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CHAPTER II: Of the Jurisdiction and Authority of a Father over His Children - John Millar, The Origin of the Distinction of Ranks [1771]

Edition used:

The Origin of the Distinction of Ranks; or, An Inquiry into the Circumstances which give rise to Influence and Authority in the Different Members of Society, edited and with an Introduction by Aaron Garrett (Indianapolis: Liberty Fund, 2006).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER II

Of the Jurisdiction and Authority of a Father over His Children

SECTION I

The power of a father in early ages.

The jurisdiction and authority which, in early times, a father exercised over his children, was of the same nature with that of a husband over his wife. Before the institution of regular government, the strong are permitted to oppress the weak; and in a rude nation, every one is apt to abuse that power which he happens to possess.

After marriage is completely established in a community, the husband, as has been formerly observed, becomes the head of his family, and assumes the direction and government of all its members. It is to be expected, indeed, that in the exercise of this authority, he should have an inclination to promote the welfare and prosperity of his children. The helpless and miserable state in which they are produced, can hardly fail to excite his pity, and to solicit, in a peculiar manner, the protection of that person from whom they have derived their existence. Being thereby induced to undertake the burden of rearing and maintain-<110>ing them, he is more warmly engaged in their behalf in proportion to the efforts which he has made for their benefit, and his affection for them is increased by every new mark of his kindness. While they grow up under his culture and tuition, and begin to lisp the endearing names of a parent, he has the satisfaction of observing their progress towards maturity, and of discovering the seeds of those dispositions and talents, from the future display of which he draws the most flattering expectations. By retaining them afterwards in his family, which is the foundation of a constant intercourse, by procuring their assistance in the labour to which he is subjected, by connecting them with all his plans and views of interest, his attachment is usually continued and strengthened from the same habits and principles which, in other cases, give rise to friendship or acquaintance. As these sentiments are felt in common by the father and mother, it is natural to suppose that their affection for each other will be, in some measure, reflected upon their offspring, and will become an additional motive of attention to the objects of their united care and tenderness.

Such is, probably, the origin of that parental fondness, which has been found so extensive and universal that it is commonly regarded as the effect of an immediate propensity. But how strongly soever a father may be disposed to promote the happiness of his children, this disposition, in the breast<111> of a savage, is often counteracted by a regard to his own preservation, and smothered by the misery with which he is loaded. In many cases he is forced to abandon them entirely, and suffer them to perish by hunger, or be devoured by wild beasts. From his necessitous circumstances, he is sometimes laid under the temptation of selling his children for slaves. Even those whom the father finds it not convenient to support, are subjected to a variety of hardships from the natural ferocity of his temper; and if on some occasions they are treated with the utmost indulgence, they are, on others, no less exposed to the sudden and dreadful effects of his anger. As the resentment of a savage is easily kindled, and raised to an excessive pitch; as he behaves like a sovereign in his own family, where he has never been accustomed to bear opposition or controul, we need not wonder that, when provoked by unusual disrespect or contradiction, he should be roused and hurried on to commit the most barbarous of all actions, the murder of his own child.

The children in their early years, are under the necessity of submitting to the severe and arbitrary will of their father. From their inferiority in strength, they are in no condition to dispute his commands; and being incapable of maintaining themselves, they depend entirely upon him for subsistence. To him they must apply for assistance, whenever they are exposed to danger, or<112> threatened with injustice; and looking upon him as the source of all their enjoyments, they have every motive to court his favour and to avoid his displeasure.

The respect and reverence which is paid to the father, upon account of his wisdom and experience, is another circumstance that contributes to support his power and authority.

Among savages, who are strangers to the art of writing, and who have scarcely any method of recording facts, the experience and observation of each individual are almost the only means of procuring knowledge; and the only persons who can attain a superior degree of wisdom and sagacity are those who have lived to a considerable age.

