The Child in Human Progress

by George Henry Payne

IT is interesting to think that what might be called the legal movement which fructified in the United States, in the latter half of the nineteenth century, had its beginning in the eighth century B. C. in Rome; it is doubly interesting that legend ascribes to Romulus the first interest in what can conservatively be called the child protection movement.

Like all other lawmakers—even legendary ones—especially those who sought to prepare and safeguard their states for and against hostile neighbours, the first concern of the founder of Rome was a strong nation; and a strong nation meant necessarily as many adult males in good health and physical condition as possible. Soldiers were more important than other human beings; in this the supposed founder followed the spirit of his time and the standard of his age of development.

According to the legend, Romulus, having made peace with the Sabines and become the king of both people on the death of Tatius, was bent on making the new city impregnable, working out a system of government that, in the mind of the historian, was worthy of “a man of great military accomplishments, personal courage and extremely capable of instituting the most perfect sort of government.”[319]

To the end that there might be as perfect a fighting machine as possible, Romulus pledged his people to bring up all males except those who were lame or monstrous from birth. To the same end, and according to the same authority, he pledged them to bring up the first-born of the females—and in this he acted purely in the spirit of the time and as the founder of a warlike race. Personal interest may be conceded, inasmuch as he would have been the victim of the practice of exposing children had his uncle Amulius had his way.[320]

In his introduction to the Institutes of Justinian,[321] Sandars declares that Roman law will be better understood if those interested will apprehend the distinction between the contribution of Romulus and the tribe of Ramnes, who dwelt on the Palatine Hill, and the contribution of Numa and the Titienses who dwelt on the Capitoline and the Quirinal. The two races combined to make a united society, the Ramnes bringing distinct ideas of public law and, in the dimmest days of history, presenting the features of a carefully organized polity. “When the tribe went out to war it did not conquer lands for the benefit of individuals, but for the whole people.”[322]

The Titienses, or Quirites, on the other hand, were of Sabine extraction. To them are traceable the private law, and, what is of interest to us, the peculiar notions of the family and of property. The great peculiarity of the Sabine law, or as it was called by the Latin writers, the jus Quirium, was the form of the manus—the hand. The manus was the conqueror’s sign of conquest, or rather the insignia of the freebooter; all he laid hand upon became absolutely his; he could deal with it as he pleased. All that his wife and children had, also belonged to him, to be done with as he willed—even their lives. This was the Sabine contribution to what afterward became “Roman Law,” when the Sabine tribes of the Capitoline Hill and the Ramnes tribe of the Palatine united to form the city of Rome.

Nowhere in law or history is there so interesting a duality as this origin of Rome and the Roman law, and no single custom arising as it did, has affected civilization as strangely and so widely. To think of a tribe living at Fleet Street super-imposing a law on a tribe living at Westminster, or a clan having its habitat in Wall Street grafting a law upon a people fortressed and buttressed in Madison Square Garden—taking either section of London or New York as an example of the extent of the Rome of that day—it seems impossible that such a law, thus accepted, should become the law of the world, and remain so for centuries.

This power of the Roman father over the very lives of his children was called the patria potestas and nowhere else in a civilized community was there anything like it.[323] He had the power to sell his children, he had the power to mutilate them, he had the power to kill them; and it is because there is evident first, in the laws ascribed to Romulus, an intention to abate that power, not only for military purposes but for what we would now call humane reasons, that I have referred to the first Roman lawmaker as an innovator along lines which have been historically neglected.

It matters little whether or not the Romulus of Plutarch and Dionysius existed; it does matter that the human note was in the laws of his time, and that citizens of the new city were enjoined not only to bring up all healthy male children—and at least one female child—but that all children must be allowed to live until they were three years old, unless they were lame or monstrous.

Surely here was the beginning of some recognition of the rights of children. Even the lame and the monstrous in the eyes of this early lawgiver had some rights, for it was further decreed that parents in doing away with them must act not entirely on their own judgment.