162 TRANSACTIONS OF THE CANADIAN INSTITUTE. [VoL. II. 



exercised. But in Cicero's time it was in full force, for Fulvius the son 

 of a senator was slain by his father's command for conspiring against 

 his country with the followers of Catiline. At a later period Erixo 

 whipped his son to death. And Hadrian banished a parent for killing 

 his son. 



Pothier, the well known French jurist, finds nothing averse to natural 

 affection or good morals in the immense power thus vested in fathers, 

 for he maintains that no capricious authority was conferred, but that the 

 supreme magistrate in the family proceeded against the guilty in a 

 domestic tribunal, which in the early stages of society was the only mode 

 of exercising legitimate authority ; and after governments were formed 

 and laws enacted, why should not that imperhun be preserved to fathers 

 which in other nations was committed to newly created magistrates ; 

 especially when it must be presumed that paternal affection would 

 moderate it to the rule of equity and justice ? Besides, the law 

 did not command fathers to exercise this right, it only permitted 

 it, and it asks no reason for enforcing it, as it does not assume 

 that it would be otherwise than just, and that nothing would be decreed 

 by a father against his son at the mere pleasure of his will. But it was 

 rather to be apprehended that natural affection w^ould generally spare the 

 guilty ; and therefore, besides the private jurisdiction preserved to the 

 father, sons might also be subjected to the authority of the magistrates. 

 That he had nowhere read of fathers having abused this power before 

 the integrity of Roman manners was weakened and broken, nor of any 

 complaint being made of the right of the sword, or of sale. Though a 

 sale was freely permitted, the legislators safely trusted that it would be 

 exercised only in two cases : ist, as the penalty of some serious crime 

 committed by the son, which the father should determine to be punished 

 by sending him into slavery, in which case why might not he sell, who 

 could inflict death ? 2nd, by reason of extreme poverty, when the father 

 had no other means than the sorrowful price of his son for procuring the 

 necessaries of life for himself and his family. It was better that the son 

 should be sold than die of hunger, nor should he prefer his liberty to his 

 own or his relatives' preservation. He admits however, that in the course 

 of time, when the state had become infected with the corruption of 

 conquered nations, parents abused their power. 



Historians tell us that the practice of killing, exposing, selling and 

 pledging infants on account of the poverty of their parents has always 

 been prevalent, but in the early part of the fourth century had become 

 excessively frequent in Italy. That part of the empire was exhausted 

 by the imposition of great taxes, by the frequent changes of sovereigns. 