It also merits attention that, in rude and ignorant nations, the least superiority in knowledge and wisdom is the source of great honour and distinction. The man who understands any operation of nature, unknown to the vulgar, is beheld with superstitious awe and veneration. As they cannot penetrate into the ways by which he has procured his information, they are disposed to magnify his extraordinary endowments; and they feel an unbounded admiration of that skill and learning which they are unable to comprehend. They suppose that nothing is beyond the compass of his abilities, and apply to him for counsel and direction in every new and difficult emergency. They are apt to imagine that he holds commerce<113> with invisible beings, and to believe that he is capable of seeing into futurity, as well as of altering the course of human events by the wonderful power of his art. Thus, in the dark ages, a slight acquaintance with the heavenly bodies gave rise to the absurd pretensions of judicial astrology; and a little knowledge of chemistry, or medicine, was supposed to reveal the invaluable secret of rendering ourselves immortal.

As in all barbarous countries old men are distinguished by their great experience and wisdom, they are upon this account universally respected, and commonly attain superior influence and authority.

Among the Greeks, at the siege of Troy, the man who had lived three ages was treated with uncommon deference, and was their principal adviser and director in all important deliberations.

“Dost thou not see, O Gaul,” says Morni, in one of the poems of Ossian, “how the steps of my age are honoured? Morni moves forth, and the young meet him with reverence, and turn their eyes, with silent joy, on his course.”*

The Jewish lawgiver, whose system of laws was in many respects accommodated to the circumstances of an early people, has thought proper to enforce the respect due to old age, by making it the subject of a particular precept. “See that<114> thou rise up before the hoary head, and honour the face of the old man.”†

“I am young,” says the son of Barachel, “and ye are very old, wherefore I was afraid, and durst not show you mine opinion. I said days should speak, and multitude of years teach wisdom.”‡

When any of the Tartar nations have occasion to elect a khan or leader, they regard experience and wisdom more than any other circumstance; and for that reason they commonly prefer the oldest person of the royal family.§ It is the same circumstance that, in the infancy of government, has given rise to a senate or council of the elders, which is commonly invested with the chief direction and management of all public affairs.‖

So inseparably connected are age and authority in early periods, that in the language of rude nations the same word which signifies an old man is generally employed to denote a ruler or magistrate.

Among the Chinese, who, from their little intercourse with strangers, are remarkably attached to their ancient usages, the art of writing, notwith-<115>standing their improvement in manufactures, is still beyond the reach of the vulgar. This people have accordingly preserved that high admiration of the advantages arising from long experience and observation, which we commonly met with in times of ignorance and simplicity. Among them, neither birth, nor riches, nor honours, nor dignities, can make a man forget that reverence which is due to grey hairs; and the sovereign himself never fails to respect old age, even in persons of the lowest condition.

The difference in this particular, between the manners of a rude and polished nation may be illustrated from the following anecdote concerning two Grecian states, which, in point of what is commonly called refinement, were remarkably distinguished from each other.

“It happened, at Athens, during a public representation of some play, exhibited in honour of the commonwealth, that an old gentleman came too late for a place suitable to his age and quality. Many of the young gentlemen, who observed the difficulty and confusion he was in, made signs to him that they would accommodate him, if he came where they sat. The good man bustled through the crowd accordingly; but when he came to the seats to which he was invited, the jest was to sit close, and, as he stood out of countenance, expose him to the whole audience. The frolic went round all the<116> Athenian benches. But on those occasions there were also particular places assigned for foreigners: when the good man skulked towards the boxes appointed for the Lacedemonians, that honest people, more virtuous than polite, rose up all to a man, and with the greatest respect received him among them. The Athenians, being suddenly touched with a sense of the Spartan virtue and their own degeneracy, gave a thunder of applause; and the old man cried out, The Athenians understand what is good, but the Lacedemonians practise it.”*

We may easily imagine that this admiration and reverence, which is excited by wisdom and knowledge, must in a particular manner affect the conduct of children with respect to their father. The experience of the father must always appear greatly superior to that of his children, and becomes the more remarkable, according as he advances in years, and decays in bodily strength. He is placed in a situation where that experience is constantly displayed to them, and where, being exerted for their preservation and welfare, it is regarded in the most<117> favourable light. From him they learn those contrivances which they make use of in procuring their food, and the various stratagems which they put in practice against their enemies. By him they are instructed in the different branches of their domestic economy, and are directed what measures to pursue in all those difficulties and distresses in which they may be involved. They hear with wonder the exploits he has performed, the precautions he has taken to avoid the evils with which he was surrounded, or the address and dexterity he has employed to extricate himself from those misfortunes which had befallen him; and, from his observation of the past, they treasure up lessons of prudence, by which they may regulate their future behaviour. If ever they depart from his counsel, and follow their own headstrong inclination, they are commonly taught by the event to repent of their folly and rashness, and are struck with new admiration of his uncommon penetration and foresight. They regard him in the light of a superior being, and imagine that the gifts of fortune are at his disposal. They dread his curse, as the cause of every misfortune; and they esteem his blessing of more value than the richest inheritance.

