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ACQUIRED RIGHTS

Chapter 6

772. We come now to generation, the second title by which dominion over persons is acquired.

773. Some authors, like Hobbes, deduce patria potestas from occupancy. Others, like Pufendorf, deduce it from the fathers' provision of food for their children.(190)

774. But, in my opinion, these titles are different and produce different rights.

775. Provision of food produces no more than the right to repayment or compensation, as we noted when we discussed foster-fathers.

776. Occupancy, whose purpose is excessively limited and entrenched by Hobbes,(191) is common to both natural and fostering fathers. It cannot be a true father's proper title to rights over his children.

For this reason, we dealt with the matter in the preceding chapter with a view to discussing the title of generation in this chapter. Generation is the sole source of patria potestas considered in its proper sense.(192)

777. If fathers do not abandon the children they have begotten, but care for them for the sake of consequent joy and utility, they enter into possession of their rights in the same way as foster-fathers acquire their rights by caring for an abandoned child.

778. In so far as he feeds, rears and generally benefits his baby, he acquires those rights which the foster-father acquires by feeding and rearing an abandoned baby.

779. But in the true father there is also the title of generation, which modifies the above-mentioned rights and produces new ones.

780. We have therefore three titles, fostering, occupancy and generation, involved with patria potestas. The last, which is the proper title, gives a new form to the rights stemming from the first two.

781. As we have seen, everybody generally admits that the author of anything is also its master. Indeed no physical connection is more intimate than that between cause and effect.

782. There is in generation something which is absent from all other human production: the parents form their child's physical substance and animal principle from their own substance and animality.(193) The whole of antiquity saw in children a kind of extension of the parents' existence.(194)

783. Antiquity however went to excess, and considered the child as a thing belonging to its father, in such a way that the father could do what he liked with his child, as with his own body or clothing.

784. But modern laws seem to offend in the opposite way. Just as ancient laws made the father the end and the children the means, so viceversa modern laws tend to consider the father solely as a means for the good of the child.

785. But civil laws, as we have said, involve only one part of natural and rational Right, and are judged according to their intended, partial purposes. No matter what we may say about them, therefore, it is certain that philosophical Right cannot be limited to considering the relationship between father and child when one is seen exclusively as means for the other.(195)

786. Both person and nature are present in children. It is certain that person cannot in any way be used as an end by another human being. A child therefore is an end.

787. But it is also certain that what pertains to nature can be used as means by another human being, when no harm threatens personal dignity. Hence, in a child we must recognise a double condition relative to the parents: the condition of means relative to all the joy and good they can draw from the child, and the condition of end relative to the care they take of him.

788. The parents' rights arise from the child's condition as means. Rights always have for their purpose some subjective good of the one who has the right, although the subjective good sometimes comes directly from objective good.

789. Viceversa, the parents' duties emanate from the child's condition of end. Duties always have an objective good as their purpose.

790. The duties of parents limit their rights; duties and rights are in a certain way opposites. When talking about parents' rights, therefore, we must always bear in mind their duties.

791. The benefit of rearing produces duties in the child who has received the benefit from someone who has not generated him. I have reduced these duties to three: perpetual gratitude, repayment, and submission during rearing (cf. 559).

792. Gratitude and submission during rearing are the child's duties towards all those who have exercised the great benefit of rearing him, whether true father or not. But in as much as paternal love and care are incommunicable and more altruistic than any other love and care, duties towards a father are stricter and more sacred.

793. The duty of repayment does not apply to a child reared by its father, but it does apply to a child reared by others.

794. The reason for this, it seems to me, does not lie in the father's responsibility for rearing his offspring, as Zeiller maintains,(196) but in the nature of paternal love which naturally draws a father to rear his child.

795. I cannot in fact agree with those writers who admit a jural duty in a father to rear his offspring. Such paternal duty is, I am sure, very strict and serious, but purely moral in nature. Consequently I do not recognise any right in a child to obtain education by force from its father, even if the child had the force to obtain education, or others had it through him. An unnatural father who fails to fulfil his sacred duty to feed his children deprives them of nothing because they have nothing.

