Ancient Law Chapter 5

it had been turned， by the ingenuity of the jurisconsults， into an expedient for destroying the parental authority wherever the father desired that it should cease.

　　Many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are doubtless among those

which do not lie upon the face of history. We cannot tell how far public opinion may have paralysed an authority which the law conferred， or how far natural affection may have rendered it endurable. But though the powers over the person may have been latterly nominal， the whole tenour of the extant Roman jurisprudence suggests that the father's rights over the son's property were always exercised without scruple to the full extent to which they were sanctioned by law. There is nothing to astonish us in the latitude of these rights when they first show themselves. The ancient law of Rome forbade the Children under Power to hold property apart from their parent， or （we should rather say） never contemplated the possibility of their claiming a separate ownership. The father was entitled to take the whole of the son's acquisitions， and to enjoy the benefit of his contracts； without being entangled in any compensating liability. So much as this we should expect from the constitution of the earliest Roman society， for we can hardly form a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds into the common stock while they were unable to bind it by improvident individual engagements. The true enigma of the Patria Potestas does not reside here， but in the slowness with which these proprietary privileges of the parent were curtailed， and in the circumstance that， before they were seriously diminished， the whole civilised world was brought within their sphere. No innovation of any kind was attempted till the first year of the Empire， when the acquisitions of soldiers on service were withdrawn from the operation of the Patria Potestas， doubtless as part of the reward of the armies which had overthrown the free commonwealth. Three centuries afterwards the same immunity was extended to the earnings of persons who were in the civil employment of the state. Both changes were obviously limited in their application， and they were so contrived in technical form as to interfere as little as possible with the principle of Patria Potestas. A certain qualified and dependent ownership had always been recognised by the Roman law in the perquisites and savings which slaves and sons under power were not compelled to include in the household accounts， and the special name of this permissive property， Peculium， was applied to the acquisitions newly relieved from Patria Potestas， which were called in the case of soldiers Castrense Peculium， and quasi-castrense Peculium in the case of civil servants. Other modifications of the parental privileges followed， which showed a less studious outward respect for the ancient principle. Shortly after the introduction of the Quasicastrense Peculium， Constantine the Great took away the father's absolute control over property which his children had inherited from their mother， and reduced it to a usufruct， Or life-interest. A few more changes of slight importance followed in the Western Empire， but the furthest point reached was in the East， under Justinian， who enacted that unless the acquisitions of the child were derived from the parent's own property， the parent's rights over them should not extend beyond enjoying their produce for the period of his life. Even this， the utmost relaxation of the Roman Patria Potestas， left it far ampler and severer than any analogous institution of the modern world. The earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the empire， and notably the nations of Sclavonic origin， which exhibited a Patria Potestas at all resembling that which was described in the Pandects and the Code. All the Germanic immigrants seem to have recognised a corporate union of the family under the mund， or authority of a patriarchal chief； but his powers are obviously only the relic of a decayed Patria Potestas， and fell far short of those enjoyed by the Roman father. The Franks are particularly

mentioned as not having the Roman Institution， and accordingly the old French lawyers， even when most busily engaged in filling the interstices of barbarous custom with rules of Roman law， were obliged to protect themselves against the intrusion of the Potestas by the express maxim， Puyssance de pere en France n'a lieu. The tenacity of the Rowans in maintaining this relic of their most ancient condition is in itself remarkable， but it is less remarkable than the diffusion of the Potestas over the whole of a civilisation from which it had once disappeared. While the Castrense Peculium constituted as yet the sole exception to the father's power over property， and while his power over his children's persons was still extensive， the Roman citizenship， and with it the Patria Potestas，were spreading into every corner of the empire. Every African or Spaniard， every Gaul， Briton， or Jew， who received this honour by gift， purchase， or inheritance， placed himself under the Roman Law of Persons， and， though our authorities intimate that children born before the acquisition of citizenship could not be brought under Power against their will， children born after it and all ulterior descendants were on the ordinary footing of a Roman filius familias. It does not fall within the province of this treatise to examine the mechanism of the later Roman society but I may be permitted to remark that there is little， foundation for the opinion which represents the constitution of Antoninus Caracalla conferring Roman citizenship on the whole of his subjects as a measure of small importance. However we may interpret it， it must have enormously enlarged the sphere of the Patria Potestas， and it seems to me that the tightening of family relations which it effected is an agency which ought to be kept in view more than it has been， in accounting for the great moral revolution which was transforming the world.

　　Before this branch of our subject is dismissed， it should be observed that the Paterfamilias was answerable for the delicts （or torts） of his Sons under Power. He was similarly liable for the torts of his slaves； but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. The responsibility thus incurred on behalf of sons， coupled with the mutual incapacity of parent and Child under Power to sue one another， has seemed to some jurists to be best explained by the assumption of a "unity of person" between the Paterfamilias and the Filius-familias. In the chapter on Successions I shall attempt to show in what sense， and to what extent， this "unity" can be accepted as a reality. I can only say at present that these responsibilities of the Paterfamilias， and other legal phenomena which will be discussed hereafter， appear to me to point at certain duties of the primitive Patriarchal chieftain which balanced his rights. I conceive that， if he disposed absolutely of the persons and fortune of his clansmen， this representative ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. The difficulty is to throw ourselves out of our habitual associations sufficiently for conceiving the nature of his obligation. It was not a legal duty， for law had not yet penetrated into the precinct of the Family. To call it moral is perhaps to anticipate the ideas belonging to a later stage of mental development； but the expression "moral obligation" is significant enough for our purpose， if we understand by it a duty semi-consciously followed and enforced rather by instinct and habit than by definite sanctions.

　　The Patria Potestas， in its normal shape， has not been， and， as it seems to me， could not have been， a generally durable institution. The proof of its former universality is therefore incomplete so long as we consider it by itself； but the demonstration may be carried much further by examining other departments of anci

ent law which depend on it ultimately， but not by a thread of connexion visible in all its parts or to all eyes. Let us turn for example to Kinship， or in other words， to the scale on which the proximity of relatives to each other is calculated in archaic jurisprudence. Here again it will be convenient to employ the Roman terms， Agnatic and Cognatic relationship. Cognatic relationship is simply the inception of kinship familiar to modern ideas； it is the relationship arising through common descent from the same pair of married persons， whether the descent be traced through males or females. Agnatic relationship is something very different ： it excludes a number of persons whom we in our day should certainly consider of kin to ourselves， and it includes many more whom we should never reckon among our kindred. It is in truth the connexion existing between the member of the Family， conceived as it was in the most ancient times. The limits of this connexion are far from conterminous with those of modern relationship.

　　Cognates then are all those persons who can.trace their. blood to a single ancestor and ancestress； or， if we take the strict technical meaning of the word in Roman law， they are all who trace their blood to the legitimate marriage of a common pair. "Cognation" is therefore a relative term， and the degree of connexion in blood which it indicates depends on the particular marriage which is selected as the commencement of the calculation. If we begin with the marriage of father and mother， Cognation will only express the relationship of brothers

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