When Phenix, in the Iliad, bewails his misfortune in having no children, he imputes it to the curse of his father, which he had incurred in his youth.<118>

  • My sire with curses loads my hated head,
  • And cries, ye furies! barren be his bed!
  • Infernal Jove, the vengeful Fiends below,
  • And ruthless Proserpine confirmed his vow.*

“And Esau said unto his father, Hast thou but one blessing, my father? Bless me, even me also, O my Father! And Esau lift up his voice and wept.”†

To these observations it may be added, that the authority of the father is confirmed and rendered more universal, by the force and influence of custom.

We naturally retain, after we are old, those habits of respect and submission which we received in our youth; and we find it difficult to put ourselves upon a level with those persons whom we have long regarded as greatly our superiors. The slave, who has been bred up in a low situation, does not immediately, upon obtaining his freedom, lay aside those sentiments which he has been accustomed to feel. He retains for some time the idea of his former dependence, and, notwithstanding the change of his circumstances, is disposed to continue that respect and reverence which he owed to his master. We find that the legislature, in some countries, has even regarded and enforced these natural sentiments. By the Roman law a freed man was, through the whole<119> of his life, obliged to pay to his patron certain attendance on public occasions, and to show him particular marks of honour and distinction.* If ever he failed in the observance of these duties, he was thought unworthy of his liberty, and was again reduced to be the slave of that person to whom he had behaved in so unbecoming a manner.†

A son who, in a barbarous age, has been accustomed from his infancy to serve and to obey his father, is in the same manner disposed for the future to continue that service and obedience. Even after he is grown up, and has arrived at his full strength of body, and maturity of judgment, he retains the early impressions of his youth, and remains in a great measure under the yoke of that authority to which he has hitherto submitted. He shrinks at the angry countenance of his father, and trembles at the power of that arm whose severe discipline he has so often experienced, and of whose valour and dexterity he has so often been a witness. He thinks it the highest presumption to dispute the wisdom and propriety of those commands to which he has always listened, as to an oracle, and which he has been taught to regard as the infallible rule of his conduct. He is<120> naturally led to acquiesce in that jurisdiction which he has seen exerted on so many different occasions, and which he finds to be uniformly acknowledged by all the members of the family. In proportion to the rigour with which he is treated, his temper will be more thoroughly subdued, and his habits of implicit submission and obedience will be the stronger. He looks upon his father as invested by Heaven with an unlimited power and authority over all his children, and imagines that, whatever hardships they may suffer, their rebellion against him, or resistance to his will, would be the same species of impiety, as to call in question the authority of the Deity, and arraign the severe dispensations with which, in the government of the world, he is sometimes pleased to visit his creatures.

From these dispositions, which commonly prevail among the members of his family, the father can have no difficulty to enforce his orders, whereever compulsion may be necessary. In order to correct the depravity, or to conquer the rebellious disposition of any single child, he can make use of that influence which he possesses over the rest, who will regard the disobedience of their brother with horror and detestation, and be ready to contribute their assistance in punishing his transgression.

In the history of early nations, we meet with a great variety of facts, to illustrate the nature and<121> extent of that jurisdiction and authority which originally belonged to the father, as the head and governor of his family.

