BOOK II. "Maine, Anct. Law,' pp. 135, sqq.; Early History of In § 50. THE POWER OF THE FATHER: ITS NATURE AND SCOPE.a The Power of the Father (patria potestas) is likewise a strict, civil and national Roman institution, stitutions, pp. although preserved down to the Law of Justinian, and even to modern Law, in much reduced form. 218 and 221, 899.; Black stone, i. 452-3 (Steph. ii. 295 8). ¿ Arndts, : Gai. i. § 55 Item in potestate nostra sunt liberi nostri, quos iustis nuptiis procreavimus. Quod ius proprium civium Romanorum est: fere enim nulli alii sunt homines, qui talem in filios suos habent potestatem, qualem nos habemus.' Ulp. x. 3: Neque peregrinus civem Romanum neque civis Romanus peregrinum in potestate habere potest.2 The right of patria potestas' of the Roman citizen in his children is very comprehensive, approaches absolute right of dominion, as over slaves, and seems almost entirely to absorb the capacity for rights of the children subject to it. The patria potestas, however, is not identical with the 'dominica potestas.' The filius familias is fully acknowledged as free, and as a Roman citizen; he is not as the slave, a passive, but an active member of the family; he possesses capacity for private rights, according to ius civile (commercium and conubium), but it is controlled by the power of the paterfamilias-naturally of limited duration—after the lapse of whom (especially by death) he freely attains independent exercise of all proprietary and family rights, which were hitherto under the restraint of e D. 28, 2, 11; patria potestas. This restraint upon capacity for private rights shows itself in the fact that all rights arising from the commercium and conubium of the filiusfamilias, so long as he is under potestas, devolve 50. 16, 195, 2; Ulp. x. 2. 1 Likewise under our potestas are our children whom we have begotten in a lawful marriage. And this right is peculiar to Roman citizens; for there are scarcely any other men possessing such power over their sons as we have. 2 Neither can a foreigner have a Roman citizen, nor a Roman citizen a foreigner, under his potestas. BOOK II. upon the paterfamilias: thus the filius familias himself is incapable also of an actual patria potestas, and his children are under the potestas of his paterfamilias until the patria potestas by which he is governed is extinguished." Ulp.: in sua potestate non videtur habere, rectly; cf. Inst. qui non est suae potestatis.-D. 48, 5, 21.' a Perhaps alone indi 1, 2, II; D. 1, 7,40; ibid. 28. property in the hands of the pat. fam., see § 167. Id. Nam qui ex me et uxore mea nascitur, in As to family mea potestate est; item qui ex filio meo et uxore eius nascitur i.e. nepos meus et neptis aeque in mea sunt potestate, et pronepos et proneptis et deinceps ceteri.-D. 1, 6, 4.2 In the Public Law, on the other hand, the filiusfamilias takes the same position as the paterfamilias. Pomp. Filiusfamilias in publicis causis loco patrisfamilias habetur, veluti ut magistratum gerat, ut tutor detur.-1. 9 eod.3 : As regards the person of the filiusfamilias, the paterfamilias has (1) the 'ius vitae ac necis,' which was originally unlimited by Law; especially in exercise of the very extensive domestic jurisdiction belonging from of old to the paterfamilias; but this in course of time was converted into a merely domestic right of correction. Coll. iv. 8 Cum patri lex regia dederit in filium vitae necisque potestatem-.* Imp. Constant. Libertati a maioribus tantum impensum est, ut patribus, quibus ius vitae in liberos necisque potestas olim erat permissa, 1 He that is not his own master is not regarded as having any under his potestas. 2 For the issue of myself and wife is under my potestas; likewise the issue of my son and his wife, i.e., my grandson and granddaughter, are equally under my potestas, and great grandson and great granddaughter and further descendants. 3 A fil. fam. in public concerns is deemed a pat. fam., as for example, that he hold an office, or be appointed a guardian. 4 Since the lex regia gave to the father power of life and death over his son ... BOOK II. a § 36. Cf. §§ 52, 89. eripere libertatem non liceret.-1. 10, C. de patr. pot. 8, 46 (47).1 Marcian. D. Hadrianus fertur, cum in venatione filium suum quidam necaverat, qui novercam adulterabat, in insulam eum deportasse, quod latronis magis quam patris iure eum interfecit.-D. 48, 9, 5.3 Inauditum filium pater occidere non potest, sed accusare eum apud praefectum praesidemve provinciae debet.-D. 48, 8, 2.3 Imp. Alex. :-(filium) si pietatem patri debitam non agnoscit, castigare iure patriae potestatis non prohiberis, artiore remedio usurus, si in pari contumacia perseveraverit, eumque praesidi provinciae oblaturus dicturo sententiam, quam tu quoque dici volueris.-1. 3, C. de patr. pot.* (2) the 'ius vendendi,' whether to a foreigner (trans Tiberim) into slavery," or in the form of mancipation to a Roman citizen, which was later on limited to fictitious sale and sale from necessity. Gai. i. §§ 117-8: Omnes igitur liberorum personae sive masculini sive feminini sexus, quae in potestate parentis sunt, mancipari ab hoc eodem modo possunt, quo etiam servi mancipari possunt. 