Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

874 PATRIA POTESTAS. PATRIA POTESTAS.7
as to be a witness to a testament; but he could was framed after the analogy of the Castrense Pe.'
not make a testament, for he had nothing to dis- culium, it was designated by the name Quasi Caspose of; and he could not have a heres. trense Peculium. Further privileges of the same
He could, as already observed, acquire rights kind were also given by Constantine and extended
for his father by contract, but none for himself, under subsequent emperors (bona quae patri non
except in the case of an Adstipulatio, an instance adqirzuntur).
which shows the difference between a son and a The Patria Potestas began with the birth of a
slave. [OBL1GATIONES.] But a filius pubes could child in a Roman marriage. If a Roman had by
incur obligationes and could be sued, like a pater- mistake married a woman with whom he had no
familias. (Dig. 45. tit. 1. s. 141. ~ 2; 44. tit. 7. connubium, thinking that connubium existed, he
s. 39.) Thle foundation of these rules of law was was allowed to prove his case (causae erroris prothe maxim that the condition of a master could be batio), upon doing which the child that had been
improved by the acts of his slaves, but not made born and the wife also became Roman citizens,
worse; and this maxim applied equally to a son and from that time the son was in the power of
and a slave. Between the father and the son no the father. This causae probatio was allowed by
civiles obligationes could exist; neither of them a Senatus-consultum (Gaius, i. 67), which, as it
consequently could have a right of action against appears from the context, and a comparison with
the other. But naturales obligationes might be Ulpian's Fragments (vii. 4), was an amendment
established between them. Some writers have of the Lex- Aelia Sentia. Other instances of the
supposed that there was a difference between the causae probatio are mentioned by Gains.
capacities and incapacities of a filiusfamilias and a It was a condition of the Patria Potestas that
filiafamilias as to obligationes; but the reasons the child should be begotten in matrimonium lealleged by Savigny seem conclusively to show that gitimum. (Gaius, i. 5 —107; Inst. 1. tit. 9-11.)
there was no difference at all. (System, &c. ii. By the old law, the subsequent marriagre of the
Be.ylage, v.) parents did not legitimate a child born before the
In the case of delict by a filiusfamilias noxales marriage. But it seems to have early become the
actiones were allowed against the father. (Gains, fashion for the Emperor, as an act of grace, to
iv. 75.) But Justinian abolished the noxae deditio place such child on the same footing as legitimate
in the case of a filius or filiafamilias, " cum apud children. The legitimation per subsequens matriveteres legum commentatores invenimus saepius monium only became an established rule of lawtv
dictum, ipsos filiosfamilias pro suis delictis posse under Constantine, and was introduced for the adconveniri." (Inst. 4. tit. 8. s. 7; Dig. 43. tit. vantage of children who were born in concubinage.
29. s. 1. 3. ~ 4.) LNoxALIs ACTIO; FILIUS- [CoNcvUINA.] In the time of Theodosius II.,
FAMILIAS.] the rule was established by which a child was
The incapacity of the child to acquire for him- legitimated per oblationem curiae. To these two
self and his capacity to acquire for his father, as modes of legitimation, Justinian added that per
well as their mutual incapacity of acquiring rights rescriptum- principis. The child thus legitimated
of action against one another, are viewed by some came into the familia and the potestas of his father,
modern writers as a consequence of a legal unity as if he had been born in lawful marriage.
of person, while others affirm that there is no trace The Patria Potestas could also be acquired by
of such a fiction in the Roman law, and that the either of the modes of Adoption. [ADOPTIO,
assumption is by no means necessary to explain p. 15, b.]
the rule of law. (Bicking, Inst. i. 228, n. 20.) The Patria Potestas was dissolved in various
Indeed the fiction of such a unity is quite unneces- ways. It was dissolved by the death of the father,
sary, for the fundamental maxim, already referred upon which event, the grandchildren, if there were
to, that a man may be made richer but not poorer any, who had hitherto been in the power of their
by his slaves and children is a simple positive grandfather, came into the power of their father
rule. Though the child could not acquire for him- who was now sui junris. It could also be dissolved:self, yet all that he did acquire for his father, in various ways during the lifetime of the father.
might become his own in the event of his father's A maxima or media capitis diminIutio either of
death, a circumstance which materially distin- the parent or child dissolved the Patria Potestas;
guished the acquisitions of a son from those of a though in the case of either party sustaining a
slave; and accordingly the son is sometimes, though capitis diminutio by falling into the hands of an
iot with strict propriety, considered as a kind of enemy, the relation might be revived by Postjoint owner with his father. liminium. A father who was adrogated, and conseThe rule as to the incapacity of a filiusfamilias quently sustained a minima capitis dimninutio, came
for acquiring property was first varied about the together with his children, who had hitherto been
time of Aulgustuls, when the son was empowered in his power, into the power of his adoptive father.
to acquire for himself and to treat as his own The emancipation of the child by the father was a
whatever he got in military service. This was the common mode of dissolving the Patria Potestas,
Castrense Peculium, with respect to which the son and was accompanied by the Mininma Capitis dimiwas considered as a person sui juris. (Juv. Set. nutio. If a son was elected Flamen Dialis or a
xvi. 51; Gaius, ii. 106.) But if the filiusfamilias daughter was chosen a Vestal, the Patria Potestas
died without having made any disposition of this ceased; and in the later period, it was also dispeculitm, it came to the father, and this continued solved by the son's attaining certain civil or eccle-to be the law till Justinian altered it; but in this siastical honours. The Potestas of the father
case the property came as Peculium, not as Here- might cease without the son becoming sui juris, as'ditas.. The privileges of a filiusfamilias as to the in the case of the son being given in adoption.
acquisition of property were extended under Con- The term Patria Potestas strictly expresses the
stantine to his acquisitions made during the dis- power of the father, as such, which arises from the
charge of civil offices, and as this new privilege paternal relation; but the term also imports the