The law of nature instructs most animals to cherish and educate their infant progeny. The 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 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; 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

See the patria potestas

the end. Lugd. Bat. 1724.) in the Institutes (1. 1, tit. 9), the Pandects (1. 1, tit. 6, 7), and the Code (1. 8, tit. 47-49). Jus potestatis quod in liberos habemus proprium est civium Romanorum. Nulli enim alii sunt homines qui talem in liberos habeant potestatem qualem nos habemus.

Dionysius Hal. 1. 2, p. 94, 95. Gravina (Opp. p. 286) produces the words of the twelve tables. Papinian (in Collatione Legum Roman. et Mosaicarum, tit. 4, p. 204) styles this patria potestas, lex regia: Ulpian (ad Sabin. 1. 26, in Pandect. 1. 1, tit. 6, leg. 8) says, jus potestatis moribus receptum; and furiosus filium in potestate habebit. How sacred -or rather, how absurd! [This accords perfectly with the Roman character.-WARNKÖNIG.] [The laws of the Romans on this point not only encouraged, but enforced, a brutal ferociousness. In the Twelve Tables, a father was commanded to put to death a deformed child. Tabula 4 directs, "Pater insignem ad deformitatem puerum cito necato."-ED.]

Pandect. 1. 47, tit. 2, leg. 14, No. 13; leg. 38, No. 1. Such was

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, 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;† and the example 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 from the bonds of filial subjection: 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

* The trina mancipatio

the decision of Ulpian and Paul. is most clearly defined by Ulpian (Fragment. 10, p. 591, 592, edit. Schulting), and best illustrated in the Antiquities of Heineccius. [The son, when sold by his father, did not become fully a slave; he remained" statu liber," that is, he might claim manumission at any time, by repaying the sum for which he was purchased.-WARNKÖNIG.]

By Justinian, the old law, the jus necis of the Roman father (Institut. 1. 4, tit. 9, No. 7), is reported and reprobated. Some legal vestiges are left in the Pandects (1. 43, tit. 29, leg. 3, No. 4) and the Collatio Legum Romanarum et Mosaicarum (tit. 2, No. 3, p. 189).

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 paululum et connivere, &c. (Aul. Gellius, Noctes Atticæ, 2. 2.) The lessons of the philosopher Taurus were justified by the old and memorable example of Fabius; and we may contemplate the

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 multitude.+ 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. 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 same story in the style of Livy (24. 44), and the homely idiom of Claudius Quadrigarius the annalist. * See the gradual enlargement and security of the filial peculium in the Institutes (1. 2, tit. 9), the Pandects (1. 15, tit. 1; 1. 41, tit. 1), and the Code. (1. 4, tit. 26, 27). The examples of Erixo and Arius are related by Seneca (de Clementia, 1. 4. 15), the former with horror, the latter with applause. Quod latronis magis quam patris jure eum interfecit, uam patria potestas in pietate debet non in

VOL. V.

E

iurisdiction 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.* 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

atrocitate consistere. (Marcian, Institut. 1. 14, in Pandect. 1. 48, tit. 9. leg. 5.) *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. 48, tit. 8, 9) and Code. (1. 9, tit. 16, 17). See likewise the Theodosian Code (1. 9, tit. 14, 15), with Godefroy's Commentary (tom. iii, p. 84-113), who pours a flood of ancient and modern learning over these penal laws. + 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. 10, p. 337, edit Delphin.). 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. 1, c. 15), refutes his own charges and those of his brethren against the heathen

A.D. 533-565.]

HUSBANDS AND WIVES.

51

gentle influence was fortified by the terrors of capital punishment.*

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 virgin. According to the custom of antiquity, 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

jurisprudence. *The wise and humane sentence of the civilian Paul (1. 2, Sententiarum, in Pandect. 1. 25, tit. 3, 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. 591–606), who maintains the opinion of Justus Lipsius (Opp. tom. ii, p. 409, ad Belgas, cent. 1, 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.

[Yet it was by the savage Germans that woman was held in respect, and by the refined Romans that she was tyrannized over and corrupted. Through all succeeding ages, we find, too, that among the descendants of those savages, the female sex has always been placed highest in the social scale. Even French gallantry has never habitually won such domestic partners as those who cheer and consecrate the Gothic fire-side.-ED.]

Dionys. Hal. 1. 2, p. 92, 93. Plutarch, in Numa, p. 140, 141. To σῶμα καὶ τὸ ἦθος κάθαρον καὶ ἄθικτον ἐπὶ τῳ γαμοῦντι γένεσθαι. § 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). [Rice was brought into southern Europe from the East, whence also its name is derived. In Arabian it is aruz, and in the Malabar tongue arisi. Thence the Greeks and Latins gave it the form of oryza. The Spaniards call it arroz, taught, most probably, by their Arabian conquerors. Adelung (Wörterbuch, 3. 1385) E 2