1 So great a value was set upon freedom by our ancestors, that fathers, to whom the right of life and power of death over their children had been granted of old, were not allowed to deprive them of freedom. 2 It is related that when a certain man in hunting had slain a son who committed adultery with the step-mother, the late Emperor Hadrian deported him to an island, because he slew him more by the right of a highwayman than by his right as father. 3 A father is not competent to kill a disobedient son, but must accuse him before the prefect or president of the province. 4 If thy son do not acknowledge the filial regard owing to thee his father, thou art not precluded from chastising him by virtue of patria potestas, and mayst employ harsher measures if he shall persist in like disobedience, and shalt hand him over to the president of the province to pass such sentence upon him as thou shalt desire. § Idem iuris est in earum personis, quae in manu Paul. rec. sent. v. 1, § 1: Qui contemplatione BOOK II. Part I. a2 a Cf. sup. C. 8, 46, 10. natos. Imp. Constant.: Si quis propter nimiam paupertatem egestatemque victus causa filium filiamve sanguinolentosa vendiderit, venditione in hoc a I.e., modo tantummodo casu valente, emptor obtinendi eius servitii habeat facultatem. Liceat autem ipsi qui vendidit vel qui alienatus est, aut cuilibet alii ad ingenuitatem eum propriam repetere, modo sit aut pretium offerat aut mancipium pro huiusmodi praestet.-1. 2 eod.* 1 All children, accordingly, whether male or female, that are under their father's potestas can be mancipated by him in the same way as slaves also are mancipated. The like rule obtains in respect of persons in manu.-But generally mancipation, as well by parents as by fictitious purchasers, alone takes place when the parents or fictitious purchasers wish to release such persons from their authority. 2 They that from consideration of dire need, or for the sake of maintenance, have sold their children, do not adversely affect their status of free birth; for a freeman is valued at no price. Neither can the same be given by them in pledge, or as a. fiducia; but their services can be let. It is settled law that children cannot be transferred to another by their parents either by virtue of sale or gift, or by pledge-right, or by any other mode. 4 If any one through dire poverty and need of sustenance have sold a new-born son or daughter, the sale shall be good merely BOOK II. a Cf. §§ 56, 113, and Holmes, 'Common Law,' pp. 8-15.-As to Mr. Roby's criticism of the form here (Int. to Dig.' p. 132), it may be remarked that 'noxae dare' is quite as common as, perhaps more frequent than, dedere ; on the other hand, 'noxae deditio' is certainly the more usual. (3) the 'ius noxae dandi;'a but this disappeared from the Law in its developed form. Gai. iv. § 75: Ex maleficiis filiorumfamilias servorumque, veluti si furtum fecerint aut iniuriam cominiserint, noxales actiones proditae sunt, uti liceret patri dominove, aut litis aestimationem sufferre aut noxae dedere: erat enim iniquum, nequitiam eorum ultra ipsorum corpora parentibus dominisve damnosam esse.1 Sed veteres quidem haec et in filiisfamilias masculis et feminis admiserunt. Nova autem hominum conversatio huiusmodi asperitatem recte respuendam esse existimavit: quis enim patitur filium suum et maxime filiam in noxam alii dare, . . cum in filiabus etiam pudicitiae favor hoc bene excludit?-§ 7, I. de nox. act. 4, 8.2 With regard to commercium,' the child in patria potestas is (1) incapable of having property of his own,' but possesses full capacity to acquire for the paterfamilias. Gai. ii. § 87: Igitur quod liberi nostri, quos in potestate habemus, item quod servi nostri mancipio accipiunt vel ex traditione nanciscuntur, in this case, and the purchaser shall be entitled to acquire such services. But the one who hath sold him or he that was alienated, or any other, shall be empowered to restore him to his personal freedom, provided he either tender the price or supply another slave in his stead. 1 The wrongful acts of sons under power or of slaves, as for instance, if they have committed theft or outrage, have given rise to noxal actions, whereby the father or owner shall have the option either of bearing pecuniary damages or of surrendering the wrong-doer by way of reparation; for it was unfair that their offence should involve the parents or masters in loss beyond the value of their persons. 2 But the ancients allowed this even in the case of sons and daughters of the family. The modern manner of life, however, has rightly deemed it necessary to eschew severity of this kind; for who consents to give up by way of reparation to any one his son and, above all, his daughter, whilst in respect of his daughters even regard for decency justly forbids this? |