We are informed by Caesar, that among the Gauls the father had the power of life and death over his children;* and there is reason to believe, that, in the ancient German nations, his jurisdiction was no less extensive.†

By the early laws and customs of Arabia, every head of a family seems, in like manner, to have enjoyed an absolute power over his descendants. When the sons of Jacob proposed to carry their brother Benjamin along with them into Egypt, and their father discovered an unwillingness to part with him, “Reuben spake unto his father, saying, Slay my two sons, if I bring him not to thee: deliver him into my hand, and I will bring him to thee again.”‡ Moses appears to have intended that the father should not, in ordinary cases, be at liberty to take away the life of his children in private; as may be concluded from this particular institution, that a stubborn and rebellious son should be stoned to death before the elders of the city.* It was further enacted by this legislator, that a man might sell his daughter for a slave or concubine to those of his own nation, though he was not permitted to dispose of her to a stranger.<122>

“If a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do.

“If she please not her master, who hath betrothed her to himself, then shall he let her be redeemed: to sell her to a strange nation he shall have no power, seeing he hath dealt deceitfully with her.”†

In the empire of Russia, the paternal jurisdiction was formerly understood to be altogether supreme and unlimited.‡ Peter the Great appears to have been so little aware that the customs of his own country might differ from those of other nations, that in his public declaration to his clergy, and to the states civil and military, relative to the trial of his son, he appeals to all the world, and affirms, that, according to all laws human and divine, and, above all, according to those of Russia, a father, even among private persons, has a full and absolute right to judge his children, without appeal, and without taking the advice of any person.§

Among the Tartars, nothing can exceed the respect and reverence which the children usually pay to their father. They look upon him as the sovereign lord and master of his family, and consider it as their duty to serve him upon all occasions. In those parts of Tartary which have any inter-<123>course with the great nations of Asia, it is also common for the father to sell his children of both sexes; and from thence the women and eunuchs, in the harams and seraglios, belonging to men of wealth and distinction in those countries, are said to be frequently procured.‖

Upon the coast of Africa, the power of the father is carried to the most excessive pitch, and exercised with the utmost severity. It is too well known to be denied, that, in order to supply the European market, he often disposes of his own children for slaves; and that the chief part of a man’s wealth is supposed to consist in the number of his descendants. Upon the slave-coast, the children are accustomed to throw themselves upon their knees, as often as they come into the presence of their father.*

The following account, given by Commodore Byron, may serve, in some measure, to show the spirit with which the savages of South America are apt to govern the members of their family.

“Here,” says he, “I must relate a little anecdote of our Christian Cacique. He and his wife had gone off, at some distance from the shore, in their canoe, when she dived for sea-eggs; but not meeting with great success, they returned a good deal out of humour. A little boy of theirs,<124> about three years old, whom they appeared to be doatingly fond of, watching for his father and mother’s return, ran into the surf to meet them: the father handed a basket of sea-eggs to the child, which being too heavy for him to carry, he let it fall; upon which the father jumped out of the canoe, and catching the boy up in his arms, dashed him with the utmost violence against the stones. The poor little creature lay motionless and bleeding, and in that condition was taken up by the mother, but died soon after. She appeared inconsolable for some time; but the brute his father shewed little concern about it.”†

The exposition of infants, so common in a great part of the nations of antiquity, is a proof that the different heads of families were under no restraint or controul in the management of their domestic concerns. This barbarous practice was probably introduced in those rude ages when the father was often incapable of maintaining his children, and from the influence of old usage, was permitted to remain in later times, when the plea of necessity could no longer be urged in its vindication. How shocking soever it may appear to us, the custom of exposing infant-children was universal among the ancient inhabitants of Greece, and was never abolished even by such of the Greek states as were<125> most distinguished for their learning and politeness.*

According to the laws and customs of the Romans, the father had anciently an unlimited power of putting his children to death, and of selling them for slaves. While they remained in his family, they were incapable of having any estate of their own, and whatever they acquired, either by their own industry, or by the donations of others, became immediately the property of their father. Though with respect to every other person they were regarded as free, yet with respect to their father they were considered as in a state of absolute slavery and subjection; and they could neither marry, nor enter into any other contract, without his approbation and consent.†

In one respect, the power of a father over his sons appears, in ancient Rome, to have extended even farther than that of a master over his slaves.<126> If upon any occasion a son had been sold by his father, and had afterwards obtained his freedom from the purchaser, he did not thereby become independent, but was again reduced under the paternal dominion. The same consequence followed, if he had been sold and manumitted a second time; and it was only after a third purchase, that the power of his father was altogether dissolved, and that he was permitted to enjoy any real and permanent advantage from the bounty of his master.