796. Similarly, although I recognise a right in all people to shelter and rear a child abandoned by its father (a right to the occupancy and therefore the education of the child), I do not recognise in anyone the right to use force to constrain a father to shelter and educate his own son, except in civil society.(197)

797. Zeiller claims to demonstrate that a jural duty exists in parents to rear their offspring because he imputes the childrens' wretched condition to the parents who brought them into the world subject to such great need. He says: `Anyone who by their own act abandons a moral being to a condition of indigence without the being's consent has by that fact the obligation to carefully protect the being from every evil whatsoever.' (198)

798. But the abandonment of a being does not harm him positively; he is not deprived of what is his, nor is his freedom under attack. The starting principle of the derivation of rights, ownership, does not apply here. A sick person, for example, does not acquire a right to be helped for the sole reason that I abandon him against his will after caring for him for a long time. If someone born and reared in my house has such need of me that he must live with me or die without me, he has no right to require me not to abandon him. My abandonment violates a grave, ethical, humanitarian duty, not a strictly jural duty.

799. If, however, I have helped him or anyone else in need of me, or lived with him, because I am jurally obligated to him, my abandonment would be an injury to his right.

800. Similarly, a father's abandonment of his children cannot be a reason in justice for blaming the children's woes on him, unless the abandonment were an injury to the childrens' right to be reared and not abandoned. Zeiller's reasoning goes round in a circle, presupposing the definition we are seeking.

801. We should therefore rely on the opinion of those authors who consider that natural right always consists in `not taking from anyone' (principle of ownership), and understand that abandonment does not deprive a baby of what it possesses, but simply does not provide what the baby does not possess and greatly needs. These authors see in rearing an ethical duty of the same kind as, but much stricter than, the duty we each have to come to the aid of our suffering, indigent fellow human beings.(199)

802. In fact the indigence of human beings born into the world is not properly speaking the work of parents but of nature itself. Human nature is very wretched and needy, but the baby has this nature in its entirety with all its good and evil; nobody has deprived the baby of a part of its nature. The parents are authors of the baby, not of the laws, conditions and accidents to which human nature is subject. Strictly speaking therefore a baby, relative to its parents, has no right; it is in fact the object of their humanity and tenderness, and of their sacred, moral duty.

803. This explains why nature has implanted tenderness and affection in the hearts of parents towards their offspring. Such affection was necessary to make them constantly give their baby what its right could not oblige them to give.

804. From the nature of this affection I deduce that the care and effort given by parents to their children is of a totally different kind to the care and effort of a foster-parent, provider or benefactor, and I do so as follows.

805. Parental affection is a natural feeling, an undefinable mixture of infinite, particular feelings and infinite ideas. The prevalent, characteristic feeling is always that of seeing and continuing an extension and reproduction of themselves in their child, a reproduction which develops and is young, better, rich in hopes, promising them a kind of perpetuity on earth.

806. Every simple feeling of human nature has a certain nobility of being. There is no selfish reckoning in it; it obeys its own laws without any further thought.(200)

807. The feeling of parents towards their offspring, implanted by nature in their hearts, is of this kind but to the highest degree. It moves those who have procreated a human being to love this being with a very simple, spontaneous abandon, without any return for themselves. We see, for example, how brute animals expose themselves to death to defend and save their offspring. A man and woman have eyes only for the good and evil of their child, the sole object of their cares, worries and fears, of their efforts to protect it from threatened evils and to help it prosper and develop; and in doing so they completely forget themselves. I am thinking in particular of the pride, generosity and even harshness of a mother's heart as it passes from joy to tears, from happiness to desperation. The maternal heart is more inventive, energetic and strong than any human wisdom or power.

808. I do not mean that besides having this feeling of affection parents cannot give any thought to the advantages which will come to them later from their children. Even if they think of this, the nature of the feeling of affection remains unchanged. Paternal and maternal sentiment is fully satisfying in itself. It can be called self-interested only in so far as the child's good is considered the parent's own good, in fact their greatest good.

