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| Monday. Febry. 14th. 1763. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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| Monday. Febry. 14th. 1763.

After having taken notice of the 4 different sorts of marriage and the different consequences which followed them, I made some observations concerning the effects of marriage, the chief of which respects the children, as it is the marriage of the parents which gives the children the power of inheriting, etc., and the want of it which makes the children of a concubine incapable of it. We may observe here that <it> is these incapacities which attend the want of marriage which alone maintain monogamy in any country. We see that in all countries where polygamy takes place there are no such incapacities attending the children of a concubine. Where a man has a number of women about him, it matters but little whether he gives them the honourable title of wife or not; there can be but very little difference in the situation of any of his women. The incapacities attending on illegitimacy are the only thing which prevents the introduction of polygamy into any country. For if the children were allowed to suc|ceed, the conveniencies, at least the apparent ones, which attend the want of marriage would soon cause it <to> be laid aside. In the first place, the liberty of separation; 2dly., the having it in his power to take another wife; and 3dly, the having the wife absolutely under his power. It is not generally the desire of possessing a womans fortune that makes one submit himself to the restraints of marriage, as that might be had without them; nor is <it> that he may leave her a share of his fortune: a voluntary deed could answer that end; nor is it that they may live together, as they could do that without it; but it is that he may have children who should succeed to his fortune and represent him in the state; and if children out of wedlock were equally capable of this men would not confine themselves by it, but would live with their women during pleasure only and not confine themselves to one. Polygamy would in this manner be very soon introduced.

| We come now to consider the secondr relation which arises from the connections in a family, viz the authority of a father over his children. This we find in all early societies was altogether absolute. There are many reasons which would make this very naturall, which have been already hinted at in treating of marriage. We may observe also that in the early and more rude periods of society men were not conceived to be bound to aliment their children (or maintain them). It was not then supposed that one was bound to do any thing for those who did not do their part to their own maintenance. As now men are only bound not to hurt one another and to act fairly and justly in their dealings, but are not compelled to any acts of benevolence, which are left intirely to his own good will, so in the ruder times this was extended to the nearest relations, and the obligation they were under to do for one another was supposed to be binding only by their inclination; and all kindnesses betwixt | them were reckon’d as acts of benevolence and not as what they were bound in justice to perform. If a son is taken by pirates, or any other set of men, as the barbarous nations on the coast of the Mediterranean sea, who will either in all probability put him to death or reduce him to slavery, we do not look on the father as bound to ransom according to the rules of justice, but only as a great sign of inhumanity and hardheartedness. This was extended at first much farther, and a parent was considered as at liberty either to maintain and educate his children or to leave them at the mercy of the weather and the wild beasts. When therefore he was at the trouble and expense of maintaining a person whom he might without injustice have neglected, that person would appear to be under the greatest obligations to him; which, joind with the other causes before mention’d, produced in early times a great and sovereign authority in the father of the family. The practise of exposing children we see was practised in most early nations.90 The Roman law indeed prohibited <?it> pretty early, and these prohibitions were afterwards repeated; but they do not appear to have | been in any considerable degree effectuall. For we find that long after the first of them the exposing of children was extremely common, in so much that a pillar in the city was, from the children which were often laid down at it, denominated columna lactaria;91 and indeed it does not appear to have been ever thoroughly and effectually prohibited till the establishment of Christianity in the Roman Empire. We see also that it was allowed by law at Athens and many other of the Grecian states, particularly Lacedaemon. The missionaries tell us that <it> is practised very frequently in China,92 and indeed it is so in most countries where polygamy takes place. The women are there, too, remarkably prolifick. They had a notion, it seems, that it was much more humane to put them to death by drowning them than to allow them to lie exposed to the greatest dangers. There were therefore women who made a practise of going about from house to house every morning and receiving the children, which they carried and thros into the river, in the same manner as we would send a parcell | of puppies or kittons to be drowned. The fathers make a great merit of their conduct on this occasion. They converted to Christianity two of these women, and took their promise that they should bring them to be baptised before they drowned them. And in this they glory as having saved a vast number of souls. It seems these pious fathers did not consider that it was contrary to the principples of the Christian religion to put a child to death either before or after it was baptised. The power of the father over his children was at first, in Rome, altogether absolute. His authority extended to three different heads: 1st, he had the power of life and death over his children; 2dly, that of selling him; and 3dly, that every thing which was acquired by him was to belong to the father, he being considered as incapable of property. But these powers seem to have been pretty soon mitigated, in the same manner as that which the husband had over his wife. The laws of Romulus gave the father an unlimited power over his children, but this was soon abridged. Numa made a | law by which the fathers were forbidden to sell their sons after their marriage.93 And although the 12 Tables revived the law of Romulus without any restriction, and expressly gave the father the power of selling his sons three times, yet it is probable this extended only to those which were unmarried, fort when a man takes a wife from another family he becomes bound to her for his labour and work. She has a claim upon him as well as his fathers family. She and the children claim his attention, so that it would be very hard that the son should be seperated from her and sold to be the slave of another man. The authority of the father over the life of the son, which seems at first sight so excessive, appears to have been very soon brought to a moderate and proper pitch. In the same manner as when one marries a woman her relations are apt to take concern in the treatment she receives, and not allow him to exercise more rigour than was just in the punishment of her offences, so there were persons who would keep the exercise of the fathers authority over the children within due limits and not allow of greater severity | than was proper. The other relations, the uncles, etc., would often look on the son somewhat in the same light as a father and be anxious for his being justly dealt with. An uncle might have a nephew whom he designed to institute his heir. The fathers authority was by this means far from being an arbitrary one, as we are apt to conceive it, but was in effect no more than the power of preventing the magistrate in the punishment of those crimes which were punishable by law, and this he did not by his own private authority but with and by the consent of the other relations. We see that as early as the time of Valerius Corvus94 the publick took concern in the conduct of the fathers to their children. He was called before the praetors for sending him out to the country to work with the slaves and not giving him proper education, as the story is told in Ciceros Offices. When therefore the publick took cognizance of so small an offence against the parentall duty, it is not probable it would pass by the arbitrary punishment of crimes which were not liable to a publicku | correction. The son too was supposed to be incapable of having any property; whatever he had from his father was supposed to be recallible at pleasure, and whatever he got from others came to him. In this too the power of the fathers seems to have been pretty soon restricted. It is probable that in the early times it was extended to those sons only who were not married. When a man takes a wife he has her and his family to maintain. The children indeed are not under his patria potestas but under that of their grandfather, but the wife and they were to be supported by him. We see that the father even in the early times of the Commonwealth was not allowed to dissinherit his children but on certain accompts. For the 12 Tables declared pater familias uti legassit de re sua tutelave suae rei ita jus esto;95 yet there were many cases in which the passing over or exheredating the children rendered the testament invalid. And when the father could not deprive the son of his inheritance, they would not probably allow him to make him destitute in his life | time. We see also that as early as the time of Marcianus96 an order was made by which the praetor was empowered to compell those parents who did not permit their children to marry, when they had a suitable offer, not only to allow them, but also to grant them a portion agreable to their rank. To what purpose would this have served, if the parent had had the power to recall it whenever he inclined. It is well known that Julius Caeser gave them the peculium castrense, and the emperors some time after the pecu. quasi castrense; and some time after they were allowed also to have the property of all that came to them from strangers or by their mother, reserving only the usufruct to the father. Upon the whole the power of the fathers, tho very considerable, does not appear to have been so unbounded as we are apt to imagine.

