Paternal power (patria potestas)

Paternal power was the comprehensive power of the oldest male ascendant, commonly the father or grandfather (paterfamilias), over male and female legitimate descendants (liberi) and adopted children.

A woman’s children remained under the paternal power of her husband or father-in-law, even if her own paterfamilias was still alive. Every Roman male citizen (with or without children) who was not under paternal power, whatever his age, was himself a paterfamilias. In other words, every independent (sui iuris) male was a paterfamilias. Women could be independent but not paterfamilias because they could not have paternal power. The term materfamilias had different meanings. Originally, a materfamilias was a wife under her husband’s legal power (manus). Once the institution of manus disappeared, materfamilias referred to the respectable female sui iuris (see Ulpian, D. 1.6.4). The term, however, had no legal relevance.

Agnation was the relationship among persons who were under the same paternal power (e.g., brothers and sisters, adopted children), or who would have been if the head of the family were still alive (e.g., among brothers after the death of their father and grandfather). The bond of agnation obtained among offspring in the male line from a common ancestor. Cognation, by contrast, referred more generally to all blood relations. It included the female line and biological children of a family even after they had been given up for adoption or emancipated. Typically, persons tied by agnation were also blood relatives (brothers, for instance), but not always (adopted siblings). Between mother and son, between mother and daughter, or between emancipated brothers, there was a bond of cognation but not agnation.

Patria potestas was strictly private. It had nothing to do with public affairs. A son, for instance, could vote or even hold office without paternal restrictions of any kind (Pomponius, D.

1.6.9). When Quintus Fabius Maximus, consul in 213 bce, arrived at the Roman camp in Apulia, he met his father, the famous Fabius Maximus Cunctator, consul in 214 BCE and then proconsul. Following the orders of his son, Cunctator had to dismount his horse, acknowledging the supremacy of his son’s consular imperium over his paternal power (Gellius, Noctes Atticae 2.2.13).

The peculiar institution of Roman patria potestas was as unique as it was severe. Originally, paternal power was unrestricted and lifelong, except in case of emancipation. As head of the family, the father even had the power of life

and death over his family members (ius vitae et necis). This inhumane right, undoubtedly exercised in Republican times, was strictly limited, however, under imperial legislation, and it was extinguished under Justinian’s laws. The father also had the right to veto family members’ proposed marriages and to require or forbid them to divorce; the right to all acquisitions deriving from their transactions; the right to hand children who had wronged someone over to the injured party, instead of paying the debt himself; the power to appoint guardians or heirs for his children; and so on. The lives of all submitted to paternal power were completely controlled by the father or paterfamilias.

Limitations of the rights and powers of the father were followed by the gradual recognition of some personal and property rights for other members of the family. Although they could not have property of their own, sons were able to administer a father’s property (peculium) and to develop business in the family’s interest. Paternal power persisted as an institution throughout the classical and postclassical periods, and it was still relevant under Justinian’s laws (see, for instance, Inst. 2.9).

Manus

Similar to patria potestas was a husband’s marital power (manus, literally “hand”). In Republican times, when women married, they normally fell under their husband’s marital power.

The most common form for establishing the manus was the so-called coemptio, a sort of solemn purchase of the woman by the husband. Manus could also be created by the religious ceremony of confarreatio in the presence of a high priest and ten witnesses. Finally, manus could be established by prescription through cohabitation for one year (usus).

A wife under the power of her husband had the legal position of his daughter. She was freed from any previous parental power and entered her husband’s family. All possessions she had before marriage belonged to her husband (or her new paterfamilias). As a result, she gained succession rights similar to those of his children. Manus was not as comprehensive as paternal power, however. For instance, a husband lacked the power of life and death over his wife. By the beginning of the Principate, marriages in manu had essentially disappeared, and a wife under marital power could remove herself from it by divorce. She remained under paternal power while living with her husband until the death of her paterfamilias.

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Source: Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p.. 2018

Paternal power (patria potestas)

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