CHAPTER IX. OF PATERNAL POWER. I.-ROMAN LAW. No one acquainted with Roman institutions can doubt the truth of Justinian's observation, that "the power which we have over our children is peculiar to the citizens of Rome for there is no other people who have the same power over their children which we have over ours." "1 As developed at Rome, the patria potestas, though well fitted to maintain discipline and obedience, bears the impress of a rude age. "It cannot be disputed," says Becker, "that the arbitrary power which the Roman father had over his children was a flagrant injustice, for the child was held in an unnatural state of dependence on his father, so as to be almost entirely deprived of personal freedom. The radical error of the Roman system was, in extending the power which nature imposes as a duty on a parent, of guiding and protecting a child during infancy, to a most unnatural control of his person and property, continuing during his entire existence."? ence. power. The patria potestas was the power which a Roman father Nature of had over his lawful children, and also over his grandchildren paternal or other descendants by a son, who were under his dependThe father must be sui juris at the birth of the chil dren, in order to acquire paternal power; for if he be under the power of another, his children will fall under the dependence of the same ascendant, and the paternal power will only 2 Becker's Gallus, translated by Metcalfe, p. 178. 1 I. 1. 9. 2. Effects on person and children, accrue to the father on the ascendant's death. Grandchildren born of a daughter are in a different position from grandchildren born of a son, being under the power, not of any ascendant on the mother's side, but of their own father, or father's father, as head of the family. Paternal power was acquired naturally by the birth of children in a lawful marriage, and civilly by legitimation and adoption. In ancient times the father had the power of life and death property of over his children (jus vitæ et necis). Plutarch says Brutus condemned his sons to death, without judicial forms, not as consul, but as father. The father could sell his children as slaves under an express law of the Twelve Tables, and he could change their personal condition by transferring them to another family by adoption. Under the republic the abuses of paternal authority were checked by the censors; and in later times the emperors interfered to reduce the father's powers within reasonable limits. The power of life and death was taken from the father and given to the magistrate. Alexander Severus limited the right of the father to simple correction; and Constantine declared the father who should kill his son to be guilty of murder, A.D. 318.1 A revolting practice prevailed under the empire, of killing or exposing new-born children, in consequence of the parents being unable to support them. Diocletian and Maximinian took away the power of selling free-born children as slaves, but made an exception of newly-born infants when the parents were in extreme misery.2 In later times a father could not give his son or daughter to another by adoption without the child's consent. By the ancient law, the son, who was in the power of his father, could not acquire property for himself; all his acquisitions, like those of a slave, belonged to his father. As a consequence of this doctrine, children under power could not make a testament, as they had nothing to bequeath. In the progress of Roman civilisation this rigour was relaxed. Frequently the father of a family gave a portion of his pro kinds of perty to his son to administer or trade upon, and this was Different called peculium. Moreover, under the new law, the son under peculium. power might acquire property of his own in various ways, independently of his father. Under Augustus and his successors, the son acquired as his own property whatever he gained in military service, including all gifts and successions from his comrades in arms. This was called peculium castrense. Under Constantine, about three centuries later, the son was entitled to any property acquired by him in offices of the court, in exercising the profession of an advocate, acting as assessor, or discharging other civil functions. All acquisitions of this kind were called peculium quasi castrense. As regards the peculium castrense and quasi castrense, the absolute property belonged to the son, with full power to dispose of it by deeds inter vivos or mortis causa, without any control on the part of the father. When the son received from his father a particular fund for the purposes of administration, it was called in the new law peculium profectitium, and, as a general rule, this remained the property of the father; but the son retained this fund when he ceased to be under power by his nomination to a high office in the state, or when his father emancipated him without withdrawing the peculium. All property which the children inherited from the mother or received from strangers, and all acquisitions not coming from the father, and not falling under the description of castrense or quasi castrense, are called peculium adventitium. By the law of Justinian, all such acquisitions belonged in property to the children; but, while the paternal power subsisted, the father had the enjoyment of a life interest in the produce; and, if the son was emancipated, the father retained the usufruct of one-half of the peculium adventitium during his life. "Even this," it has been remarked, "the utmost relaxation of the Roman patria potestas, left it far ampler and severer than any analogous institution of the modern world." 1 1 Maine, Ancient Law, p. 143. See Mackeldey, § 590 et seq., as to the different kinds of peculium. Public rights not affected by paternal power. Notion of family. No one but a Roman citizen could exercise the domestic despotism of the patria potestas, which affected all the relations of private life. One redeeming feature of this institution, however, was, that it was never allowed to influence the public law; for a son under power was in all public affairs as independent as his father, and was equally entitled to vote at the popular elections, and aspire to the honours of the state, to act as a magistrate, or command an army in the field. In later times, when the son was promoted to the consular dignity and other high offices of state, he ceased to be under paternal power, irrespective of the will of his father, but retained his rights of succession.1 The Roman family, as it existed in ancient times, was a the Roman collection of individuals recognising the power of a single chief. Whoever was under this power was within the family, and this applied to all persons brought under power by adoption. Whoever was freed from this power by emancipation or change of status, though he might be a child or descendant of the common ancestor, ceased to belong to the family. All who were connected by the tie of the paternal power, or who would have been so if the common author had been alive, had between them the relationship called agnation, which alone, by the ancient civil law, gave the rights of family and of succession. Agnates and cognates. Cognates, in a general sense, are those relations who derive their common descent from the same pair of married persons, whether the descent be traced through males or females. When opposed to agnates, the term cognates has usually a more restricted signification. Agnates are the members of the ancient Roman family, such as we have described it. There is agnation between two persons when one is under the paternal power of the other, or both are under the same power, or would have been so but for a natural cause, such as the death of the father of the family. The agnates comprehend only those who trace their connection exclusively through males, leaving out the descendants of women. Daughters under power are agnates of their father, and suc1 N. 81, ch. 2. Ortolan, Institutes, vol. ii. pp. 125, 126. But when a daughter ceed to him in the same way as sons. Mr Erskine thus explains the meaning of the terms agnate and cognate, as used in the law of Scotland:-" Agnates, in the sense of the Roman law, were persons related to each other through males only. The relation of cognates was connected by the interposition of one or more females. Thus, a brother's son is his uncle's agnate, in the language of the Romans, because the propinquity is connected wholly by males; a sister's son is his cognate, because a female is interposed in that relation. But in our law language, all kinsmen by the father are agnates, though females should intervene; and those by the mother, cognates. Justinian abolished so entirely the distinction of the old Roman law between agnates and cognates, that he admitted, both to the legal succession and to the office of tutor-at-law, not only kinsmen by the father, though a female had been interposed in that relation, but even those by the mother.-Nov. 118, c. 4, 5."2 Paternal power came to an end by the death of the father How paternal or the son, or when either of them suffered the capitis power diminutio maxima or media, the nature of which has already ceased. been explained. In the case of a daughter, it ceased when she entered into marriage with the conventio in manum, or became a vestal virgin.3 By adoption, the paternal power might be transferred to another, and it might be extinguished by emancipation. The ancient form of emancipation consisted of three fictitious Maynz, § 102. 2 Ersk. 1. 7. 4. 3 Aulus Gellius, i. 12. Ulp. 10. 5. 1 |