bonds of filial subjection:P his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love; and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master.

Limitations of

The first limitation of paternal power the paternal au is ascribed to the justice and humanity thority. of Numa and the maid who, with his father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed, and often famished, by her Latin and Tuscan neighbours, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of profectitious, adventitious, and professional, was ascertained by the jurisprudence of the Code and Pandects. Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted, by a favourable interpretation, from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life. As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the sacred liberality of the emperor or the empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the interest or passions of an unworthy father: the same crimes that flowed from the corruption, were more sensibly felt by the humanity, of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the emperor from the just fury of the mul

P Except on public occasions, and in the actual exercise of his office. In publicis locis atque muneribus, atque actionibus patrum, jura cum filiorum qui in magistratû sunt potestatibus collata interquiescere paullulum et connivere, &c. (Aul. Gellius, Noctes Atticæ, ii. 2.) The les sous of the philosopher Taurus were justified by the old and memora ble example of Fabius; and we may contemplate the same story in the style of Livy, (xxiv. 44.) and the homely idiom of Claudius Quadriga. rius the annalist.

q See the gradual enlargement and security of the filial peculium in the Institutes, (l. ii. tit. ix.) the Pandects, (1. xv. tit. i. xli. tit. i.) and the Code, (1. iv. tit. xxvi. xxvii.)

The examples of Erixo and Arius are related by Seneca, (de Clementia, i. 14, 15.) the former with horror, the latter with applause. s Quod latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere. (Marcian, Institut. I. xiv. in Pandect. 1. xlviii, tit. ix. leg. 5.)

t The Pompeian and Cornelian laws de sicariis and parricidis, are repeated, or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects, (1. xlvii. tit. viii. ix.) and Code, (1. ix. tit. xvi. xvii.) See likewise the Theodosian Code, (ix. tit. xiv. xv.) with Godefroy's Commentary, (tom. iii. p.

titude. The Roman father, from the licence of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Hadrian transported to an island the jealous parent, who, like a robber, had seized the opportunity of hunting, to assassinate a youth, the incestuous lover of his stepmother. A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from a judge to an accuser; and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been exempted by the Pompeian law, were finally inflicted by the justice of Constantine. The same protection was due to every period of existence; and reason must applaud the humanity of Paulus, for imputing the crime of murder to the father, who strangles, or starves, or abandons, his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity, by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets, who appeal to the human heart, represent with indifference a popular custom which was palliated by the motives of economy and compassion." If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement, of the laws; and the Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence and christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.

wives.

Experience has proved, that savages Husbands and are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender

84-113.) who pours a flood of ancient and modern learning over these penal laws.

u When the Chremes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences the scruples of a foolish woman. See Apuleius. (Metamorph. 1. x. p. 337. edit. Delphin.)

x The opinion of the lawyers, and the discretion of the magistrates, had introduced in the time of Tacitus some legal restraints, which might support his contrast of the boni mores of the Germans to the bonæ leges alibi-that is to say, at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, 1. i. c. 15.) refutes his own charges, and those of his brethren, against the heathen jurisprudence.

y The wise and humane sentence of the civilian Paul, (1. ii. Sententiarum in Pandect. l. xxv. tit. iii. leg. iv.) is represented as a mere moral precept by Gerard Noodt, (Opp. tom. i. in Julius Paulus, p. 567-588. and Amica Responsio, p. 591-606.) who maintains the opinion of Justus Lipsins, (Opp. tom. ii. p. 409. ad Belgas, cent. i. epist. 85.) and as a positive binding law by Bynkershoek. (de Jure occidendi Liberos, Opp. tom. i. p. 318-340. Čuræ Secundæ, p. 391-427.) In a learned but angry controversy the two friends deviated into the opposite extremes.

b

age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin.2 The religious According to the custom of antiquity, rites of marriage. he bought his bride of her parents, and she fulfilled the coemption, by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheepskin; they tasted a salt cake of far or rice; and this confarreation, which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house, to embrace a new servitude, decorated only by the title of adoption. A fiction of the law, neither rational nor elegant, bestowed on the mother of a family (her proper appellation) the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behaviour was approved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness, the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year. The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws: but as polygamy was unknown, he could never admit to his bed a fairer or more favoured partner.

z Dionys. Hal. 1. ii. p. 92, 93. Plutarch, in Numa, p. 140, 141. To σωμα καὶ τὸ ἦθος καθαρόν και αθικτον επι τῳ γαμαντι γενέσθαι.

a Among the winter frumenta, the triticum, or bearded wheat; the siligo, or the unbearded; the far, adorea, oryza, whose description perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Metrologie. (p. 517-529.)

b Aulus Gellius (Noctes Atticæ, xviii. 6.) gives a ridiculous de. finition of Elius Melissus, Matrona, quæ semel, materfamilias quæ sæpius peperit, as porcetra and scropha in the sow kind. He then adds the genuine meaning, quæ in matrimonium vel in manum convenerat.

