exempt the most illustrious citizen from the bonds of filial subjection: 107 his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love; and the oppression was tempered by the assurance, that each generation must succeed in its turn to the awful dignity of parent and master.

The first limitation of paternal power is ascribed to the justice and humanity of Numa; and the maid who, with his father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed, and often famished, by her Latin and Tuscan neighbors, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of profectitious, adventitious, and professional was ascertained by the jurisprudence of the Code and Pandects.108 Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted, by a favorable interpretation, from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life. As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the

107 Except on public occasions, and in the actual exercise of his of fice. In publicis locis atque muneribus, atque actionibus patrum, jura cum filiorum qui in magistratu sunt potestatibus collata interquiescere paullulum et connivere, &c.. (Aul. Gellius, Noctes Atticæ, ii. 2.) The Lessons of the philosopher Taurus were justified by the old and memorable example of Fabius; and we may contemplate the same story in the style of Livy (xxiv. 44) and the homely idiom of Claudius Quadri. garius the annalist.

108 See the gradual enlargement and security of the filial peculium in the Institutes, (1. ii. tit. ix.,) the Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (1. iv. tit. xxvi. xxvii.)

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sacred liberality of the emperor or empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the interest or passions of an unworthy father: the same crimes that flowed from the corruption, were more sensibly felt by the humanity, of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the emperor from the just fury of the multitude.109 The Roman father, from the license of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Adrian transported to an island the jealous parent, who, like a robber, had seized the opportunity of hunting, to assassinate a youth, the incestuous lover of his step-mother. A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from a judge to an accuser; and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been excepted by the Pompeian law, were finally inflicted by the justice of Constantine." The same protection was due to every period of existence; and reason must applaud the humanity of Paulus, for imputing the crime of murder to the father who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity, by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets, who

109 The examples of Erixo and Arius are related by Seneca, (de Clementia, i. 14, 15,) the former with horror, the latter with applause. 110 Quod latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere, (Marcian. Institut. xix. in Pandect. 1. xlviii. tit. ix. leg. 5.)

111 The Pompeian and Cornelian laws de sicariis and parricidis are repeated, or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects (1. xlviii. tit. viii, ix.,) and Code, (1. ix. tit. xvi. xvii.) See likewise the Theodosiar Code, (1. ix. tit. xiv. xv.,) with Godefroy's Commentary, (tom. iii. p. 84—113, who pours a flood of ancient and modern learning over these penal laws.

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appeal to the human heart, represent with indiffererse a popular custom which was palliated by the motives of economy and compassion.1 If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement, of the laws; and the Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence " and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.114

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Experience has proved, that savages are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. According to the custom of antiquity, he bought his bride of her parents, and she fulfilled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheep-skin; they tasted a salt cake of far or rice; and this confarreation,"

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112 When the Chremes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences the scruples of a foolish woman. See Apuleius, (Metamorph. 1. x. p. 337, edit. Delphin.)

113 The opinion of the lawyers, and the discretion of the magistrates, had introduced, in the time of Tacitus, some legal restraints, which might support his contrast of the boni mores of the Germans to the bonæ leges alibi that is to say, at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, 1. i. c. 15) refutes his own charges, and those of his brethren, against the heathen jurisprudence.

114 The wise and humane sentence of the civilian Paul (1. ii. Senten tiarum in Pandect. 1. xxv. tit. iii. leg. 4) is represented as a mere moral precept by Gerard Noodt, (Opp. tom. i. in Julius Paulus, p. 567-588, and Amica Responsio, p. 591-606,) who maintains the opinion of Justus Lipsius, (Opp. tom. ii. p. 409, ad Belgas. cent. i. epist. 85,) and as a positive binding law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom. i. p. 318-340. Curæ Secundæ, p. 391-427.) In a learned out angry controversy, the two friends deviated into the opposite

extromes.

Dionys. Hal. 1. ii. p. 92, 93. Plutarch, in Numa, p. 140, 141. Τὸ σῶμα καὶ τὸ ἦθος κάθαρον καὶ ἄθικτον ἐπί τω γαμοῦντι γένεσθαι. 116 Among the winter frumenta, the triticum, or bearded wheat; the > P*

which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house, to embrace a new servitude, decorated only by the title of adoption, a fiction of the law, neither rational nor elegant, bestowed on the mother of a family" (her proper appel lation) the strange characters of sister to her own children, ind of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behavior was approved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness, the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year. The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws: but as polygamy was unknown, he could never admit to his bed a fairer or a more favored partner.

After the Punic triumphs, the matrons of Rome aspired to the common benefits of a free and opulent republic: their wishes were gratified by the indulgence of fathers and lovers, and their ambition was unsuccessfully resisted by the gravity

siligo, or the unbearded; the far, adorea, oryza, whose description perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Métrologie, (p. 317-529.)

117 Aulus Gellius (Noctes Atticæ, xviii. 6) gives a ridiculous definition of Ælius Melissus, Matrona, quæ semel materfamilias quæ sæpius peperit, as porcetra and scropha in the sow kind. He then adds the genuine meaning, quæ in matrimonium vel in manum convenerat.

118 It was enough to have tasted wine, or to have stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)

119 Solon requires three payments per month. By the Misna, a daily debt was imposed on an idle, vigorous, young husband; twice a week on a citizen; once on a peasant; once in thirty days on a camel-driver; once in six months on a seaman. But the student or doctor was free from tribute; and no wife, if she received a weekly sustenance, could sue for a divorce; for one week a vow of abstinence was allowed. Polygamy divided, without multiplying, the duties of the busband, (Selden. Uxor Ebraica, 1. iii. e 6, in his works, vol ii. p. 717-720.)

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of Cato the Censor." They declined the solemnities of the old nuptials; defeated the annual prescription by an absence of three days; and, wlthout losing their name or independ ence, subscribed the liberal and definite terms of a marriage contract. Of their private fortunes, they communicated the use, and secured the property: the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under another name, a future subject for an action of theft. To this loose and voluntary compact, religious and civil rights were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods; and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects, is directed by the earthly motives of justice, policy, and the natural freedom of both

sexes.

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Besides the agreement of the parties, the essence of every rational contract, the Roman marriage required the previous

120 On the Oppian law we may hear the mitigating speech of Valerius Flaccus, and the severe censorial oration of the elder Cato, (Liv. xxxiv. 1-8.) But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Gellius, (x. 23.)

121 For the system of Jewish and Catholic matrimony, see Selden, Uxor Ebraica, Opp. vol. ii. p. 529-860,) Bingham, (Christian An tiquities, 1. xxii.,) and Chardon, (Hist. des Sacremens, tom. vi.)

122 The civil laws of marriage are exposed in the Institutes, (1. i. tit. x.,) the Pandects, (1. xxiii. xxiv. xxv.,) and the Code, (1. v.;) but as the title de ritû nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591,) and the Collatio Légum Mosaicarum, (tit. xvi. p. 790, 791,) with the notes of Pithæus and Schulting. They find in the Commentary of Servius (on the 1st Georgic and the 4th Eneid) two curious passages.