Div. 2, Chap 1-2: Husband, Wife, Child

DIVISION 2: DOMESTIC LAW

Chap 1: Husband and Wife

  • We come now to consider man as a member of a family, and in doing this we must consider the threefold relation which subsists in a family.
  • These, to wit, between husband and wife, parent and child, master and servant.

 

  • First of these we shall consider husband and wife.
  • In every species of animals the connexion between the sexes is just as much as is necessary for the propagation and support of the species.
  • Quadrupeds, whenever the female impregnates, have no farther desire for each other; the support of the young is no burden to the female, and there is no occasion for the assistance of the male.
  • Among birds some such thing as marriage seems to take place, they continue the objects of desire to each other, their connexion remains for a considerable time, and they jointly support the young; but whenever the young can shift for themselves all further inclination ceases.
  • In the human species women by their milk are not capable of providing long for their children.
  • The assistance of the husband is therefore necessary for their sustenance, and this ought to make marriage perpetual.
  • In countries, however, where Christianity is not established, the husband possesses an [74] unlimited power of divorce, and is not accountable for his conduct.
  • In ancient Rome, though they had the power of doing it, yet it was thought contrary to good manners.
  • We may observe an utility in this constitution of our nature that children have so long a dependence upon their parents, to bring down their passions to theirs, and thus be trained up at length to become useful members of society.
  • Every child gets this piece of education, even under the most worthless parent.

 

  • On this subject it is proposed to consider the duties of each of the two parties during their union, how this union should [be] begun and ended, and what are the particular rights and privileges of each.

 

  • The first duty is fidelity of the wife to the husband; breach of chastity is the greatest of offences. Spurious children may be introduced into the family, and come to the succession instead of lawful ones.
  • This real utility, however, is not the proper foundation of the crime.
  • The indignation of the public against the wife arises from their sympathy with the jealousy of the husband, and accordingly they are disposed to resent and punish it.
  • The sentiment of jealousy is not chiefly founded, or rather not at all, upon the idea of a spurious offspring.
  • It is not from the particular act that the jealousy arises, but he considers her infidelity as an entire alienation of that preference to all other persons which she owes him.
  • This is the real idea he has of it, as may appear from the following consideration.
  • The idea we have of a father does not arise from the voluptuous act which gave occasion to our existence, for this idea is partly loathsome, partly ridiculous.
  • The real idea that a son has of a father is the director of his infancy, the supporter of his helplessness, his [75] guardian, pattern and protector.
  • These are the proper filial sentiments.
  • The father’s idea of a son is of one that depends upon him, and was bred up in his house or at his expense, by which connexion there should grow up an affection towards him;
  • but a spurious offspring is disagreeable from the resentment that arises against the mother’s infidelity.

 

  • In those countries where the manners of the people are rude and uncultivated, there is no such thing as jealousy, every child that is born is considered as their own.
  • The foundation of jealousy is that delicacy which attends the sentiment of love, and it is more or less in different countries, in proportion to the rudeness of their manners.
  • In general, wherever there is little regard paid to the sex, infidelity is little regarded, and there will be the greatest looseness of manners.
  • Agreeable to this we find that Menelaus expressed his resentment against Paris, not against Helen, and this not for debauching her, but for carrying her away.
  • In the Odyssey she talks before her husband of that action without reserve.
  • In Sparta it was common for them to borrow and lend their wives.
  • When manners became more refined, jealousy began, and rose at length to such a height that wives were shut up, as they are among the Turks at this day.
  • As mankind became more refined, the same fondness which made them shut up women made them allow them liberties. In the latter ages of Greece women were allowed to go anywhere.
  • This same fondness, carried to a high degree, gives as great a licence as when infidelity was disregarded. In no barbarous country is there more licentiousness than in France.
  • Thus we may observe the prejudice of manners, with respect to women, in the different periods of society.

