[78] This jus noxae dationis first disappears finally in the law of Justinian (Inst. iv. 8, 7; Dig. 43, 29, 3, 4). Before its abolition a modification had been introduced by the rule that, when the child had acquired an equivalent for the damage he had caused (quantum damni dedit), the owner should be forced to manumit him.
[79] Even by Constantine the sale of new-born children (sanguinolenti) was permitted, but only propter nimiam paupertatem (Cod. 4, 43, 2).
[80] “Pater si filium ter venum duuit, filius a patre liber esto.” It has been thought, however, that by the time of the Twelve Tables the sale had become merely fictitious.
[81] This vindicatio filii was in later Roman law replaced by a writ issued by the praetor (interdictum de liberis exhibendis), the effects of which were like that of Habeas Corpus.
[82] Dionys. ii. 26, 27.
[83] Gell. v. 19, 9.
[84] Hadrian punished the killing of a son with deportation (Dig. 48, 8, 5); Constantine declared it parricidium.
[85] Instances are given in Voigt (Zwölf Tafeln ii 94). M. Fabius Buteo (223-218 B.C.) put his son to death as a punishment for theft (Oros. iv. 13), and a certain Pontius Aufidianus his daughter for immorality (Val. Max. vi. 1, 3); there are also instances of banishment inflicted by the father, presumably under the threat of inflicting the death penalty if the children returned.
[86] We may cite two instances lying at the very extremes of Republican history, the semi-mythical one of L. Junius Brutus in 509 (Plut. Popl. 6, 7), and the historical one of A. Fulvius Nobilior, who in 63 B.C. put his son to death for partnership in the Catilinarian conspiracy (Sall. Cat. 39).
[87] Modern writers are inclined to reject the appeal made to the sexus fragilitas by the Roman jurists, and to believe that the original motive lay in the desire to keep the property of the family together (cf. Czyhlarz Inst. p. 275); but, as this motive did not operate in the case of sons, it is difficult to see why it should have done so in the case of the wife or daughters, apart from a belief in the incapability of women to defend their own claims. For the motive underlying the tutela mulierum see p. 31.