This peculiarity is said to have been derived from a statute of Romulus, adopted into the laws of the twelve tables, and affords a sufficient proof that the Romans had anciently no idea of a child living in the family, without being considered as the slave of his father.*

In those early ages, when this practice was first introduced, the Roman state was composed of a few clans, or families of barbarians, the members of which had usually a strong attachment to one another, and were at variance with most of their<127> neighbours. When a son therefore had been banished from his family by the avarice of his father, we may suppose that, as soon as he was at liberty, he would not think of remaining in a foreign tribe, or of submitting to the hardships of procuring his food in a state of solitude, but that he would rather choose to return to his own kindred, and again submit to that jurisdiction, which was more useful from the protection it afforded, than painful from the service and obedience which it required.

It is probable, however, that if in this manner a child had been frequently separated from the company of his relations, he would at length grow weary of returning to a society in which he was the object of so little affection, and in which he was treated with so much contempt. How long he would be disposed to maintain his former connexions, and how often he would be willing to restore that property which his father had abandoned, seems, from the nature of the thing, impossible to ascertain. But whatever might be the conduct of the son, it seems to have been intended by the statute of Romulus, that, after a third sale, the property of the father should be finally extinguished, and that he should never afterwards recover a power which he had exercised with such immoderate severity.<128>

SECTION II

The influence of the improvement of arts upon the jurisdiction of the father.

Such was the power, in early times, possessed by the head of a family. But the gradual advancement of a people in civilized manners, and their subjection to regular government, have a natural tendency to limit and restrain this primitive jurisdiction. When different families are united in a larger society, the several members of which have an intimate correspondence with each other, it may be expected that the exercise of domestic authority will begin to excite the attention of the public. The near relations of a family, who have a concern for the welfare of the children, and who have an opportunity of observing the manner in which they are treated, will naturally interpose by their good offices, and endeavour to screen them from injustice and oppression. The abuses which, on some occasions, are known and represented with all their aggravating circumstances, will excite indignation and resentment, and will at length give rise to such regulations as are necessary for preventing the like disorders for the future.

Those improvements in the state of society, which are the common effects of opulence and refinement,<129> will at the same time dispose the father to use his power with greater moderation. By living in affluence and security, he is more at leisure to exert the social affections, and to cultivate those arts which tend to soften and humanize the temper. Being often engaged in the business and conversation of the world, and finding, in many cases, the necessity of conforming to the humours of those with whom he converses, he becomes less impatient of contradiction, and less apt to give way to the irregular sallies of passion. His parental affection, though not perhaps more violent, becomes at least more steady and uniform; and while it prompts him to undergo the labour that may be requisite in providing for his family, it is not incompatible with that discretion which leads him to bear with the frowardness, the folly, and imprudence of his children, and in his behaviour towards them, to avoid equally the excess of severity and of indulgence.

On the other hand, the progress of arts and manufactures will contribute to undermine and weaken his power, and even to raise the members of his family to a state of freedom and independence.

In those rude and simple periods when men are chiefly employed in hunting and fishing, in pasturing cattle, or in cultivating the ground, the children are commonly brought up in the house of their father; and continuing in his family as long as he<130> lives, they have no occasion to acquire any separate property, but depend entirely for subsistence upon that hereditary estate, of which he is the sole disposer and manager. Their situation, however, in this, as well as in many other respects, is greatly altered by the introduction of commerce and manufactures. In a commercial country, a great part of the inhabitants are employed in such a manner as tends to disperse the members of a family, and often requires that they should live at a distance from one another.

The children, at an early period of life, are obliged to leave their home, in order to be instructed in those trades and professions by which it is proposed they should earn a livelihood, and afterwards to settle in those parts of the country which they find convenient for prosecuting their several employments. By this alteration of circumstances, they are emancipated from their father’s authority. They are put in a condition to procure a maintainance without having recourse to his bounty, and by their own labour and industry are frequently possessed of opulent fortunes. As they live in separate families of their own, of which they have the entire direction, and are placed at such a distance from their father, that he has no longer an opportunity of observing and controuling their behaviour, it is natural to suppose that their former habits will be gradually laid aside and forgotten.<131>

When we examine the laws and customs of polished nations, they appear to coincide with the foregoing remarks, and leave no room to doubt that, in most countries, the paternal jurisdiction has been reduced within narrower bounds, in proportion to the ordinary improvements of society.

