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ject was no longer elated by his absolute dominion over the life and happiness of his bondsman.101

103

The law of nature instructs most animals to cherish and educate their infant progeny. The law of reason inculcates to the human species the return of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence, 102 and seems to be coeval with the foundation of the city.1 The paternal power was instituted or confirmed by Romulus himself; and, after the practice of three centuries, it was inscribed on the fourth table of the Decemvirs. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person: in his father's house he was a mere thing, confounded by the laws with the movables, the cattle, and the slaves, whom the capricious master might alienate or destroy, without being responsible to any earthly tribunal. The hand which bestowed the daily sustenance might resume the voluntary gift, and whatever was acquired by the labor or for.. tune of the son was immediately lost in the property of the father. His stolen goods (his oxen or his children) might be recovered by the same action of theft; 104 and if either had been guilty of a trespass, it was in his own option to

101 For the state of slaves and freedmen, see Institutes, 1. i tit. iii.-viii. 1. ii. tit. ix. 1. iii. tit. viii. ix. Pandects or Digest, 1. i. tit. v. vi. 1. xxxviii. tit. i.--iv and the whole of the xlth book. Code, 1. vi. tit. iv. v. 1. vii. tit. i.-xxiii. Be it henceforward understood that, with the original text of the Institutes and Pandects, the correspondent articles in the Antiquities and Elements of Heineccius are implicitly quoted, and with the xxvii. first books of the Pandects, the learned and rational Commentaries of Gerard Noodt (Opera, tom ii pp. 1-590, the end. Lugd. Bat. 1724).

102 See the patria potestas in the Institutes (1. i. tit. ix.), the Pandects (1. i. tit. vi. vii.) and the Code (1. viii. tit. xlvii. xlviii. xlix.). Jus potestatis quod in liberos habemus proprium est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem qualem nos habemus.*

103 Dionysius Hal. 1. ii. pp. 94, 95. Gravina (Opp. p. 286) produces the words of the xii. tables. Papinian (in Collatione Legum Roman. et Mosaicarum, tit. iv. p. 204) styles this patria potestas, lex regia, Ulpian (ad Sabin. 1. xxvi. in Pandect. 1. i. tit. vi. leg. 8) says, jus potestatis moribus receptum; and furiosus filium in potestate habebit. How sacred-or rather, how absurd! t

4 Pandect. 1. xlvii. tit. ii. leg. 14, No. 13, leg. 38, No. 1. Such was the deision of Ulpian and Paul.

The newly-discovered Institutes of Gaius name one nation in which the same power was vested in the parent. Nec me præterit Galatarum gentem credere, in potestate parentum liberos esse. Gaii Instit. edit. 1824, p. 257.-M.

All this is in strict accordance with the Roman character.-W.

This parental power was strictly confined to the Roman citizen. The foreigner, or he who had only jus Latii, did not possess it. If a Roman citizen unknowingly married a Latin or a foreign wife, he did not possess this power over his son, because the son, following the legal condition of the mother, was not a Roman citizen. A man, however, alleging sufficient cause for his ignorance, might raise both mother and child to the rights of citizenship. Gaius, P. 30. -M.

compensate the damage, or resign to the injured party the obnoxious animal. At the call of indigence or avarice, the master of a family could dispose of his children or his slaves. But the condition of the slave was far more advantageous, since he regained, by the first manumission, his alienated freedom: the son was again restored to his unnatural father; he might be condemned to servitude a second and a third time, and it was not till after the third sale and deliverance,105 that he was enfranchised from the domestic power which had been so repeatedly abused. According to his discretion, a father might chastise the real or imaginary faults of his children, by stripes, by imprisonment, by exile, by sending them to the country to work in chains among the meanest of his servants. The majesty of a parent was armed with the power of life and death; 106 and the examples of such bloody executions, which were sometimes praised and never punished, may be traced in the annals of Rome beyond the times of Pompey and Augustus. Neither age, nor rank, nor the consular office, nor the honors of a triumph, could exempt the most illustrious citizen from the bonds of filial subjection: 107 his own descendants were included in the family of their common ancestor; and the laims of adoption were not less sacred or less rigorous than hose 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.

The first limitation of paternal power is ascribed to the justice and humanity of Numa, and the maid who, with his father's consent, had espoused a freeman, was protected from

105 The trina mancipatio is most clearly defined by Ulpian (Fragment. x pp. 591, 592, edit. Schulting); and best illustrated in the Antiquities of Heineccius.* 106 By Justinian, the old law, the jus necis of the Roman father (Institut. 1. iv. tit. ix. No. 7) is reported and reprobated. Some legal vestiges are left in the Pandects (1. xliii. tit xxix. leg. 3, No. 4) and the Collatio Legum Romanarum et Mosaicarum (tit. ii. No. 3, p. 189).

107 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 magistratu sunt potestatibus collata interquiescere paullulum et connivere, &c. (Aul Gellius, Noctes Atticæ, ii. 2). The Lessons of the Philosopher Taurus were justified by the old and memorable example of Fabius; and we may contemplate the same story in the style of Livy (xxiv. 44) and the homely idiom of Claudius Quadrigarius the annalist.

*The son of a family sold by his father did not become in every respect a slave; he was statu liber; that is to say, on paying the price for which he was Gold he became entirely free. See Hugo, Hist. § 61.-W.

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 neighbors, 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.108 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 favorable 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 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 multitude.109 The Roman father, from the license 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. Adrian transported to an island the jealous parent, who, like a robber, had seized the opportu nity of hunting, to assassinate a youth, the incestuous lover of his step-mother. 110 A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from

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

109 The examples of Erixo and Arius are related by Seneca (de Clementia, i. 14, 15), the former with horror, the latter with applause.

110 Quod latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere (Marcian, Institut. 1. xix. in Pandect. L lviii. tit. ix. leg 5).

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 excepted by the Pompeian law, were finally inflicted by the justice of Constantine." 111 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.112 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 113 and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.114

Experience has proved, that savage are the tyrants of

111 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. xlviii. tit. viii. ix.), and Code (1. ix. tit. xvi. xvii.) See likewise the Theodosian Code (1. ix. tit. xiv xv.), with Godefroy's Commentary (tom. iii. pp. 84-113), who pours a flood of ancient and modern learn. ing over these penal laws.

112 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 Del. phin).

113 The opinion of the lawyers, and the discretion of the magistrates, had in troduced, 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 jurispru dence.

114 The wise and humane sentence of the civilian Paul (1. ii Sententiarum in Pandect. 1. xxv. tit. iii. leg. 4) is represented as a mere moral precept by Gerard Noodt (Opp. tom. i. in Julins Paulus, pp. 567-588, and Amica Responsio, pp 591606), who maintains the opinion of Justus Lipsius (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. pp. 318-340. Curæ Secundæ, pp. 391-427). In a learned but angry controversy, the two friends deviated into the opposite ex

tremes.

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 age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin.115 According to the custom of antiquity, he bought his bride of her parents, and she ful filled 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 sheep-skin; they tasted a salt cake of far or rice; and this confarreution,116 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 family11 (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 behavior was ap proved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness,118 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 : 119 but

115 Dionys. Hal. 1. ii pp. 92, 93. Plutarch, in Numa, pp. 140, 141. Tò σwμa kaι τὸ ἦθος κάθαρον και άθικτον επι τω γαμούντι γενεσθαι.

116 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 Métrologie (p. 517-529).

117 Aulus Gellius (Noctes Atticæ, xviii. 6) gives a ridiculous definition of Ælius 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.

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

119 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 seaBut 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

man.

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