FIRST RECOGNITION OF RIGHTS OF CHILDREN—LAWS OF ROMULUS
AND OF NUMA POMPILIUS—THE TWELVE TABLES—ATTITUDE OF
PARENTS SHOWN IN TERENCE—PATRIA POTESTAS SPARINGLY USED.
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.
“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.
_Si pater filium ter venum duit, filius a patre liber esto_—if a father
sells his son three times, let the son then go free of the father. In
other words, three times did the father have the right to dispose of
his son as a slave; and, while a slave might purchase his freedom,
by paying his master, the son of a Roman citizen did not become free
until the father had abused his right and misused the _potestas_ three
times.[330]
One sees the Rome of the Republic in the plays of Terence and Plautus,
and the attitude of the parents toward exposure is vividly shown in the
_Heautontimorumenos_ of the former.
Nearly always the exposed child died. Occasionally some escaped through
the tenderness or cupidity of some passer-by who would pick up an
exposed child either out of pity or for the material profit that came
with the possession.
Sometimes mothers who were obliged to obey the orders of their
husbands, arranged to have their children rescued. The comedy of
Terence goes to show what the attitude of the father was under such
circumstances. It is indeed, as De Gour says, “a chapter of the morals
of the Greeks and Romans seen in action.”
Chremes, departing on a long voyage, orders his wife, Sostrata, who
is about to have a child, to expose the child if it should turn out to
be a girl. In obeying this order, she hopefully places a ring with the
child.
Years later she meets the child at a bath and is given (by her own
daughter) a ring to guard. Sostrata recognizes the ring and when she
sees her husband the following dialogue ensues:
SOS. (_turning ’round_). Ha! my husband!
CHREM. Ha! my wife!
SOS. I was looking for you.
CHREM. Tell me what you want.
SOS. In the first place, this I beg of you, not to believe that I have
ventured to do anything contrary to your commands.
CHREM. Would you have me believe you in this, although so incredible?
Well, I will believe you.
SOS. Do you remember my being pregnant, and yourself declaring to me,
most peremptorily, that if I should bring forth a girl, you would not
have it brought up?
CHREM. I know what you have done, you have brought it up.
SOS. Not at all; but there was here an elderly woman of Corinth, of no
indifferent character; to her I gave it to be exposed.
CHREM. O Jupiter! that there should be such extreme folly in a person’s
mind.
SOS. Alas! what have I done?
CHREM. And do you ask the question?
SOS. If I have acted wrong, my dear Chremes, I have done so in
ignorance.
CHREM. This, indeed, I know for certain, even if you were to deny it,
that in everything you both speak and act ignorantly and foolishly:
how many blunders you disclose in this single affair! For, in the
first place, then, if you had been disposed to obey my orders, the
child ought to have been dispatched; you ought not in words to have
feigned her death, and in reality to have left hopes of her surviving.
But that I pass over; compassion, maternal affection, I allow it. But
how finely you did provide for the future! What was your meaning? Do
reflect. It’s clear, beyond a doubt, that your daughter was betrayed by
you to this old woman, either that through you she might make a living
by her, or that she might be sold in open market as a slave. I suppose
you reasoned thus: “Anything is enough, if only her life is saved.”
What are you to do with those who understand neither law, nor right and
justice? Be it for better or for worse, be it for them or against them,
they see nothing except just what they please.
SOS. My dear Chremes, I have done wrong, I own; I am convinced. Now
this I beg of you; inasmuch as you are more advanced in years than I,
be so much the more ready to forgive; so that your justice may be some
protection for my weakness.
CHREM. I’ll readily forgive you doing this, of course; but Sostrata, my
easy temper prompts you to do amiss. But, whatever this circumstance
is, by reason of which this was begun upon, proceed to tell it.
SOS. As we women are all foolishly and wretchedly superstitious,
when I delivered the child to her to be exposed, I drew a ring from
off my finger and ordered her to expose it, together with the child;
that if she should die, she might not be without some portion of our
possessions.[331]
CHREM. That was right; thereby you proved the saving of yourself and
her.[332]
SOS. (_holding out the ring_). This is the ring.
CHREM. Whence did you get it?
SOS. From the young woman whom Bacchis brought with her.
CHREM. What does she say?
SOS. She gave it to me to keep for her, whilst she went to bathe. At
first I paid no attention to it; but after I looked at it, I at once
recognized it, and came running to you.
CHREM. What do you suspect now, or have you discovered, relative to her?
SOS. I don’t know; unless you enquire of herself whence she got it, if
that can possibly be discovered.
CHREM. Is this woman living to whom you delivered the child?
SOS. I don’t know.
CHREM. What account did she bring you at the time?
SOS. That she had done as I had ordered her.
CHREM. Tell me what is the woman’s name, that she may be inquired after.
SOS. Philtere.
CHREM. Sostrata follow me this way indoors.
SOS. How much beyond my hopes has this matter turned out! How
dreadfully afraid I was, Chremes, that you would now be of feelings as
unrelenting as formerly you were on exposing the child.
CHREM. Many a time a man cannot be such as he would be[333] if
circumstances do not admit of it. Time has now so brought it about,
that I should be glad of a daughter; formerly I wished for nothing less.
There is no evidence that the Romans as a people at any time approved
of the sale of children, and while the suggestion is made by
Gibbon that early in the days of the kings impoverishing conditions
occasionally made it necessary to dispose of members of the family,
from the time of the adoption of the Twelve Tables as the codified law
of Rome there is not a single indication that the power of the father
over grown-up children was used otherwise than sparingly, and with a
view to strengthening the stern and military character of the Roman
idea of family. The main use of the provision for the sale of children,
in time of prosperity at least, was to put the boy out to business,
this being in general more a form that took the place of what was
later apprenticeship and, still later, the labour contract. As late as
Constantine this was permitted, even of new-born children, but only in
cases of extreme need (_propter nimiam paupertatem_),[334] and then
when it seemed the only way to prevent their parents from murdering
them.