 

  • Though there was little or no regard paid to women in the first state of society as objects of pleasure, yet there never was more regard paid them as rational creatures.
  • In North America the women are consulted concerning the[76] carrying on of war, and in every important undertaking.
  • The respect paid to women in modern times is very small; they are only put to no trouble for spoiling of their beauty.
  • A man will not exempt his friend from a laborious piece of business, but he will spare his mistress.
  • When the infidelity of the wife is considered as an injury to the husband, it is necessary that unmarried women should be laid under restraints, that when married they may be accustomed to them.
  • Hence the origin of punishment for fornication.

 

  • We come now to consider how this union is begun.
  • As the duty after marriage is quite different from what it was before, it is necessary that there should be some ceremony at the commencement of it.
  • This differs in different countries, but in general is connected with religion, as it is supposed to make the greatest impression.
  • In the infancy of society, though marriage seemed intended to be perpetual, yet the husband had an unlimited power of divorce, though it was reckoned indecent to exercise it unless for an enormous crime.
  • The reason was that the government durst intermeddle little with private affairs, and far less with matters in private families.
  • For the security of government they endeavoured by all means to strengthen the power of the husband and make him as absolute as possible.
  • In ancient Rome the husband was sovereign lord of life and death in all matters belonging to his own family.

 

  • In Rome three kinds of marriages took place:

 

  • First, by confarreation, a religious ceremony;

 

  • Secondly, by coemption3, when the husband bought his wife;

 

  • Thirdly, by use. If he had lived with her a year and day, she was his by prescription, and he could divorce her.

 

[77]

  • The power of divorce extended to the wife after female succession took place.
  • A woman possessed of a great fortune, who lived happily before marriage and had so much in her own power, would not incline to give it all to her husband.
  • The lawyers therefore invented a new kind of marriage in favour of heiresses, which was called thedeductio domi, or marriage by contract; certain terms were agreed on between the parties, and then the husband came and carried her home.
  • To prevent prescription taking place, she went away three or four days every year, which, according to the form of the contract, secured her fortune.
  • Thus the wife became equally independent with the husband, and had equally the power of divorce.
  • As the marriage was founded upon the consent of both parties, it was reasonable that the dissent of either party should dissolve it.

 

  • This form of marriage is pretty similar to the present, with this material difference however, that it did not legitimate the children nor preserve the honour of the women.
  • The Roman form caused great disorders. When the parties separated, which was often the case, they married others, and very often the women went through five or six husbands.
  • This so corrupted their morals that about the end of the monarchy there was scarce a great man that was not cuckolded.
  • The disorder came to such a height [78] that, after the establishment of Christianity, the power of divorce was restrained unless for certain causes.
  • Among the Scythian nations, which settled in the West of Europe, divorce was taken away altogether. In Burgundy, however, the power of the husband was very great.
  • By a law there, if a man abused his wife he was liable to a fine, but if the wife misbehaved she was put to death.

 

  • As in general only flagrant crimes were taken notice of by the civil court, small ones went into the hands of the ecclesiastics, and that first gave occasion to their great power.
  • When the civil court gave no redress for breach of contract, the ecclesiastics punished the offender for perjury, and when any difference happened betwixt man and wife, they made them suffer penance for it.
  • Afterwards the power of divorce was taken away unless for adultery, and when the one was afraid of bodily harm from the other.
  • Even this last was not a perfect divorce, for neither of the parties was allowed to marry again, but only a separation a mensa et toro.

 

  • The causes of a perfect divorce, after which they were allowed to marry again, were these three.
  • First, if they were within the degrees of consanguinity, the marriage was made null unless they had a dispensation from the Pope.
  • Secondly, precontract with any other woman.
  • Thirdly, frigidity in a man, and incapacity in a woman.
  • The ecclesiastics brought in other alterations besides these with regard to marriage.
  • It is to be observed that the laws made by men are not altogether favourable to women.
  • They considered the infidelity of the husband and wife were equally punished, he had no more power to divorce than she.
  • Adultery, saevitia, and metus were considered as causes of separation, but not of divorce.