809. This affection of the parents, as something good and their greatest treasure, offers a new reason for their exclusive right to possess and educate their children. Relative to them, no other good is by nature as great as that of their children and their care of them.

810. This affection, by which nature unites parents to their offspring to form a single thing, is the source of all that the child's parents do and expend, as if they were doing it for themselves. Whatever the child gains from this care, the parents also gain. No repayment need be made to them therefore because there is no reason to repay what is done or used for one's own satisfaction. This is a law of nature.

811. The child therefore must show gratitude, the duty of respect and of submission. We will discuss these duties later, but there is no question of repayment, properly speaking. There can be no question of debit and credit between father and child, although there can be between child and father.

812. It may be objected that not all parents feel or show this paternal and maternal affection; many in fact abandon and mistreat their children. - This is very true but such parents cannot draw any advantage from their evil action. As we have said, no right comes to anyone from his own wickedness and depravity of nature.(201)

813. But is the natural feeling of parents a moral obligation? Don't we normally say that feeling and obligation are different things? - In a rational being a feeling becomes an obligation when it is noble and naturally ordered to the advantage of the one who feels it; this is the case with the feeling of parents for their children. The effect of this feeling, and therefore nature's purpose for it, is the union of humanity, and the happiness of this union, and its prosperity and moral development as a result of the aid given particularly by parents to their descendants.(202)

814. The duty is deduced as follows.
Human nature must be acknowledged and respected for what it is worth. This practical acknowledgement and respect produces a corresponding love, which becomes the measure of the care we must each assume for the advantage of humanity. Human nature, as realised in parents, has the love of children as one of its elements, as we have said.
Fathers must respect this love for what it is. Otherwise, they harm within themselves the human nature of which that love is the noble part. Hence, a good father respects and values this love; an unnatural father spurns and rejects it.
A father who does not act according to natural paternal love offends against the respect due to the human nature which is in him and bound to the nature in his children. Consequently, the child's nature, too, is violated.

815. In fact, paternal feeling and affection bind together generations and unify the whole of humanity, giving it the greatest strength and perfection. This affection (of those who beget) is the font of all development, increase and striving in humanity. Those fathers, therefore, who reject their natural affection for their children offend in reality against the whole of humanity in so far as humanity is shared by all individuals on earth.

816. The title of occupancy gives the first occupier the right to draw from the child all the good he can for himself with due respect for the moral, intellectual and physical rearing of the child. But we have seen that this good which the occupier can draw from the child for himself lasts only for the time the child is subject to him, that is, the time necessary for rearing him. The occupier must gradually allow the child government of itself: first in some acts, then in others, and finally in all.

817. This applies also to true fathers, who have the primary right to occupy and rear their children.

818. In the exercise of the father's right to rear the children, the children are the end, and the aim is the childrens' good. In the exercise of their right to occupy their children, the end is the occupier, the fathers' good.

819. The fathers' intention of drawing good for themselves from the children does not, as we noted, exclude natural love. In many poor families the children are put to work not only to educate them but more importantly to gain something for their parents. No one can say that the parents are not justified in using their children in this way. It would be absurd and contrary to common sense to wish to restrict all the rights of those who have given children their existence to the sole right of benefiting them by education without the parents being able to draw any good for self from their offspring.

820. But if we make occupancy the only source of the fathers' right to draw good for themselves from their children, it is clear that such a right can last only as long as the children remain occupiable, so to speak. Occupiability ceases in the children as they gradually take possession of self.(203)
However, when the occupancy has ceased, generation remains. In my opinion, this gives fathers the right to keep their children with them, not as previously in a state of mere submission, but in what we call the state of parental society. Children never have per se the right to leave this society without their begetter's consent, except when the latter constantly abuses his authority, or for the sake of cleaving to a wife and so forming a new family.(204)

821. This last reason for offspring to leave their fathers is recognised as lawful by divine Scripture, which says: `A man shall leave father and mother, and shall cleave to his wife: and they shall be two in one flesh.' (205) These words, spoken by the first man at the moment of contracting matrimony, show the kind of spirit that the paternal bond should have. They show that the marital union which constitutes a new family is so intimate that, if the new (marital) society cannot exist with the previous (parental) society, the former must be preserved by the sacrifice of the latter.

