FAMILY LAW. Speaking of the superi ority of the historic method of investigation over the prevalent modes of inquiring into juristic facts, Sir Henry Maine remarked the persist ency of social institutions, saying, that to this day "we are in the midst of legal notions, which are nothing more than the same (ancient) con ceptions, though disguised by the phraseology and by the habits of thought belonging to mod ern times?' The antiquity of the family is not even thus disguised. The names whereby the members of a family group are called, and their relationship to one another is indicated, are traceable back to a past which lies far beyond any historic record, and far beyond even the era of legends and myths. The words °father?) "sister,) "brother," daughter° and their cognates in other Indo-European lan guages are derivatives of Aryan prototypes des ignating identical family relationships. Even names indicating more remote degrees of kin ship, whether of blood or merely in law, have been traced by comparative philology to a com mon linguistic origin. The conclusion is in evitable, therefore, that the family not only ex isted, but was organized on the same general plan as now, while the remote ancestors of the Hindus, Persians, Greeks, Latins, Celts, Teutons and Slays still dwelt together as one nation and spoke one speech. One should not think of the ancient family as constituted of members of a single household living under one roof ; neither is it to be understood as that larger aggregation of blood relations, which we call a "family," using the word in the sense of a "house" or tens, as the Romans called it. The ancient fam ily included all of the descendants; in the male line of descent, from a common, living male ancestor. This ancestor was the pater familiar — literally •family father," though, in fact, he might be the grandfather or great-grandfather of the younger members of the family group. Persons legally adopted into a family stood on exactly the same footing with persons born in it; persons adopted out ceased to be members of the family of their birth and became members of the family to which they had been legally united. Families, not persons, were the units of society; early law took little account of indi viduals. There was a community of interest among the members in the family possessions, and an injury to the person of any one member was avenged by the kindred. The pater familiar was clothed with extraordinary authority.
In the Roman Commonwealth, where the primitive family organization and ad ministration persisted as anachronisms in the midst of a highly complex civilization, the patria potestas, or "power of the father," was despotic almost beyond belief. The pater familias had
the uncontrolled right to dispose of the per sons under his power. He could provide a male descendant with a wife; he could give his daugh ter or a son's daughter in marriage; he could divorce his children of either sex; he could sell his children or give them to another family head for adoption, subject them to corporal punish ment without limit, and he could put them to death. Children under paternal power could hold no property apart from the parent; the latter was entitled to all they earned or acquired; and on the father devolved all the benefits of his sons' contracts free of any compensatory obli gations. The arrival of a son at man's estate did not liberate him from the paternal despotism. The son might be married and preside over a separate household and still remain completely dependent. The patria potestas, however, could not prevail over the jus publicum. Father and son voted together in the comitia; they fought side by side in the wars of the republic, where the son might command the father as his superior officer — or the son, as a public magistrate, might decide a lawsuit against the father and even impose a penalty on him for a criminal offense. In all times, however, influences must have been at work to ameliorate the domestic despotism. Natural love and affection could not fail to soften paternal severity. The fear of social ostracism, no doubt, would have de terred a father from an extreme exercise of power over a son, who occupied a high position in the service of the state or in the esteem of the public. There were legal devices whereby a pus familiar (a son under power) could ob tain his emancipation, and it was not an un common practice for a father to voluntarily emancipate a son. Under the empire the poia potestas was gradually weakened. The uncon trolled right to inflict corporal chastisement was reduced to a privilege to bring the domestic of fenses of children to the notice of the public magistrates — the punishment of offenses against the public law, of course, was never in the pa ternal power. The dictation of the father in the marital affairs of the children became a con ditional right of veto; an adoption could not be effected without the consent of the child to be adopted, and the right to sell children was abol ished. This was an approximation to the mod ern law so far as the rights of persons were concerned. With respect to property, the fath er's absolute right of control was preserved to the end. The furthest concessions made by the later law was to limit to a life interest the father's right to property inherited by children from their mother and to property acquired by children otherwise than by inheritance.