 

[79]

  • The canon law, when it took place, was dictated by ecclesiastics, who on most occasions copied the Roman law, as they were the only persons that understood Latin, and among whom the remains of literature were preserved.
  • At first even the ecclesiastic law required no ceremonies at marriage.
  • As the ceremonies of confarreation and coemption1 had gone into desuetude in the latter times of the Roman law, when the only thing that was required was the deductio domi2;
  • so by the ecclesiastic law for a long time, a contract of any kind made a marriage, whether a contract in praesenti or in futuro.
  • Contract in praesenti is when I say, I take you for a wife, or, I take you for a husband.
  • Contract in futuro is when they say, I will do it.
  • Either of these contracts might be proved either by evidence or by oath, if they declared themselves married persons, or that they were to be so.
  • Pope Innocent III enacted that all marriages should be performed in facie ecclesiae, but though this was considered as the only decent marriage, yet others were often in use and in some cases were valid.
  • If a person was married in futuro, and afterwards in facie ecclesiae, and the first wife made no opposition till after the banns were out, the first marriage was null.
  • If it was contract in praesenti the second was null.
  • This was the case in England till the late Marriage Act.
  • If a contract in futuro can be proved, or if the man refuse his oath, the marriage is in some countries considered as valid.
  • The contract in praesenti is everywhere valid, especially if they cohabit afterwards.
  • All these institutions are derived from the canon law, which made the breach of them liable to church censures as ours does.

 

[80]

  • An act of parliament only makes a divorce in England, the infidelity of the wife will not do it. In Scotland it is much more easily done.
  • Protestants never carried matters so far as the canon law, for the clergy married themselves.
  • Besides, love, which was formerly a ridiculous passion, became more grave and respectable.
  • As a proof of this, it is worth our observation that no ancient tragedy turned on love, whereas now it is more respectable and influences all the public entertainments.
  • This can be accounted for only by the changes of mankind.

 

  • The species of marriage of which we have been treating took place only in Rome and in the Christian countries with a few others, for in many countries they took as many wives as they were able to maintain.
  • This naturally leads us to consider the origin of polygamy.
  • It is to [be] observed that though voluntary divorce be attended with inconveniences, yet it is not altogether contrary to the principle of justice that a man should put away his wife and take another for less reasons than adultery, because they make them quite unhappy together, though either of them might live very well elsewhere.
  • The same is the case with polygamy.
  • If a woman consents to be one of five, or twenty, or more wives, and the law allows it, there is no injury done her, she meets with the treatment which she might naturally expect.
  • The ancient Jewish and oriental laws tolerated polygamy, but though it and voluntary divorce be not altogether contrary to justice, it must always be a very bad policy where they are established or allowed.

 

  • Polygamy excites the most violent jealousy, by which domestic peace is destroyed.
  • The wives are all rivals and enemies, besides, the children are ill taken care of, and the wife complains that her children are not used as they ought; because she measures the affection of the father by her own, between which there is no proportion, as his is divided among 40 or 50 children, and hers [81] only among four or five.
  • Where polygamy takes place there must both be a jealousy of love and a jealousy of interest, and consequently a want of tranquillity.
  • It may be said that in the seraglios of the Eastern monarchs there is the greatest peace, but this is owing to the most imperious discipline:
  • when rebels are subdued their humility is remarkable.
  • In Africa we find the most horrid disorders, their discipline not being severe enough.
  • It is the greatest misery to the women that they are entirely shut up and can enjoy no company but that of the eunuchs, which they detest.

 

  • The man too who has the seraglio is by no means happy, though apparently so.
  • He too must be jealous, and on account of the inequality betwixt him and them he can have no entertainment at his own house, no opportunity of social improvements;
  • you must never mention his wife to a Turk, she can never be seen by men, not even by her physician, as Tournefort tells us.
  • This gravity and reserve of the husband must have a bad effect upon the manners of the country.
  • As the men have no trust nor dependence upon each other, they cannot form into parties, and therefore the government must always be arbitrary, of which they have a model in their own houses, where there is little parental and less conjugal affection.
  • Besides all this it tends to depopulate the species, the greater part of men can get no wives, and many of them are castrated to take care of the seraglio.
  • It is indeed alleged that there are more women born than men.
  • Montesquieu says that at Bantam in the East Indies there are ten women born for one man.
  •  Dutch authors say that on the coast of Guinea there are fifty to one.
  • The account from Japan is better attested, where it is said there are eleven women to nine [82] men.
  • Where this is the case, if the fact be true, it would be an inconvenience if polygamy did not take place.