e It was enough to have tasted wine, or to have stolen the key of the cellar. (Plin. Hist. Nat. xiv. 14.)

d Solon requires three payments per month. By the Misna, a daily debt was imposed on an idle, vigorous, young husband; twice a week on a citizen; once on a peasant; once in thirty days on a camel-driver; once in six months on a seaman. But the student or doctor was free from tribute; and no wife, if she received a weekly sustenance, could sue for a divorce: for one week a vow of abstinence was allowed. Polygamy divided, without multiplying, the duties of the husband. (Selden. Uxor. Ebraica, 1. iii. c. 6. in his works, vol. ii. p. 717-720.)

of a marriage-contract. Of their private fortunes, they communicated the use, and secured the property the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under another name, a future subject for an action of theft. To this loose and voluntary compact, religious and civil rites were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution, were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods:' and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects, is directed by the earthly motives of justice, policy, and the natural freedom of both sexes.

Besides the agreement of the parties, Liberty and the essence of every rational contract, abuse of divorce. the Roman marriage required the previous approbation of the parents. A father might be forced by some recent laws to supply the wants of a mature daughter; but even his insanity was not generally allowed to supersede the necessity of his consent. The causes of the dissolution of matrimony have varied among the Romans; but the most solemn sacrament, the confarreation itself, might always be done away by rites of a contrary tendency. In the first ages, the father of a family might sell his children, and his wife was reckoned in the number of his children: the domestic judge might pronounce the death of the offender, or his mercy might expel her from his bed and house; but the slavery of the wretched female was hopeless and perpetual, unless he asserted for his own convenience the manly prerogative of divorce. The warmest applause has been lavished on the virtue of the

e On the Oppian law we may hear the mitigating speech of Valerius Flaccus, and the severe censorial oration of the elder Cato. (Liv. xxxiv. 1-8.) But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Gellius, (x. 23.)

f For the system of Jewish and Catholic matrimony, see Selden, (Uxor Ebraica, Opp. vol. ii. p. 529-860.) Bingham, (Christian Antiquities, 1. xxii.) and Chardon, (Hist. des Sacremens, tom. vi.)

g The civil laws of marriage are exposed in the Institutes, (1. i. tit. x.) the Pandects, (l. xxiii. xxiv. xxv.) and the Code, (1. v.) but as the title de ritu nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian, (tit. ix. p. 590, 591.) and the Collatio Legum Mosai carum, (tit. xvi. p. 790, 791.) with the Notes of Pithæus and Schulting. They find in the Commentary of Servius (on the first Georgic and the fourth Eneid) two curious passages.

h According to Plutarch, (p. 57.) Romulus allowed only three grounds of a divorce-drunkenness, adultery, and false keys. Otherwise, the husband who abused his supremacy forfeited half his goods to his wife, and half to the goddess Ceres, and offered a sacrifice (with the remainder?) to the terrestrial deities. This strange law was either imaginary or transient.

Incest, concu.

tards.

The freedom of love and marriage bines, and bas was restrained among the Romans by natural and civil impediments. An instinct, almost innate and universal, appears to prohibit the incestuous commerce of parents and children in the infinite series of ascending and descending generations. Concerning the oblique and collateral branches, nature is indifferent, reason mute, and custom various and arbitrary. In Egypt, the marriage of brothers and sisters was admitted without scruple or exception: a Spartan might espouse the daughter of his father, an Athenian, that of his mother; and the nuptials of an uncle with his niece were applauded at Athens as a happy union of the dearest relations. The profane lawgivers of Rome were never tempted by interest or superstition to multiply the forbidden degrees; but they inflexibly condemned the marriage of sisters and brothers, hesitated whether first cousins should be touched by the same interdict; revered the parental character of aunts and uncles, and treated affinity and adoption as a just imitation of the ties of blood. According to the proud maxims of the republic, a legal marriage could only be contracted by free citizens; an honourable, at least an ingenuous, birth, was required for the spouse of a senator: but the blood of kings could never mingle in legitimate nuptials with the blood of a Roman; and the name of Stranger degraded Cleopatra and Berenice to live the concubines of Mark Antony and Titus. This appellation, indeed, so injurious to the majesty, cannot without indulgence be applied to the manners, of these oriental queens. A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station, below the honours of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the west and east, and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connexion, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to word is Topveia the translation? How variously is that Greek word translated in the versions ancient and modern! There are two (Mark x. 11. Luke xvi. 18.) to one (Matthew xix. 9.) that such ground of divorce was not excepted by Jesus. Some critics have presumed to think, by an evasive answer, he avoided the giving offence either to the school of Sammai or to that of Hillel. (Selden, Uxor Ebraica, l. iii. c. 18-22. 28. 31.)

