XLIV. ftate were continually diminished by the influence CHAP. of government and religion; and the pride of a subject was no longer elated by his abfolute dominion over the life and happinefs of his bondf The law of nature inftructs most animals to Fathers and childcherish and educate their infant progeny. The ren. law of reason inculcates to the human fpecies the returns of filial piety. But the exclusive, abfolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence 1°, and seems to be coeval with the foundation of the city *°3. The paternal power was inftituted 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 fenate, or the camp, the adult fon 102 103 101 For the state of slaves and freedmen, fee Inftitutes, 1. i. tit. iii. -viii. 1. ii. tit. ix. 1. iii. tit. viii, ix. Pandects or Digeft, l. 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 henceforwards understood that, with the original text of the Inftitutes and Pandects, the correfpondent 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. p. 1—. -590, the end. Lugd. Bat. 1724). 102 See the patria poteftas in the Institutes (I. i. tit. ix.), the Pandects (1. i. tit. vi, vii. ), and the Code (1. viii. tit. xlvii, xlviii, xlx.). Jus poteftatis quod in liberos habemus proprium eft civium Romanorum. Nulli enim alii funt homines, qui talem in liberos habeant poteftatem qualem nos habemus. 103 Dionyfius Hal. 1. ii. p. 94, 95. Gravina (Opp. p. 286.) produces the words of the xii tables. Papinian (in Collatione Legum Roman. et. Mosaicarum, tit. iv. p. 204) ftiles this patria poteftas, lex regia: Ulpian (ad Sabin. 1. xxvi. in Pandect. 1. i. tit. vi. leg. 8.) fays, jus poteftatis moribus receptum; and furiofus filium in poteftate habebit. How facred-or rather how abfurd! XLIV. CHAP. of a Roman citizen enjoyed the public and private rights of a perfon: in his father's house, he was a mere thing; confounded by the laws with the moveables, the cattle, and the flaves, whom the capricious master might alienate or deftroy, without being refponfible to any earthly tribunal. The hand which bestowed the daily fuftenance might resume the voluntary gift, and whatever was acquired by the labour or fortune of the fon, was immediately loft in the property of the father. His ftolen goods (his oxen or his children) might be recovered by the fame action of theft 104; and if either had been guilty of a trefpafs, it was in his own option to compensate the damage, or refign to the injured party the obnoxious animal. At the call of indigence or avarice, the master of a family could difpofe of his children or his flaves. But the condition of the flave was far more advantageous, fince he regained by the first manumiffion his alienated freedom: the fon was again reftored to his unnatural father; he might be condemned to fervitude a fecond and a third time, and it was not till after the third fale and deliverance s, that he was enfranchised from the domestic power, which had been fo repeatedly abused. According to his discretion, a father might chaftife the real or imaginary faults of his children, by ftripes, by imprisonment, by exile, by fending 105 104 Pandect. 1. xlvii. tit. ii. leg. 14. N° 13. leg. 38. No 1. Such was the decifion of Ulpian and Paul. 105 The trina mancipatio is most clearly defined by Ulpian (Fragment. x. p. 591, 592. edit. Schulting); and beft illuftrated in the Antiquities of Heineccius, * XLIV. them to the country to work in chains among the CHAP. meanest of his fervants. The majefty of a parent was armed with the power of life and death 1C ; and the examples of fuch bloody executions, which were fometimes 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 confular office, nor the honours of a triumph, could exempt the most illuftrious citizen from the bonds of filial fubjection 107: his own descendants were included in the family of their common ancestor; and the claims of adoption were not lefs facred or lefs rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the fentiments of paternal love; and the oppreffion was tempered by the affurance, that each generation must fucceed in its turn to the awful dignity of parent and mafter. The first limitation of paternal power is afcribed to the justice and humanity of Numa: and the 106 By Juftinian, the old law the jus necis of the Roman father (Inftitut. 1. iv. tit. ix. N° 7.), is reported and reprobated. Some legal veftiges are left in the Pande&ts (1. xliii. tit. xxix. leg. 3. N° 4.) and the Collatio Legum Romanarum et Mofaicarum (tit. ii. N° 3. p. 189.). 107 Except on public occafions, and in the actual exercife of his office. In publicis locis atque muneribus, atque actionibus patrum, jura cum filiorum qui in magiftratû funt, poteftatibus collata interquiefcere paullulum et connivere, &c. (Aul. Gellius, Noctes Atticæ, ii. 2.). The leffons of the philosopher Taurus were justified by the old and memorable example of Fabius; and we may contemplate the fame ftory in the style of Livy (xxiv. 44.) and the homely idiom of Claudius Quadrigarius the annalist. Limita paternal tions of the authority. CHAP. maid who, with his father's confent, had espoused XLIV. a freeman, was protected from the difgrace of becoming the wife of a flave. In the first ages, when the city was preffed and often famished by her Latin and Tufcan neighbours, the fale 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 deftroyed by the conquest of the republic. An imperfect right of property was at length communicated to fons; and the threefold diftinction of profectitious, adventitious, and profeffional, was afcertained by the jurisprudence of the Code and Pandects 103. Of all that proceeded from the father, he imparted only the use, and referved the abfolute dominion; yet if his goods were fold, the filial portion was excepted, by a favourable interpretation, from the demands of the creditors. In whatever accrued by marriage, gift, or collateral fucceffion, the property was fecured to the fon; but the father, unless he had been specially excluded, enjoyed the ufufruct during his life. As a just and prudent reward of military virtue, the spoils of the enemy were acquired, poffeffed, and bequeathed by the foldier alone; and the fair analogy was extended to the emoluments of any liberal profeffion, the falary of public fervice, and the facred liberality of the emperor or the emprefs. The life of a citizen 108 See the gradual enlargement and fecurity of the filial peculium in the Inftitutes (1. ii. tit. ix.), the Pandects (l. xv. tit. i. 1. xli. tit. i.), and the Code (1. iv. tit. xxvi, xxvii.). was XLIV. was lefs expofed than his fortune to the abufe of CHAP. paternal power. Yet his life might be adverse to the interest or paffions of an unworthy father: the fame crimes that flowed from the corruption, were more fenfibly felt by the humanity, of the Auguftan age; and the cruel Erixo, who whipt his fon till he expired, was faved by the emperor from the just fury of the multitude"". The Roman father, from the license of fervile dominion, was reduced to the gravity and moderation of a judge. The prefence and opinion of Auguftus confirmed the fentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Hadrian tranfported to an ifland the jealous parent, who, like a robber, had feized the opportunity of hunting, to affaffinate a youth, the incestuous lover of his ftepmother. A private jurifdiction is repugnant to the fpirit of monarchy; the parent was again reduced from a judge to an accufer; and the magiftrates were enjoined by Severus Alexander to hear his complaints and execute his fentence. He could no longer take the life of a fon without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been excepted by the Pompeian law, were ninally inflicted by the justice of Con 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 Quôd latronis magis quam patris jure eum interfecit, nam patria poteftas in pietate debet non in atrocitate confiftere (Marcian, Inftitut. 1. xiv. in Pandect. 1. xlviii. tit. ix. leg. 5.). |