 

  • By strict examination we find that in Europe there is little difference.
  • The general computation is that there are thirteen men to twelve women, or seventeen to sixteen, which, as men are more exposed to dangers than women, makes the number about equal.
  • Now if there be no difference in Europe, we have reason to conclude that [83]there is not any difference in any other place.
  • The laws of nature are the same everywhere, the laws of gravity and attraction the same, and why not the laws of generation?
  • In some of the fore-mentioned places there may indeed be more women than men.
  • In places where the seat of religion is, and where the court sits, and consequently the opulent live, there must be more women, because the rich only have seraglios, and they purchase the women from other places, so that there is a constant import of women from those countries in which polygamy does not take place.

 

  • Polygamy takes place under despotic governments.
  • When a country is conquered by savages, they indulge themselves in all manner of brutality, and this among the rest, as there is no established law to the contrary.
  • It never took place in ancient Carthage or Rome, though it takes place in Turkey.
  • In every country freedom puts out polygamy; there is nothing that free men will less submit to than a monopoly of this kind, but despotism is always favourable to polygamy.

 

  • Montesquieu observes still further in favour of polygamy, that in some countries women are marriageable at eight or nine, and are old and withered at twenty.
  • When they have their beauty they cannot have much understanding, and when it increases their beauty is gone, and consequently they cannot long be agreeable companions, and therefore a husband had need of more than one.
  • It may be their custom indeed to deflower infants, but the fact is not well attested. Cleopatra was [84] thirty-six when taken by Augustus, yet she was with child. Constantia bore a child at fifty-four.
  • But though the fact were true, it is not reasonable that polygamy should take place, but only voluntary divorce.
  • If women were only useful ten or twelve years, it might be reasonable to take another, but not a number at the same time.

 

  • Wherever polygamy takes place there can be no hereditary nobility.
  • It is difficult to make the right of primogeniture take place where there are so many wives, several of whom bring forth nearly at the same time.
  • Where there are so many children, they cannot all have the affection of the parent, and it is only by this means that any of them can establish themselves.
  • Where the children are numerous affection diminishes.
  • I may regard four or five children who are connected with my friend, but if there are a hundred in the same relation they are little regarded.
  • Now hereditary nobility is the great security of the people’s liberty.
  • Being in every corner of the country, whenever the subjects are oppressed they fly to him as their head.
  • In Eastern countries there is no such thing.
  • Every man is almost an upstart, and the royal family alone is regarded.
  • The families of the Bashaws after their death mix with the vulgar.
  • Wherever there is a hereditary nobility, the country cannot easily be conquered, or rather not at all.
  • They may be beat once or twice, but they still recover under their natural heads.
  • Eastern countries, for this very reason that they want these, make feeble resistance against foreign invaders.

 

  • Polygamy is exceedingly hurtful to the populousness [85] of a nation.
  • An hundred women married to an hundred men will have more children than the same number married to two or three.
  • It may indeed be said that in China, about the mouth of the Ganges, and in Egypt, they are populous notwithstanding polygamy.
  • In those countries there are regulations regarding populousness, and some other circumstances contribute to it, such as the remarkable fertility of the soil.

 

  • Thus we see marriage is of two kinds, viz. polygamy or monogamy, of which the latter is of three kinds:
  • first, when the husband can divorce the wife at pleasure; secondly, when the power of divorce is equally in their power1;
  • and thirdly, when it is in the power of the civil magistrate entirely.
  • Where polygamy is allowed, the wife is entirely in the power of the husband, he may divorce her or dispose of her as he pleases.

 

  • The laws concerning monogamy differ according to the species of it.
  • That kind where the contract or agreement is indissoluble but by the civil magistrate, is the most convenient.
  • By this indeed nothing but what is very disagreeable to society is the occasion of divorce.
  • But it is always better that the marriage tie should be too strait, than that it should be too loose.
  • The unlimited power of divorce in the latter ages of the Republic was productive of the most disorderly consequences, the prevention of which sufficiently atones for any hardships it may occasion.
  • When both parties have the power of divorce, they can have no mutual trust nor dependence upon each other, but their interests are quite separate.

