PATERFAMILIAS (Lat.). In Civil Law. One who was sui /lo-is, and not subject to the paternal power.
In order to give a correct idea of what was un derstood in the Roman law by this term, It is prop er to refer briefly to the artificial organization of the Raman family,—the greatest moral phenomenon In the history of the human race. The compre hensive term familia embraced both persons and property ; money, lands, houses, slaves, children, all constituted part of this artificial family, this juridical entity, this legal patrimony, the title to which was exclusively vested in the chief or pater familias, who alone was capax dominii, and who be longed to himself, was sui juris.
The word pater-familias is by no means equiva lent to the modern expression father of a family, but means proprietor in the strongest sense of that term; it is he qui in demo dominium habet, in wham were centred all property, all power, all authority: he was, in a word, the lord and master, whose authority was unlimited. No one but he who was sui juris, who was pater-familias, was capable of exercising any ,right of property, or wielding any superiority or power over anything; for nothing could belong to him who was himself alieni taxis. Hence the children of the fclii familias, as well as those of slaves, belonged to the pater familias. In the same manner, everything that was acquired by the sons or slaves formed a part of the femilia, and, consequently, belonged to its chief. This absolute property and power of ,the paterfamilias, only ceased with his life, unless he voluntarily parted with them by a sale; for the alienation by sale is invariably the symbol resorted to for the purpose of dissolVing the stern dominion Of the pater-familias over those belonging to the familia., Thus, both emancipation and adoption are the results of ,imaginary, sales,-per imaginarias venditiones. As' the daughter remained in the family of, her father, grandfather, or great-grand father, as the case might .be, notwithstanding her marriage, it followed as a necessary consequence • that the child never bOlottged to the same family as its mother: 'there 'IS uo civil 'relationship between them; they are natural relations,—copnati,—but they are not legally related to each'other,—agnati; and therefore, the child never inherits from its mother, nor the mother from her third.' There was, however, a meant by which the wife might enter into the family and eubject herself to the power of her husband, in manu mariti, and thereby establish a legal relationship between herself and her hus band. This marital power of the husband over the wife was generally acquired either coemptione, by the purchase of the Wife by the husband from the paterfamilias, or tont; by the prescription based on the possession' of one year,—the same by which the title tc. movable property was acquired according to the principles governing the usucapio (•su capere, to obtain by use). Another mode of obtaining the same end was the confarreatio, a sacred ceremony performed by the breaking and eating of small cake, farreum, by the married couple. It was sup posed that by an observance of this ceremony the marital power was produced by the intervention.' of the gods. This solemn mode of celebrating mar riages was peculiar to the patrician families. By means of these fictions and ceremonies the wife be came in the eye of the law the daughter of her husband, and the sister of the children to whom she gave birth, who would otherwise have been &tan gers to her. Well might Gains say, Fere mall mutt
homines qui talem in liberos' habeant poteetatem qualem Mos habemus.
There is some similarity between the agnatio, or civil, relationship, of • the Romans, and the trans mission of the name of the father, under the mod ern law, to all his descendants in the male line. The Roman. -law says of the ,children, patris, non matris, familiam seguuntur; we say, patris, non vtatrie,momen Sequuntur. All the members of the family„who;,,,with us, bear the same name, were under that law agnates, or constituted the agnatio, or civil family., Those children only belonged to the family, and were subject to the paternal power, who had been conceived in Eustis nuptiis, or been adopted. Nuptice, or matriinoniunt, was a marriage celebrated in conformity with the peculiar rules of the civil law. There existed a second kind of mar riage, call concubinatus,—a valid union and a real marriage,—which has been cften improperly con founded, even by high authOrity,' with This confusion, of .ideas is attributable to a super ficial examination of the subject ; for the illicit intercourse between a man and a woman which we call concubinage was stigmatized by the oppro brious term stuprunt by the Romans, and is spoken of in the strongest terms of reprobation. The concubinatus was the natural marriage, and the only one which those who did not enjoy the fee connubii were permitted to contract. The Roman law recognized two species of marriage, the one civil, and the other natural, in the same manner as there were two kinds of relationship, the agnatio and cognatio. The justce nuptice or justum matri monism, or civil marriage, could only be contracted by Rothan citizens and by those to whom the jus connubii had been conceded: this kind of marriage alone produced the paternal power, the right of inheritance, etc.
But the rapid rise and extraordinary greatness of the city attracted immense crowds of strangers, who, not possessing the jus connubii, could form no other union than that of the concubinatus, which, though authorized by law, did not give rise to those, legal effects which flowed from the justce nuptice. By adoption, the person adopted was transferred from one family to another; he passed from the paternal power of one paterfamilias to that of another: consequently, no one who was sal furls could be adopted in the strict sense of that word. But there was another species of adoption, called adregatio, by which a person sui furls entered into another family, and subjected himself to the paternal of its chief. The effect of the adro gation was not confined to the person adrogated alone, but extended over his family and property. 1 Marcade 75.
This extraordinary organization of the Roman family, and the unlimited powers and authority vested in the paterfamilias, ,continued until the reign of Justinian, who by his 118th Novel, enacted on the 8th of August, 544; abolished the distinction between the agnatio and cognatio, and established the order of inheritance which, with some modifica tion's, Continues to exist at the present day in all countries whose jurisprudence Is based on the civil law. See Maine, Anc. L. Ch. 5; GENE; PATRIA POTESTAM; PECULTUM.