The first effectual regulations in favour of children were those which bestowed upon them a privilege of acquiring property independent of their father.During the free government of Rome, as war was the chief employment in which a Roman citizen thought proper to engage, and by which he had any opportunity of gaining a fortune, it appeared highly reasonable, that when he hazarded his person in the service of his country, he should be allowed to reap the fruit of his labour, and be entitled to the full enjoyment of whatever he had acquired.With this view, it was enacted by Julius and by Augustus Caesar, that whatever was gained by a son, in the military profession, should be considered as his own estate, and that he should be at liberty to dispose of it at pleasure.(14*)Some time after, when the practice of the law had also become a lucrative profession, it was further established, that whatever a son acquired in the exercise of this employment, should in like manner become his own property, and should in no respect belong to the father.(15*)In a later age, when no employment was considered as too mean for the subjects of the Roman empire, the son became proprietor of what he could procure by the practice of the mechanical arts, and of whatever he obtained by donations, or by succession to his mother or material relations; though the usufruct of those acquisitions was, in ordinary cases, bestowed upon the father.(16*)It is uncertain at what time the Romans first began to limit the father in the power of selling his children for slaves.It appears, that before the reign of the emperor Dioclesian this privilege was entirely abolished, except in a singular case, in which it remained to the latest periods of the empire.To remove the temptation of abandoning newborn children, a permission was given to sell them, but with provision that they might, at any time after, be redeemed from the purchaser , by restoring the price which he had paid.
Exclusive of infants, the power over the life of children was first subjected to any limitation in the reign of Trajan, and of Hadrian his successor , who interposed, in some particular cases, to punish the wanton exercise of paternal authority.In the time of the emperor Severus, the father was not allowed to put his children to death in private, but when they committed a crime of an atrocious nature, was directed to accuse them before a magistrate, to whom he was impowered, in that case, to prescribe the particular punishment which he chose to have inflicted.At length this part of his jurisdiction was finally abolished by the emperor Constantine, who ordained that if a father took away the life of his child he should be deemed guilty of parricide.
These were the principal steps by which the Romans endeavoured to correct this remarkable part of their ancient law.
It was natural to begin with the reformation of those particulars in which the greatest abuses were committed, and thence to proceed to others, which, however absurd in appearance, were less severely felt, and less productive of disorder and oppression.It seldom happened that a father, though permitted by law , was so hardened to the feelings of humanity and natural affection, as to be capable of imbruing his hands in the blood of a child whom he had brought up in his family ; and accordingly no more than three or four instances of that nature are mentioned in the whole Roman history.He might oftener be tempted to neglect his children immediately after their birth, or be reconciled to the measure of reaping a certain profit at the expense of their freedom.But the part of his prerogative which he would probably exert in the most arbitrary manner , was that which related to the maintenance of his family, and the management of that property which had been procured by their industry and labour.Thus we find that, beside the early and ineffectual attempts to prevent the neglect of infants, the interpositions of the Roman legislature were directed first to secure the property, afterwards the liberty, and last of all the life and personal safety of the children.(17*)Upon comparing the manners of different countries, with regard to the subject of our present inquiry, it will be found that where ever polygamy is established, the authority enjoyed by the head of every family is usually carried to a greater height, and is more apt to remain in its full force, notwithstanding the improvements which, in other respects, the people may have attained.By the institution of polygamy, the children belonging to a person of opulent fortune, are commonly rendered so numerous as greatly to diminish the influence of paternal affection: not to mention that the confinement of his wives, and the jealousy, hatred, and dissension, which prevail among them, are productive of such intrigues to supplant or destroy one another, and to promote the interest of their respective children, that the husband, in order to repress these disorders, finds it necessary to preserve a strict discipline in his family, and to hold all its members in extreme subjection.This will suggest a reason for what is observed by Aristotle, that among the Persians, in his time, the power of a father over his children was no less absolute as that of a master over his slaves.