 

  • We come now to consider what interest the husband has in the property of the wife, or the wife in that of the husband, according to the different species of marriage.
  • Where polygamy takes place, the wife, being in absolute [86] slavery, has no interest at all in the husband’s property, and is only entitled to an aliment after his death.
  • When the husband only has the power of divorce, the property of the wife becomes his as much as his own.
  • When they have the power of divorce in the hands of both, whatever portion the wife brings is secured, and the husband can have no more ado with it but to manage it.
  • When he dies, the wife has no more share of the husband’s property than was agreed upon by the contract.
  • In the species of monogamy when divorce is in the hand of the magistrate, the right of the husband extends not so far as formerly;
  • but that of the wife extends further, as she is more independent of him than in any other species.
  • If a wife has a land estate, the husband receives the rents, which are at his absolute disposal.
  • If the wife die and leave a son, the husband is the natural guardian of it, and is entitled to a courtesy of the life-rent of his wife’s estate.
  • In England the husband can dispose of all [his wife’s] chattels real in his lifetime, but if he do not dispose of them in his lifetime, they go to the wife, not to the heir at his death.
  • All [her] chattels personal he can dispose of as he pleases.
  • Debts on bonds are the same with chattels real.
  • If the husband demands payment of the debt, he can dispose of the money as he pleases, but if he do not claim it in his lifetime, it goes to his wife after his death.
  • If the wife die first, all chattels real and debts on bond go to her relations, if the husband have not already disposed of them.
  • If the husband die first, the wife has a third part of his land estate, whether there be children or not.
  • This is considered as her dowry.
  • In England she has a complete third of all, but in Scotland she has only a third of all [87] bills, money, moveables, and bygone rents; bonds bearing interest go to the children.
  • In Scotland the husband can sell his wife’s land with her own consent, but she must first be examined before a court, and declare that it was with her own consent, and then her executors cannot claim it.
  • Both in Scotland and in England, no bond granted by the wife is binding upon the husband unless it be granted for the necessaries of life.
  • In this respect she is considered as a servant, for if a servant buys provision in his name, he is obliged to pay [for] them.
  • In Scotland the husband may have a writ of inhibition to prevent the wife from contracting debts in his name.
  • In England any verbal notice that he will not be accountable for them is sufficient.
  • If they be separated he is not even obliged to pay [for] what she purchases for her aliment.

 

  • We come now to consider what persons are capable of contracting marriage.
  • Between ascendants and descendants marriage is prohibited in infinitum.
  • Nothing can be more shocking to nature than for a mother to marry her son.
  • By this the mother becomes inferior to her son, and on account of the inequality of their ages the ends of marriage are seldom accomplished.
  • Therefore it is never tolerated unless where superstition takes place.
  • In like manner a marriage between a father and a daughter is incestuous.
  • It is, however, to be observed that this is not so contrary to nature as the former, because the father still is superior when he is husband, and accordingly we find that many barbarous nations tolerated this.
  • But still it is unnatural that the father, the guardian and instructor of the daughter, should turn her lover and marry her.
  • Besides, a mother can never look agreeably on a daughter who will probably supply her place.
  • Nothing can be more destructive of domestic happiness.
  • For the same reasons, the uncle and [88] niece, or the aunt and nephew, never marry.
  • At Rome and Carthage indeed, they used sometimes to give a dispensation to the uncle and niece, but never to the aunt and nephew.

 

  • The marriage of collaterals, such as brother and sister, seems to have been prohibited chiefly from political views, because they are bred up together, and would be in danger of mutual corruption, unless properly restrained.
  • The same reason lay against a marriage between cousins in those ages when they were brought up in the same house.
  • At Athens a man might marry his sister consanguinea but not his sister uteral.
  • Many eminent men married in this manner, thus Cimon married his father’s daughter Elpinice.
  • By the law of England the wife of the deceased grand-uncle can marry her husband’s grand-nephew, it being above four degrees.

