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with the foundation of the city.10 104 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 moveables, 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 labour or fortune 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; 105 and, if either had been guilty of a trespass, it was in his own option to 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 106 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; 107 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,

104 Dionysius Hal., 1. ii. p. 94, 95 [c. 26]. 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!

105 Pandect. 1. xlvii. tit. ii. leg. 14, No. 13; leg. 38, No. 1. Such was the decision of Ulpian and Paul.

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

107 By Justinian, the old law, the jus necis of the Roman father (Institut. 1. iv. tit. ix. [viii.] No. 7), is reported and reprobated. Some legal vestigesare 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).

Limitation of the paternal

authority

nor the consular office, nor the honours of a triumph, could exempt the most illustrious citizen from the bonds of filial subjection; 108 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.

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 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. 109 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

108 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.

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

111

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 whipt his son till he expired, was saved by the emperor from the just fury of the multitude.110 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 jurisprudence 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 excepted by the Pompeian law, were finally inflicted by the justice of Constantine.112 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

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

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

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

Husbands

and wives

rites of mar

motives of economy and compassion.113 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.115

114

Experience has proved that savages 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 age of twelve years, that the Roman husband might educate to his will a pure and obedient The religious virgin.116 According to the custom of antiquity, he bought his riage 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,117 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

113 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.).

114 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.

115 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 Julius Paulus, p. 567-588, and Amica Responsio, p. 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. p. 318-340. Curæ Secundæ, p. 391-427). In a learned but angry controversy the two friends deviated into the opposite extremes. 116 Dionys. Hal. 1. ii. p. 92, 93; Plutarch, in Numa, p. 140, 141. τὸ ἦθος καθαρον καὶ ἄθικτον ἐπὶ τῷ γαμοῦντι γενέσθαι.

Τὸ σῶμα καὶ

117 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).

1

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, [Manus] neither rational nor elegant, bestowed on the mother of a family 118 (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,119 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 moveables, by the use and possession of an entire year. [U] The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws; 120 but, as polygamy was unknown, he could never admit to his bed a fairer or more favoured partner.

the matri

After the Punic triumphs, the matrons of Rome aspired to Freedom of the common benefits of a free and opulent republic: their monial conwishes were gratified by the indulgence of fathers and lovers,

118 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. [When a woman was married (whether she was under her father's potestas, or not), she passed under the power of her husband, and this power was called manus; it corresponded, in its scope, to the patria potestas. Manus was not strictly a consequence of marriage; it was rather the accompaniment of marriage, and was acquired in three ways. (1) By confarreatio, the ceremony described in the text. This ceremony seems to have been used only by Patricians. Certain priesthoods were confined to men sprung from a marriage contracted with confarreatio. In the last years of the republic, it fell into disuse. (2) By coemptio, which in the text seems to be confounded with confarreatio. The woman was mancipated to her husband, by her father if under his potestas, by herself if sui iuris. (3) By usus, or cohabitation for a year. If absent for three nights, the woman did not pass under her husband's manus. From the end of the republic manus had ceased to be the usual relation between husband and wife; and the decline of this legal institution seems to be parallel to the increase in frequency of divorce.]

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

120 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 sustenancé, 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).

tract

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