The power of the fathers amongst our barbarous ancestors which over–| threw the Roman Empire in the west of Europe was at first also very great, but was gradually mitigated and reduced to the present form.—One of the great differences betwixt the state of the fathers in Rome and in this country, and all other Christian ones, is that the father is bound to provide for and aliment his children. The exposing of a child is in this country accountedv the samew with the murdering of one, which is punished in the same way as any other murther. The children are in like manner bound to maintain their parents if they should happen to become destitute and unable to maintain themselves. The power of the father over them is also greatly abriged; it extends now no father than the parentalis castigatio, or a moderate correction. This they have over their younger children who live in the family; but if they have taken up a separate family of their own he has no power at all over them, tho they are without doubt allways bound | to give them all due respect and filiall piety. The only thing in which the father differs from other relations is that he is a preferable one to all others. If his son during his minority falls heir to any relation or has a fortune left him, the father becomes his guardian and manager without being appointed, and that without being bound to give security or caution for the faithfull performance of his office, as all others are. The naturall affection he bears his children is conceived to be a strong enough tie upon him without any other.

[r]Replaces ‘third’

[90 ]Cf. TMS V.2.15. For Roman law, C. 8.51.2 (a.d. 374).

[91 ]Paulus Diaconus, Epitoma Festi (Lindsay, 118M).

[92 ]Montesquieu, XXIII.16.

[s]Sic. No doubt ‘threw’ was intended.

[93 ]Dionysius of Halicarnassus, Roman Antiquities, II.27, cited by Heineccius, I.9.6.

[t]Almost a whole line of illegible words is deleted at this point. The word ‘severall’ has been overwritten at the beginning of the line.

[94 ]In fact Lucius Manlius: Cicero, De Officiis, III.112; cf. Valerius Maximus, V.4.3 and VI.9.1.

[u]Illegible word deleted

[95 ]Tab. V.3: uti legassit super pecunia tutelave suae rei, ita ius esto (Epitome Ulpiani, XI.14): ‘as one shall have made bequests concerning his property or the guardianship of his estate, so shall the law be.’

[96 ]D. 23.2.19, where the jurist Marcianus cites the lex Julia of Augustus’ time and legislation of Severus and Caracalla.

[v]Replaces ‘on’

[w]‘footing’ deleted