educate the fon according to his ability, and to support and protect his children, and alfo his grandchildren. The child, if he had a feparate property or peculium, was to fupport the father if neceffary, and bail him if imprisoned, but was not otherwife obliged to pay his debts. A man was obliged by law alfo to relieve his poor brothers and fifters, but not more distant relations (14). The paternal power was diffolved by the natural or civil death of the father, or by emancipation (15). (14) A law much resembling that of China. Lord Macartney's Embaffy, chap. 4. vol. 2. (15) The civil death was by deportation, relegation, or becoming a slave of punishment, terms occuring sufficiently often in the claffics to deferve diftinction. Deportation was a perpetual banishment, depriving the banished of the rights of a citizen. Relegation might be perpetual or temporary, but did not destroy the rights of citizenship. The flaves of punishment were thofe condemned to the mines, or sentenced to be destroyed by wild beafts. The parent taken prisoner did not lofe the parental power, it was only in fufpence till his return: he who returned from captivity was supposed never to have been absent, by a fiction called jus poftliminii. Relegation differed from exile, for the exile was deprived of the rights of citizenship: hence Ovid. Trist. 2. Ipfe relegatus non exul dicor-fee alfo Livy, lib. 4. ch. 4.-men were driven from their country by the interdiction of water and fire, for no man could directly be forced into exile, but only by the circuitous method of forbidding to him the neceffaries of life. The French, in their ridiculous affectation of fimilarity to the Romans, have of late ftudiously used the terms of deportation, &c. &c. Emancipation- a found fo pleafing to modern ears-did often at Rome convey a very different meaning: the child, though freed from the parental power, loft the right of fucceffion to the parental eftate; it was to him frequently a found of woe and of difinheritance; he therefore could not be emancipated againft his own confent, but for fufficient caufe, nor refufe to be emancipated if the father fhewed fufficient reafons. On the other hand, where emancipation was defirable, he could not force it, except for juft caufe, fuch as immoderate cruelty. The party coveting it had to labour through not only his father's but his grandfather's chains. First, if the grandfather was living, the father and the fon were in the power of the grandfather; and the father had not this fpecial power over his own fon, till the death of the grandfather, because the father himself was a dependant (16). The (16) Upon doctrines like these were founded the pofitions in our ancient books, relied upon by the advocates for King George I. in the famous conteft before-mentioned between his Majesty and the then Prince of Wales, about the education of the Prince's children. The fon of a daughter was not in the grandfather's power by the civil law; nor with us, fays Co. L. 84. 6. The court of chancery has often interfered with and controuled the parental power. Vide 2 Brown, Ch. Cas. and 4 Brown, ditto; fo the courts of law by Habeas Corpus. A child has been taken from a grandfather, and put under a mother's power. Mellish and Da Cofta. 2 Atkyns, 14. grandfather might even emancipate the fon, and retain the grandfon in fubjection; and vice verfa, his emancipated grandfon would, upon his death, fall back under the father's dominion: fuch and so extenfive was the flavery of children in that region of boafted liberty. Even marriage did not emancipate the daughter, though the owed her husband reverence, and was obliged to work for him. But to dwell longer on this obfolete subject would be as tedious as ufelefs; I therefore omit a description of the form of emancipation, further obferving only, that ten years non ufage made the fon free, without any form (17), and that the (17) In Justinian's time it was done by a fimple declaration before a magiftrate. Though the fon by emancipation loft all ftrictly legal right to the paternal eftate, yet he soon, by the Prætorian power, was enabled to enforce his equitable claims, and the father fucceeded to the estate of an emancipated fon, though not as father, yet as patron. The privileges fo often alluded to on account of number of children called usually the jus trium liberorum (though five were requifite to give them in the provinces, and four in Italy out of Rome), were excufed from guardianship, preference among candidates, precedence in office, and an immunity from all perfonal duties. Under this head appears in the Inftitutes the first direct mention of the celebrated jus poftliminii, the parent lofing his paternal powers by captivity, and recovering them with his liberty recovered. It is thus described in the Institutes: "Poftliminium fingit eum qui captus eft, in civitate femper "fuiffe." Luft. lib. 1. tit. 12. And thus defined in the practice of fathers putting their children to death is admitted to have taken place, at fo late a period as the time of Auguftus. "Jus quo perinde omnia refti Pandects, lib. 49. tit. 15. CHAPTER V. GUARDIAN AND WARE. WE have now traverfed the two leaft ufeful and moft obfolete departments of the civil law, and fhall for the future tread on more fruitful ground. Their law of guardianship, though in many refpects different from ours, feems to have afforded many useful hints, which were accepted by our early jurifprudence. Minority at Rome did not cease till twenty-five, and as education is a public concern, guardianship was made a public duty, which no man could refufe, without fufficient excufe, under pain of heavy fine (1). No minor could appear but by guardian. If he had a difpute with his guardian, a curator ad litem was appointed. Code, lib. 5. tit. 44. Otherwise by the common law, where the difpute was with his guardian. See Ayliffe. 1 (1) This compulfion, and the different period for full age, are the great diftinctions between the Roman guardianfhip and ours. + |