The perverse subjects of this domestic legislation seem at first to have sought to evade it by entering into contracts of marriage which they afterwards omitted to fulfil. It was necessary to enact new provisions to meet this subterfuge. The facility allowed by the ancient usage to divorce formed another obvious means of escape; but again did the vigilant reformer interfere by appointing the observation of onerous forms for the legal separation of married parties. When a divorce had actually taken place, the parties fell again under the provisions of the marriage law, and were required to find themselves fresh consorts within a specified interval. Another mode of driving the reluctant citizens within the marriage pale was the infliction of penalties and disgrace upon unchastity beyond it; while now, for the first time, adultery, which had been left to be punished by the domestic tribunal as a private injury, was branded as a crime against the general well-being, and subjected to the animadversion of the state. But Augustus was not satisfied with directing his thunders against the guilty; he sought to anticipate criminality by imposing fresh restraints upon the licentious manners of the age. After the example of his predecessors in the censorship, he fixed a scale of expense for the luxuries of the table, and pretended to regulate the taste of the women for personal ornaments. At the gladiatorial shows, from which they could no longer be excluded, he assigned different places for the two sexes, removing the women to the hinder rows, the least favourable either for seeing or being seen, and altogether forbade them to attend the exhibitions of wrestling and boxing.[c]
PATERNAL AUTHORITY AND ADOPTION: THE SLAVERY OF CHILDREN
If the Roman custom in relation to marriage and the position of women generally is decidedly to be preferred to that of the Greeks, it cannot be denied that the reverse was the case as regards the relations of children, as the arbitrary power which the father had over them in Rome was a flagrant injustice: the freedom of an individual was thus limited in a most unjust manner, and the child held in an unnatural dependence on his father. The great mistake consisted in the Roman father considering the power which Nature imposes as a duty on the elders, of guiding and protecting a child during infancy, as extending over his freedom, involving his life and death, and continuing during his entire existence. The Grecian law differed in two respects from the Roman: first, that the father’s power ceased with the son’s independence, and this he attained either by arriving at a certain period of life, or by marriage, or by being entered on the list of citizens. Secondly, the Grecian father had merely the right of terminating the relation between child and parent, by banishing him from his house, or disinheriting him, without daring to injure either his liberty or life.
The patria potestas of the Romans was in theory indeed very different from absolute possession (dominium), but in reality it approached very near to it, especially in ancient times; only the latter extended over things, the former over persons. Consequently this potestas gave the father the right over the life and liberty of his child. This law, said to be as early as Romulus, but at any rate very ancient, was revived in all its severity in the Twelve Tables. The unnatural part of this decree was somewhat modified, in that the right of life and death belonged in fact to that of discipline and punishment, which was permitted by the state to the pater familias, and as the father could not act on his own judgment, but must, conformably to custom, summon a family council. This judgment is mentioned by Valerius Maximus,[k] where he says of T. Manlius Torquatus, ne consilio quidem necessariorum indigere se credidit, as his son had been accused by the Macedonians on account of extortion. The father sat in judgment for three days, hearing witnesses and so on, and at last banished his son from his presence, whereupon he killed himself.
Other examples are related, of sentence being passed on sons by their fathers, without mention of the family council, and probably because the official position of the father rendered such aid unnecessary, as in the harsh judgment of Brutus and T. Manlius Imperiosus. In capital offences, too, the father could by himself inflict punishment, as it is deemed more proper that he should himself condemn his son, than that he should come himself as his accuser. Valerius Maximus relates two instances of a father’s judgment in the time of Augustus. In the latter case the father condemned the son for parricide, letting him off with exile only. A solemn family council also preceded, to which the emperor was invited; there the kindness of the father openly prevailed, and whilst he made use of his right, he protected his son from the punishment which he would have found in the public court of justice. The second case proves the harshness and misuse to which this right could be applied. But after all, not one case of absolute death is mentioned, but only of cruel punishment. If a misuse of the patria potestas occurred in earlier times, the censor could resent it. Orosius even speaks of a public indictment; in later days the emperor saw to it, as it is related of Trajan and Hadrian. In the two-hundredth year of the empire this power was taken away from the father by law.
Although the right of sale undeniably existed, and was recognised by the Twelve Tables, no recorded instance of it exists; and we may therefore suppose that it was early abolished, and used only as a form in the emancipatio. Numa even seems to have limited this right, according to Dionysius. In the form of emancipatio, the father had the right to sell the son three times; after the third time he did not again come into the patria potestas.
From the patria potestas must be entirely separated the right with which we frequently meet in antiquity, of killing or exposing new-born children. In Rome it did not exist to so great an extent as elsewhere. Romulus is said to have interdicted sons and first-born daughters from being killed. On the other hand, it seems to have been commanded that the deformed should be put to death. That the exposure and murder of the new-born was not infrequent, even in the most important families, many instances show.
The son remained in the father’s power until his death, unless either of them had suffered a capitis diminutio. The patria potestas ceased if the son became a flamen dialis. Other dignities made no difference. In the case of a daughter it ceased when she entered into marriage with manus, or became a vestal virgin. If a father wished to renounce the patria potestas over his son, it must be done either by adoption (by which he passed into another potestas) or by the formality of emancipation.[l]
Created by nature or transferred by adoption, the paternal authority could be replaced, at the death of the father of the family, by guardianship (tutela) for the protection of children (tutela impuberum, pupillaris) and women (tutela muliebris), or it could even be revived after it had expired under the name of trusteeship (cura), for the protection of persons of full age but recognised as incapable of managing for themselves.
Jurisprudence concerning guardianship and trusteeship was first of all dominated by the principles of the ancient gentilitious law as sanctioned by the Twelve Tables.