriage was valid in Roman law (see marriage law, Roman), and over adopted children. This power was seen by lawyers as practically unique to Roman citizens. Any male who became independent (sui iuris) by being freed from patria potestas became a paterfamilias, even if he were a child too young to be a father. There was no comparable power held by women. It was not terminated on a child's arrival at any age of majority, but most commonly by the death or voluntary decision of the paterfamilias. Thus a woman might leave patria potestas if her paterfamilias transferred her into the control of a husband, manus, or a child of either sex if the paterfamilias emancipated him or her (by fictitious sale to a third party, followed by manumission, thrice repeated). Adoption or becoming the priest of Jupiter (flamen Dialis (see flamines)) or Vestal Virgin (see vesta) or exile (see exile, Roman) of either party ended patria potestas; becoming a war captive or the father's insanity suspended it. If a son in power (filiusfamilias) married and his wife entered his marital power (manus), the daughter-in-law was in his father's power, as were their subsequent children. Sons and daughters in power (filii/filiaefamilias) owned no property, though they might be allowed to administer property held by permission of the paterfamilias: this was called peculium. Anything they acquired (as earnings, by gift or bequest, etc. ) belonged in law to the father. Action for delict by a child in power had to be brought against the father. Father's consent was necessary for the marriage of filii/filiaefamilias and he might bring about a divorce. The paterfamilias also had power of life and death over children. This was exercised soon after birth, when a father chose to acknowledge and rear a child or not to do so. Legends and some accounts from the historic period show patresfamilias executing, banishing, or disowning adult children. Private judicial action, normally on the advice of a council, shows the exercise of patria potestas; execution of traitorous or insubordinate sons by public officials, such as the famous execution of the Bruti (509 bce) or Torquatus (340) by consular fathers (see iunius brutus, l.; manlius imperiosus torquatus, t.), exemplify paternal severity in a public role. Sons are portrayed as liable to punishment chiefly for offences against the state, daughters for unchastity. The Augustan adultery law (see augustus) gave patresfamilias specific rights (with strict provisos) to kill on the spot adulterous daughters taken in the act. In historic times, paternal monopoly of control of property (mitigated by the emperors for serving soldiers: Digest 49. 17) will have been more relevant to most filiifamilias than the father's theoretical capital jurisdiction. But the peculium might in practice be left in a child's control, and moral obligations were reciprocal. Relatively low expectation of life will have meant that many fathers died before their children reached full adulthood. Sui heredes, those who gained independence by emerging from patria potestas or manus on the death of the paterfamilias, on his intestacy divided his property equally. If he made a will, he could make his own decisions, but children had a strong moral claim and anyone who would become independent of patria potestas on the father's death had to be formally disinherited if not named heres (heir and executor): this would not preclude a legacy. Patria potestas remained a living institution throughout the classical period and was still important under Justinian (e.g. Inst. 2. 9; see justinian's codification), while the comparable manus atrophied. Its continued relevance in changing times, though probably more prominent in the minds of legal theorists than in those of ordinary fathers and children (M. Tullius Cicero (1) and his brother Q. Tullius Cicero (1) fail to invoke it when their teenage sons pose problems) illustrates the Romans' conservatism and ability to adapt and exploit old structures. It was ideologically acceptable and presumably useful or neutral in specific circumstances.

Bibliography

Gaius, Institutiones 1. 55–107, 124–37, 3. 1–44.Find this resource:

    Digesta 1. 6–7.Find this resource:

      J. A. Crook, Classical Quarterly 1967, 113–22.Find this resource:

        W. V. Harris in Studies A. Arthur Schiller (1986), 81–95.Find this resource:

          R. P. Saller, Patriarchy, Property and Death in the Roman Family (1994), ch. 5.Find this resource:

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