822. A son therefore can leave his father and join the family of his spouse, if he could not have his wife in any other way. For the same reason, a wife can go to the family of her husband. Both husband and wife can leave their fathers (provided the parents have no need of them) if this is required by ownership of the new family they form. On the other hand, if these conditions are absent and the married son can remain with his father who requires this, I think the son has the jural obligation to obey his father's will and not abandon him.(206)

823. Here we see a difference between those who simply foster children and true fathers. Relative to the former, occupied children are completely free as soon as possession of them has ceased. The children cannot be forced to remain in society with their benefactors. True fathers, even though they lose the superiority over their children which comes from occupancy, do not lose all superiority; they still have enough to constrain the children to remain in their society.

824. Parental society therefore is not the kind of society that requires the consent of the parties for its constitution. It is established and endures solely by the father's will. The children have the jural duty to submit by consenting to the paternal will.

825. Let us now examine the end of this society and its administrator or governor.

826. Fathers, children and all descendants, even those who do not yet, but will exist, must be considered as a collective person.

827. It may be objected that we cannot conceive a society of still non-existent persons. This objection however contradicts human consciousness. We need to keep in mind that, in the opinion of the human race, a communication of rights and between those who are alive now and those yet to be born.

828. Human beings, through acts of their intelligence, are certainly in touch with the past and the future. They can relate to persons and things which, although they do not exist now, will exist. For example, am I not the owner of the produce that my land will give me in the future? Don't I have an absolute right to it, so that it is even now bound to me by a bond of ownership? I can certainly calculate the produce and plan for it in the future, although it does not yet exist.
I can also make a contract that will bind future generations. I grant that this kind of contract could not take place if the consent of those to come were their own free decision, but it could if the consent were obligatory. In this case they must consent to and thus conclude and ratify the contract drawn up by their predecessor who may also have accepted for their benefit some kind of deposit from the other contracting party.(207) This is precisely the nature of agreements between families and between nations.

Finally I can provide simultaneously for my own good and that of all my descendants. This is a bond of society, which I form with them. It is a society in which every member who arrives thereafter into the world contributes to the common good. Each shares his work and profits in common, providing for the good of the future members, and performing filial duties towards the departed by respecting their memory and honouring their tombs. Only the materialist mocks a religion which honours the dead and breaks the bond which holds generations together. For the believer in immortality the person does not perish; divested of its body and made invisible, the person co-exists with members of the family who come to live upon the earth. The human race believes this and has a profound understanding of it. This truth gives rise to customs, religion, literature, laws and art which speak both to and of future members. They do not yet exist, but they are protected and represented; they receive rights and duties, and a heritage of memories, teachings, support and riches produced by the arduous labour of others. The end of this society of descendants therefore is all the good that it brings to all the new members, everyone of whom must share in this good.

829. This explains why the government of family society tends naturally and reasonably to the good of its future rather than its present members.

830. The reason why this tendency inclines more to future generations than present members (clearly demonstrated by fathers and by the civil laws which protect domestic society) is that future generations taken together are always in the majority compared with the few persons who form the present generation, conscious as it is of its paucity. The greatest possible good therefore is obtained for the whole family when dispositions are made for its extension into the future, that is, for all its descendants. In any case, the end of anything is normally esteemed more than its principle, and what is to come is valued more in human eyes than what has already come and is now passing away.

831. The natural tendency of parents towards the good of their descendants must therefore be seen as a kind of intelligent feeling, a part of that sense or touch, so to speak, which human intelligence maintains in constant alert and with which it so wisely but unconsciously discerns what is best, although it is unable to account for the hidden mental calculation directing it towards the discernment.

832. Another consequence is that fathers see, and according to reason must see, in their children's good the good of all the descendants who are comprised in their own children. Thus, they must place their children's good before their own in this society. They must not be content simply to avoid obstructing their children from acquiring all moral, intellectual and physical good possible, but must want to help towards this acquisition with all their power.

