Page:Harvard Law Review Volume 8.djvu/57

41 WOMAN IN EARLY ROMAN LAW. 4I These primitive men had no conception of creation ; to them gen- eration was the transcendent mystery of life. In their beHef the male alone possessed the power of reproduction. " The generator appeared to them to be a divine being, and they adored their [male] ancestor." ^ The law accepted this supremacy of the father because no other conception of the paternal position could have been possible to believers in this old religion. From his position as high-priest of the family worship came that life-long authority over the other members of his household bestowed by this archaic society upon the father, — that authority which, known in Roman jurisprudence as Patria Poiestas, is in its effects the most far-reaching subject of the early private law of Rome. In ancient times, the father's control over his children, i. e. the patria potestas, was probably so nearly assimilated to the power of the master over the slave that it would be difficult to say wherein a child's position was superior to a slave's. " The heir, as long as he is a child, differeth nothing from a slave, though he be lord of all." ^ However, when history first reveals to us the practical exercise of this power, there had evidently been some modification of pristine severity. Rome's public law (Jus publicwn) took no notice whatever of the father's /<?/^^/^j. A son under power could hold any office in the state, and could, ^l'^ judex, even pass judg- ment on his father's contracts, and punish his delinquencies. On the other hand, in the domain of private law {Jus privatum) the authority of the father continued undiminished during the whole period of the republic, and for many years of the empire. At the birth of a child, the father was the sole judge of its legitimacy. He could expose the new-born babe or condemn to death the full-grown son. His was the right to emancipate or adopt a child. He could sell his own flesh and blood to another; though herein the son's plight is seen to have been better than the slave's; for when sold to a Roman citizen the son retained his freedom as to public rights, and only his labor or its fruits could be claimed by his purchaser. On the other hand, the son was as incapable of possessing, and therefore of transmitting, title to any property, as the slave ; and though he could acquire legal rights, everything the child under power acquired at once became the property of his father. No action whatever could lie between father and son, 1 Coulanges, ubi supra, p. 45. * Galatians, iv, i.