The Romans, who for several centuries were constantly employed in war, and for that reason gave little attention to the arts of peace, discovered more attachment to their barbarous usages than perhaps any other nation that arose to wealth and splendour; and their ancient practice, with respect to the power of the father, was therefore permitted to remain in the most flourishing periods of their government. The alterations in this particular, which were at length found expedient, having, for the most part, occurred in times of light and knowledge, are recorded with some degree of accuracy, and, as they mark the progress of a great people in an important branch of policy, may deserve to be particularly considered.

We know nothing with certainty concerning the attempts which, in a very remote period, are supposed to have been made for restraining the exposition of infants. By a law of Romulus, parents are said to have been obliged to maintain their male children, and the eldest female, unless where a child was, by two of the neighbours called for the purpose, declared to be a monster. A regulation of the same nature is mentioned among the laws of<132> the twelve tables; but there is ground to believe that little regard was paid to it; and even under the emperors, the exposing of new-born children, of either sex, appears to have been exceedingly common.*

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.*

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.† <133>

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 maternal relations; though the usufruct1 of those acquisitions was, in ordinary cases, bestowed upon the father.‡

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 new-born 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<134> 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 empowered, 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 embruing 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.2 He might oftener be tempted to neglect his children immediately after their birth, or be reconciled to the measure of reaping a certain<135> profit at the expence 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.*

Upon comparing the manners of different countries, with regard to the subject of our present inquiry, it will be found that wherever 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 dis-<136>orders, 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.†

In the empire of China, the same circumstance, together with that aversion which the people discover to every sort of innovation, has also enabled the father to maintain a great part of his original jurisdiction.‡ The father is said to have there the privilege of selling his children whenever he thinks proper; but if he intends to put them to death, it is necessary that he should bring them before a magistrate, and publicly accuse them. At the same time, whatever be the crime of which they are accused, they are held to be guilty, without any other proof but the bare assertion of the father.§

The custom of exposing infants was not restrained in China till very lately. Father Noel, in a relation presented to the general of the Jesuits, in 1703, takes notice, that at Pekin a number of children were usually dropt or exposed every morning<137> in the streets. “As Pekin is excessively populous,” continues that pious and Catholic father, “and those who have more children than they can maintain do not scruple to drop them in places of public resort, where they either die miserably, or are devoured by beasts; one of our first cares is to send, every morning, catechists into the different parts of that great city, in order to baptize such of those children as are not dead. About twenty or thirty thousand children are exposed yearly, and of these our catechists baptize about three thousand; and had we twenty or thirty catechists, few of the children in question would die unbaptized.”*

In those European nations which have made the greatest improvements in commerce and manufactures, great liberty is usually enjoyed by the members of every family; and the children are no farther subjected to the father than seems necessary for their own advantage. When they come to be of age, they have the full enjoyment and disposal of any separate property which they happen to acquire; and even during their father’s life, they are in some cases entitled to a fixed provision out of the family estate.

It can hardly be doubted that these regulations,<138> which tend to moderate the excessive and arbitrary power assumed by the head of a family, are supported by every consideration of justice and utility. The opinion of Sir Robert Filmer, who founds the doctrine of passive obedience to a monarch, upon the unlimited submission which children owe to their father, seems, at this day, unworthy of the serious refutation which it has met with, and could only have gained reputation when men were just beginning to reflect upon the first principles of government.3 To say that a king ought to enjoy absolute power because a father has enjoyed it, is to defend one system of oppression by the example of another.

The interest of those who are governed is the chief circumstance which ought to regulate the powers committed to a father, as well as those committed to a civil magistrate; and whenever the prerogative of either is further extended than is requisite for this great end, it immediately degenerates into usurpation, and is to be regarded as a violation of the natural rights of mankind.