833. However, this kind of paternal instinct can be blunted and checked by evil, which struggles powerfully against reason and good nature.

834. We see once again why the good of the offspring and of their new family often requires separation from their father, who must release the children and dissolve the `living-together society' by emancipating them.

835. The administrator and absolute governor of family society is always the father.

836. Some writers have seriously questioned the reasons for this authority, which according to natural, rational Right is always the father's. They were guided by their observation that a father lacks the force to make his adult child obey when the child realises the full vigour of his age and the father weakens.(208) But I must repeat, one of the most basic errors is that of always substituting force for right, or seeing the title of right in force.

837. It is true that the government of patriarchal societies deteriorates; the aged father has to tolerate many disorders in his children. The patriarchs of the Hebrew people sometimes limited themselves to secretly deploring the serious disorders of their children, feeling they did not have enough strength to control them.(209) This weakness of government can sometimes be a reason why a father allow his child's autonomy by emancipating him.(210)

838. But the contrary can also happen. Good children feel a duty to obey and submit to a father who uses his authority very well to direct the home. In this case the only force with which he exercises his right is the great respect and love shown him by his children.

839. However, when the children who remain with their father are basically intelligent, the father is morally bound to use their knowledge and ability to improve the government of the family. The adult children are the natural ministers and the consultors of their aged parents who willingly cede part of their authority.

840. But if the children find in paternal government too little provision for the social good, how long must they be subject to their father when opinions differ as to the good of his person and of the family? In domestic government the father has the same right as a competent judge, that is, his judgment must be accepted whenever there is doubt (cf. 611, 612).

841. When the adult child clearly sees that paternal judgment is seriously harmful, or generally obstructs the good of the actual or future family, he can reject the judgment but always with respect and moderation.

842. If the father, moved by unnatural waywardness, then tries to harm the child and the child's family, they can separate and even seek refuge from him.

843. But the adult child can never defend himself and his family against his father's violence to the point of blows and injury.(211)

844. Fatherhood has a natural right not to be violated or harmed by the offspring, who must forego their own right rather than harm their fathers. Morality sets this limit to the children's right which then ceases because of the limit. As the right ceases, the purely moral obligation which children previously had becomes jural.

845. Furthermore, fathers have a superiority and authority over their emancipated children which can never be destroyed.

846. The reason for this permanent superiority is that the children are always a production of their fathers by generation.

847. If the children were merely things, they would always remain in their fathers' ownership. If they withdraw from this ownership, it is solely for the development of their person. Thus, their withdrawal from submission to their fathers takes place according to the demands of their personship. On the other hand, the degree and mode of patria potestas which does not harm but helps the personal dignity and good of the children and their families cannot be a reason for the cessation of patria potestas.

848. Such authority certainly exists in nature. The honour, deference and obedience of adult children towards their aged fathers, far from being contrary to personal dignity, ennobles and embellishes it. All virtue elevates personal dignity, and is moreover very helpful for union among the descendants, for greater wisdom and counsel in what they do, and for the ability to establish and preserve family practices. Respect for the wisdom of our elders bestows all these good things and their causes on families.

849. This authority of fathers over their children of whatever age and condition is not only moral but also strictly jural, precisely because it is what remains of the paternal dominion over the offspring.

850. We must note however that this residue of paternal dominion is to be exercised temperately and prudently.

851. Moreover, the principle on which it is founded is the same as that for paternal dominion over a baby, that is, `children are the property of their fathers in everything except the personal element and in the freedom necessary for the descendants' good. The reasons why parents dominion is limited are therefore:
1.' relative to their acts the personal element of the children increases with their age;
2. paternal dominion must be withdrawn whenever it prejudices the free, prosperous development of the children's descendants.

852. However, as we have said, these two reasons do not necessarily and radically remove all paternal dominion. In fact this remains in such a way that the fathers could not of themselves entirely secede from it;(212) the children would always have at least the obligation to honour their fathers, even if these were evil, or so unnatural that they had sold the children.

853. Aged parents therefore need wisdom and prudence to exercise their patria potestas within just limits over their adult children.