 

  • Affinity by the Christian law is considered as the same with consanguinity.
  • The wife’s sister is considered as the husband’s sister, and the wife’s aunt as the husband’s aunt.
  • It is to be observed that the rules of affinity are rather rules of police than of nature, for it is not contrary to nature that a man should marry his wife’s sister.
  • In many countries of the East Indies this kind of marriage takes place, because they think that the wife’s sister will probably make the best mother-in-law to her sister’s children.
  • But it may be answered to this that it entirely hinders all intercourse between the sister and her brother-in-law’s family, and that it might be expected that she would answer this purpose by living in his house unmarried with no children of her own.
  • The canon and [89] civil law reckoned affinity differently.
  • The civil law counted brothers and sisters as one degree removed from the common stock, and cousins german two.
  • The canon law counted how far the persons were asunder. Brothers were two degrees, the father being one, and either of the brothers another.
  • In the same manner cousins german were four degrees.
  • The canon counted both sides from the stock, and the civil law only one2. When the one says the second degree was prohibited from marriage, and the other the fourth, they both mean cousins german.
  • The Pope often dispensed with these laws, and by that means extended his authority and promoted his interest.

 

  • Having now considered all the different species of marriage, we come to consider the effects of the want of it.
  • The effect of marriage is to legitimate the children.
  • We must therefore consider the difference of legitimate and illegitimate.
  • Legitimation gives the children inheritable blood, so that they can succeed to their father and his relations.
  • An illegitimate child has no inheritable blood, and therefore cannot succeed to his father intestato,because it is unknown who is his father, nor to his mother, because no child succeeds that is not lawfully begotten.
  • As a bastard can succeed to nobody, so nobody can succeed to him3, as he is not related to any human creature.
  • If he die intestate without children, his wife has one half of his moveables and one third of his land estate, and the rest goes to the king; but if he has children, the wife has a third of all4.
  • The king is still considered as ultimus heres. In Scotland there is a further inconvenience attending it.
  • As the king is the heir of bastards, a bastard [90] is incapable of making a testament, because it would cut the king out of his right.
  • The king can, however, grant him letters of legitimation which make him capable of testating, because, as the right of succession belongs to the king, he may dispose of it as he pleases.
  • However, this, or anything less than an act of parliament, cannot give him inheritable blood, but an act of the whole legislature can do anything.

 

  • The canon and civil law restore to blood a person born out of wedlock in the following ways1:—
  • First, per subsequens matrimonium, or marrying the woman that had the children. As concubines were numerous, it was enacted that whoever married his concubine legitimated her children. This Justinian afterwards made perpetual.
  • Secondly, per oblationem curiae.
  • When the children were willing to execute certain parish offices, as deacons2, etc., though this entitled them only to succeed to the father, and not to his relations.
  • Thirdly, per adrogationem.
  • As for example, one Roman could adopt the son of another, and the son accept of him as a father. They had it in their power to adrogate any free man.
  • Bastards were considered as free men, and if they were willing to accept might be adrogated as such.
  • Fourthly, per [re]scriptum principis, which was much the same with letters of legitimation.
  • Fifthly, per testamentum, by which they probably succeeded only to their father’s estate.

 

  • The canon law introduced the subsequens matrimonium into all countries but England.
  • The English clergy were [91] then1 unpopular by joining with the king against the barons, and therefore in England the subsequens matrimonium never could legitimate.
  • That subsequens matrimonium might legitimate, the canon law made some restrictions which did not take place at Rome.
  • Bastards of adulterous persons could not succeed, those, to wit, of a woman who has a husband alive, or of a concubine to a man whose wife is alive, though they should marry afterwards. Incestuous children also could not succeed, unless legitimated by a dispensation from the Pope.

 

  • Thus we have seen the disabilities and incapacities of illegitimate children, which can only have an effect where monogamy prevails;
  • and indeed, these alone hinder polygamy from gaining ground in any country, because, if bastards were allowed to succeed, men would hardly subject themselves to the inconveniences of lawful marriage.
  • To have a wife entirely in their power, and to take others when they please, would be more convenient.

