Ancient Law Chapter 5

rimitive jurisprudence. Older probably than the State， the Tribe， and the House， it left traces of itself on private law long after the House and the Tribe had been forgotten， and long after consanguinity had ceased to be associated with the composition of States. It will be found to have stamped itself on all the great departments of jurisprudence， and may be detected， I think， as the true source of many of their most important and most durable characteristics. At the outset， the peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent throughout Europe. There are societies open to our observation at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition； but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to pieces， and if we carefully observe the disintegration we shall perceive that it took place principally in those portions of each system which were most deeply affected by the primitive conception of the family. In one all-important instance， that of the Roman law， the change was effected so slowly， that from epoch to epoch we can observe the line and direction which it followed， and can even give some idea of the ultimate result to which it was tending. And， in pursuing this last inquiry， we need not suffer ourselves to be stopped by the imaginary barrier which separates the modern from the ancient world. For one effect of that mixture of refined Roman law with primitive barbaric usage， which is known to us by the deceptive name of feudalism， was to revive many features of archaic jurisprudence which had died out of the Roman world， so that the decomposition which had seemed to be over commenced again， and to some extent is still proceeding.

　　On a few systems of law the family organisation of the earliest society has left a plain and broad mark in the lifelong authority of the Father or other ancestor over the person and property of his descendants， an authority which we may conveniently call by its late

r Roman name of Patria Potestas. No feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this， and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities. Gaius， writing under the Antonines， describes the institution as distinctively Roman. It is true that， had he glanced across the Rhine or the Danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries， he would have seen examples of patriarchal power in its crudest form； and in the far East a branch of the same ethnical stock from which the Romans sprang was repeating their Patria Potestas in some of its most technical incidents. But among the races understood to be comprised within the Roman empire， Gaius could find none which exhibited an institution resembling the Roman "Power of the Father，" except only the Asiatic Galatae. There are reasons， indeed， as it seems to me， why the direct authority of the ancestor should， in the greater number of progressive societies， very shortly assume humbler proportions than belonged to it in their earliest state. The implicit obedience of rude men to their parent is doubtless a primary fact， which it would be absurd to explain away altogether by attributing to them any calculation of its advantages； but， at the same time， if it is natural in the sons to obey the father， it is equally natural that they should look to him for superior strength or superior wisdom. Hence， when societies are placed under circumstances which cause an especial value to be attached to bodily and mental vigour， there is an influence at work which tends to confine the Patria Potestas to the cases where its possessor is actually skilful and strong. When we obtain our first glimpse of organised Hellenic society， it seems as if supereminent wisdom would keep alive the father's power in Persons whose bodily strength had decayed； but the relations of Ulysses and Laertes in the Odyssee appear to show that， where extraordinary valour and sagacity were united in the son， the father in the decrepitude of age was deposed from the headship of the family. In the mature Greek jurisprudence， the rule advances a few steps on the practice hinted at in the Homeric literature； and though very many traces of stringent family obligation remain， the direct authority of the parent is limited， as in European codes， to the nonage or minority of the children， or， in other words， to the period during which their mental and physical inferiority may always be presumed. The Roman law， however， with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the commonwealth may require， preserves both the primeval institution and the natural limitation to which I conceive it to have been subject. In every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength， for all purposes of counsel or of war， the filius familias， or Son under Power， was as free as his father. It was a maxim of Roman jurisprudence that the Patria Potestas did not extend to the Jus Publicum. Father and son voted together in the city， and fought side by side in the field； indeed， the son， as general， might happen to command the father， or， as magistrate， decide on his contracts and punish his delinquencies. But in all the relations created by Private Law； the son lived under a domestic despotism which， considering the severity it retained to the last， and the number of centuries through which it endured， constitutes one of the strangest problems in legal history.

　　The Patria Potestas of the Romans， which is necessarily our type of the primeval paternal authority， is equally difficult to understand as an institution of civilised life， whether we consider its incidence on the person or its effects on property. It is to be regretted that a chasm which exists in its history cannot be more c

ompletely filled. So far as regards the person， the parent， when our information commences， has over his children the jus vitae necisque， the power of life and death， and a fortiori of uncontrolled corporal chastisement； he can modify their personal condition at pleasure； he can give a wife to his son； he can give his daughter in marriage； he can divorce his children of either sex； he can transfer them to another family by adoption； and he can sell them. Late in the Imperial period we find vestiges of all these powers， but they are reduced within very narrow limits. The unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognisance of the civil magistrate； the privilege of dictating marriage has declined into a conditional veto； the liberty of selling has been virtually abolished， and adoption itself， destined to lose almost all its ancient importance in the reformed system of Justinian， can no longer be effected without the assent of the child transferred to the adoptive parentage. In short， we are brought very close to the verge of the ideas which have at length prevailed in the modern world. But between these widely distant epochs there is an interval of obscurity， and we can only guess at the causes which permitted the Patria Potestas to last as long as it did by rendering it more tolerable than it appears. The active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. We can readily persuade ourselves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. During the earlier history， however， such cases of practical emancipation would be rare compared with those which must have been created by the constant wars of the Roman republic. The military tribune and the private soldier who were in the field three-quarters of a year during the earlier contests， at a later period the proconsul in charge of a province， and the legionaries who occupied it， cannot have had practical reason to regard themselves as the slaves of a despotic master； and all these avenues of escape tended constantly to multiply themselves. Victories led to conquests， conquests to occupations； the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. Each step in advance was a call for the expatriation of more Roman citizens and a fresh draft on the blood of the failing Latin race. We may infer， I think， that a strong sentiment in favour of the relaxation of the Patria Potestas had become fixed by the time that the pacification of the world commenced on the establishment of the Empire. The first serious blows at the ancient institution are attributed to the earlier Caesars， and some isolated interferences of Trajan and Hadrian seem to have prepared the ground for a series of express enactments which， though we cannot always determine their dates， we know to have limited the father's powers on the one hand， and on the other to have multiplied facilities for their voluntary surrender. The older mode of getting rid of the Potestas， by effecting a triple sale of the son's person， is evidence， I may remark， of a very early feeling against the unnecessary prolongation of the powers. The rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive Roman. But even before the publication of the Twelve Tables

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