854. The authority shows itself particularly in two cases:
1. in favour of the children themselves, when they are evil and harm their descendants;
2. in favour of the fathers if they need the children's goods in order to live.
A comment on these two particular rights will be helpful.

855. According to natural Right, the authority to correct and even to punish wayward children always remains with the fathers, whatever their children's age and condition.

856. We have already given the reason: this authority does not in any way detract from the children's personal dignity, but helps them and their present and future families.

857. This authority, although recognised by all peoples, is evidently denied by some authors. The reasons why they deny it and omit it from their treatises seem to be reduced to two.
1. The fear that fathers, if granted such authority, will perhaps abuse it. But this is not a valid reason. I admit that the right to correct and punish perverse adult children is difficult to exercise wisely and fruitfully, but I do not think I am obliged to deny its existence. The possibility of its exercise on only one occasion would be enough to require its acceptance and recognition.

858. 2. The necessity of force which the right to punish perverse children requires for its exercise; weak, aged fathers do not generally have this force against their young, healthy children. - But, as we have said, force does not form the title to rights; it is only the means with which they are exercised when obstructed. Hence, lack of force does not prove the lack of right (cf. 809-811).

Moreover, we know of fathers who have been able to punish their wayward adult children by imposing penalties. The children did not revolt because they were restrained by the authority they knew their fathers had, or by their feeling of filial respect which sometimes exerts itself even in perverse spirits, or by fear of being deprived of their inheritance, or by some other accidental circumstance.

859. Fathers never lose their right to be helped and cared for by their children nor, in case of necessity, to use on their own behalf the goods of their children in order to live.

860. As long as fathers live united with their children, the case is clear. They are the administrators of all the goods of the family whose head they are. If it is true that every member of a domestic society must live off the common assets, it is even more true of the head.

861. Children can acquire goods through their own personal individuality, but while they live in their fathers' house, the goods must be administered by the fathers and disposed of for the children's good.

862. When the children live separately, poverty is the only case where fathers retain the right to use the goods given to their children and the goods acquired separately by the children. They have a right to enough for their maintenance.

863. This right does not stem from repayment owed by the children who have been cared for by their fathers, but from the residue of patria potestas which never entirely ceases and is rooted in the father as begetter of his offspring. The children must refer their own existence to their father, and with their existence all that they are and have.(213)

(190) Pufendorf adds the children's consent (De jur. nat. et gent., 6, 2, §4). If he means explicit, positive consent, it would be absurd to attribute such consent to babies. But, as I have said, if he means negative consent, that is, the child makes no request and is content to receive necessary aid, I would recognise it. Properly speaking, however, such consent concerns the fosterer and benefactor, not the father, and cannot therefore be the title of rights proper to a father; negative consent, relative to the rights of a fosterer, is a condition, not a title. For example, unoccupied land is the condition of my ownership, not the title. Granted this condition, I can occupy and appropriate the land.

(191) Hobbes claims that the purpose for which parents take occupancy of children is to prevent them from being hostile and harmful (De Cive, 9, 3). The hearts of mothers and fathers are vilified here, although they are the competent judges in the case.

(192) Grotius and Rottek derive patria potestas from this title.

(193) Cf. on the nature of generation, AMS, 323-349, 812-831.

(194) In the language of divine Scripture, the child forms one thing with the father and is considered as his accession. For example, God says to Jacob and David: `You will be this or this, you will become powerful, you will have a kingdom without end, etc,' meaning their children. For the same reason, the children as a whole are given the name of their father; they are all Israel or David or Juda or Ephraim. The same practice is found among all the ancient eastern nations: the tribes bear the name of their descent. Amongst modern authors, the two Germans, Meister and Egger, use something analogous to accession to explain the natural seigniory of parents over their children.

(195) Zeiller, in many other respects a man of great discernment, has in my opinion made this mistake. According to him, parents' authority over their children arises solely from their duty and right to educate their children (§164-167 of his Diritto naturale privato). Thus, only the children are end; the parents serve this end. If I am not mistaken, a similar theory can be seen in the spirit of modern civil laws tending to provide for the good of the younger rather than of the elder. They have the tendency to broaden the bonds of freedom rather than protect the rights of authority.