 

Chap 2: Parent and Child

 

  • We come now to consider the history of parentage, being the second relation in which we were to consider man as a member of a family.
  • The authority of the father over his children, both with respect to liberty and property, was at first absolute.
  • He was at liberty to choose whether he would bring up his children or not, and it was accounted no injustice to refuse to do it.
  • The law hinders the doing injuries to others, but there can be no fixed laws for acts of benevolence.
  • All that the law prohibited was immediately putting them to death;
  • but he might expose them if he pleased.
  • Even with us a father is not obliged to ransom a son who is taken captive, but may do it or not [92] as he pleases.
  • In the same manner anciently a father might choose whether he would ransom his son from starving, from wild beasts, and the like.
  • Though some regulations were made in Rome concerning this, they were never well kept, and the practice was not abolished till the establishment of Christianity.
  • In China, at present, where polygamy takes place, they are often obliged to expose them and generally drown them.
  • As the father had it entirely in his power to bring up his son or not, he had an absolute jurisdiction over him if he did bring him up.
  • At Rome the father had the ius vitae et necis et vendendi.
  • Besides, whatever the son acquired belonged to the father, and if he married, his children were considered as members of the grandfather’s family.
  • This power of the father over his son was very soon lessened.
  • The son was connected with the mother’s relations, and the uncle, whom on some occasions he was to succeed, would naturally look after the person who was to be his heir.
  • By a law of Numa Pompilius, if a son was married, it was no longer in the father’s power to sell him.
  • The twelve tables indeed mention this privilege of the father, but it is probable it was only those who married without their father’s consent.
  • In like manner the ius vitae et necis went out.
  • The father only put in execution the laws of his country for capital crimes.
  • He could take the power out of the hands of the magistrate, and condemn his son to punishment himself, but he could not free his son if he was accused by the laws of his country.
  • This shows that the patria potestas was not altogether absolute.
  • This power of the father weakened by degrees, and at last went out altogether.
  • The father only pronounced the sentence as it was dictated to him by the civil magistrate, as he himself might have gone wrong in some forms, and by that means rendered [93] the whole null.
  • It is much the same with the gentlemen in this country, who have it in their power to seize the goods of their tenants when in debt, without any form of law.
  • As they are ignorant how it ought to be done, they are obliged as well as others to apply for authority to the civil court, though they are vested with the power of doing it themselves.

 

  • The power of the father with respect to the property of the son soon went out likewise.
  • We find that very early, by a law of Marcianus, the fathers were obliged to provide proper wives for their sons, and to bestow proper portions upon [them];
  • and if they refused, the government was to see it done.
  • This shows that the property after marriage must have been their own.
  • The law seems to have been made because the wife brought a fortune along with her, and therefore it was but reasonable the husband should also have some property independent of his father.
  • It must therefore only have been the property of unmarried children over which the parent had any power, and this is not unreasonable.
  • The authority of the father was not arbitrary at Rome, for we often find men accused there for not taking proper care of their children, which could hardly have been the case if they could have put them to death.

 

  • Julius Caesar, and after him Augustus, were the first that gave to sons property independent of their fathers.
  • At first they kept as their own whatever they took in war, or the peculium castrense, afterwards whatever they acquired by the liberal and mechanic arts.
  • This was extended by Adrian and afterwards by Justinian to everything unless what they got from their fathers.
  • All donations and legacies were entirely at their own disposal.
  • We also find the power of the father in disinheriting them limited.
  • There were only certain cases in which it was in his power. [94]
  • After the fall of the Roman Empire the power of the father over the son, as well as over the wife, was softened.
  • The father came to have over the son, while he continued in the family with him, an authority much the same with that a father has among us, that, to wit, of taking care of his morals.
  • But when out of the family he was not so immediately concerned about him.
  • The father has this particular privilege with respect to his son, that he can become tutor to him without surety, and is not accountable, as every other tutor is, for negligence and omission.
  • This is the natural authority the father has over the son.
  • The father is obliged to bring up his children, and the children, in case of old age or infirmity, to maintain the father.