Front Page Titles (by Subject) SECTION II: The influence of the improvement of arts upon the jurisdiction of the father. - The Origin of the Distinction of Ranks
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SECTION II: The influence of the improvement of arts upon the jurisdiction of the father. - John Millar, The Origin of the Distinction of Ranks 
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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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>
The Authority of a Chief over the Members of a Tribe or Village
[* ]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.]]
[* ]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).