(196) Cf. §164. - Karpe expresses the same opinion in his Institut. Philosoph. Jurisprud. universalis, §116-117.

(197) We will see elsewhere how this right of society originates.

(198) In the footnote to §164 of his Diritto naturale privato.

(199) Cf. Achenwall, Observ. jur. nat., §57; Jacob, Giurisprudenza filosofica, §662; Hoffbauer, Diritto naturale, §407; Fichte, Principj del Diritto naturale, §46.

(200) Cf. the observations I made about this characteristic of feelings devoid of all selfish reckoning in Storia comparativa de' sistemi morali, c. 4, a. 4.

(201) Cf. ER, 256-261.

(202) I am certain that the grandeur of paternal love pertains to the perfection of human nature in such a way that, if human nature were perfect, parents would have be bound to their children by the mysterious feeling called filogonia. However, although this grandeur of feelings is, considered in itself, a perfection of nature, the grandeur could indirectly damage the development of nature itself, if nature did not find in reason a corresponding force capable of dominating the grandeur and subjecting this feeling to other feelings of greater dignity. A perceptive History of Humanity would have the task of recording the variations of parental affection towards their offspring and descendants. This affection is expressed with more intensity and grandeur in the east than in the west, and more in ancient times than in modern. The west is populated with adventurous young members of families who have broken their bonds with their parents. This spirit of adventure, which tore apart ancient families to establish new families elsewhere was, if we consider its consequences in toto, helpful to swifter, fuller development of humanity (cf. my observations on this subject in SP, bk. 3, cc. 6-9).

In my opinion, we owe the character of the European peoples to this: individual activity is paramount, and the union between parents and offspring is less close. It also explains the tendency of modern European laws to gradually curtail patria potestas and favour freedom. However another cause must be added: the progress of knowledge with its consequent development of understanding. Reason is naturally individual, and the more it becomes active in every sense, the more the individual must acquire freedom in fact and by right. - If we consider the special providence of God towards the Hebrews, we can easily see that it aimed at two things relative to philogony: not to destroy this affection, and to subordinate it to the love of God. The sacrifice imposed on Abraham of his son, and the law by which God reserved for himself all the first-born are the principal means used by God to temper the excessive love of parents and hold it within the limits imposed by the primary affection, that is, the love of God to which all other affections must be subject. Moses' separation from his family, the sacrifice of Jephthah, the generous friendship of Jonathan, were examples intended to instruct the people of Israel and to moderate excessive and over-exclusive love of parents for their children.

(203) Prior to this, others can draw benefit from the children as they can from land whose absent owner cannot cultivated it. But fathers have primary preference through the title of generation, so that no one may occupy their children in this way when their fathers intend to occupy them for themselves.

(204) Not least, it seems to me, among the fine qualities of the code of the King of Sardinia is that it supports filial piety far more than any other European code I know. The continuity of patria potestas which, I maintain, is perpetual according to natural right, is one of the principles solemnly upheld by the Albertine code. According to this code, neither the age of majority nor any other age, nor even the marriage of offspring causes patria potestas to cease. The only reasons recognised as valid for cessation are: `Patria potestas ceases not only through death and judicial condemnations to which the law has attached cessation, but also through the declared absence of the father and during this absence, and through emancipation' (Art. 237). Emancipation is effected 1. through the expressed will of the father: `The emancipation is effected through a spontaneous declaration of the father and the acceptance of the son, provided the latter has completed his 18th year' (Art. 238); 2. through the presumed will of the father, as in the case expressed in article 242: `Those sons are considered emancipated who have been living apart from their father for five years after attaining the age of majority and control and administer their own interests, provided the father knows and does not oppose the fact'; 3. through a court sentence dependent upon the faults of a father who abuses his authority: `Emancipation is also effected through a sentence of the courts whenever the father seriously mistreats the person of his sons or abuses his patria potestas in any other way' (Art. 239). I consider all this very much in harmony with natural Right. But we must note that, although the Albertine code never makes patria potestas cease of itself, the authority is continually being limited to allow for the development of the son and his future family. Thus, after 25 years he can leave the paternal home, according to the ruling of articles 212-213.