The tendency, however, of a commercial age is rather towards the opposite extreme, and may occasion some apprehension that the members of a family will be raised to greater independence than is consistent with good order, and with a proper domestic subordination. As, in every country, the laws enforced by the magistrate are in a great<139> measure confined to the rules of justice, it is evident that further precautions are necessary to guard the morals of the inhabitants, and that, for this purpose, the authority of parents ought to be such as may enable them to direct the education of their children, to restrain the irregularities of youth, and to instil those principles which will render them useful members of society.<140>

[* ]Lathmon. [[Poems of Ossian, 177.]]

[† ]Leviticus, chap. xix. ve. 32.

[‡ ]Job, chap. xxxii.

[§ ]Histoire generale des voyages. [[Histoire Generale des Voyages volume XIX contains Gmelin’s Travels, but I have been unable to find the passage in question.]]

[‖ ]This was the case among the Jews.—Among the North Americans, see Charlevoix [[Histoire et description générale, letter XVII.—Among the ancient Romans the elders formed the senate, and were called Patres.]]

[]In the language of the Arabs, see D’Arvieux trav. Arab. [[The Chevalier d’Arvieux’s Travels, 99. This also is the case in the German and most of the modern languages of Europe.]]

[* ]Notwithstanding that old men are commonly so much respected among savages, they are sometimes put to death when so far advanced in years as to have lost the use of their faculties. This shows, that the estimation in which they are held does not proceed from a principle of humanity, but from a regard to the useful knowledge they are supposed to possess. [[The anecdote is from Cicero De Senectute 18.]]

[* ]Pope’s translation of the Iliad, book 9. l. 582.

[† ]Genesis, chap. xxvii. ver. 38.

[* ]Operae officiales. [[This is the technical term in Roman law for the relation Millar describes in the body of the text.]]

[† ]Vide Heineccii antiq. Rom. lib. 1. Tit. 6. §. 9. Dig. Tit. de oper. libert. [[Digest XXXVIII.1 “De operas libertorum.” Inst. §. 1. de cap. deminut. l. un. I.xvii. De capitis minutione. Cod. de ingrat. liber. Codex VIII.49 “De Ingratis Liberis.”]]

[* ]Caesar de bel. Gall. lib. 6.

[† ]See Heineccius elem. jur. German. [[Elementa Iuris Germanici, Tum Veteris, Tum Hodierni (Naples, 1770), I.VI § CXXXV.]]

[‡ ]Genesis, chap. xlii. ver. 37.

[* ]Deuteronomy, chap. xxi. ver. 18.

[† ]Exodus, chap. xxi. ver. 7.

[‡ ]Sigon. de antiq. jur. civ. Roman. lib. 1. cap. 10. [[Carlo Sigonio, De Antiquo Iure Civium Romanorum Libri Duo.]]

[§ ]See [[Friedrich Christian Weber Present State of Russia, published 1722 201, 221.]]

[‖ ]Histoire generale des voyages [[vol. IX.—Chardin. tom. 1. Jean Chardin, Journal du Voyage du chevalier Chardin (no passage corresponds exactly).]]

[* ]Histoire generale des voyages, tom. 4. liv. 10. chap. 3.

[† ]Narrative of the honourable John Byron [[148–49.]]

[* ]Aelian mentions the Thebans alone as having made a law forbidding the exposition of infants under a capital punishment, and ordaining, that if the parents were indigent, their children, upon application to the magistrate, should be maintained and brought up as slaves. Aelian var. hist. lib. 2. cap. 7. [[Aelian Varia Historia. See also Smith, Theory of Moral Sentiments, V.2.15.]]

[† ]Dion. Halicar. lib. 11. l. 11. Dig. de lib et postum. § 3. [[Digest XXVIII.2 “De liberis et postumis heredibus instituendis vel exheredandis.” Inst. per quas person. cuiq. adquir. l. ult. Institutes II.9 “Per quas personas nobis adquiritur.” Cod. de impub. et al. subst. l. 4. Codex “De impuberum et de aliis sustitutionibus.” Dig. de judic. § 6. Digest VI.26 “De iudiciis: ubi quisque agere vel conveneri debeat.” Inst. de inut. stip. Institutes III.19 “De inutilibus stipulationibus.”