The principles of the Roman jurisprudence are exposed by Justi nian; (Institut. 1. i. tit. x.) and the laws and manners of the different nations of antiquity concerning forbidden degrees, &c. are copiously explained by Dr. Taylor in his Elements of Civil Law, (p. 108. 314339.) a work of amusing, though various, reading; but which cannot be praised for philosophical precision.

s When her father Agrippa died, (A. D. 44.) Berenice was sixteen years of age. (Joseph. tom. i. Antiquit. Judaic. I. xix. c. 9. p. 952. edit.

was instantly performed by the celebration of their nuptials with a partner whose fruitfulness and fidelity they had already tried. By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigour of law, bastards were entitled only to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state."

wards.

The relation of guardian and ward, Guardians and or in Roman words, of tutor and pupil, which covers so many titles of the Institutes and Pandects, is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurisprudence has pronounced, that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity, afforded no efficient guardian, the failure was supplied by the nomination of the prætor of the city, or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burthened, and by the immunities which were granted to the useful labours of magistrates, lawyers, physicians, and professors. Till the infant could speak and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed

Havercamp.) She was therefore above fifty years old when Titus (A. D. 79.) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine.

t The Egyptia conjunx of Virgil (Æneid, viii. 688.) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy.

The humble but legal rights of concubines and natural children, are stated in the Institutes, (1. i. tit. x.) the Pandects, (1. i. tit. vii) the Code, (1. v. tit. xxv.) and the Novels. (1. lxxiv. lxxxix.) The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppæam, c. iv. p. 164-175. Opere Posthume, p. 108-158.) illustrate this interesting and domestic subject.

* See the article of guardians and wards in the Institutes, (l. i. tit. xiii-xxvi.) the Pandects, (1. xxvi. xxvii.) and the Code, (l. v. tit. xxviii-lxx.)

by the civilians at fourteen; but as the faculties of the, mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of the Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the prætor, to save a family from the blind havoc of a prodigal or a madman: and the minor was compelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such at least was the stern and haughty spirit of the ancient law, which had been insensibly mollified before the time of Justinian.

II. OF THINGS.

perty.

II. The original right of property Right of pro- can only be justified by the accident or merit of prior occupancy; and on this foundation it is wisely established by the philosophy of the civilians. The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all, the new form, the produce of his time and simple industry, belongs solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labour, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year. In the successive states of society, the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity, may purchase similar acquisitions by the exercise of similar diligence. Such, in truth, may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same: the common rights, the equal inheritance of mankind, are engrossed by the bold and crafty; each field and forest is circumscribed by the land-marks of a jealous master; and it is

y Institut. 1. ii. tit. i. ii. Compare the pure and precise reasoning of Caius and Heineccius (1. ii. tit. i. p. 69-91.) with the loose prolixity of Theophilus, (p. 207-265.) The opinions of Ulpiau are preserved in the Pandects, (1. i. tit. viii. leg. 41. No. 1.)

The heredium of the first Romans is defined by Varro, (de Re Rusticâ, l. i. c. ii. p. 141. c. x. p. 160, 161. edit. Gesner,) and clouded by Pliny's declamation. (Hist. Natur. xviii. 2.) A just and learned comment is given in the Administration des Terres chez les Romains, (p. 12-66.)

the peculiar praise of the Roman jurisprudence, that it asserts the claim of the first occupant to the wild animals of the earth, the air, and the waters. In the progress from primitive equity to final injustice, the steps are silent, the shades are almost imperceptible, and the absolute monopoly is guarded by positive laws and artificial reason. The active insatiate principle of self-love can alone supply the arts of life and the wages of industry; and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race. Except in the singular institutions of Sparta, the wisest legislators have disapproved an agrarian law as a false and dangerous innovation. Among the Romans, the enormous disproportion of wealth surmounted the ideal restraints of a doubtful tradition and an obsolete statute; a tradition that the poorest follower of Romulus had been endowed with the perpetual inheritance of two jugera; a statute which confined the richest citizen to the measure of five hundred jugera, or three hundred and twelve acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tiber; and domestic exchange could add nothing to the national stock. But the goods of an alien or enemy were lawfully exposed to the first hostile occupier; the city was enriched by the profitable trade of war; and the blood of her sons was the only price that was paid for the Volscian sheep, the slaves of Britain, or the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguished by the name of manceps or mancipium, taken with the hand; and whenever they were sold or emancipated, the purchaser required some assurance that they had been the property of an enemy, and not of a fellow-citizen." A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet according to the twelve tables, a prescription of one year for movables, and of two years for immovables, abolished the claim of the ancient master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor. Such conscientious injustice, without any mixture of fraud or force, could seldom injure the members of a small republic; but the various periods of three, of ten, or of twenty years, determined by Justinian, are more suitable to the latitude of a great empire. It is only in the term of prescription that the distinction of real and personal fortune has been remarked by the civilians,

a The res mancipe is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619.) and Bynkershoek. (Opp. tom. i. p. 306-315.) The definition is somewhat arbitrary; and as none except myself have assigned a reason, I am diffident of my own.

From this short prescription, Hume (Essays, vol. i. p. 423.) infers, that there could not then be more order and settlement in Italy than now amongst the Tartars. By the civilian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions. (Institut. I. ii. tit. vi.)