(205) Gen 2: [24 Douai]. - This law was confirmed by the Gospel: Mt 19: 5; Mk 10: 7.

(206) Thus nature teaches children to ask permission if they wish to live apart from their fathers. The Prodigal Son himself is proof of this.

(207) By their will, fathers can impose obligations on their descendants because of the honour owed them by the descendants. - Testators who are not fathers can impose obligations on their heirs but only on condition that the inheritance is accepted.

(208) It seems that Gabener explains patria potestas as the prevalent force of the parents at the time the children are small. But prevalent force is not the title of patria potestas; it is only the means which in certain cases makes the exercise of the force possible.

(209) For example, the crimes of Reuben and Simeon who were punished by their father on his death-bed.

(210) Adult, married children have the right to separate themselves from their father when their family good requires this. They also have other rights proper to them which their father must respect. Wherever a father maintains the prevalence of the physical force he had over his child as a baby, the adult child's rights and those of his family are often endangered by the father's evil and violence. We see nature's providential purpose in making the children's strength increase with age and the fathers' diminish. By this law the author of nature provides for the preservation of the children's rights as they become independent and begin families, in which the hope of future generations lies. At the same time he leaves intact the moral ties between adult children and their aged begetters, because the good resulting from the union and submission of the children at such a time is, almost without exception, moral.

(211) It would be a different matter if it were a case of using force to restrain the father from his excesses, without striking or injuring his body, and for his own good. There can in fact be quite extraordinary cases where common sense has always recognised that it is lawful to have recourse to exceptions to the ordinary rules - Let us consider the sad circumstances in which Conrad found himself relative to his unnatural father, Henry IV of Germany. This wicked man wanted to force his son to do violence to his wife Adelaide, Conrad's own mother. When Conrad refused, he was vilified and persecuted by his father. Moreover, Henry's wickedness would have done immeasurable damage to public morals, religion and society. The only way of halting this human beast was to oppose force with force. Conrad sided with the opposing faction in defiance of his father's armies and the unjust war with which his father was laying waste the world to his own ruin. None of Conrad's contemporaries judged his action rebellion, but rather an act of singular justice and filial piety on the part of a son. His behaviour redounded to the good of the emperor himself whom he could help only by impeding his mad, devilish fury. Cf. Amico Cattolico, May issue, 1842, pp. 329 ss.

(212) A father can renounce it in part and make promises and obligatory contracts with a child. For example, a father must keep his word if he promises not to involve himself any more in the administration of the child's goods.

(213) The code of the Canton Ticino, more than the French, Austrian and Piedmontese codes, favours fathers in the matter of usufruct of goods of children under patria potestas. According to this code, patria potestas has joined to it the right `to make the children's possessions its own, including those goods acquired by military service and by the liberal arts', and also the right `to administer and have usufruct of the goods disposed in favour of the children by living persons or last testaments, if the disposer's will does not oppose the right' (§103). - Article 384 of the Napoleonic code grants to the father, and to the mother if she survives him, the usufruct of the children's goods up to the completion of their 18th year. In the session of March 12th 1803, the Councillor of State, Real, apparently gave as the reason that the legislators considered this advantage granted to the fathers as an indemnity due to the hardship and care experienced by the parents in rearing the children. In my view, this reason would not have been accepted if paternal feeling had been preserved in all its natural vigour. When this feeling is complete, as it would be in perfect human nature, it does not require indemnity, although it does require authority. Whenever paternal feeling has weakened in nations or in humanity, indemnity is spoken about and accepted as right. The father in this case thinks and reasons as a mere upbringer or supplier of food. In this way the varying force which paternal feeling expresses must modify Right among nations, as I have observed relative to the varying force of the marital feeling (cf. ER, 81-82). The same can be said about every other natural feeling, because every natural feeling furnishes matter for Right, which establishes itself in a particular people.

Chapter 7