Upon the same principle a father might claim his son from any person, by the ordinary action upon property, lib. 1. § 2. Dig. de rei vind. Digest VI.1 “De rei vindicatione.” If a son had been stolen from his father, the “actio furti” was given against the thief, l. 38. Dig. de furt. Digest 47.2 “De furtis.” When children were sold by their father, the form of conveyance was the same which was used in the transference of that valuable property which was called “res mancipi,” Cai Inst. l. 6. 3. Gaius’s Commentary I.18–19 on Institutes I.6 “Qui quibus et causis manumittere non possunt.”]]

[* ]This statute, which was afterwards transferred into the twelve tables, is thus handed down to us. “Endo liberis justis jus vitae, necis, venumdandique potestas ei esto. Si pater filium ter venumduit, filius a patre liber esto.” Ulp. frag. 10. 1. [[“Concerning the right of life or death and the power of selling, belonging to just free men. If the father sells the son three times, the son is free from the father.” This is from the fourth of the twelve tables, the oldest extant written Roman Law, which is preserved only in fragments. The writings of Ulpian (d. 228), one of the most important Roman jurists and legal editors, make up a large portion of the Digest.]]

[* ]See the treatise of Noodt, entitled Julius Paulus.—And that of Binckershook de jure occidendi liberos. [[In 1719 Cornelius van Bijnkershoek wrote Opusculum de Jure Occidendi Liberos against Gerard de Noodt’s Julius Paulus concerning the power of the father to expose infants in ancient Rome and Greece. The natural lawyer De Noodt had argued that positive laws had their value insofar as they responded to and expressed the natural law. Bijnkershoek felt that de Noodt had undermined the authority of the Corpus Juris by stressing the legality of the obviously immoral practice of exposure.]]

[* ]It was called “peculium castrense.” [[A peculium was essentially an allowance given a slave or son under parental power by the head of the household. The peculium castrense, or “military peculium,” was, unlike an ordinary peculium, within the power of the son, as was the peculium quasi castrense. Cf. Digest XV and XLIX.17.]]

[† ]Peculium quasi castrense. [[See previous note.]]

[1. ]“Usufruct” is the right to use without impairing the substance, in this case the right of the father to use what the son has acquired (Digest VII.1).

[‡ ]The subject so acquired was called peculium adventitium. Constantine made the first regulations concerning it, which were extended by his successors, especially by the emperor Justinian. Vid. Tit. Cod. de bon. matern. [[Codex VI.60 “De bonis maternis et materni generis.”—Tit. de bon. quae lib. Codex VI.61 “De bonis quae liberis in potestate patris.”]]

[§ ]L. 1. C. de pat. qui fil. distrax. l. 2. eod. [[Codex IV.43 “De patribus qui filios distraxerunt.” The chronology of the abolishment of the right of the father to sell his children as slaves is interesting insofar as it downplays the role of Christianity and shows the limiting of paternal power to have come about through a gradual process stretching from Hadrian (117–38) at the height of the pagan empire to the first Christian emperor Constantine (280–337).]]

[* ]L. 3. C. ne patr. potest. l. un. [[Codex VIII.46 “De patria potestate.” C. de his qui parent. Codex IX.17 “De his qui parentes vel liberos occiderunt.”]]

[2. ]The case that Millar’s readers would have in mind would be Brutus’s killing of his sons for attempting to overthrow the republic and restore the Tarquin tyranny (cf. Livy Ab Urbe Condita [History of Rome] II.5).

[* ]Vid. l. ult. Cod. de. pat. Potest.

[† ]Aristot. Ethic. lib. 6. cap. 10.

[‡ ]Though in China a man is not allowed to have more wives than one, yet he may have any number of concubines; which, in the point under consideration, must have nearly the same effect. Le Compte’s memoirs of China. [[Le Comte, Memoirs, 302.]]

[§ ]Ibid.

[* ]Travels of the Jesuits, compiled from their letters, translated by Lockman, vol. 1. p. 448.

[3. ]Cf. Robert Filmer, Patriarcha (1588–1653), passim (published posthumously in 1680). The best known responses to Filmer were James Tyrell’s Patriarcha Non Monarcha (1680), Algernon Sidney’s Discourse Concerning Government (1698), and John Locke’s First Treatise on Government (1689).