“These (the lame and monstrous infants) he allowed their parents to expose, provided they first showed them to five of their neighbours and these also approved of it, and besides other penalties he punished those who disobeyed this law with the confiscation of half their fortunes.”[324]
It may be contended perhaps that we are giving high attributes to one who is not much more than a mythical person, but no other explanation of the law of Romulus is offered than that already referred to in Dionysius.
Despite the credit given to Numa Pompilius, by both Plutarch and Gibbon, Romulus gains by the comparison, although Numa amended one of the laws of Romulus in the matter of the right of a father to control a son up to the point of being able to sell him as a slave.[325]
“If a father gives his son leave to marry a woman who, by law, is to partake of his sacrifices and fortunes, he shall no longer have power of selling his son”—such was the amendment of Numa for which Plutarch commends the Sabine lawmaker; but in amending the law of Romulus permitting a father to sell his children, the second king of Rome was actuated by the idea of making it attractive for the young women to marry; doubtless he was having no easy time in eradicating the differences between the two warlike tribes first brought together under his predecessor. Lessening the power of the parents, as he did in the most material degree,[326] it was for the purpose of general polity and the accomplishment of his own harmonious designs, rather than for what I like to call, even in that early day, humanitarian reasons. There was no consideration of the child, or the female as such in Numa’s amendment. His object was to make marriages more desirable that there might be more male Romans.[327]
As a matter of fact, declaration of the power of the father over the women and children of his family was nothing more on the part of Romulus than the codification of the laws of the past, with the softening provisos to which I have already referred. The power of the father to imprison, scourge, or sell his son for a slave, or put him to death, was not lessened even when that son had risen to the highest honours of the State, as we shall see later.
Expulsion of the kings and the establishment of the Republic is dated B. C. 509, some two hundred and fifty years after the reputed founding of the city. With this stern period begins a series of thrilling examples of the use made of the patria potestas—stories that in themselves show how the power of the father extended over the life of the child, even when the child had become a man, and that man had been honoured by the State as was Cassius Viscellinus. The latter, although a tribune of the people and the author of the first Agrarian Law, was tried in the house of his own father, who, after having him whipped, “commanded him to be put to death and his estate consecrated to Ceres.”[328]
That there was little progress made in the next great step in the history of Roman law, by which of course one refers to the adoption of the laws of the Twelve Tables, was because those laws were practically the codification of the ancient customary law of the people, despite the story that the patricians dispatched three commissioners to Athens to bring home a copy of the laws of Solon. Acrid political fights, uncertain and sometimes corrupt administration of the law, led to the commission empowered to draw up what afterward became the Twelve Tables and the foundation of the whole fabric of the Roman law.
As the laws of the Twelve Tables represented the earliest fight against privilege, it would be too much to expect that they should contain any amelioration of the statute which gave the father the right to sell or kill his children. Even the language of the laws, in the fragments which have come down to us, shows in rugged, concise, and sternly imperative style that the law gained the respect in which it eventually came to be held, by no soft or easy methods.[329]
“If the complainant summon the defendant before the magistrate, he shall go; if he do not go, the plaintiff may call a bystander to witness, and take him by force;” this is the first section of the first paragraph of the laws of the Twelve Tables.
Where there was so much sternness, and where every family was presided over by a parent who had the right to inflict death as a punishment for disobedience, the disciplinary attitude of the Roman mind naturally became such, no matter what it had been in the beginning, that tender or human emotions had but little place. It is not surprising therefore that the one extract of the laws of the Twelve Tables, relating to our subject, should deal curiously, abruptly, and sharply with the power of the father to sell his son, a power that was diminished only after the son’s spirit must have been entirely extinguished.