A Patria potestas (“paternalpower”)
Patria potestas was the all-inclusive legal authority of the paterfamilias, the male head of the family, over all his children, male and female, and over his sons' children.
Male children were as much subject to paternal power as female. The paterfamilias was the oldest male ascendant; thus, if a man's sons had children, he would be the paterfamilias of his sons and his grandchildren by his sons (his daughters' children would come under the potestas of their fathers, the daughters' husbands). A man became a paterfamilias himself when all his male ascendants (i.e., paternal grandfather and father) had died. A woman never became a paterfamilias; she did not exercise potestas over any other person, though if her paterfamilias was dead (and if she was not married in a manus-marriage, see Part B below), she would be sui iuris, i.e, legally independent [see D.50.16.195.1-5 in Part I.B].The legal authority of the paterfamilias over his children was quite extensive. He had the “right of life and death” (ius vitae necisque) over them, and theoretically could put even an adult child to death. In fact, there are very few attested cases of a paterfamilias executing his adult child, and by the imperial period it seems a paterfamilias would utilize his “right of life and death,” if at all, only in deciding whether or not to rear a newborn child [Harris 1986; Saller 1994, 114-17].
Far more relevant to Romans of the imperial period than the theoretical ius vitae necisque was the father's control over all his children's possessions. Children under patria potestas could not own property. Everything given or bequeathed to them legally belonged to their paterfamilias.
Only when the paterfamilias was dead (or had emancipated them; see Part C below) could his children, both male and female, own property in their own names. If a paterfamilias died without a will, all his children, male and female, were his heirs in equal shares, as was his wife if she had come under his manus upon marriage (if he made a will, however, he might apportion his estate less equally). The paterfamilias' consent was also required in order for his children's legal transactions, including their marriages, to be valid [Saller 1994, 118-32; see also Chapter 2, Parts I.C.3 and II.B on consent to marriage].Roman jurists describe patria potestas from the point of view of men like themselves - free male citizens:
Gaius, Institutes I.48: Concerning the law of persons another division follows. For certain persons are legally independent (sui iuris), certain are subject to someone else's law. 49: But again, of those persons, who are subject to someone else's law, some are in power (potestas), some in marital subordination (manus), some in ownership (mancipium)... 55: Likewise in our power (potestas) are our children whom we have begotten in legitimate marriage (iustae nuptiae). This law belongs to Roman citizens; for there are almost no other men, who have such a power over their children as we have. D.1.6.4 (Ulpian): For of Roman citizens, some are fathers of families (patres familiarum), some are sons of families (filii familiarum), some are mothers of families (matres familiarum5), some are daughters of families (filiae familiarum). Fathers of families are those who are under their own legal power (potestas) whether they have reached puberty or are still below puberty; similarly mothers of families; sons and daughters of families are those who are in someone else’s power. For whoever is born from me and my wife is in my power; likewise whoever is born from my son and his wife, that is my grandson and granddaughter, are equally in my power, and my great-grandson and great-granddaughter and so on with the rest.
Women did not have patria potestas and could never be patresfamilias [see Part I.B above].
And though mothers had considerable responsibility and socially approved authority over their children [Dixon 1988], they could never have potestas as fathers could, and could not serve as their child’s guardian (tutor) after their husband’s death [see Chapter 5, Part II]. Nor could they legally adopt children, since this involved placing the adoptee under the potestas of the adopter. However, by the third century C.E., if not earlier, a woman could receive special imperial permission to “adopt” a child (though without acquiring potestas over it) if her own children were dead [Cod. Just. 8.47.5 (dated 291); Gardner 1998, 155-65].