Legal Definition and Related Resources of Patria potestas

(Lat.) In civil law. The paternal power; the authority which the law vests in the father over the persons and property of his legitimate children. One of the effects of marriage is the paternal authority over the children born in wedlock. In the early period of the Roman history, the paternal authority was unlimited. The father had the absolute control over his children, and might even, as the domestic magistrate of his family, condemn them to death. They could acquire nothing except for the benefit of the paterfwmilias (q. v.), and they were even liable to be sold and reduced to slavery by the author of their existence. But in the progress of civilization, this stern rule was gradually relaxed. The voice of nature and humanity was listened to on behalf of the oppressed children of a cruel and heartless father. A passage in the 37th book (title 12, § 5) of the Pandects informs us that, in the year 870 of Rome, the emperor Trajan compelled a father to release his son from the paternal authority, on account of cruel treatment. The same emperor sentenced a father to transportation because he had killed his son in a hunting party, although the son had been guilty of adultery with his stepmother; for, says Marcianus, who reports the case, patria potestas in pietate debet, non in atrocitate, consistere. Ulpianus says that a father is not permitted to kill his son without a judgment from the prefect or the president of ttie province. In the year 981 of Rome, the emperor Alexander Severus addressed a constitution to a father, which is found m book 8, tit. 47, § 3, of the Justinian Code, m which he says: Your paternal authority authorizes you to chaistise your son, and If he persists in his misconduct you may bring him before the president of the province, who will sentence him to such punishment as you may desire. In the same book and title of the Code we find a constitution of the emperor Constantine, dated in the year of Rome 1066, which inflicts the punishment denounced against parricide on the father who shall be convicted of having killed his son. The power of selling the child, which at first was unlimited, was also much restricted, and finally altogether abolished, by subsequent legislation, especially during the empire. Paulus who wrote about the middle of the tenth century of Rome, informs us that the father could only sell his child in case of extreme poverty, confemplatione extremae necessitatis aut alimentarum gratia. In 1039 of Rome, Diocletian and Maximian declare in a rescript that it is beyond doubt manifestisstrm juris) that a father can neither sell nor pledge nor donate his children. Constantine, in 1059, permitted the sale by the father of his child at its birth, and when forced to do so by abject poverty, propter mmiam paupertatem egestatemque victus; and the same law is re-enacted in the Code of Justinian. Code, 4. 43. 2. 3, The father, being bound to indemnify the party who had been injured by the offenses of his child, could release himself from this responsibility by an abandonment of the offender, in the same manner as the master could abandon his slave for a similar purpose, noxali causa maneipare. This power of abandonment continued to exist, with regard to male children, up to the time of Gaius, in the year 925 of Rome. But by the Institutes of Justinian it is forbidden. Inst. 4. 8. 7. With regard to the rights of the father to the property the child might acquire, it was originally as extensive and absolute as if it had been acquired by a slave. The child could possess nothing nor acquire anything that did not belong to the father. It is true, the child might possess a peculium, but of this he had only a precarious enjoyment, subject to the will and pleasure of the father. Under the first emperors, a distinction was made in favor of the son as to such property as had been acquired by him in the army, which was called castrense peculium, to which the son acquired a title in himself. Constantine extended this rule by applying it to such property as the child had acquired by services in offices held in the state, or by following a liberal profession. This was denominated quasi castrense peculium. He also created the peour lium adventitium, which was composed of all property inherited by the son from his mother, whether by will or ah i/ntestat; but the father had the usufruct of this pecMlium. Arcadius and Honorius extended it to everything the son acquired by succession or donations from his grandfather or mother or other ascendants in the maternal life. Theodosius and Valentinian embraced in it whatever was given by one of the spouses to the other, and Justinian included in it everything acquired by the son, except such as was produced by property belonging to the father himself. It is thus seen that, by the legislation of Justinian and his predecessors, the paternal power vrith regard to property was almost entirely destroyed. The pater-familias had not only under his paternal power his own children, but also the children of his sons and grandsons, in fact, all his descendants in the male line; and this authority continued in full force and vigor, no matter what might be the age of those subject to it. The highest offices in the government did not release the incumbent from the paternal authority. The victorious general or consul to whom the honors of a triumph were decreed by the senate was subject to the paternal power in the same manner and to the same extent as the humblest citizen. It is to be observed, however, that the domestic subjection did not interfere with the capacity of exercising the highest public functions in the state. The children of the daughter were not subject to the paternal authority of her father, they entered into the family of her husband. Women could never exercise the paternal power. And even when a woman was herself sui juris, she could not exercise the paternal power. It is for this reason, Ulpian observes, that the family of which a woman, sui juris, was the head, mater- familias, commenced and ended with her, mulier autem familiae suae et caput et finis est. 1 Ortolan, 191 et seq. The modern civil law has hardly preserved any features of the old Roman jurisprudence concerning the paternal power. Article 233 of the Louisiana Code provides, it is true, that a child, whatever be its age, owes honor and respect to its father and mother; and the next article adds that the child remains under the authority of the father and mother until his majority or emancipation, and that, in case of a difference of opinion between the parents, the authority of the father shall prevail. In the succeeding article, obedience is enjoined on the child to the orders of the parents as long as he remains subject to the paternal authority. But article 236 renders the foregoing rules in a great measure nugatory, by declaring that a child under the age of puberty cannot quit the paternal house without the permission of his father and mother, who have a right to correct him, provided it be done in a reasonable manner. So that the power of correction ceases with the age of fourteen for boys and twelve for girls. Nay, at these ages the children may leave the paternal roof in opposition to the will of their parents. It is seen that, by the modern law, the paternal authority is vested in both parents, but practically it is generally exercised by the father alone, for, wherever there is a difference of opinion, his will prevails. The great object to be attained by the exercise of the paternal power is the education of the children to prepare them for the battle of life, to make them useful citizens and respectable members of society. During the marriage, the parents are entitled to the enjoyment of the property of their minor children, subject to the obligation of supporting and educating them, and of paying the taxes, making the necessary repairs, etc. Donations made to minors are accepted by their parents or other ascendants. The father
has under his control all actions which it may be necessary to bring for his minor children during the marriage. When the marriage is dissolved by the death of one of the spouses, the paternal power ceases, and the tutorship is opened; but the surviving parent is the natural tutor, and can at his death appoint a testamentary tutor to his minor children. See Pater-Familias.

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This definition of Patria Potestas is based on the The Cyclopedic Law Dictionary . This entry needs to be proofread.

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Concept of “Patria Potestas”

Traditional meaning of patria potestas in English (with some legal use of this latin concept in England and the United States in the XIX Century) [1]: (in Latin) In civil law, the authority of a father over his family.

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Notes and References

1. Based on A Concise Law Dictionary of Words, Phrases and Maxims, “Patria Potestas”, Boston: Little, Brown, and Company, 1911, United States. It is also called the Stimson’s Law dictionary. This term and/or definition may be absolete.

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Patria Potestas