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874

PATRIA POTESTAS.

as to be a witness to a testament; but he could not make a testament, for he had nothing to dis­pose of; and he could not have a heres.

He could, as already observed, acquire rights for his father by contract, but none for himself, except in the case of an Adstipulatio, an instance which shows the difference between a son and a slave. [obligationes.] But a films pubes could incur obligationes and could be sued, like a pater­familias. (Dig. 45. tit. 1. s. 141. § 2 ; 44. tit. 7. s. 39.) The foundation of these rules of law was the maxim that the condition of a master could be improved by the acts of his slaves, but not made worse ; and this maxim applied equally to a son and a slave. Between the father and the son no civiles obligationes could exist; neither of them consequently could have a right of action against the other. But naturales obligationes might be established between them. Some writers have supposed that there was a difference between the capacities and incapacities of a filiusfamilias and a filiafamilias as to obligationes ; but the reasons alleged by Savigny seem conclusively to show that there was no difference at all. (System., &c. ii. Beylage, v.)

In the case of delict by a filiusfamilias noxales actiones were allowed against the father. (Gains, iv. 75.) But Justinian abolished the noxae deditio in the case of a filius or filiafamilias, " cum apud veteres legum commentatores invenimus saepius dictum, ipsos filiosfamilias pro suis delictis posse conveniri." (Inst. 4. tit. 8. s. 7 ; Dig. 43. tit. 29. s. 1, 3. § 4.) [NoxALis actio ; FILIUS­FAMILIAS.]

The incapacity of the child to acquire for him­self and his capacity to acquire for his father, as well as their mutual incapacity of acquiring rights of action against one another, are viewed by some modern writers as a consequence of a legal unity of person, while others affirm that there is no trace of such a fiction in the Roman law, and that the assumption is by no means necessary to explain the rule of law. (Bbcking, Inst. i. 228, n. 20.) Indeed the fiction of such a unity is quite unneces­sary, for the fundamental maxim, already referred to, that a man may be made richer but not poorer by his slaves and children is a simple positive rule. Though the child could not acquire for him­self, yet all that he did acquire for his father, might become his own in the event of his father's death, a circumstance which materially distin­guished the acquisitions of a son from those of a slave ; and accordingly the son is sometimes, though not with strict propriety, considered as a kind of joint owner with his father.

The rule as to the incapacity of a filiusfamilias for acquiring property was first varied about the time of Augustus, when the son was empowered to acquire for himself and to treat as his own whatever he got in military service. This was the Castrense Peculium, with respect to which the son was considered as a person sui juris. (Juv. Sat. xvi. 51 ; Gains, ii. 106.) But if the filiusfamilias died without having made any disposition of this pcculium, it came to the father, and this continued to be the law till Justinian altered it; but in this case the property came as Peculium, not as Here-ditas. The privileges of a filiusfamilias as to the acquisition of property were extended under Con-gtantine to his acquisitions made during the dis­charge of civil offices, and as this ne\v privilege

patria potestas;'

was framed after the analogy of the Castrense Pe-: culium, it was designated by the name Quasi Cas­trense Peculium. Further privileges of the same kind were also given by Constantine and extended under subsequent emperors (bona quae patri non adqniruntur}.

The Patria Potestas began with the birth of a child in a Roman marriage. If a Roman had by mistake married a woman with whom he had no connubium, thinking that connubium existed, he was allowed to prove his case (causae erroris pro-batio)., upon doing which the child that had been born and the wife also became Roman citizens, and from that time the son was in the power of the father. This causae probatio was allowed by a Senatus-consultum (Gains, i. 67), which, as it appears from the context, and a comparison with Ulpian's Fragments (vii. 4), was an amendment of the Lex Aelia Sentia. Other instances of the causae probatio are mentioned by Gains.

It was a condition of the Patria Potestas that the child should be begotten in matrimonium le-gitimum. (Gaius, i. 55—107 ; Inst. 1. tit. 9—11.) By the old law, the subsequent marriage of the parents did not legitimate a child born before the marriage. But it seems to have early become the fashion for the Emperor, as an act of grace, to place such child on the same footing as legitimate children. The legitimation per subsequens matri­monium only became an established rule of lav/ under Constantine, and was introduced for the ad­vantage of children who were born in concubinage. [CoNCUBiNA.j In the time of Theodosius II., the rule was established by which a child was legitimated per oblationem curiae. To these two modes of legitimation, Justinian added that per rescriptum principis. The child thus legitimated came into the familia and the potestas of his father, as if he had been born in lawful marriage.

The Patria Potestas could also be acquired by either of the modes of Adoption. [adoptio, p. 15, b.]

The Patria Potestas was dissolved in various ways. It was dissolved by the death of the father, upon which event, the grandchildren, if there were any, who had hitherto been in the power of their grandfather, came into the power of their father who was now sui juris. It could also be dissolved in various ways during the lifetime of the father. A maxima or media capitis diminutio either of the parent or child dissolved the Patria Potestas ; though in the case of either party sustaining a capitis diminutio by falling into the hands of an enemy, the relation might be revived by Post-liminium. A father who was adrogated, and conse­quently sustained a minima capitis diminutio, came together with his children, who had hitherto been in his power, into the power of his adoptive father. The emancipation of the child by the father was a common mode of dissolving the Patria Potestas, and was accompanied by the Minima Capitis dimi­nutio. If a son was elected Flamen Dialis or a daughter was chosen a Vestal, the Patria Potestas ceased ; and in the later period, it Avas also dis­solved by the son's attaining certain civil or eccle­siastical honours. The Potestas of the father might cease without the son becoming sui juris, as in the case of the son being given in adoption.

The term Patria Potestas strictly expresses the power of the father, as such, which arises from the paternal relation; but the term also imports the