On a few systems of law the family organisation of the earliest
society has left a plain and broad mark in the life-long authority of
the Father or other ancestor over the person and property of his
descendants, an authority which we may conveniently call by its later
Roman name of Patria Potestas. No feature of the rudimentary
associations of mankind is deposed to by a greater amount of evidence
than this, and yet none seems to have disappeared so generally and so
rapidly from the usages of advancing communities. Gaius, writing under
the Antonines, describes the institution as distinctively Roman. It is
true that, had he glanced across the Rhine or the Danube to those
tribes of barbarians which were exciting the curiosity of some among
his contemporaries, he would have seen examples of patriarchal power
in its crudest form; and in the far East a branch of the same ethnical
stock from which the Romans sprang was repeating their Patria Potestas
in some of its most technical incidents. But among the races
understood to be comprised within the Roman empire, Gaius could find
none which exhibited an institution resembling the Roman "Power of the
Father," except only the Asiatic Galatae. There are reasons, indeed, as
it seems to me, why the direct authority of the ancestor should, in
the greater number of progressive societies, very shortly assume
humbler proportions than belonged to it in their earliest state. The
implicit obedience of rude men to their parent is doubtless a primary
fact, which it would be absurd to explain away altogether by
attributing to them any calculation of its advantages; but, at the
same time, if it is natural in the sons to obey the father, it is
equally natural that they should look to him for superior strength or
superior wisdom. Hence, when societies are placed under circumstances
which cause an especial value to be attached to bodily and mental
vigour, there is an influence at work which tends to confine the
Patria Potestas to the cases where its possessor is actually skilful
and strong. When we obtain our first glimpse of organised Hellenic
society, it seems as if supereminent wisdom would keep alive the
father's power in persons whose bodily strength had decayed; but the
relations of Ulysses and Laertes in the _Odyssee_ appear to show that,
where extraordinary valour and sagacity were united in the son, the
father in the decrepitude of age was deposed from the headship of the
family. In the mature Greek jurisprudence, the rule advances a few
steps on the practice hinted at in the Homeric literature; and though
very many traces of stringent family obligation remain, the direct
authority of the parent is limited, as in European codes, to the
nonage or minority of the children, or, in other words, to the period
during which their mental and physical inferiority may always be
presumed. The Roman law, however, with its remarkable tendency to
innovate on ancient usage only just so far as the exigency of the
Public-domain text, read in full here on John Shaqi.
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