state were continually diminished by the influence coop. of government and religion; and the pride of a Cosubject was no longer elated by his absolute dominion over the life and happiness of his bonds. man “”. The law of nature instrućts most animals to Fathers cherish and educate their infant progeny. The old. law of reason inculcates to the human species the returns of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence “”, and seems to be coeval with the foundation of the city”. The paternal power was instituted or confirmed by Romulus himself; and after the pračtice of three centuries, it was inscribed on the fourth table of the Decemvirs. In

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nor For the state of slaves and freedmen, see Institutes, l. i. tit. iii, —viii. l. ii. tit. ix. l. iii. tit. viii., ix. Pande&ts or Digest, l. i. tit. v, vi. l. xxxviii. tit. i-iv. and the whole of the xlth book. Code, l. vi. tit. iv., v. l. vii. tit. i-xxiii. Be it henceforwards understood that, with the original text of the Institutes and Pande&ts, the

correspondent articles in the Antiquities and Elements of Heineccius |

are implicitly quoted ; and, with the xxvii first books of the Pan-
dects, the learned and rational Commentaries of Gerard Noodt
(Opera, tom. ii. p. 1–590, the end. Lugd. Bat. 1724).
ion. See the patria potestas in the Institutes (l. i. tit. ix.), the Pan-
de&ts (l. i. tit. vi., vii.), and the Code (l. viii. tit. xlvii, xlviii, xlz.).
Jus potestatis quod in liberos habemus proprium est civium Roma-
norum. Nulli enim alii sunt homines, quitalem in liberos habeant
potestatem qualem nos habemus. -
10; Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p. 286.) pro-
duces the words of the xii tables. Papinian (in Collatione Legum
Roman. et. Mosaicarum, tit. iv. p. 204.) stiles this patria potestas,
lex regia: Ulpian (ad Sabin. l. xxvi. in Pande&t. l. i. tit vi. leg. 8-)
says, jus potestatis moribus receptum; and furiosus filium in potestate
habebit. How sacred—or rather how absurd .

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C H A P.


ros The trina mancipatio is most clearly defined by Ulpian (Fragment. x. p. 591, 592. edit. Schulting); and best illustrated in the Antiquities of Heineccius,

9 them

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 “; 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 honours of a triumph, could exempt the most illustrious citizen

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from the bonds of filial subjection * : his own

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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 conquest of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinčtion of profe&litious, adventitious, and professional, was ascertained by the jurisprudence of the Code and Pande&ts “”. 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

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


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paternal power. Yet his life might be adverse to C

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 whipt
his son till he expired, was saved by the emperor
from the just fury of the multitude”. The
Roman father, from the license of servile domi-
nion, 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 jea-
lous parent, who, like a robber, had seized the
opportunity of hunting, to assassinate a youth, the
incestuous lover of his stepmother “. A private
jurisdićtion is repugnant to the spirit of monarchy;
ithe parent was again reduced from a judge to an
accuser; and the magistrates were enjoined by
Severus Alexander to hear his complaints and exe-
cute his sentence. He could no longer take the
life of a son without incurring the guilt and punish-
ment of murder; and the pains of parricide, from

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io9 The examples of Erixo and Arius are related by Seneca (de Clementia, i. 14, 15.), the former with horror, the latter with applause.

* Quéd latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere (Marcian, Hnstitut. l. xiv. in Pande&t. l. xlviii. tit. ix. leg. 5.).

- - F 4 stantine.

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