end to an inhuman traffic. The child as a thing might be stolen or detained, and as such be the object of recovery. In this case the father "vindicates" him as he would a chattel or a beast that had strayed from the homestead.[1]
The father might scourge or imprison his child,[2] even put him to death. The formula employed in adrogation (the procedure by which a man puts himself into the paternal power of another) shows that the jus vitae necisque was the most distinctive aspect of the patria potestas.[3] It was a power never questioned throughout the whole of Republican history, and which received no legal limitations until the time of the Middle Empire.[4] Sometimes it was employed as a means of saving the honour of the family, and there are instances of the son guilty of theft, the daughter of unchastity, being thus put to death;[5] sometimes it was enforced in the interest of the state to punish a public crime.[6]
Although law is in a sense an outline of life, it would be very misleading to fill up the content of Roman private life by analogy with this harsh outline. Like most of the theory of Roman law it had little correspondence with the facts; and this non-correspondence of fact and theory is the source of the strength and the beauty of Roman family life. If legal obligations do not exist between husband and wife, father and child, their place, in a civilised community, must be taken by moral obligations; and the very absence of legal sanctions will make these moral bonds peculiarly strong. It was so with the Roman family. It was an isolated, self-existent unit. The members clung closely to one another and to their head. The power of the father—the source of the unity of the household—fostered the devotion to the hearth, the love of home, which
- ↑ This vindicatio filii was in later Roman law replaced by a writ issued by the praetor (interdictum de liberis exhibendis), the effects of which were like that of Habeas Corpus.
- ↑ Dionys. ii. 26, 27.
- ↑ Gell. v. 19, 9.
- ↑ Hadrian punished the killing of a son with deportation (Dig. 48, 8, 5); Constantine declared it parricidium.
- ↑ Instances are given in Voigt (Zwölf Tafeln ii 94). M. Fabius Buteo (223-218 B.C.) put his son to death as a punishment for theft (Oros. iv. 13), and a certain Pontius Aufidianus his daughter for immorality (Val. Max. vi. 1, 3); there are also instances of banishment inflicted by the father, presumably under the threat of inflicting the death penalty if the children returned.
- ↑ We may cite two instances lying at the very extremes of Republican history, the semi-mythical one of L. Junius Brutus in 509 (Plut. Popl. 6, 7), and the historical one of A. Fulvius Nobilior, who in 63 B.C. put his son to death for partnership in the Catilinarian conspiracy (Sall. Cat. 39).
