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The Pamphlet Collection of Sir Robert Stout: Volume 49

The "Parental Prerogative" Only the "Patria Potestas."

The "Parental Prerogative" Only the "Patria Potestas."

A closer investigation only reveals this fact more plainly. The "Parental Prerogative" of Bishop McQuaid is nothing but a modification of the "Patria Potestas," or Fatherly Authority of the ancient Roman law. What this was, Sir Henry Maine shows as follows:—

"On a few systems of law the family organization of the earliest society has left a plain and broad mark in the lifelong authority of the Father or other ancestor over the person and property of his descendants—an authority which we may conveniently call by its later Roman name of Patria Potestas. No feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and rapidly from the usages of advancing communities as this. . . . In the mature Greek jurisprudence, the rule advances a page 81 few steps on the practice hinted at in the Homeric literature; and though very many traces of the stringent family obligation remain, the direct authority of the parent is limited, as in European codes, to the non-age or minority of the children, or, in other words, to the period during which their mental and physical inferiority may always be presumed. . . . The Patria Potestas of the Romans, which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilized life, whether we consider its incidence on the person or its effects on property. It is to be regretted that a chasm which exists in its history cannot be more completely filled. So far as regards the person, the parent, when our information commences, has over his children the jus vitœ necisque, the power of life and death, and a fortiori of uncontrolled personal chastisement; he can modify their personal condition at pleasure; he can give a wife to his son; he can give his daughter in marriage; he can divorce his children of either sex; he can transfer them to another family by adoption, and he can sell them. Late in the Imperial period we find vestiges of all these powers, but they are reduced within very narrow limits. The unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognizance of the civil magistrate; the privilege of dictating marriage has declined into a conditional veto; the liberty of selling has been virtually abolished; and adoption itself, destined to lose almost all its ancient importance in the reformed system of Justinian, can no longer be effected without the assent of the child transferred to the adoptive parentage. In short, we are brought very close to the verge of the ideas which have at length prevailed in the modern world. . . . The movement of the progressive societies has been uniform in one respect. Through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its stead. The Individual is steadily substituted for the Family, as the unit of which civil laws take account. . . . Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It page 82 is contract. Starting, as from one terminus of history, from a condition of society in which all the relations of persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations rise from the free agreement of Individuals."

We are now in a condition to understand precisely the value of that "Parental Prerogative" on which Bishop McQuaid and other Catholics base their claim that the school system violates "parental rights." It is the "old skeleton of" Roman "paganism"—dressed up with a "thin cloaking of Christian morality." It is the ancient and outgrown Patria Potestas, intruding itself into modern society with its claim of despotic authority for the father over his child, and ignoring both the personal rights of the child and the collective rights of society. It is the galvanized corpse of the old Patriarchal Theory, good enough for the days of Abraham, who in obedience to it undertook to murder his own son, but a disgusting anachronism in the nineteenth century and the Centennial Year. The school question cannot be justly referred for settlement to the "parents" alone; the children have something at stake—society has something at stake—and parents must dismiss the notion that their despotic selfishness will be allowed to substitute the rights of one party alone for the rights of three parties to this issue. The Catholic social theory, with its claim that "the family, not the individual, is the social unit," is the unburied skeleton of pre-historic barbarism, the most ancient and best authenticated relic in the keeping of the church; while the "Parental Prerogative" which is so confidently relied upon to crush the great public school system under its elephantine tread is nothing but the pale and powerless ghost of the ancient Roman Patria Potestas, with not enough substance in it to crush the life out of a daisy.