Given the potentially enormous consequences for an individuals status, creation and termination of patria potestas were far from minor matters.
Most Romans entered directly into patria potestas at their birth, when, indeed, a pater familias exercised his power by determining whether to raise the child or instead to expose or kill it.
But this initial exercise of power only symbolized his more general authority, which could last for life; further, that authority was intimately bound up with his conferral of free citizen status on his offspring. The main constraints on his power were, as we have seen, social; but the marriage legislation of Augustus had transformed the raising of children into a matter of public policy, so that he was obliged to consider this aspect as well.A pater familias was also free to bring an outsider under his potestas, through adrogation and adoption. Adrogation (adrogatio) is the adoption of one pater familias by another, a particularly delicate process, as the Cases suggest, that is permitted only as a last resort, since it involved extinguishing one family line in order to sustain another. Not surprisingly, adrogation can be accomplished only by direct state intervention. By contrast, the more usual process of adoption involves the transfer of a child-in-power from one household to another; here public policy issues are regarded as less pressing, and the procedure is accordingly more informal. What is perhaps most surprising, in any case, about both adrogation and adoption is that the Romans typically tend to adopt adults rather than small children. These procedures are therefore not mainly used to deal with the problem of orphans, nor is the welfare of the child a primary consideration. The interests of the pater familias are considerably more salient, and it is his personal perspective that dominates, leading to what we might regard as oddities: even a bachelor can adopt.
Release from potestas, or emancipation, is a procedure whereby a child-inpower is freed from the power of a paterfamilias.
(The word “emancipation” is usually reserved, in Roman legal texts, for the release of free persons from power; “manumission” is used for freeing slaves.) Emancipation often formed part of a larger strategy for the settlement of family property and succession after the death of the pater familias; indeed, the same is true, of course, of adrogation and adoption, especially when this is practiced within the family. It is therefore important to bear in mind that emancipation was not necessarily a punishment, above all since an emancipated child could and often did benefit from it.Patria potestas could also terminate through the death of a paterfamilias if the child-in-power thereby became sui iuris, or by a change in legal status (e.g., through loss of citizenship or capture by the enemy) of the pater or the child.
This area of Roman law has been considerably clarified in Jane F Gardners Family and Familia in Roman Law and Life (1998), which we also recommend for further information on the social background.
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