C1LA.r. Vni. AUTHORITY IN THE FAMILY. Ill CHAPTER VIII. Authority in the Family. 1. The Principle and Nature of the Paternal Power among the Ancients. The family did not receive its laws from the city. If the city had established private law, that law would probably have been different from what we have seen. It would have established the right of property and the right of succession on different principles; for it was not for the interest of the city that land should be in- alienable and the patrimony indivisible. The law that permitted a father to sell or even to kill liis son — a law that we find both in Greece and in Rome — was not established by a city. The city would rather have said to the father, "Your wife's and your son's life does not belong to you any more than their liberty does. I will protect them, even against you ; you are not the one to judge them, or to kill them, if they have committed a crime; I will be their judge." If the city did not speak thus, it is evident that it could not. Private law existed before the city. When the city began to write its laws, it found this law already established, living, rooted in the customs, strong by universal ob- servance. The city accepted it, because it could not do otherwise, and dared not modify it, except by degrees. Ancient law was not the work of a legislator; it was, on the contrary, imposed upon the legislator. It had its birth in the family. It sprang up spontaneously from the ancient principles which gave it root. It flowed from the religious belief which was universally
